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Poor Conduct impact on costs - conduct required before issuing Part 7 proceedings - claimants cannot simply issue with impunity - all circumstances considered. Key Point Claimant must act proportionately, no absolute right to issue proceedings after 21 days from disclosure Bobby Prior v Silverline International Ltd HHJ Wood QC, Liverpool CC, 8th Jul 2015 Here the court considered whether to impose a costs sanction where the Claimant had acted unreasonably in issuing proceedings. The Claimant had sent the Defendant their medical report, waited 21 days, then having not received a satisfactory offer from the Defendant, they issued proceedings. As it happens the Defendant had sent an offer, but the Claimant had not received it. The Claimant relied on the fact they had complied with the Protocol by waiting 21 days from sending the medical report to issuing proceedings, as has happened here. However, on appeal at [12], HHJ Wood QC said: “So I ask the question has the Claimant, even if strictly permitted so to do, acted unreasonably by embarking on a course which is wholly disproportionate to the value of the claim and the relief sought?” (My emphasis.) At [15] HHJ Wood QC said that the PI Protocol was to promote early resolution and to avoid the escalation of disproportionate costs, and attention should be drawn to para 2.16 (now 9.1.1) which emphasised that litigation should be a last resort. At [23] HHJ Wood QC said: “If litigation was to be conducted on the basis, ‘Ah you’re too late now. Tough. You’re just going to have to pay the consequences,’ then the system, which is predicated upon a degree of cooperation as exemplified in the Protocol, would break down. There must be more flexibility in the system than that…”. The court concluded at [24] that it was: “… insufficient in my judgment, for the Claimant to rely solely upon the fact, this fact, to justify this proportionately expensive course of action. It cannot in my judgment, be assumed that entitlement to assessed costs is absolute if the issue ball starts rolling at one-minute past midnight.” (My emphases). And at [25]: “… it should not be assumed that a legitimate Protocol issue automatically entitles a party to its costs without regard to the background… the entitlement is not absolute in the context of a requirement to act proportionately in the circumstances.” Click here for a copy of the judgment Back to Other Cases Back to Cases Index

Raja v Day & MIB HHJ Gregory, Liverpool CC, 2nd March 2015 At first instance, the lower court found that the claim would have left the Portal anyway, and declined to restrict the Claimant to Portal costs. However, on appeal, the court found the Claimant had acted unreasonably. The court also held that the lower court had been wrong to find that the claim would have left the Portal anyway. The Claimant was restricted to Portal costs. Raja v Day & MIB HHJ Gregory, Liverpool CC, 2nd Mar 2015 The Claimant had some difficulty in locating the correct and sent CNFs to a number of incorrect Defendants before finding the correct one. However, instead of sending them a CNF first, the Claimant issued Part 7 proceedings against them. At first instance, the lower court found that the claim would have left the Portal anyway, and declined to restrict the Claimant to Portal costs. However, on appeal, the court found the Claimant had acted unreasonably. The court also held that the lower court had been wrong to find that the claim would have left the Portal anyway. The Claimant was restricted to Portal costs. This case, along with Tennant v Cottrell , Dawrant v Part & Parcel Network and Hussain v Wardle confirms that a court cannot use hindsight when assessing whether a Claimant has acted unreasonably in breaching the Portal. A court must look at things as they were at the time of the breach. There can be no retrospective justification for an earlier Portal breach. Click here for a copy of the judgment Click here for a PDF copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

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Key Point Where there are two claimants in a SIIIA fixed costs claim, each claimant is entitled to a separate award of fixed costs Melloy & Anor v UK Insurance Ltd [2022] EW Misc 4 (CC) The court had to consider what costs to award two claimants where they had brought separate claims in the portal, but a joint claim in Part 7 proceedings. At [10], HHJ Glen held that 'claim' and 'claimant' refer to the claim started by, and the claimant who submitted the CNF, rather than to the claim or claimant in the proceedings. He derived support for this position from West v Burton [2021] EWCA Civ 1005, where the court found that the executor of a claimant who had died after Portal proceedings had commenced was not 'the claimant' for the purposes of fixed costs on leaving the Portal. Therefore, he concluded that where there were two or more claimants in proceedings for damages that fall within SIIIA of CPR 45, assuming each had submitted a CNF, were separately entitled to all the costs set out in Table 6B. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index