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

This is a Title 02 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. Judgment Go back to Main Index Go back to Topic Index Index Index

Ampratwum & Zbigniew Samajeden v Esure Birkenhead CC, 5th June 2013 - the court held that a Claimant must have paid for vehicle damages personally before an interim payment can be claimed for them in the MOJ Portal. Key Point A Claimant must have paid for vehicle damages personally before an interim payment can be claimed for them Ampratwum & Zbigniew Samajeden v Esure Birkenhead CC, 5th June 2013 Sarah successfully argued here that a Claimant was not justified in leaving the Portal when a Defendant failed to make a payment for an interim payment within the requisite time. The entitlement to an interim payment for damages, sometimes called additional damages, only arises where a Claimant personally has paid out for that head of loss. If an interim payment for normal damages had not been made in time then a Claimant could leave the Portal. Please note there is no available copy of this judgment. This case makes the point that portal rules must be carefully studied! Go back to Main Index Main Index Go back to Topic Index Topic Index

Rafiania v All Type Scaffolding Ltd DDJ Corscadden, Manchester CC, 14th January 2015. The court held that there is no test of reasonableness in not using the Portal at all, unlike in leaving or causing a claim to leave the Portal. It was not unlike 'strict liability'. Therefore the Claimant's ostensibly good reasons could not avail them. The Claimant was restricted to Portal costs. Key Point No test of reasonableness in not using the Portal at all Rafiania v All Type Scaffolding Ltd DDJ Corscadden, Manchester CC, 14th January 2015 The Defendant wrote to the Claimant and denied liability before a CNF was ever sent. CNFs sent for other occupants of the same vehicle in this accident and liability was denied. The Claimant, therefore, did not bother to send a CNF, thinking there was no point. The matter went through Part 7 proceedings, and damages were settled although costs were not. The Defendant argued that the Claimant should be restricted to Portal costs, per CPR 45.24(2)(c), as opposed to the more common CPR 45.24(2)(b). The Claimant argued that they had acted reasonably in not using the Portal at all. However, the court held that there is no test of reasonableness in not using the Portal at all, unlike in leaving or causing a claim to leave the Portal. It was not unlike 'strict liability'. Therefore the Claimant's ostensibly good reasons could not avail them. The Claimant was restricted to Portal costs. This case shows the importance of looking carefully at the Portal rules. The Claimant solicitors appeared in court all ready to argue how reasonable they had been, having completely missed the point that the rules are different for leaving the Portal and not using the Portal at all. Whilst arguably, it would have been pointless to have used the Portal, the rules are highly prescriptive and parties should note they must follow them closely. 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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Key Point Key Point Interpreter's fees are recoverable under SIIIA Santiago v MIB [2023] EWCA Civ 838 Here the Court of Appeal grappled with the problem that interpreter's fees were, prima facie, not recoverable as a disbursement in a case to which SIIIA fixed costs applied. Following Cham v Aldred, it was generally accepted that a disbursement could only be recoverable if it arose because of a particular feature of the dispute. In Cham, the disbursement there arose because of a particular feature of the Claimant, namely that they were a child, and thus needed an opinion on quantum before any settlement could be approved. CPR 45.19(2)(e) stipulated that any disbursement not specified could only be recoverable it is arose because of a particular feature of the dispute. As the disbursement arose because of a particular feature of the Claimant, it was not recoverable. The same would therefore apply to interpreter's fees. However, since Cham had been decided, the Civil Justice Council published a report called 'Vulnerable Witnesses and Parties within the Civil Proceedings/ Current position and Recommendations for Change.' This report was addressing the critical need to ensure fair access to justice, and noted the need for interpreters, and that being unable to understand the proceedings made a person vulnerable, in that they could not participate nor give their best evidence. The court had regard to CPR 1.2(b) which required the court to give effect to the overriding objective when interpreting any rule, to ensure parties are on an equal footing and that the case is dealt with fairly. At [62] the court held: the use of the word “other” in sub-paragraph (h) supports the broader interpretation because it implies that the travel expenses and loss of earnings incurred by a party and allowed under sub-paragraphs (f) and (g) are disbursements that are “due to a particular feature of the dispute.” The common feature of such costs is that they facilitate the attendance of a party or witness and thus put the parties on an equal footing by enabling the party or witness to participate fully in the hearing. That is also a defining feature of the cost of an interpreter, without whom the party or witness cannot participate fully in the hearing and, specifically, cannot give their best evidence. Allowing the interpreter’s fee to be recovered under subparagraph (h) is therefore consistent with the inclusion of the disbursements allowed under sub-paragraphs (f) and (g). I would therefore hold that the application of normal principles of construction does not preclude the interpretation of sub-paragraph (h) for which Mr Williams contends. Far from it: in my judgment, the application of normal principles strongly supports his proposed interpretation. I would have reached this conclusion before the 2021 Amendments. At [59] the court noted that in Cham, the disbursement was only incurred after parties had settled, so had no impact on reaching the settlement concerned, whereas without an interpreter, a Claimant who did not speak English could not even get their claim off the ground. The court also noted that the cost of counsel's advice was deemded to be included in the costs allowed in Table 6B, whereas if an interpreter's fee was not recoverable as a disbursement, it was not remunerated at all, either actually or notionally. Therefore the Court of Appeal held that the cost of translator fees were recoverable. At [64] they concluded: "This distinction permits us to conclude that we are not bound by Cham to adopt an interpretation of sub-paragraph (h) which is not in accordance with the overriding objective on the different facts that are in play in the present appeal. I would accept that the effect of Cham is that a disbursement should ordinarily be held to be “reasonably incurred due to a particular feature of the dispute” within sub-paragraph (h) if it was required to enable the determination by the Court of a particular issue in the case rather than because of a particular characteristic of a party or witness. However, where considerations of access to justice arise, a broader interpretation is necessary to enable the dispute to be determined by the Court in accordance with the overriding objective. It follows, in my judgment, that the independent interpreter’s fee (assuming it to be reasonably incurred) is properly to be regarded as a disbursement falling within sub-paragraph (h)." Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Chimel v Chibwana & Williams HHJ Simpkiss, Reigate CC, 31st October 2016 - This appeal confirmed that a Portal admission is binding to the world, i.e. both in and outside of the Portal. This resolved the position of the two inconsistent first instance decisions of Ullah v Jon and Malak v Nasim concerning whether an admission in the Portal is binding outside the Portal, and concurs with Maddocks v Lyne which almost accidentally found the same. Key Point A Portal admission is binding to the World Chimel v Chibwana & Williams HHJ Simpkiss, Reigate CC, 31st Oct 2016 This first tier appeal directly resolved the position of the two inconsistent first instance decisions of Ullah v Jon and Malak v Nasim on whether an admission in the Portal is binding outside the Portal, and concurs with the almost accidental finding of the same in Maddocks v Lyne . The court confirmed that a Portal admission is binding to the world, i.e. both in and outside of the Portal. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Ilahi v Usman - HHJ Platts, Manchester CC, 29th November 2012 - A decision to take a step which automatically removes a case from the Portal is an election to leave the Portal Key Point A decision to take a step which automatically removes a case from the Portal is an election to leave the Portal Ilahi v Usman HHJ Platts, Manchester CC, 29th Nov 2012 The Claimant withdrew all offers at the end of Stage 2, which caused the claim to automatically leave the Portal. The Claimant then argued that they could not be reduced to Portal costs because they had not elected to leave the Portal, it had happened automatically. The Claimant won at first instance. However, on first tier appeal, HHJ Platts found that if a party elects to take a step which has the automatic consequence of leaving the Portal, then they have elected to leave the Portal. He restricted the Claimant to Portal costs only. The Claimant sought permission to appeal to the Court of Appeal. However, Jackson LJ refused permission on paper, noting he agreed with the reasoning given by HHJ Platts. Click here for the First Tier appeal judgment Click here for the Court of Appeal decision Go back to Main Index Main Index Go back to Topic Index Topic Index

Payne v Scott DDJ Smedley, Birkenhead CC, 13th July 2015 Key Point A Claimant can still have caused a claim to leave the Portal under CPR 45.24(2) when they ask a judge to order it out and that judge does so Payne v Scott DDJ Smedley, Birkenhead CC, 13th July 2015 The Claimant claimed loss of earnings in the Portal but did not properly evidence that head of loss during Stage 2. At the start of the Stage 3 hearing, the Claimant asked the court to remove the claim from the Portal and place it into Part 7 proceedings, saying it was unsuitable and further evidence was required. The Defendant weakly objected. The judge duly ordered the claim out of the Portal and into Part 7 proceedings. The Defendant argued that the Claimant should be restricted to Portal costs under CPR 45.24(2)(b). However, the Claimant argued that they did not remove the claim from the Portal, the court ordered it out. The Defendant relied on Ilahi v Usman and Doyle v Manchester Audi , arguing that where a party chooses to take a step or omit to take a step, which causes a claim to leave the Portal, then they have chosen to remove the claim from the Portal. The judge was hesitant to find that the Claimant had acted unreasonably in circumstances where the Defendant had not really objected to the claim leaving the Portal. However, on balance he found that the Claimant had acted unreasonably, they had caused the claim to leave the Portal, and he did restrict 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

Asmat Bi v Tesco Underwriting Ltd HHJ Sephton KC, Manchester CC, Aug 2024, claim no K04MA298 Whilst only a first tier hearing, it is useful as a point of reference given the paucity of case law on the October 23 extention to fixed costs. Here the court was considering the incidence of costs in a case where a non-personal injury claim had settled by acceptance of a Part 36 offer without the need for proceedings, and notably before the commencement of the new fixed costs regime. Costs could not be agreed, and so the claimant brought Part 8 proceedings. HHJ Sephton found that the Amendment Rules (SI 572/2023) were procedural in nature, and therefore followed the general convention that they were retrospective in effect. He found the Claimant's entitlement to costs only crystallised after the costs had been assessed, allowed or agreed. Thus the case fell to be decided under the costs rules then rather than at the point of settlement, which was under the extended fixed costs. Judgment Go back to Main Index Go back to Topic Index Index Index

Fitton v Ageas - HHJ Parker, Liverpool CC, 08.11.18. On appeal the court upheld that common law mistake does not apply in the portal. The court also noted the different way the Portal acts on acceptance of a global offer, depending on whether the acceptance is input by the A2A system or the web-based system. Key Point Common Law Mistake does not apply in the Portal Fitton v Ageas DJ Parker, Liverpool CC, 8th November 2018 Here the Claimant made a global offer in the Portal as well as offers for each individual head of loss. When the Defendant made a counter-offer by stating amounts for each head of loss, they omitted to clear the global offer field. Thus when they sent their counter-offer, they effectively re-stated the Claimant's own offer back to them. Perhaps unsurprisingly, the Claimant accepted the global offer. Because of the differences in how the Portal shows settlements reached in the Portal where the A2A system has been used over the Web-based system, detailed statements were submitted by the Defendant to confirm what had been accepted. At first instance the judge accepted the peculiarity of the differing output, but refused to accept that where the Defendants clearly mistakenly simply sent the Stage 2 pack to the Claimant containing the Claimant's own global offer that there was any meeting of minds and thus found settlement had not been reached, and stated she was distinguishing the matter from Draper . On appeal, Sarah argued that Draper did not say only one class of mistake did not apply in the Portal, all common law mistake was disapplied. It was not the type nor quality of mistake which mattered. All mistake was disapplied to cases in the Portal, it was a highly stand-alone code. The court agreed and found that common law mistake had no place in the Portals. 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 their own offer had been sent back to them by the Defendant. Click here for a copy of the judgment Go back to Topic Index Topic Index Go back to Main Index Main Index