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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

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

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Bird v Acorn [2016] EWCA Civ 1096 - the Court of Appeal held that listing a case for disposal, not just trial, triggered the highest stage of fixed SIIIA CPR 45 fixed costs for cases which leave the Portal. There was no requirement for a case to go through all the stages in order. Key Point A disposal hearing is a trial for the purposes of SIIIA Fixed costs Bird v Acorn Group Ltd [2016] EWCA Civ 1096 The Court of Appeal held that listing a claim for not just a trial still triggered the highest stage of SIIIA CPR 45 fixed costs for cases which leave the Portal. A disposal was a trial for the purposes of fixed SIIIA costs. There was no requirement for a case to go through all the stages in order. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

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

Mukadam v Nazir HHJ Khan, Preston CC, 14th May 2020. The court held that Admission in the MOJ Portal by the Claimant's Employer's Insurers was binding. ALSO A side note to the Portal admission stating: 'made without driver's instructions' did not change effect of Portal Admission Key Point Admission in Portal by Employer's Insurers was binding ALSO A side note to the Portal admission stating: 'made without driver's instructions' did not change effect of Portal Admission Mukadam v Nazir HHJ Khan, Preston CC, 14th May 2020 Both parties brought a claim against the other in the Portal. In the one brought by Mr Nazir, the Defendant in that claim admitted liability. Mr Mukadam was driving his employer's vehicle under their policy of insurance. He argued that the admission made by the insurers should not bind him outside of the claim, noting that because it was not his insurance policy, he had no privity of contract with the insurers. Furthermore, when the admission of liability was made in the portal, it was accompanied by a side note which stated: "Please note that we are dealing with your client’s claim on a without admission of liability from our insured." The court held that nonetheless, the admission was binding on the driver outside the portal, preferring Ullah v Jon to Malak v Nasim , and following Chimel v Chibwana & Williams . Instructed by Matt Dowrick, Canford Law Solicitors. Click here for a copy of the judgment Click here for a PDF copyof the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Piotr Glazer v Nathan Reid DDJ Johnson, Liverpool CC, 2nd March 2012 - here the court held an offer of zero on one head of law was a valid offer in the MOJ Portal. Key Point An offer of zero is a valid offer in the Portal Piotr Glazer v Nathan Reid DDJ Johnson, Liverpool CC, 2nd March 2012 The Defendant made an offer of zero for one head of loss in the Portal. The Claimant removed the claim from the Portal, claiming that the Defendant had breached the Portal rules. When it came to costs the Claimant argued that the requirement to propose an amount for every head of damage (now para 7.41 RTA Protocol, 7.35 EL/PL Protocol) required the Defendant to propose a figure other than zero. They claimed that by offering zero, the Defendant was in breach of that requirement which justified their departure from the Portal. However, the court found that an offer of zero was a perfectly valid offer. To find otherwise would be to find that a Defendant would have to offer at least 1p for any head of loss claimed, however ludicrous it might be. That could not be right. Whilst an offer of zero might be perfectly valid as an offer on one head of loss, it is unclear whether the situation would be the same if every head of loss had an offer of zero made. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Sarah Robson is not a Direct Access qualified barrister. Members of the public will have to get a solicitor to instruct her. This page tells you what your solicitor can do for you if you get a Liability Order against you which you dispute - how to apply to set it aside - appeal - and how to "Check, Challenge, Appeal" non-domestic rates in the Valuation Tribunal. Act fast - you have days or weeks in which to apply to set aside a liablity order. Sarah Robson Barrister Fixed Costs Specialist Call now on 0800 634 9650 Liability Orders Members of the General Public are reminded that they should see a SOLICITOR if they have a problem with a liability order. Sarah Robson cannot speak to members of the public directly. How to Appeal a Liability Order Challenge liability to pay in the Valuation Tribunal The Valuation Tribunal The Valuation Tribunal is the place to dispute liability for non-domestic or business rates. See their website for more details at: www.valuationtribunal.gov.uk Can I Appeal a Liability Order? I am often asked if liability orders can be appealed. Yes you can, but that is an expensive route and the timescales are tiny. If you believe the liability order should not have been made in the first place, and/or it was made in error, then it would be far cheaper instead to apply to set it aside - but you need to act really fast. Challenges to liability to pay non-domestic rates are often better brought in the Valuation Tribunal . The secret to successfully challenging a liability order is to act fast as soon as you receive a summons or think a liability order may have been made. It is not unlike applying to set aside a statutory demand when it comes to time running. Write to the court and ask for a hearing to consider your application to set the liability order aside. Setting Aside Liability Orders Magistrates are creatures of statute, and do not have a statutory power to re-open civil cases, even when they know they have made an error! This used to mean that the only way to challenge a liability order was to judicially review the order - a highly expensive process. A common law power to re-open a civil case by magistrates developed in case law, which is unusual for civil matters in the largely criminal court of the magistrates. This was set out in Liverpool City Council v Pleroma Distribution Ltd [2002] EWHC 2467 (Admin) (“Plemora”) as where there had been a substantial procedural defect, where it has done something which is unlawful and in excess of its jurisdiction. R (on the application of Newham London Borough Council) v Stratford Magistrates' Court & Selwyn Dublin R (on the application of Newham London Borough Council) v Stratford Magistrates' Court & Selwyn Dublin (Interested Party) [2008] EWHC 125 (Admin), [2008] RA 108, [2008] All ER (D) 17 (Jan) [2008] In this case, Dublin claimed he had not been aware of the proceedings. He did not submit nor prove that order was unlawful or made in excess of jurisdiction, or in ignorance of a significant fact concerning their procedure of which the justices should have been aware, as required in Brighton & Hove. The District Judge allowed the application because he had an ‘arguable case’. The council applied to Judicially Review the decision of the District Judge to set aside the liability order. At Judicial Review Sarah successfully argued that was the wrong test. The test to set aside a liability order was not simply where it would be reasonable and in the interests of justice to do so – such a test would be too wide and vague. A liability order cannot be overturned simply by showing an arguable case. The court must be satisfied: the order was made as a result of a substantial procedural error, defect or mishap, that there was both a genuine and dispute as to that liability, and that the application was made promptly. Finding ‘some doubt’ over the original decisions does not satisfy the correct test, neither would allegations as to non-receipt of summonses, etc, even if proved. However he went on to say: “If non-attendance at a hearing because of a traffic accident would be sufficient to satisfy that criterion, I find it difficult to see why non-receipt of the notice of the hearing might not also qualify.” How the power to set aside developed In R (Brighton and Hove City Council) v Brighton and Hove Justices [2004] EWHC 1980 (Admin) (“Brighton & Hove”), HHJ Burnton said it was important to note that the power Maurice Kay J held to exist in Plemora to set aside a liability order could not be exercised simply where the defendant disputed his liability. There must be a substantial defect, and not on the part of the defendant. Further, in Camberwell, at para 37, LJ Waller expressed disquiet over the Plemora case, saying it was not free from doubt. Further, at para 34, HHJ Burnton stated the proper consideration was: “whether there had been any procedural defect in the proceedings that led to making of the liability orders, and whether (the defendant) had applied promptly for them to be set aside after learning they had been made.” In Brighton & Hove, HHJ Burnton (at para 31) held that it would be exceptional to set aside a liability order, something to be undertaken cautiously. Further (para 37) he stressed the importance of the need for finality in proceedings for liability orders, and how it is inappropriate to re-open orders simply where it would be reasonable and in the interests of justice to do so – that test was too wide and vague. HHJ Burnton further held that a court should not set aside a liability order unless it is satisfied that there is a genuine and arguable dispute as to the defendant’s liability for the rates in question, AND a. the order was made as a result of a substantial procedural error, defect or mishap. (The court must be satisfied that the order was unlawful or made in excess of jurisdiction, or in ignorance of a significant fact concerning their procedure of which the justices should have been aware) AND b. the application to the justices for the order to be set aside is made promptly after the defendant learns that it has been made or has notice that an order may have been made. Prompt action should be taken within a matter of days or at most a very few weeks, not months, and certainly not as much as a year, (para 33). (Brighton and Hove City Council) v Brighton and Hove Justices [2004] EWHC 1980 (Admin) When does time start to run? Time starts to run from constructive notice that an order may have been made Prompt Application Those wishing to apply to set aside a liability order should note that as a matter of principle for all challenges to administrative and judicial decisions, the application should be made promptly. Time starts to run from the date of the order, or from when a defendant has notice or constructive notice of the order. Constructive notice of a liability order can be deemed from as little as notice of the issue of a summons with no notice of the actual outcome – para 33 Brighton & Hove; “the jurisdiction to reopen a liability order will be unavailable to a defendant who delays in circumstances in which he has notice that an order may have been made, although he had not received a copy or been informed that an order has been made." Those who wish to challenge a finding of liability to pay council tax will be pleased to note that there is no time limit for appealing to the council concerned, providing they have not already given a decision notice or 'final decision'.

Patel v Fortis - Recorder Morgan, Leicester CC, 5th December 2011 - Leaving the Portal for technical non-compliance only is not reasonable and 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 Dec 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 the then CPR 45.36(2)(b)(i) (now CPR 45.35). 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