Search Results

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

High Court Appeal decision in Miss Laura Attersley v UK Insurance Ltd [2025] EWHC 884 (KB). The claim had started in the portal but then left, so prima facie was subject to SIIIA fixed costs. The defendant made a Part 36 offer before the claim was allocated. The offer was later accepted, after the claim had been allocated to the multi track. The issue for the Court of Appeal was wehether open costs or fixed SIIIA costs should apply. The High Court found open costs applied. Attersley v UK Insurance Ltd [2025] EWHC 884 (KB) 11th April 2025 The High Court grappled with the issue of what costs to award on acceptance of a Part 36 offer in a claim which had started in the Portal and then left, but which had been allocated to the multi track after the offer had been made, but before acceptance. The matter had first gone to HHJ Duddridge in Southend/Chelmsford on 26 Sept 2023, where he had decided it was unfair for the claimant to benefit in costs from late acceptance of the Part 36 offer. It had been common ground that had the offer been accepted at the time it would have been made, the Claimant would have only been entitled to fixed costs under SIIIA of CPR 45. However, the Circuit Judge had found that because Part 36 was a self-contained code, the rules of Part 36 should triumph. However, CPR 36.20 was headed "where SIIIA of Part 45 applies". SIIIA was disapplied retrospectively by the allocation to the multi track. At [62] the court held: "...there was in any event more force in the claimant’s argument that the defendant’s argument produced an absurd result: it would lead a claimant who has properly started her claim under a relevant Protocol in what then appeared to be a fairly standard RTA whiplash claim that turned out to be a claim of very significant value requiring very considerable expenditure on expert evidence and legal costs in a claim suitable for the multi-track – to be subsequently penalised in costs. It may well deter claimants from using the RTA Protocol in any case where there was any uncertainty about prognosis and sequelae and thus be counter to the intention of the 2013 reforms and the overriding objective. It could have a deterrent effect on using the relevant Protocols at an early stage and risk preventing cases from being dealt with expeditiously and fairly." The High Court found that the Claimant was entitled to open costs at [74] thus: "...on allocation to the multi-track costs fall to be assessed in accordance with Pt 44 and are not fixed and calculated by reference to the tables." and at [76]: "..CPR 36.20 did not therefore apply to this case at the moment when the Pt 36 offer was accepted." and at [81]: "I therefore conclude that both on a purposive and also a literal reading of the rules where an ex-Protocol case is allocated to the multi-track, it comes out of Section IIIA by the wording of CPR 45.29B and Part 36(20) does not apply." Alex Hutton KC and Thomas Mason for the Claimant Appellant Andrew Roy KC for the Defendant Respondent Click here for the judgment Key Point The Claimant was entitled to open costs in an ex-Portal case, where a Part 36 offer made before the offer was accepted after the claim had been allocated to the multi-track. Go back to Main Index Main Index Go back to Topic Index Topic Index

Wickes Building Supplies Ltd v Blair 2 [2020] EWCA Civ 17 - The Costs Decision - The Court of Appeal agreed with Sarah Robson that QOCS applied to this second tier appeal, preferring the reasoning of Edis J in Parker v Butler [2016] EWHC 1251 (QB) over that in both Wagenaar v Weekend Travel Ltd [2014] EWCA Civ 1105 and Hawksford Trustees Jersey Ltd v Stella Global UK Ltd and another [2012] EWCA Civ 987. Not to apply QOCS on appeals would deny access to justice. Key Points QOCS applies to all appeals which concern the outcome of a claim for damages for personal injuries and The court considered the appropriate regime of costs Wickes Building Supplies Ltd v Blair (No. 2) (Costs) Click here for a copy of the Judgment [2020] EWCA Civ 17 Following the substantive appeal decision in [2019] EWCA Civ 1934 , the Claimant agreed they should pay the Defendant their costs of the appeal. However, they maintained that Qualified One Way Costs Shifting ("QOCS") applied, and there was a dispute over how to calculate the quantum of costs. Following the close of submissions but before handing down of the judgment, the Defendant offered a 'Mexican Stand off', i.e. for each party to walk away with no further costs payable by either side, which the Claimant duly accepted. The judgment is therefore for academic interest only, but should prove useful in other cases. The Parties relied on a number of decisions, but the CA found just three were relevant: Firstly, Hawksford Trustees Jersey Ltd v Stella Global UK Ltd & another [2012] EWCA Civ 987. There the court considered whether 'proceedings' is s29 of the Access to Justice Act 1999 included both the trial and any appeal. The majority held they were separate proceedings for the purposes of costs. Secondly, the court considered Wagenaar v Weekend Travel Ltd [2014] EWCA Civ 1105, where Vos LJ said at [38] how the meaning of the word 'proceedings' in CPR 44.13 had to be divined primarily from the rules on QOCS themselves. Thirdly, the court considered Parker v Butler [2016] EWHC 1251 (QB), where Edis J had held that QOCS applied on first tier appeal. Here, Wickes urged the court to prefer the construction of the word 'proceedings' adopted in Hawksford over the reasoning in Parker v Butler. At [28], Baker LJ, giving the lead judgment, held that QOCS did apply. He preferred the interpretation of the QOCS rules given by Edis J in Parker v Butler, and held that the word 'proceedings' in CPR 44.13 included both the first instance proceedings and any subsequent appeal. He said at [29] he did not read Hawksford or Wagenaar as being in conflict. In each case, the word 'proceedings' had to be interpreted to reflect the legislative purpose, and the purpose of QOCS was to facilitate access to justice for those of limited means. Agreeing with Edis J's finding in Parker, he noted that if a claimant's access to justice depends on the availability of QOCS, that access would be significantly reduced if they were exposed to a costs risk on any appeal. He concluded: "Any appeal which concerns the outcome of the claim for damages for personal injuries, or the procedure by which such a claim is to be determined, is part of the 'proceedings' under CPR 44.13. This interpretation applies even where; as here, (a) the court is dealing with a second appeal, (b) the appeal is brought by the Defendant to the original claim, and (c) the court has declined to exercise its discretionary powers to limit recoverable costs under CPR 52.19." The court also considered the applicable regime of costs which should apply to the proceedings. Having started in the Portal, been put into Part 7 proceedings at first instance appeal, then that decision being quashed on second tier appeal, the claim was only ever in law in the Portal throughout. Costs for claims which start in the portal are fixed under SIII of CPR 45. Whilst s51 of the Senior Courts Act 1981 gives the court wide discretion when it comes to costs, this is subject to rules of court. The rules of court on an appeal are those in CPR 52. The Court considered that because first tier portal cases clearly come within the ambit of CPR 51.19(1), (any proceedings in which costs recovery is normally limited or excluded at first instance) it followed that appeals do not. Therefore they awarded open costs on the appeal, but this was subject to QOCS. Some welcome clarity on the application of QOCS not just to second appeals, but to all appeals where it concerns the outcome of a claim for damages for personal injuries (submissions had been made on the recent 'mixedQOCS case' of Brown v Commissioner of Police of the Metropolis & Anor [2019] EWCA Civ 1724, although not specifically referred to in the judgment.) It is unclear how where, as here, a case starts and ends in the Portal and therefore is subject to SIII of CPR 45, that it follows because a first instance decision falls within the ambit of CPR 52.19(1) that a non-first instance decision does not. This potentially allows argument that interim applications are similarly not subject to fixed Portal costs but should be payable on an 'open' basis. As noted in para [11] of the judgment, I warned that departing from the fixed costs regime in SIII of Part 45, would undermine certainty, encourage satellite litigation and parties will invent increasingly ingenious ideas to circumvent the regime. However, given the finding on QOCS and indeed the pre-judgment settlement it was at least, academic for the parties, the claimant having already secured an even better deal on settlement following the close of submissions. Sarah Robson was instructed by Keith Bishop of Bakers Solicitors. Click here for a copy of the Costs Judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Bewicke-Copley v Ibeh DJ Vincent, Oxford CC, 4th June 2015 Acceptance of individual heads of loss in the Portal is binding at Stage 3 There have been a few cases on this point since. See Bushell v Parry (first tier appeal) which held that agreement on individual heads of loss are not binding but the circumstances were odd, and Maddocks v Lyne (first tier appeal by DCJ) which held that they are binding in the Portal and mostly binding outside the Portal, Bewicke-Copley preferred over Bushell. Key Point Acceptance of individual heads of loss in the Portal is binding at Stage 3 Bewicke-Copley v Ibeh DJ Vincent, Oxford CC, 4th June 2015 The Defendant accepted the Claimant's offers for personal injury and pre-accident value, but not the claim for credit hire and storage. The Defendant sought further information about those heads of loss, but the Claimant responded by removing the claim from the Portal because it was 'too complex'. Part 7 proceedings were issued claiming for all heads of loss including those agreed in the Portal. The Defendant applied for judgment to be entered for those heads of loss already agreed in the Portal, and for the remaining heads of loss to be allocated to the small claims track. DJ Vincent (as she then was) held that individual heads of loss could be agreed in the Portal and that they were binding. There have been a few cases on this point since. See Bushell v Parry (first tier appeal) which held that agreement on individual heads of loss are not binding but the circumstances were odd, and Maddocks v Lyne (first tier appeal by DCJ) which held that they are binding in the Portal and mostly binding outside the Portal, Bewicke-Copley preferred over Bushell. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Coleman v Townsend Master Haworth, SCCO, 13th July 2020. Disbursements not recoverable in SIIIA cases where fixed costs allow for that work, even when ordered. The court noted it preferred the submissions of Sarah Robson over Ben Williams KC. Key Point Recoverability of disbursements in SIIIA cases Coleman v Townsend Master Haworth, SCCO, 13th July 2020 This was an appeal from an Oral Review of a Provisional Assessment. The appeal was limited to two items; Counsel's abated brief fee for trial and Counsel's skeleton argument. The costs were governed by SIIIA of CPR 45. The defendant made a Part 36 offer just over 21 days before trial. There was an order for skeleton arguments to be exchanged two clear days before trial, so the relevant period of the offer included the due date for the skeleton arguments. The claimant accepted the defendant's offer the day before trial, and sought their costs of the ordered skeleton argument and abated brief fee. At first instance the court had disallowed counsel's fee for drafting the Particulars of Claim, but allowed the fee for the skeleton argument and abated brief fee. The defendant appealed. The claimant was represented by Ben Williams QC and the defendant by Sarah Robson . Mr Williams argued that the brief had to be delivered before the day of the trial, it would have been unreasonable not to have done so. He sought the abated brief fee not under Table 6B section D as that is clearly only payable on the day of trial which had not been reached but rather under CPR 45.29I(2)(h). He further argued that the defendant could not complain where they had made an offer open for acceptance for 21 days where those 21 days included the due date for skeleton arguments - there was nothing wrong with waiting to see what arguments were going to be presented before deciding to accept the defendant's offer. He also argued that the 'swings and roundabouts' argument no longer applied in the post-LASPO world. The hearing was adjourned part heard pending the decision in Cham v Aldred . Once that decision was published, the claimant then argued that the trial advocates' fee was not earned under Table 6B, as that fee is only earned on the date of trial itself, but rather simply as a disbursement and was recoverable under ss(h). There was therefore no duplication of the trial advocacy fee in Table 6B. The defendant argued that fixed costs were designed to give certainty and the trial advocacy fee was clearly intended to only be recoverable inter-parties once the day of trial had been reached. Likewise the skeleton argument was part of the trial preparation and should similarly be disallowed. The judge preferred the submissions of the Appellant/Defendant, finding that the costs of preparing for trial included preparing the skeleton argument and that stage had simply not been reached. It was therefore not payable, and 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

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

About Sarah Robson Barrister - Black Belt Barrister - Fixed Costs Specialist. Article in Counsel Magazine about being a black belt barrister. Newspaper interview with The Sun regarding Tyson Fury and liability orders. Geographical Areas for in person hearings - based in the East Midlands, she covers Norwich to Southampton, Cardiff to York, Bristol to Liverpool. About Sarah Robson Sarah Robson Barrister Fixed Costs Specialist Call now on 0800 634 9650 Geographical Area Covered The yellow circle shows the courts that Sarah Robson normally works in for in person hearings, although most of her work is still remote so all courts in England & Wales are available. Sarah Robson is closest to courts around the Coventry / Northampton / Milton Keynes / Birmingham / Leicester / Reading area, but also regularly travels to Birkenhead, Liverpool, Leeds, Cardiff, Manchester, Bristol and across London. Sarah will travel further by arrangement. The Sun Newspaper - December 2023 Sarah Robson was recently interviewed by a National Newspaper, The Sun, regarding a specialist court case concerning liability orders for the boxer, Tyson Fury. This article appeared on the front page of The Sun in December 2023. Read the article here: Tyson Fury's next big fight is against the tax man - after champ accused of dodging massive bill | The Sun Counsel Magazine Oct 2023 Lessons learnt: The black belt barrister | COUNSEL | The Magazine of the Bar of England and Wales (counselmagazine.co.uk) Counsel magazine recently ran an article about Sarah Robson being a black belt and a barrister, in particular how each 'skill set' impacts on the other. Alpha Court Chambers Sarah practices at: Alpha Court Chambers alphacourtchambers.co.uk 12 Paddock Close Bidford-on-Avon, Alcester Warwickshire B50 4PJ Professional clients should ring for Sarah's postal address if needed.

Raja v Day & MIB - HHJ Gregory, Liverpool CC, 02.03.15 - on appeal the court held that you cannot argue a claim 'would have left the portal anyway'. Key Point Cannot argue 'would have left the Portal anyway' Raja v Day & MIB HHJ Gregory, Liverpool CC, 2nd March 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 Go back to Main Index Main Index Go back to Topic Index Hindsight Topic Using Portals

Modhwadia v Modhwadia DJ Atkinson Leicester CC 25.01.14; reviewed DJ Atkinson 29.09.14; on appeal HHJ Hampton 20.01.15 - Failure to give reasons for offering less than the full sum sought on general damages did not justify leaving the Portal Key Point Failure to give reasons for offering less than the full sum sought on general damages did not justify leaving the Portal Modhwadia v Modhwadia DJ Atkinson Leicester CC 25th Jan 2014; reviewed DJ Atkinson 29th Sept 2014; on appeal HHJ Hampton 20th Jan 2015 In this Detailed Assessment the issue was whether the Defendant's failure to explain why they had offered less than the full sum sought for general damages justified the claim in leaving the Portal. On paper provisional assessment the court held that it did. However, on oral review the court held that it was unreasonable, and restricted the Claimant to no more than Portal costs. The Claimant appealed, arguing that when the Defendant failed to comply with the Portal rules, the claim came out of the Portal automatically and thus did not engage CPR 45.24. However the judge disagreed, finding that although there had been a breach of the Protocol by the Defendant, it did not prevent the claim from continuing in the Portal for the rest of Stage 2. It was only after Stage 2 had ended that the Claimant removed the claim from the Portal. That removal was not justified, and the Claimant was restricted to Portal costs. Click here for a copy of the first tier oral review judgment. Click here for a copy of the Circuit judge appeal judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Khan v Alliance - HHJ Gosnell, Leeds CC, 1st June 2020. The Judge should not raise a point in Stage 3 which parties would not be permitted to do, on the grounds of fairness, following Mulholland v Hughes. Also a Defendant can only challenge matters in the Portal on fairly limited grounds - Part 7 might be more appropriate. Key Point Judge should not raise a point in Stage 3 which parties would not be permitted to do, on the grounds of fairness and A Defendant can only challenge matters in the Portal on fairly limited grounds - Part 7 might be more appropriate Khan v Alliance HHJ Gosnell, Leeds CC, 1st June 2020 The court considered an appeal from a Stage 3 hearing, where Hussain v EUI had not been raised by either party during Stage 2, thus per Mulholland v Hughes neither party could raise it. However, at the Stage 3 hearing, the judge raised the issue himself and awarded the credit hire claim by reference to loss of earnings. On appeal HHJ Gosnell held that where parties are not permitted to raise an issue, it would not be fair for a judge to do so [40-41]. In keeping with the fact that the Portal gives fairly rough justice, he also found at [30] that the extent to which you can challenge a claim in the Portal is limited and thus some disputes should be brought in Part 7 proceedings. It was not unfair for the Defendant to have to choose between running a claim through the cheaper Portal system with limited challenge, or full Part 7 proceedings with its higher costs. 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

Liverpool Victoria Insurance Company Ltd v Yavuz & Ors [2017] EWHC 3088 (QB) (6 December 2017). The High Court considered if knowingly providing false statements in a CNF could amount to contempt. The Court noted cPR 32.14 and CPR 22.1 made it contempt to make a false statement certified by a statement of truth, but neither the Protocol nor PD8B mandated compliance, it merely expected compliance, and a requirement to comly was needed to find contempt. Key Point Considerations of Contempt over completion of CNF Liverpool Victoria Insurance Co Ltd v Yavuz & Ors [2017] EWHC 3088 (QB) (6 Dec 2017) The court here was considering whether or not to commit the defendants for contempt following this 'crash for cash' case. The court considered whether knowing providing false statements in a Claim Notification Form ("CNF"), forms which are electronically signed, and usually by the Claimant's solicitor, could amount to contempt. The court side-stepped the issue but noted that CPR 32.14 and 22.1 made it contempt to make a false statement in certain documents verified by a statement of truth. The court also noted that neither the Protocol nor PD8B mandated compliance, it merely 'expected' compliance, which was not the same as saying parties were required to comply, which was needed to find contempt. It thus seems likely that the Rules Committee will review the rules in this area. Watch this space! Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index