Search Results

Mason v Laing HHJ Gosnell, Bradford CC, 20.01.20. The court held that soft tissue injury claims must disclose the first report before subsequent reports are disclosed. The damages were assessed without reference to the subsequent report. The Portal rule are strict; parties could only rely on evidence sent according to the rules, and PD8B had not been complied with. Key Point Soft Tissue Injury Claims must disclose first report before subsequent reports are disclosed Mason v Laing HHJ Gosnell, Bradford CC, 20th Jan 2020 HHJ Gosnell held that a Claimant in a soft tissue injury claim could not rely on subsequent reports where the first report had not been disclosed before the subsequent reports. Damages were assessed based on the first report only. He noted that PD8B stipulated that parties could only rely on evidence in Stage 3 where this had been sent under the relevant protocol and as this had not been sent in accordance with the protocol rules, it could not be relied upon. He also found that there was no provision in the Portal Protocol to allow any application for Relief from Sanctions, complying with the usual finding that the Portal is an entirely stand-alone code. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Ansell & Evans v AT&T HHJ Clarke, Oxford County Court, 14th December 2017 Key Point A court can order Portal costs under CPR 45.24 even where a Part 36 offer has been accepted (Inconsistent with Cookson v Manchester City Council) Ansell & Evans v AT&T DDJ Lynch, Slough County Court, 12th June 2017 (first instance) HHJ Clarke, Oxford County Court, 14th December 2017 (on appeal) Here the Claimants left the RTA Portal unreasonably, then settled the matter by way of Part 36 offer. The Claimants, represented by Kevin Latham, argued that on acceptance of a Part 36 offer, the Defendant could not seek costs to be limited under CPR 45.24 because the costs were governed by CPR 36.20, which specifically directed the tables in CPR 45 SIIIA, rather than more generally to SIIIA. However, Sarah successfully argued that if the Claimant had not left the Portal unreasonably, parties would not have been able to make a Part 36 offer, and you could not retrospectively 'correct' an earlier unreasonable exit. Furthermore CPR 36.20 was headed 'Cost consequences of acceptance of a Part 36 offer where SIIIA of Part 45 applies. Thus if costs were to be assessed under CPR 36.20, the costs were those under SIIIA, which included CPR 45.24. The lower court accepted Sarah's submissions and confirmed that CPR 45.24 remains open for a court to use even on acceptance of a Part 36 offer. The Claimant appealed, but unsuccessfully. The appellate court upheld the decision at first instance, noting that CPR 45.29(1) specifically stated it was subject to ss(3) which preserved the court's power in CPR 45.24. NB There are now two inconsistent decisions at the same level, so some higher authority would be welcome to clarify which is the correct approach. Readers are reminded of the principle in Patel v Secretary of State for the Home Dept [2013] UKSC 72 at [59] where the court found that as a matter of general principle, thus Where there are conflicting decisions from judges of co-ordinate jurisdiction, then, in the absence of cogent reasons to the contrary, the second of those decisions should be followed. As Ansell is the later decision, this should therefore, be preferred over Cookson v Manchester City Council . Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Qader v Esure Services Ltd [2016] EWCA Civ 1109 - Fixed costs per SIIIA of CPR 45 do not apply to cases allocated to the multi-track. It had to be actual allocation, not merely expected or anticipated, to give certainty and avoid satellite litigation. Inco Europe Ltd v First Choice Distribution [2002] 1 WLR 586 applied re correcting obvious drafting errors. Key Point Fixed SIIIA costs do not apply to cases allocated to the multi-track Qadar v Esure Services Ltd [2016] EWCA Civ 1109 This claim had started in the Portal then left, and was allocated to the multi-track and so, prima facie, fell into fixed costs under SIIIA of CPR 45. The Claimant argued that these costs should not apply. They demonstrated a clear intention that fixed costs were intended to apply to claims allocated to the fast track, pointing out how this had been the stated intention from Jackson LJ's reports and consultations and replies to consultations. The Claimant was thus able to establish that the intention of Parliament had not been included in the CPRs by mere inadvertence. The Court of Appeal found authority in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 for correcting obvious drafting errors including omissions in rules. This was a clear case where the court should exercise that jurisdiction. The court, therefore, added in the words 'unless allocated to the multi-track' to the rules to achieve that end. It is interesting to see that the Claimant demonstrated that the fixed costs were intended to apply only to fast-track cases. However, the Court of Appeal excluded cases unless allocated to the multi-track, rather than specify it was for cases allocated to the fast-track. They also made it clear there has to be that allocation. This gives certainty, removing arguments around whether a case would have been allocated to the multi-track, but arguably does not follow from the precise position which the Claimant established. 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

Abdulmalik v Calder DJ Carter, Manchester CC, 2nd Feb 2022 - Soft Tissue Injury Claim. The time to consider whether a case was a soft tissue injury claim was on the facts (not evidence) when the second report was disclosed. Also there was no requirement for the first report to be disclosed before the second expert was instructed, only disclosed. HOWEVER just because reports were disclosed correctly did not mean costs would always follow. Key Points The time to consider whether a case was a soft tissue injury claim was on the facts (not evidence) when the second report was disclosed and There was no requirement for the first report to be disclosed before the second expert was instructed, only disclosed HOWEVER just because reports were disclosed correctly did not mean costs would always follow Abdulmalik v Calder DJ Carter, Manchester CC, 2nd Feb 2022 The Claimant disclosed a GP report, then started Stage 2 of the MOJ Portal and disclosed both reports with the Stage 2 pack. Damages were settled without a hearing. D argued that para 7.8A of the RTA Portal Protocol required the Claimant to disclose the first report before obtaining the second report. C argued that the rules only required that the first report be disclosed before the second report is disclosed. In any event, C argued that the claim was not a soft tissue injury claim so the special rules in RTA Protocol cases did not apply to this claim. D argued that the case only ceased to be a soft tissue injury claim on the receipt of the second report, and thus if the second report was inadmissible because it had not been disclosed in accordance with the rules then the claim remained a soft tissue injury claim. The court found that this was a soft tissue injury claim, and that the time to assess that was when the subsequent report was disclosed. At that stage in this case, the claim was no longer a soft tissue injury claim, and therefore the special rules did not have to be complied with. However, even if he was wrong on that the judge went on to consider what 7.8B actually required and he concluded that the rules only required the first report to be disclosed before the second was disclosed. There was nothing in the rules to support the contention held in Mason v Laing that the first report had to be disclosed before the second report was obtained/sought/instructed. The Defendant was refused permission to appeal. Instructed by Steven Sherlock, Bespoke Costs Ltd Click here for judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Dickinson v Langford - Birkenhead CC, 14th February 2013 - Raising legal argument and offering zero for some heads of loss did not justify removal from Portal Key Point Raising legal argument and offering zero for some heads of loss did not justify removal from Portal Dickinson v Langford Birkenhead CC, 14th February 2013 Here the Claimant sought care as a head of loss. The Defendant offered zero for this and entered a full defence. The Claimant removed the claim from the Portal and issued Part 7 proceedings in response, claiming that given the dispute and the nature of the defence, the Portal was no longer suitable. However, the court found that the claim should have stayed in the Portal and restricted the Claimant to Portal costs. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Cookson v Manchester City Council, HHJ Main QC, Manchester CC, 28.04.17 - On acceptance of a Part 36 offer, CPR 45.24 was not available. Notably this is inconsistent with Ansell v AT & T. Key Point On acceptance of a Part 36 offer, CPR 45.24 was not available (inconsistent with Ansell v AT & T) Cookson v Manchester City Council HHJ Main QC, Manchester CC, 28.04.17 In this case, the claim had started in the MOJ Portal but then left. Proceedings were settled by way of Part 36. The Defendant argued that the claim had unreasonably left the Portal and that the Claimant should be restricted to no more than Portal costs, per CPR 45.24. However, the court found there was no discretion to award Portal costs where there had been acceptance of a Part 36 offer. It seems unlikely that the Rules Committee intended that where a claimant has acted unreasonably in leaving the Portal, they could evade the costs consequences of their unreasonable behaviour simply by making a Part 36 offer. This is particularly so when one considers the parties could not make costs bearing Part 36 offers whilst a claim is in the portal (CPR 36.24(4), and the clear indication given in 45.29A(4). It also appears that the court was not referred to the binding CA case of Solomon v Cromwell which decided that Part 36 offers do not preclude awarding fixed costs. It appears this is another badly drafted rule. It is also inconsistent with the case of Ansell & Evans v AT&T . Readers are reminded of the principle in Patel v Secretary of State for the Home Dept [2013] UKSC 72 at [59] where the court found that as a matter of general principle, thus: Where there are conflicting decisions from judges of co-ordinate jurisdiction, then, in the absence of cogent reasons to the contrary, the second of those decisions should be followed. As Ansell is the later decision, this should therefore, be preferred over Cookson v Manchester City Council . Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

DJ Woods, Watford CC, December 2014 NB now overturned by Chimel v Chibwana Key Point Portal admissions were not binding outside that claim SINCE OVERTURNED Malak v Nasim DJ Woods, Watford CC, December 2014 Here the issue was whether the claimant was bound by an admission which his insurers had made in the Portal on an entirely separate claim. The court found they were bound only within those same proceedings, not otherwise, rejecting the finding of Ullah v Jon . Please note that after this case was decided, the issue of whether Ullah v Jon or Malak v Nasim was correct was determined in the appeal of Chimel v Chibwana & Williams . The appellate court decided that Malak was wrongly decided. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Dawrant v Part & Parcel Network HHJ Parker, Liverpool CC, 28th April 2016 - Sitting with Regional Costs Judge Jenkinson, as Assessor. The court held a court cannot use hindsight or speculation when awarding costs following a Portal breach - the test was on the facts as at the date of the breach. Key Point A court cannot use hindsight or speculation when awarding costs following a Portal breach - the test was on the facts as at the date of the breach Dawrant v Part & Parcel Network Ltd HHJ Parker, Liverpool CC, 28th Apr 2016 Sitting with Regional Costs Judge Jenkinson, as Assessor Here the Claimant failed to send a CNF, and the Defendant sought to limit the Claimant's costs to Portal costs, per CPR 45.24(2). At first instance the lower court declined to restrict the Claimant to Portal costs. The Defendant appealed, saying the judge had applied hindsight and speculated about what would have happened had the claim been brought in the Portal, relying on Raja v Day & MI B. On appeal it was held that the lower court had taken into account a number of issues which were irrelevant. In particular at [44] it was noted the lower court had considered that the Defendant had failed to admit liability and had failed to explain why quantum could not be agreed, at [45] that the Defendant had failed to file an acknowledgment of service, and at [46] had filed a long defence and applied for the matter to be allocated to track. Finally at [47] the judge found that there was evidence that had the matter been submitted in the Portal it may well have never reached Stage 2 because the Defendant had not admitted liability in Part 7 proceedings within the timescale required in the Portal. The appeal court held that the court engaged in clear speculation using the benefit of hindsight. At [48] the judge said: "This in my submission, is clear speculation using the benefit of hindsight and the deputy district judge was clearly asking herself the question, 'would it have made any difference if the Claimant had complied with the protocol and served a claim notification form on the defendant's insurer', and arriving at the answer no. She did not think that that would have made any difference and that was, in my judgment, dangerous speculation and she was wrong so to do." HHJ Parker went on to limit the Claimant to Portal costs. Click here for a copy of the 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

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

Damages in relation to Harm, Abuse or Neglect, of our by children or vulnerable adults exception to both the new fixed costs regime and to the EL/PL Portal protocol. Compares and contrasts the two definitions, and gives case law on the exception, including : • Scott v MOJ [2019] EWHC B13 (Costs) • Leicester v Cameron, HHJ Hedley, Leicester CC, 24.06.21 • Lawal v London Borough of Southwark, Dr Friston, SCCO, 16.12.22 • Johnson v Choice Support [2025] EWHC 1020 (SCCO) Exception for Claims for damages in relation to harm, abuse or neglect of or by children or vulnerable adults Both the Portal and the new Fixed Costs regime exclude certain claims. Para 4.3(8) of the EL/PL Portal Protocol excludes the following claims from the MOJ Portal protocol: [claims] ‘for damages in relation to harm, abuse or neglect of or by children or vulnerable adults;’. This is the same form of words as used for the new expanded Fixed Costs regime, where CPR 26.9(1) (c) excludes: “a claim for damages in relation to harm, abuse or neglect of or by children or vulnerable adults;” However, the Portal protocol has a very different definition of 'vulnerable'. Whilst in the CPRs, the definition of vulnerable is: “A person should be considered as vulnerable when a factor—which could be personal or situational, permanent or temporary—may adversely affect their participation in proceedings or the giving of evidence” Conversely, in the MOJ Portal, para 1.1(20) of the EL/PL Portal protocol defines 'vulnerable adult' as has the same meaning as in paragraph 3(5) of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, namely: “a person aged 18 or over whose ability to protect himself or herself from abuse is significantly impaired through physical or mental disability or illness, through old age or otherwise.” Examples of the sorts of issues the court should consider when determining 'vulnerability' in Fixed Costs are set out in PD1A ss(4): “4. Factors which may cause vulnerability in a party or witness include (but are not limited to) – (a) Age, immaturity or lack of understanding; (b) Communication or language difficulties (including literacy); (c) Physical disability or impairment, or health condition; (d) Mental health condition or significant impairment of any aspect of their intelligence or social functioning (including learning difficulties); (e) The impact on them of the subject matter of, or facts relevant to, the case (an example being having witnessed a traumatic event relating to the case); (f) Their relationship with a party or witness (examples being sexual assault, domestic abuse or intimidation (actual or perceived)); (g) Social, domestic or cultural circumstances.” Portal case law on 'harm, abuse or neglect' - Vulnerable exception Scott v MOJ [2019] EWHC B13 (Costs) (Prisoner was not a vulnerable adult.) Leicester v Cameron HHJ Hedley, Leicester CC, 24.06.21 (Teacher injured by a pupil during a First Aid course - pupil intended to harm teacher) At [53] on appeal the court held: “53. As to paragraph 4.3(8) itself, in my judgment a. …. paragraph 4.3(8) does not refer to a child or vulnerable adult as a party but simply claims for damages “in relation to” harm abuse or neglect of or by children or vulnerable adults. In my judgment this clear distinction makes it clear that the exception does not apply only where a child or vulnerable person is a party, but is of wider application where the claim relates to such abuse. It is not necessary for the child or protected party to be a party to the claim in order for the exception to arise. Any other meaning would be to re-write the EL/PL Protocol.” In other words, the mere involvement of a child or vulnerable adult triggers the exception, and ‘harm’ includes personal injury. Lawal v London Borough of Southwark Dr Friston, SCCO, 16.12.22 (If the injury had been intentional then the protocol would be disapplied. If it was wholly unintended then Portal would apply.) Johnson v Choice Support [2025] EWHC 1020 (SCCO) Exception did not apply. (C was pushed by E who was vulnerable. The push was not harmful, and E had no intention to harm C, nor had any awareness that the push would harm C.) Go Back to Index Click on the button below to go back to the case law index Index

McKendry v British Airways Plc DJ Baldwin (sitting as Regional Costs Judge) Liverpool CC 16th May 2018. This case makes it clear that claims brought under the Montreal Convention are strict liability claims. Liability arises not from any duty of care but from international agreement. Portal claims require duty and breach. It is perhaps slightly surprising that a whole raft of claims is excluded from the Portal Protocols without being specified. Key Point The Portal does not apply to Montreal Convention Claims McKendry v British Airways Plc DJ Baldwin (sitting as Regional Costs Judge) Liverpool County Court, 16th May 2018 Here the Claimant sent a Letter Before Action, claiming under the Montreal Convention. The Defendant replied admitting liability, but requested that the matter proceeded under the Portal Protocol. The Claimant declined, noting that they were not claiming a breach of duty, so the Portal did not apply. Parties later settled damages without the need for proceedings, but costs could not be agreed. Part 8 costs only proceedings were commenced with the central dispute concerning whether fixed costs applied or not. Article 29 of the Montreal Convention gives exclusivity for the convention to apply, and so there can be no question of common law torts applying either instead or as well. Liability under Article 17 arises not from any 'notional' breach of duty, but rather by international agreement. The convention is a stand-alone code, much like the Portal itself. The new Package Travel Protocol specifically excludes both the Athens Convention and the Montreal Convention from its scope, which supports the view that claims under the Montreal Convention should not be brought in the Portal. This case, together with the similar case of Mead v British Airways , makes it clear that claims brought under the Montreal Convention are strict liability claims. Liability arises not from any duty of care but is a strict liability arising from international agreement. Claims brought in the Portal require a duty and breach. Admitting liability in the Portal also admits that the defendant has no accrued defence under the Limitation Act 1980, and the Limitation Act does not apply to Montreal Convention claims. It is perhaps slightly surprising that a whole raft of claims is excluded from the Portal Protocols without being specified. However, on a quick drilling down into the nature of Montreal Convention claims and the exclusivity provided therein, it is clear this approach must be right. Whilst neither case is binding, there is a lot of sense to these decisions. They are supported by the fact the new Package Travel Protocol specifically excludes such claims. There would also be inherent difficulties in international travel cases over whether the accident occurred within England & Wales. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index