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Patel v Fortis - Recorder Morgan, Leicester CC, 5th December 2011. The first reported judgment on the Portal. Here the court held that Leaving the Portal for technical non-compliance only is not reasonable. Also that non-Portal CPRs have no application in Portal Protocol cases. Key Points Leaving the Portal for technical non-compliance only is not reasonable and Non-Portal CPRs have no application in Portal Protocol cases Patel v Fortis Recorder Morgan, Leicester CC, 5th December 2011 The Claimant removed this case from the Portal because the Defendant had not sent an acknowledgement of the claim within 24 hours, which is a mandatory requirement. The Claimant then issued Part 7 proceedings, although the parties later settled quantum without a hearing. The issue was what costs should apply. The Defendant argued firstly that they had acknowledged the claim in time, but in the alternative, the claimant had acted unreasonably and should be restricted to Portal costs under CPR 45.36(2)(b)(i) [now CPR 45.24(2)(b)(i)]. The Defendant argued that whether the CNF was a claim form or either way, their Insurer Response sent 48 hours later (which it was accepted counted as an acknowledgement) was not late. The court held that the CPR rules on service did not apply to service of the CNF; the Portal was a highly stand-alone code and one could not simply import non-Portal CPRs into it. Thus the fact that the CNF had been sent after did not make any difference. The Portal rules required an acknowledgement to be sent the next day, whatever time of day the CNF had been sent. However, the court did find that the Claimant had acted unreasonably in leaving the Portal and issuing Part 7 proceedings. Whilst there was a breach, it was a technical breach only and made no real difference. If the Claimant solicitors had been genuinely concerned to see if their claim had been received, they could have checked by either looking on the Portal or contacting the Defendant, but they did nothing. The judge held that it was unreasonable to leave the Portal for a technical breach only, it was not reasonable, and he restricted the Claimant to Portal costs. The court also considered the application of CPR 45.36 (now CPR 45.24) as the matter had settled, so there was no judgment. The court had no difficulty in finding that the rule applied equally to cases which settled as well as to those where was given. there would be a lacuna in the rules and it would discourage settlement. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Greyson v Fuller - the application of 7.8B of the MOJ RTA Portal protocol on soft tissue injuries Key Point Disclosure requirements of a Subsequent Medical Report in a Soft Tissue Injury Claim under para 7.8B RTA Protocol - when such reports are 'justified' and the sanction for non-compliance Greyson v Fuller The High Court decision [2022] EWHC 211 (QB) In this case the Claimant disclosed all reports simultaneously at the start of Stage 2 in a soft tissue injury claim. That was a breach of para 7.8B(2)(b) of the RTA Portal Protocol, which requires the first report to be disclosed before the subsequent report. That meant the subsequent report was not 'justified'. However, at first instance the court granted the claimant 'Relief from Sanctions' and allowed the report in. On appeal the High Court considered whether the subsequent report was justified. At [35] Mrs Justice Foster DBE considered that 'justified' did not go to the admissibility of the evidence, but that medical reports disclosed other than in compliance with the protocol was not to be treated, without more, as automatically coming within 'justifiable costs' and to be be payable. At [41] the court noted the difference between the requirement during the protocol period for the reports to be 'disclosed' whilst PD8B imposed certain requirements on the reports being 'served'. There is no requirement for service during the pre-action period. The reports in this case were all disclosed, and then for Stage 3 they were all served as required under the rules. At [43] the court noted the PD had clear mechanisms for dealing with evidence not disclosed, and the consequences of it, noting these were stringent. Attention was paid to Wickes Building Supplies Ltd v William Gerarde Blair [2019] EWCA Civ 1934, where a witness statement sent a couple of days after the end of Stage 2 was excluded at Stage 3. At [45] the court noted that 'ambush' evidence can be allowed under 7.1(3) of PD8B, which the judge considered suggested that the Stage 2 requirement for justification referred to the risk that the Claimant would not be paid for that evidence, rather than that th evidence itself would be excluded. AT [46] the court found that 'justification' connotes need, and that was reinforced by para 7.12 of the protocol, referring as it does to where a 'claimant needs' a subsequent report. That gave a rationale to the sequential disclosure approach that the protocol required, that parties could stay the proceedings if required, conduces an inexpensive resolution of such cases. At [49] the judge noted that the Claimant had argued that 7.1 and 7.2 of PD8B gave a clear discretion to include materials not provided according to the protocol. The court agreed that it would be extraordinary if, before that stage, the court were compelled to exclude mis-disclosed materials. Main Findings: a) The sanction for simultaneous rather than sequential disclosure of reports is costs at the end of the process, not exclusion of the evidence b) There was no failure to properly serve the Defendant under PD 8B para 6. c) There was no need to use para 7.1(3) of PD 8B to rely on the additional reports. As the reports were disclosed at the same time, there was no argument over whether 7.8B(2)(b) meant the first report had to be disclosed before the subsequent report was 'obtained/instructed' etc. However, it is noteworthy that at para 55(i) the judgment refers only to 'sequential disclosure' not disclosure after instruction, etc. The Appeal Judgment The First Instance Decision Click here for a copy of the 1st instance judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Exceptional Circumstances Costs cases under CPR 45.29J - there is limited case law on exceptional circumstances costs, but Sarah Robson has gathered them all together here for you. Including Ferri v Gill, Jackson v Barfoot Farms, Crompton v Meadowcroft, Lloyd v 2 Sisters Poultry, Baker v Flynn, West v Olakanpo [2020] EWHC 3830 (QB). Exceptional Circumstances Costs - CPR 45.29J (now CPR 45x.29J) Ferri v Gill [2019[ EWHC 952 (QB) (Considered what the basket of cases was in a CPR 45.29J application, noted the test was a high bar) Jackson v Barfoot Farms DJ Jackson, Canterbury County Court, 29th Nov 2017 (Whether agreement to pay costs on the standard basis excluded the award of fixed costs, and non-fixed costs were awarded as the case was exceptional per CPR 45.29J) Crompton v Meadowcroft (Costs ) [2021] EW Misc 20 (24 Aug 21) (CPR 45.29J Exceptional circumstances costs awarded in case with multiple experts, 13 reports, 11 sets of records, MRI scans, multiple surgeries caused, CBT & Physio needed, Ogden calculations, Smith & Manchester calculation) Lloyd v 2 Sisters Poultry Ltd (Costs) [2019] EW Misc (29 Jan 19) (Exceptional circumstances costs awarded under CPR 45.29J where C had permanent disability, complex loss of earnings claim/Billet calculation using Ogden tables, extensive specials, very long witness statements) Baker v Flynn (The lower court awarded exceptional c ircumstances costs under CPR 45.29J - the fact that liability was in dispute was a major consideration, there were also issues under the Equality Act, use of Ogden tables, pension loss and so forth - upheld on appeal for same reasons NB only the first instance judgment is available West v Ol akanpo [2020] EWHC 3830 (QB) (Exceptional circumstances costs awarded at first instance for fundamental dishonesty, overturned on appeal as evidence not tested in cross-examination) Go Back to Index Click on the button below to go back to the case law index Index Search the site here:

Other Cases concerning fixed costs, from the Court of Appeal down to Deputy District Judges. See what is going on at the coal face! Other Useful Fixed Costs Cases Ahmed v Pryce DJ Bellamy, Sheffield CC, 11.12.18 Ashraf v Savage DDJ Nix, Leeds CC, 16.01.19 Aslam v Gavin DJ Underwood, Bradford CC, 15.12.17 Baker v Flynn DDJ LeBas, Guildford CC, 19.11.19 (upheld on appeal) Bobby Prior v Silverline International Ltd HHJ Wood QC, Liverpool CC, 08.07.15 Cable v Liverpool Victoria Insurance Co Ltd [2020] EWCA Civ 1015 Ionas v Clennell HHJ Gargan, Middlesbrough CC, 23.10.17 Moon v Catley HHJ Gargan, Middlesbrough CC, 11.01.17 R (on the application of Bhatti) v Bury Metropolitan Borough Council [2013] All ER (D) 355 (Oct) Rennie v Logistic Management Services Ltd and Smith v Wyatt [2011] EWCA Civ 941 Talbot v South Western Ambulance Service NHS Foundation Trust DJ Stewart, Southampton CC, 21.09.19 Wilkinson-Mulvanny v UK Insurance Ltd Regional Costs Judge Phillips, Cardiff CC, on 19.01.23

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

A helpful selection of cases for the busy lawyer. These concern all sorts of Fixed Costs, with short summaries of cases, copies of judgments, and all fully indexed. Sarah Robson Barrister Fixed Costs Specialist Call now on 0800 634 9650 MOJ RTA & EL/PL Portals & Fixed Costs Sarah has a wealth of knowledge and experience in dealing with fixed costs cases, including those to do with the MOJ Portals. See the Portal & Fixed Costs Cases Index page for details of Fixed Costs case law. THE MOJ PORTAL PROTOCOLS EL/PL Portal Protocol The EL/PL Portal Protocol can be found here: https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/pre-action-protocol-for-low-value-personal-injury-employers-liability-and-public-liability-claims Current RTA Portal Protocol The current RTA Portal Protocol can be found here: https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/pre-action-protocol-for-low-value-personal-injury-claims-in-road-traffic-accidents-31-july-2013 Published Articles Sarah has written a number of articles on the MOJ Portal and Fixed Costs and often lectures on this topic. These include: PI Briefing Ordered out by judge - held to be an election to leave Portal Click here for an article by Sarah which appeared in PI Briefing Sept 15 the case of Payne v Scott - on how she persuaded the court to find that where an earlier judge had ordered a claim out of the Portal and into Part 7 proceedings, that was still an election by the claimant to leave the portal. Inside the Portal Click here for an article by Sarah which appeared in Claim Magazine in December 2012 "Sarah Robson - Inside the Portal." Claim Magazine PI Focus Binding nature of Portal Settlements PI Focus June 16 - Sarah had an article published regarding accepting individual heads of loss in the Portal, and the binding nature of Portal settlements. The Quirks of the MOJ Portal Click here for an interview with Sarah Robson which appeared in FOIL (Forum of Insurance Lawyers) November 2012 "The Quirks of the MOJ Portal." FOIL Magazine Lexis Nexis Webinar The claims Portal, Protocols and Fast Track Click below for details of a webinar by Sarah Robson on Lexis Nexis. http://www.lexiswebinars.co.uk/speakers/sarah-robson Speaking Engagements Sarah is often invited to speak at events, seminars and training sessions. She can tailor her courses to suit the audience from senior partner level to the man on the Clapham Omnibus. Please call or email for details.

Phillips v Willis [2016] EWCA Civ 401 - the Court of Appeal held that it was irrational for a judge to order a claim out of the portal. They also confirmed that individual heads of loss can be agreed in the Portal. Key Point Unreasonable to remove a claim from the Portal for a small Credit Hire dispute Phillips v Willis [2016] EWCA Civ 401 This claim went through the MOJ Portal where some heads of loss were agreed in Stage 2, but not all. Only credit hire remained when the matter went to Stage 3. Despite the sum in dispute being less than £500, and the dispute over that sum being very narrow, the judge of his own volition ordered the claim out of the Portal with a long list of disproportionate directions which would have cost vastly more than was reasonable for the sum in dispute and nature of the dispute between the parties. The Claimant appealed and it was upheld at first tier appeal. However, the Court of Appeal overturned the decision, noting that the decision to remove the case from the Portal was irrational in that case. Clearly, it was unnecessary and unreasonable in this case to remove the matter from the Portal, especially where neither party wanted this, and especially with the extensive directions given which were completely disproportionate. This is not to say it would be unreasonable and irrational in all circumstances, but it would appear that this is not expected to be routine. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Ingrid Smith v Greater Manchester Buses South Ltd HHJ Main QC, Manchester CC, 17.12.15 Key Point Protocol offers are open for acceptance until withdrawn, even after Part 7 proceedings have been issued but only if they have proceeded into Stage 3 Ingrid Smith v Greater Manchester Buses South Ltd HHJ Main QC, Manchester CC, 17th Dec 2015 Protocol offers are open for acceptance until withdrawn, even after Part 7 proceedings have been issued but only if they have proceeded into Stage 3. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Case law on the Status of Portal Admissions within that claim, within a counter-claim, outside of that claim, brought by employers insurers, etc. Are Portal Admissions binding outside the Portal? Ullah v Jon DJ Parker, Croydon CC, 20th Mar 2013 (Portal Admissions are binding outside the Portals) Malak v Nasim DJ Woods, Watford CC, December 2014 (Portal Admissions are not binding outside the Portals) Chim el v Chibwana & Williams HHJ Simpkiss, Reigate CC, 31st October 2016 (First Tier Appeal - Portal Admission is binding outside the Portal, Ullah and Malak considered, Ullah preferred) Maddocks v Lyne HHJ Wood QC, Chester CC, 22nd Jan 2016 (First Tier Appeal - Entire Portal settlements are binding) Mukadam v Nazir HHJ Khan, Preston CC, 14th May 2020 (First Tier Appeal - side note on Portal admission noting was made without driver's instructions did not change effect of admission made by employer's insurers) Mullen v Nelson Insurance Co Ltd HHJ Wood QC, Liverpool CC, 2nd Oct 2020 (First Tier Appeal - Portal admission made by Insurer of Employer was binding on Employee, Chimel followed) Go Back to Index Click on the button below to go back to the case law index Index Search the site here:

Wickes Building Supplies Ltd v Blair 2 [2020] EWCA Civ 17 - The Costs Decision - The Court of Appeal agreed with Sarah Robson that QOCS applied to this second tier appeal, preferring the reasoning of Edis J in Parker v Butler [2016] EWHC 1251 (QB) over that in both Wagenaar v Weekend Travel Ltd [2014] EWCA Civ 1105 and Hawksford Trustees Jersey Ltd v Stella Global UK Ltd and another [2012] EWCA Civ 987. Not to apply QOCS on appeals would deny access to justice. Key Points QOCS applies to all appeals which concern the outcome of a claim for damages for personal injuries and The court considered the appropriate regime of costs Wickes Building Supplies Ltd v Blair (No. 2) (Costs) Click here for a copy of the Judgment [2020] EWCA Civ 17 Following the substantive appeal decision in [2019] EWCA Civ 1934 , the Claimant agreed they should pay the Defendant their costs of the appeal. However, they maintained that Qualified One Way Costs Shifting ("QOCS") applied, and there was a dispute over how to calculate the quantum of costs. Following the close of submissions but before handing down of the judgment, the Defendant offered a 'Mexican Stand off', i.e. for each party to walk away with no further costs payable by either side, which the Claimant duly accepted. The judgment is therefore for academic interest only, but should prove useful in other cases. The Parties relied on a number of decisions, but the CA found just three were relevant: Firstly, Hawksford Trustees Jersey Ltd v Stella Global UK Ltd & another [2012] EWCA Civ 987. There the court considered whether 'proceedings' is s29 of the Access to Justice Act 1999 included both the trial and any appeal. The majority held they were separate proceedings for the purposes of costs. Secondly, the court considered Wagenaar v Weekend Travel Ltd [2014] EWCA Civ 1105, where Vos LJ said at [38] how the meaning of the word 'proceedings' in CPR 44.13 had to be divined primarily from the rules on QOCS themselves. Thirdly, the court considered Parker v Butler [2016] EWHC 1251 (QB), where Edis J had held that QOCS applied on first tier appeal. Here, Wickes urged the court to prefer the construction of the word 'proceedings' adopted in Hawksford over the reasoning in Parker v Butler. At [28], Baker LJ, giving the lead judgment, held that QOCS did apply. He preferred the interpretation of the QOCS rules given by Edis J in Parker v Butler, and held that the word 'proceedings' in CPR 44.13 included both the first instance proceedings and any subsequent appeal. He said at [29] he did not read Hawksford or Wagenaar as being in conflict. In each case, the word 'proceedings' had to be interpreted to reflect the legislative purpose, and the purpose of QOCS was to facilitate access to justice for those of limited means. Agreeing with Edis J's finding in Parker, he noted that if a claimant's access to justice depends on the availability of QOCS, that access would be significantly reduced if they were exposed to a costs risk on any appeal. He concluded: "Any appeal which concerns the outcome of the claim for damages for personal injuries, or the procedure by which such a claim is to be determined, is part of the 'proceedings' under CPR 44.13. This interpretation applies even where; as here, (a) the court is dealing with a second appeal, (b) the appeal is brought by the Defendant to the original claim, and (c) the court has declined to exercise its discretionary powers to limit recoverable costs under CPR 52.19." The court also considered the applicable regime of costs which should apply to the proceedings. Having started in the Portal, been put into Part 7 proceedings at first instance appeal, then that decision being quashed on second tier appeal, the claim was only ever in law in the Portal throughout. Costs for claims which start in the portal are fixed under SIII of CPR 45. Whilst s51 of the Senior Courts Act 1981 gives the court wide discretion when it comes to costs, this is subject to rules of court. The rules of court on an appeal are those in CPR 52. The Court considered that because first tier portal cases clearly come within the ambit of CPR 51.19(1), (any proceedings in which costs recovery is normally limited or excluded at first instance) it followed that appeals do not. Therefore they awarded open costs on the appeal, but this was subject to QOCS. Some welcome clarity on the application of QOCS not just to second appeals, but to all appeals where it concerns the outcome of a claim for damages for personal injuries (submissions had been made on the recent 'mixedQOCS case' of Brown v Commissioner of Police of the Metropolis & Anor [2019] EWCA Civ 1724, although not specifically referred to in the judgment.) It is unclear how where, as here, a case starts and ends in the Portal and therefore is subject to SIII of CPR 45, that it follows because a first instance decision falls within the ambit of CPR 52.19(1) that a non-first instance decision does not. This potentially allows argument that interim applications are similarly not subject to fixed Portal costs but should be payable on an 'open' basis. As noted in para [11] of the judgment, I warned that departing from the fixed costs regime in SIII of Part 45, would undermine certainty, encourage satellite litigation and parties will invent increasingly ingenious ideas to circumvent the regime. However, given the finding on QOCS and indeed the pre-judgment settlement it was at least, academic for the parties, the claimant having already secured an even better deal on settlement following the close of submissions. Sarah Robson was instructed by Keith Bishop of Bakers Solicitors. Click here for a copy of the Costs Judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Uppal v Daudia DDJ Matthews, Leicester CC, 14th May 2012 - The defendant recovered their own costs of defending the Part 7 proceedings on the indemnity basis because of C's unreasonable exit from Portal Key Point Defendant recovered indemnity costs because of C's unreasonable exit from Portal Uppal v Daudia DDJ Matthews, Leicester CC, 14th May 2012 The Claimant removed the claim from the Portal after the Defendant failed to reply to its second offer. The court confirmed that the Defendant only needs to make one offer in the Portal. Therefore the exit from the Portal was unreasonable. As the Claimant had acted unreasonably, it followed that the Defendant was entitled to their costs of the Part 7 proceedings on an indemnity basis. Click here for the Lawtel case summary Go back to Main Index Main Index Go back to Topic Index Topic Index

Case law on how Common Law principles and doctrines do not apply in the MOJ Portal Protocols, such as offer and acceptance, common law mistake, waiver and affirmation, even non-Portal CPRs Common Law Principles do not apply in Portal Draper v Newport DJ Baker, Birkenhead CC, 3rd Sept 2014 (Common Law Mistake does not apply in the Portals) Fitton v Ageas DJ Parker, Liverpool CC, 8th Nov 2018 (Common Law Mistake does not apply in the Portals) Harris v Brown HHJ Davey QC, Bradford CC, 18th Jun 2019 (Common Law Mistake does apply in the Portals) Kilby v Brown DJ Peake, Birkenhead CC, 10th Feb 2014 (Waiver & Affirmation do not apply in the Portals ) Purcell v McGarry HHJ Gore QC, Liverpool CC, 7th Dec 2012 (First Tier Appeal - Offer and Acceptance does not apply in the Portals) Patel v Fortis Recorder Morgan, Leicester CC, 5th Dec 2011 (Non-Portal CPRs do not apply in the Portals) Go Back to Index Click on the button below to go back to the case law index Index