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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

Mead v British Airways Plc - DJ Moss, Manchester County Court, 15th Jan 2018 - Here the Regional Costs Judge determined that the MOJ Portal does not apply to Montreal Convention Claims. This is despite the portal rules being totally silent re this. Key Point The Portal does not apply to Montreal Convention Claims Mead v British Airways Plc DJ Moss, Manchester County Court, 15th Jan 2018 This was a claim brought under the Montreal Convention where damages were settled without the need for proceedings. Costs could not be agreed, and so they went to Detailed Assessment. The Points of Dispute argued the Portal should have been used. The DJ found on provisional assessment that the Portal should not have been used. The Defendant sought oral review of that point. On oral review the court again found that claims brought under the Montreal Convention did not have to be brought under the Portal. The Montreal Convention governs liability of international carriers to air passengers, and it is an exclusive cause of action. Claims under the Montreal Convention are not common law claims, they do not arise out of a breach of duty. They are strict liability claims, and with that comes some limits, including for example the total amount of damages which can be claimed and which types of injuries are covered. The Montreal Convention does not create any duties. Therefore the Portal does not apply and costs would not be limited. The judge noted the circumstances would have given rise to a common law or other breach of duty, but held that was immaterial - there was no duty of care created by the Montreal Convention. The Montreal Convention was the exclusive remedy. I am grateful to Peter Bland of Scott Rees for sending me a copy of this case. This case, together with the McKendry v BA case, whilst not binding, seems to confirm that Montreal Convention claims do not proceed through the Portal. At first blush this may seem surprising, especially given that there is no specific exclusion of Montreal Convention claims in the Portal protocol, and the general unwillingness to implied exceptions to fixed costs. However, once one considers properly the nature of Montreal Convention claims; strict liability claims arising out of international agreement, rather than breach of duty claims, then it is clear to see it does not match with the Portal Protocol. 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

Phillips v Willis [2016] EWCA Civ 401 - the Court of Appeal held that it was irrational for a judge to order a claim out of the portal. They also confirmed that individual heads of loss can be agreed in the Portal. Key Point Unreasonable to remove a claim from the Portal for a small Credit Hire dispute Phillips v Willis [2016] EWCA Civ 401 This claim went through the MOJ Portal where some heads of loss were agreed in Stage 2, but not all. Only credit hire remained when the matter went to Stage 3. Despite the sum in dispute being less than £500, and the dispute over that sum being very narrow, the judge of his own volition ordered the claim out of the Portal with a long list of disproportionate directions which would have cost vastly more than was reasonable for the sum in dispute and nature of the dispute between the parties. The Claimant appealed and it was upheld at first tier appeal. However, the Court of Appeal overturned the decision, noting that the decision to remove the case from the Portal was irrational in that case. Clearly, it was unnecessary and unreasonable in this case to remove the matter from the Portal, especially where neither party wanted this, and especially with the extensive directions given which were completely disproportionate. This is not to say it would be unreasonable and irrational in all circumstances, but it would appear that this is not expected to be routine. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

DJ Jackson, Canterbury County Court, 29th November 2017. An unusual case where CPR 45.29J exceptional circumstances were found. The claim settled for £350K, there were multiple experts and much in issue. C also argued unsuccessfully that having agreed standard basis costs that excluded fixed costs, before Adelekun v Ho was decided. Key Point SIIIA Exceptional Circumstances Costs under CPR 45.29J Jackson v Barfoot Farms DJ Jackson, Canterbury County Court, 29th Nov 2017 Here the Claimant argued that having agreed terms that the Defendant would pay the Claimant's costs on the standard basis, that fixed costs were excluded. However, the judge found this did not, interestingly the same decision was reached in the SCCO in Davies v Greenway , although the court was not referred to that. Secondly, the claimant was able to successfully argue that the case was so exceptional that non-fixed costs would apply, per CPR 45.29J. Click here for a copy of the judgment 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.

Case law on the new expanded fixed costs regime from October 2023. Including Asmat Bi v Tesco Underwriting Ltd. Oct 23 New Fixed Costs Cases Asmat Bi v Tesco Underwriting Ltd When settled pre-Oct 23 pre proceedings, which costs apply Go Back to Index Click on the button below to go back to the case law index 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

Hislop v Perde [2018] EWCA Civ 1726 - Late acceptance of a Part 36 offer in SIIIA CPR 45 Fixed Costs. At [44] the court said the general rule (r.36.13, old rule r.36.10) is not preserved by the rule applicable to fixed costs cases (r.36.20, old rule r.36.10A). Instead, r.36.20 makes plain that it is the only rule which applies to the costs consequences of acceptance of a Part 36 offer in fixed costs cases. It preserves no part of the general rule set out in r.36.13. Key Point Late acceptance of a Part 36 offer in SIIIA CPR 45 Fixed Costs Hislop v Perde;Kaur v Committee (for the time being) of Ramgarhia Board Leicester [2018] EWCA Civ 1726 Costs consequences of acceptance of a Part 36 offer are prescribed in CPR 36.13. However, not when a claim is governed by SIIIA, i.e. it was previously in the Portal, because CPR 36.20 operates INSTEAD not as well as 36.13. CPR 36.20 does not disapply fixed costs where there has been late acceptance. CPR 45.29J costs are still available but are unaffected by late acceptance alone. At para 44 of the judgment it says: Whilst the general rule dealing with costs consequences following judgment (r.36.17) is expressly preserved by the particular rule relating to the fixed costs regime (r.36.21), that is not the position in relation to the rules relating to the costs consequences of accepting Part 36 offers before trial. For that situation, the general rule (r.36.13, old rule r.36.10) is not preserved by the rule applicable to fixed costs cases (r.36.20, old rule r.36.10A). Instead, r.36.20 makes plain that it is the only rule which applies to the costs consequences of acceptance of a Part 36 offer in fixed costs cases. It preserves no part of the general rule set out in r.36.13. 45. What is more, r.36.13 itself says that it is “subject to” r.36.20 which, because that rule applies to fixed costs cases and r.36.13 does not, also leads to the conclusion that r.36.13 does not apply to fixed costs cases. Where (without more) a general rule is made ‘subject to’ a specific rule that governs a particular class of case then, in that class of case (here, those subject to fixed costs), it will be the specific rule that applies, not the general rule (see Solomon). 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

Case law on SIIIA CPR 45 costs, cases which have started in the MOJ Portal but then left. Old SIIIA CPR 45x Fixed costs on leaving the Portal Cases which leave the portals are still subject to the old fixed costs regime under SIIIA of CPR 45x. An x is used after CPR 45 following the convention in the White Book to denote these are the old rules albeit they are still in force for some claims. Attersley v UK Insurance Ltd [2025] EWHC 884 (KB) (When a Part 36 offer is made before a claim is allocated to the multi-track, but accepted after allocation, the effect of the allocation is retrospective and thus open costs apply) Melloy & Anor v UK Insurance Ltd [2002] EW Misc 4 (CC) (Where there is more than one claimant in a SIIIA claim, each party is entitled to a set of SIIIA fixed costs) West v Burton [2021] EWCA Civ 1005 (SIIIA costs do not apply where the claimant dies whilst the claim is in the Portal) Coleman v Townsend Master Haworth, SCCO, 13.07.20 (What disbursements can be allowed post-Cham in SIIIA cases) Hislop v Perde; Kaur v Committee (for the time being) of Ramgarhia Board Leicester [2018] EWCA Civ 1726 (No indemnity costs on late acceptance of a Part 36 where SIIIA applies) Broadhurst v Tan; Taylor v Smith [2016] EWCA Civ 94 (SIIIA Indemnity costs are hourly rate not fixed) Qader v Esure Services Ltd [2016] EWCA Civ 1109 (Exception to SIIIA costs where allocated to multi-track) Sharp v Leeds City Council [2017] EWCA Civ 33 (SIIIA fixed costs for interim applications apply even for Pre-Action Disclosure applications) Bird v Acorn [2016] EWCA Civ 1096 (Re stage of fixed costs) Singh v Ajaz HHJ Denyer QC, Bristol CC, 27th Sept 2016 (A claim which partly settles in the Portal and then leaves is subject to SIIIA fixed costs in all cases, even small claims) Chapman v Tameside Hospital NHS Foundation Trust DJ Swindley, Bolton County Court, 15th Jun 2016 (A court has the power to vary quantum of fixed SIIIA costs for conduct) Petit v MIB v 5 Ors DJ Pollard, Brighton CC, 15.02.17 (Where claim not properly started in the Portal, SIIIA costs did not follow) Cham (by their Litigation Friend, Laura Martin) v Aldred [2019] EWCA Civ 1780 (Deals with disbursements under SIIIA) Santiago v MIB [2023] EWCA Civ 838 (Interpreter's fees are recoverable under SIIIA) Go Back to Index Click on the button below to go back to the case law index Index Search the site here:

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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