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Key Point 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

Birkenhead CC, DJ Campbell, 30th November 2016. Yes friend, they seriously litigated over £2.50p. Key Point Unreasonable to leave portal for technical non-compliance only Smith v Owen Birkenhead CC, DJ Campbell, 30th Nov 2016 Here the claimant removed the claim from the MOJ RTA Portal for of two disbursements, one for photographs and one for the DVLA disbursements. The issue was whether the Claimant had acted unreasonably in doing so. The disbursement for photographs was not agreed. The Defendant said as much and it was virtually common ground that in disputing the disbursement, saying why it was in dispute, then the Defendant was not in breach by failing to pay that. The main argument was on the non-payment of the DVLA disbursement, a mere £2.50. The Claimant relied on the case of Chisanga which had held it was reasonable to leave the Portal for non-payment of the DVLA disbursement. However, DJ Campbell disagreed, noting she had been a solicitor for 20 years and would have been appalled at the idea of anyone in her firm issuing proceedings simply because of a non payment of £2.50 which it was well known would easily be 'scooped up' to be paid when the final order was made. The court decided at [47] that whilst there was no obligation under the rules for a Claimant to check with a Defendant why the £2.50 had not been paid, it was incumbent on any solicitor acting reasonably to have queried where the £2.50 was. She confirmed the approach of DJ Peake in Kilby v Brown to act reasonably and enquire before issuing. Whilst she acknowledged this made her decision at odds with another judge at the same court, she reached this decision based on her interpretation of the rules and meant no criticism on the other judge. The Claimant had acted unreasonably in leaving the Portal, and would be restricted 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

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Purcell v McGarry - HHJ Gore QC, Liverpool CC, Friday 7th December 2012. The court held that the portal offers were still open for acceptance after Stage 2 had ended, despite the portal protocol implying otherwise. Contract Law, including offer and acceptance, has no place in MOJ Portal Protocol cases. Key Points Contract Law, including offer and acceptance, has no place in MOJ Portal Protocol cases Purcell v McGarry HHJ Gore QC, Liverpool CC, Friday 7th Dec 2012 The issue here on first tier appeal was whether a Defendant could accept an offer after the end of Stage 2. The judge held that a Portal offer remains open for acceptance after the end of Stage 2. Importantly he noted that contract rules such as offer and acceptance have no place in the Portal arena. This case is important as it establishes that a Portal offer does not automatically cease to be open for acceptance. It has been followed by other cases which have held how offers made in the Portal remain open for acceptance even after Part 7 proceedings have been issued. It also makes it clear that the Portal is 'its own man' and thus contract law does not apply. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

[2021] EWCA Civ 1005. Court of Appeal upheld HHJ Woods that claim run by executors was a different claim form that started in Portal. Key Point A claim which starts in the Portal - but the claimant then dies - is not the same claim and thus is not subject to the fixed costs of SIIIA of CPR 45 West (Executor of the Estate of the late Kenneth Morriss) v Burton [2021] EWCA Civ 1005 The Court upheld the decision of HHJ Wood QC on whether fixed costs of SIIIA applied to a claim where it had started in the Portal process, but left because the Claimant had died (unrelated to the accident.) The Court of Appeal noted at [39] that the meaning of 'claim' and 'claimant' were not the same in the Portal process as with 'normal' litigation and thus the definition of 'claim' in para 1.1(6) of the Portal protocol was not to be equated with the definition of 'claim' in CPR 2.3. The person who concluded the claim was the claimant's executor, not the same person as the person who started the claim in the Portal. Therefore SIIIA costs did not apply. The Claimant was entitled to SII fixed costs, the old 'predictive' costs. The judgment concludes by noting it would be a matter for the Rules Committee to consider if they should amend the rules to cover this situation in express terms. This seems unlikely given that this is the first case since the inception of the Portal in 2010 where such an issue appears to have arisen. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Key Point Key Point Common law Mistake does not apply in the MOJ Portal Protocol Draper v Newport DJ Baker, Birkenhead CC, 3rd September 2014 Here the only issue was whether common law mistake applied to cases in the Portal. The Claimant's solicitor accidentally accepted the Defendant's offer. She immediately rang the Defendant but was unable to get through to the correct person. She uploaded a letter to the Portal within half an hour to confirm that the offer had been accepted in error. The judge considered the nature of the Portal and went through the facts against the over-riding objective. He determined that it would fundamentally undermine the Portal if common law mistake was allowed to apply. The Claimant's solicitor simply should have been more careful. It has been interesting to see how often this first instance and non-binding decision has been followed. It took 4 years for anyone to bring the issue to first tier appeal in Fitton v Ageas. Interestingly both counsel in the later case of Harris v Brown submitted that the Claimant here did not know that a mistake had been made, and thus distinguished it. Unfortunately that is clearly wrong, as the Claimant here was well aware that they had made a mistake, as shown by them uploading the letter to say exactly that. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

< Back Zero Carbon World This is placeholder text. To change this content, double-click on the element and click Change Content. This is placeholder text. To change this content, double-click on the element and click Change Content. Want to view and manage all your collections? Click on the Content Manager button in the Add panel on the left. Here, you can make changes to your content, add new fields, create dynamic pages and more. You can create as many collections as you need. Your collection is already set up for you with fields and content. Add your own, or import content from a CSV file. Add fields for any type of content you want to display, such as rich text, images, videos and more. You can also collect and store information from your site visitors using input elements like custom forms and fields. Be sure to click Sync after making changes in a collection, so visitors can see your newest content on your live site. Preview your site to check that all your elements are displaying content from the right collection fields. Power in Numbers 30 Programs 50 Locations 200 Volunteers Project Gallery Previous Next

< Back Rainforest Action Initiative This is placeholder text. To change this content, double-click on the element and click Change Content. This is placeholder text. To change this content, double-click on the element and click Change Content. Want to view and manage all your collections? Click on the Content Manager button in the Add panel on the left. Here, you can make changes to your content, add new fields, create dynamic pages and more. You can create as many collections as you need. Your collection is already set up for you with fields and content. Add your own, or import content from a CSV file. Add fields for any type of content you want to display, such as rich text, images, videos and more. You can also collect and store information from your site visitors using input elements like custom forms and fields. Be sure to click Sync after making changes in a collection, so visitors can see your newest content on your live site. Preview your site to check that all your elements are displaying content from the right collection fields. Power in Numbers 30 Programs 50 Locations 200 Volunteers Project Gallery Previous Next

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Legal Articles by Sarah Robson Barrister Fixed Costs Specialist Including the new Precdent U for download, and the SCCO Guide 2023 as well as further details on Bobby Prior v Silverline International Ltd, HHJ Wood QC. 8th July 2015. Sarah Robson Barrister Fixed Costs Specialist Call now on 0800 634 9650 Legal Articles* * This website is intended to provide general guidance only. It does not give legal or professional and is not to be used in providing the same. Whilst all efforts have been made to ensure that the information is accurate, any liability including that arising in is excluded to the fullest extent lawfully permitted for any loss or damage howsoever arising from the use of this information. precedent-u (2) Precedent U Precedent U has been updated for assessement of fixed costs under the new regime. Download version 2 it here. Premature Issue Article on the case of Bobby Prior v Silverline International Ltd, HHJ Wood QC, Liverpool CC, 8th July 2015 now available. Claimant issue proceedings after 21 days in accordance with the letter of the personal injury pre-action protocol. However, there was no compliance with the spirit of the protocol. The Claimant was reduced to pre-issue costs by the Designated Circuit Judge of Liverpool. Click here for article including copy of the judgment. Legal Humour A light-heartedly look at the law and legal profession. (Submissions for inclusion here gratefully received.) A poor solicitor can cause a trial to be delayed for months. A good solicitor can cause a trial to be delayed for years. Caveat : No lawyers were harmed during the construction of this site. When a person assists a criminal they are aiding and abetting. When a person assists a criminal we call them a defence lawyer. The pupil barrister carefully warned his client not to lie when giving evidence. He asked if his client appreciated what could happen if he did not tell the truth in court. "We'll probably win" his client replied. Why did the lawyer cross the road? To sue the chicken. What's the difference between a good lawyer and a great lawyer? A good lawyer knows the law, a great lawyer knows the judge. Never mind the dog - Beware of the dog's lawyer. When does a claim start? Sarah has again successfully argued a claim does not start for the purposes of Part 7 until the court issues the claim. A claim which settles before the court has issued it only attracts predictive costs, per CPR 7.2, PD 7A 5.1 and CPR 44.12A (c), even if the papers have been sent to the court. SCCO Guide 2023 The latest SCCO guide is now out. Click here for a copy. What is the nature of a Provisional Assessment Oral Review? Is an Oral Review just a review, a rehearing, or is it more like an appeal where parties are limited to what they raised in the Provisional Assessment hearing? Cook on Costs has one line stating the court will hear issues 'afresh'. Dr Mark Friston confirms the same view in Friston on Costs 3rd Edition. HHJ Wood QC, the DCJ at Liverpool has considered this on appeal twice and has concluded that new evidence can be admitted on oral review. Download copies of the judgments here in the cases of: Ion v Ahmed , and Mehmi v Pincher. However, more recently he has reversed himself, finding that you cannot adduce new evidence at Oral Review. Keeps us on our toes, I suppose! Provisional Assessment Oral Review In order to recover the costs of an oral review of a Provisional assessment, CPR 47.15(10) requires the applicant to obtain an adjustment in its own favour by 20% or more of the sum provisionally assessed. Is that just the items reviewed or 20% of the whole bill? This issue was considered by Master O'Hare in Keah M B O'Reilly v H R Richmond Ltd, SCCO, 16.09.14. The court confirmed it was 20% of the whole bill, not just the part(s) being reviewed. The court was also invited to use its discretion under CPR 47.15(1)(b) because of the adjustment of more than 20% achieved on the items reviewed, but declined to do so. Click here for an approved note of the judgment. Miscellaneous Expenses A lot of fuss and bother over nothing? Ghattaorya v Bailey LTLPI 05/10/2009 My case of Ghattaorya v Bailey on miscellaneous expenses is years old, yet it still attracts vast numbers of hits on my site. One cannot its importance when Part 36 offers are close, and thousands of pounds in costs can turn on whether this is allowed or disallowed. Do not ignore miscellaneous expenses! Claimant solicitors plead ‘miscellaneous’ expenses as an almost mandatory ‘add-on.’ This is to cover the cost of subsidiary expenses which have been incurred because of the litigation. Whilst it is that you cannot recover stress and anguish incurred because of litigation, the miscellaneous claim seems to have slipped through the net as a legitimate expense. This head of deserves closer inspection: The miscellaneous claim is for telephone calls, postage and stationary - travel is usually claimed for separately. Miscellaneous claims in your average fast track case typically range from about £10 to £50.There may have been the cost of posting an initial form reporting the incident to the insurer or solicitor, perhaps with a covering letter. However, many insurance companies take a claim over the phone now, rather than requiring the completion of a form, or provide a pre-paid envelope. The postage, therefore, is probably no more than one or two stamps. The cost of stationery – well everything is done by email now. Many insurance companies and solicitors firms provide free-phone numbers or call numbers, e.g. 0845. Most mobile phone packages now include unlimited phone calls. Put the claimant to proof and a judge will laugh at you, as there are hardly ever any receipts for these sorts of expenses. Cross-examine, and you risk the wrath of the judge and a stop being placed on cross-examination thus deemed ‘unnecessary’. Most sensible Counsel (with sensible instructions) will get their heads together before trial and some compromise figure. In this case, the judge dismissed the entire head of claim for miscellaneous expenses, noting that claiming for miscellaneous expenses was ‘a bad habit claimant solicitors had got into’. That principle was approved by HHJ Harrington in Harwood v Kapek (2010) LTLPI 21/7/2010 citing the failure to correctly plead the losses under this head as the reason for not allowing a miscellaneous claim, Ghattaorya v Bailey approved. There are a few (easier to spell) other cases on miscellaneous expenses, but Ghattaorya v Bailey is the most well known and often referred to. Click here for a copy of the judgment.

Bushell v Parry HHJ Gregory, Liverpool CC, 15th March 2015. Departing from Bewicke-Copley v Ibeh. SINCE OVERTURNED BY MADDOCKS V LYNE. Shows the importance of pleadings. The issue was whether the Claimant was bound by the agreements reached on individual heads of loss in the Portal, but these were not pleaded in the defence. Held the Claimant was not bound by individual heads of loss agreed in the Portal., but if wrong on that then the Defence did not plead the agreement. Key Point Where defence silent re Portal agreement on individual heads of loss, parties not bound by those agreements (departing from Bewicke-Copley ) SINCE OVERTURNED BY MADDOCKS V LYNE Bushell v Parry HHJ Gregory, Liverpool CC, 15th March 2015 This claim had started in the Portal where some heads of loss were agreed, but then the claim left the Portal and Part 7 proceedings were issued. The Defendants put in a Defence putting the Claimant to and said nothing about some of the heads of loss having already been agreed in the Portal. The issue was whether the Claimant was bound by the agreements reached on individual heads of loss in the Portal. Most significantly that included personal injury, without which the Part 7 claim would have been in the small claims track. The judge found that the Claimant was not bound by individual heads of loss in the Portal. He said if he was wrong on that then the defence which acted as though everything was and had not pleaded the Portal agreement, Bewicke-Copley v Ibeh distinguished. Please note this case has now been overturned by Maddocks v Lyne , a case which HHJ Gregory himself gave permission to appeal on. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

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