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Broadhurst v Tan [2016] EWCA Civ 94. The Court of Appeal held that SIIIA indemnity costs are hourly rate costs, not fixed costs.) Key Point Indemnity costs under SIIIA escaped fixed costs Broadhurst v Tan [2016] EWCA Civ 94 Parties agreed that indemnity costs applied because the Claimant had beaten their own Part 36 offer at trial, but they did not agree on the quantification of those costs. The case had started in the Portal and thus on the face of it, CPR SIIIA fixed costs applied. However, as that made the quantification of those fixed costs the same as standard basis costs, the Claimant appealed. On first tier appeal, the judge held that fixed costs applied. The Court of Appeal, however, determined that open hourly rate costs should apply where indemnity costs were awarded. Click here for a copy of the judgment Click here for a Word 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

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

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.

Monteith v Carroll Making a pre-medical offer did not justify removing the claim from the Portal. The Claimant was restricted to Portal costs. Key Point Pre-Med offer does not justify Portal exit Monteith v Carroll Liverpool CC, 17th October 2012 The Defendant made a pre-med offer. The Claimant removed the claim from the Portal claiming they could not advise their client within the Portal as to whether they should accept the offer or not. The court held that was not a good reason to leave the Portal, and restricted the Claimant to Portal costs. Please note there is no copy of the judgment itself. Go back to Main Index Main Index Go back to Topic Index Topic Index

Akram v Aviva & Mahmood v Aviva 2021 [2021] EW Misc 16 (CC). The court held that Witness Statements are not obligatory in the Portal, and that an email from Claimant Solicitor sufficed for the purposes of a Stage 3 hearing. Key Point Witness Statements are not obligatory in the Portal, email from Claimant Solicitor sufficed (1) Akram v Aviva Insurance Ltd & (2) Mahmood v Tillott [2021] EW Misc 16 (CC) Wrexham County Court, HHJ Jarman QC, 29th Sept 2021 In both appeals, the Claimants were taxi drivers, and hired a replacement taxi whilst their own vehicles were being repaired. Claims were brought in the MOJ Portal where Hussain v EUI was raised by the Defendant during Stage 2. In both cases, the Claimant solicitor responded to the points raised by way of email, which they also attached to the Portal within Stage 2. At both Stage 3 hearings, the judges accepted the position advanced by the respective solicitors in the emails. The Defendant argued the emails were not admissible evidence, and that no weight should be given to such an account, as such a narrative account ought be given by way of witness statement. In the alternative they argued that less weight should have been given to the emails. In a reserved judgment, HHJ Jarman QC upheld both decisions at first instance for the reasons given by the lower courts. He noted that the Portal protocol is a highly stand alone code, and that whilst statements were permitted they were not required. He also observed at [37] that Defendants are faced with a choice at Stage 2 to either proceed to a Stage 3 hearing or remove the claim from the Portal and follow the more expensive Part 7 route. He found that if a Defendant wanted to challenge the contents of an email such as those in these cases, then it was appropriate to move the claim to Part 7. He also found it was artificial to talk of 'admissibility' of the emails in question in the modified procedure of the Portal. This case highlights the stark difference between Portal claims and those going through the 'normal' Part 7 procedure. It is well established that the Portal is a highly stand alone code, and that non-Portal CPRs and Common Law Doctrines do not apply. It is simply not possible to parachute in a requirement to comply with Part 7 rules of evidence where the rules do not provide for the same. Instructed by Kaizen Law Click here for a copy of the judgment Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Petit v MIB & 5 Ors - DJ Pollard, Brighton CC, 15.02.17 - A claim which should never have been brought in the MOJ Portal did not attract SIIIA fixed costs Key Point A claim which should never have been brought in the MOJ Portal did not attract SIIIA fixed costs Petit v MIB & 5 Ors DJ Pollard, Brighton CC, 15.02.17 This claim started in the MOJ RTA Portal Protocol, but should not have done. The accident occurred on 18 Oct 2011 when the Portal upper limit was £10,000. The Portal upper limit was changed to £25,000 for all accidents which happened after 31 July 2013, and the new Protocol applied to all claims where the CNF was submitted after that date too. In this case the CNF was submitted on 19 Sept 2014. Thus the claim was subject to the new Protocol, but the old upper limit, a point which eluded the claimant solicitors at the time. The MIB objected to the claim being brought in the MOJ Portal protocol because of its value stated on the CNF to be between £10,000 - £25,000. The claim was later removed from the Portal for that very reason and Part 7 proceedings were brought. The Defendant sought to limit the Claimant's costs to fixed costs under SIIIA of CPR 45. However the court disagreed, finding that as the claim had not 'properly' started in the MOJ Portal Protocol, SIIIA costs did not follow. Please note it has not yet been possible to obtain a copy of the approved judgment, however the link below is to the draft transcript agreed by both counsel in the case. Click here for a copy of the unapproved judgment 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

Doyle v Manchester Audi DJ Matharu, Manchester CC, 25th June 2013 - Omission to act causing claim to leave Portal was an election to leave. Key Point Omission to act causing claim to leave Portal was an election to leave Doyle v Manchester Audi DJ Matharu, Manchester CC, 25th June 2013 The Claimant gave his 'known as' name and his then girlfriend's address at the scene of an accident. He then consulted with solicitors and they submitted a CNF with his legal name on and, having split up with his girlfriend, his parents address where he then lived. On receipt of a CNF with a different name and address than that provided at the scene, the Defendant was naturally unwilling to simply admit liability. The Defendant sought confirmation from the Claimant of his identity, and in particular for photographic evidence of his identity. The Claimant delayed in providing this for several months, during which time the claim automatically timed out of the Portal. The claim then went through Part 7 proceedings, and when it came to costs, the Defendant averred that the Claimant should be restricted to Portal costs, per CPR 45.36 (now CPR 45.35) because they had caused the claim to leave the Portal by their omission to supply the information reasonably sought, albeit not required by the Protocol. The Claimant argued that the Portal rules were strict, and that there was no requirement to have provided the information sought. They maintained that as the Defendant had not admitted liability within Stage 1, irrespective of the identity position, then they were perfectly entitled to leave the Portal. The Defendant relied on Ilahi v Usman to show that doing something which had the automatic effect of causing a claim to leave the Portal was just the same as not doing something (in this case failing to confirm the Claimant's identity in time) which had the automatic consequence of making the claim leave the Portal. The court found that the Claimant had failed to provide the information reasonably sought which had caused the claim to leave the Portal. The Claimant was restricted to no more than Portal costs. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Cham v Aldred [2019] EWCA Civ 1780. Here the court famously held that an infant approval opinion by counsel was not required because of a particular feature of the dispute, but a particular feature of the Claimant. Therefore it was not a recoverable disbursement inter partes in CPR 45 SIIIA fixed costs cases. Key Point Recoverability of disbursements in SIIIA cases Cham (by their Litigation Friend Laura Martin) v Aldred [2019] EWCA Civ 1780 The SIIIA fixed costs regime provides for an advice from counsel in infant cases in the sum of £150. This seemingly untroubling disbursement was awarded at first instance and first tier appeal. However, the Defendant appealed again, and argued it was not recoverable in addition to fixed profit costs. The matter came before LJs Coulson, McCombe and Davies on 8th October, and judgment was handed down on 25th October 2019. LJ Coulson gave the lead judgment and found that the infant approval advice was required not because of a particular feature of the dispute, but because of a particular feature of the Claimant, namely that they were an infant. Therefore it was not recoverable. The court also considered the potential for overlap, claiming the same disbursement under the ‘catch all’ provision in CPR 45.29I(2)(h). At [51] the court held that if an item was specifically within Table 6B, it would not be recoverable in addition to fixed costs. The brief fee was the most obvious example. The court also churned out the oft repeated ‘swings and roundabouts’ argument mentioned in Sharp v Leeds City Council [2017] EWCA Civ 33 . Thus, the appeal was allowed. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index