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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

Case law on the status of Portal offers once a claim has left the portal, the difference between a Protocol offer and a Portal offer, withdrawing offers Portal Offers outside the Portal Purcell v McGarry HHJ Gore QC, Liverpool CC, Friday 7th Dec 2012 (Portal offers are open for acceptance in Stage 3) Akinrodoye v Esure DJ Goodchild, Romford CC, 16th Feb 2015 (Portal offers are open for acceptance even after Part 7 proceedings issued) Ingrid Smith v Greater Manchester Buses South Ltd HHJ Main QC, Manchester CC, 17th Dec 2015 (Protocol offers only remain open for acceptance after a claim leaves the Portal) Castle v Andrews & Dickens Ltd DJ Doyle, Birkenhead CC, 21st Nov 2019 (Protocol offers are open for acceptance after a claim leaves the Portal, not Portal offers) Go Back to Index Click on the button below to go back to the case law index Index Search the site here:

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

Chapman v Tameside Hospital - the court used CPR 44 to vary the amount of fixed costs in SIIIA that would be payable, because of the unreasoanble conduct of the claimant. This case features in the White Book. Key Point Judge has power to vary level of SIIIA fixed costs to reflect poor conduct Chapman v Tameside Hospital NHS Foundation Trust DJ Swindley, Bolton County Court, 15th June 2016 Here the court considered whether when awarding costs under SIIIA CPR 45 fixed costs on leaving the portal, there was any discretion to award a different level of costs from the point which the claim had actually reached. The court found that it did have discretion, at [18] the judge said: "I am satisfied that the provisions of Rule 44.2 can be applied. It would be a nonsensical situation if the rules which are provided by Rule 44.2 to give the Court the power to impose sanctions to penalise those who abuse the system, and clearly there has been abuse here by the Trust and possibly by the Litigation Authority initially representing them. I am certainly not suggesting that Weightmans have been dealing with it improperly, they are obviously having to deal with what information they are supplied. But it would be a nonsensical situation if the rules, in an appropriate case where the fixed costs regime did apply, precluded the Court from imposing the sanctions provided under Rule 44.2 and 44.2, of course, gives the Court an unqualified discretion. I do not accept that I am bound by the Part 45 scales, but I clearly have to bear them in mind. It would be nonsensical if the Claimant's solicitors could achieve a windfall and recover more costs than they would have done had the matter gone to trial or settled in favour of the Claimant at the stage that it was discontinued. That would be absolutely nonsensical." An odd decision, given that fixed costs are supposed to be fixed. However, courts do retain discretion on costs and it fits the over-riding objective for courts to be able to reflect poor conduct when awarding costs. It is interesting to see that the Court of Appeal used the same approach, deploying CPR 44 to reduce costs in the case of Williams v Secretary of State for Business, Energy and Industrial Strategy [2018] EWCA Civ 852 . Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Timothy Taylor v ZStage DJ Griffith, Birmingham CC, 3rd September 2019 - Against Roger Mallalieu. Following total non-use of the Portal, an agreement by way of Tomlin Order to settle damages counted as a judgment for the purposes of CPR 45.24, and the court ordered the Defendant to pay no more than portal costs under CPR 45.24(2)(c). Key Point Tomlin Order held to equate to a 'judgment' for the purposes of CPR 45.24 Timothy Taylor & 27 Ors v ZStage (UK) Ltd Real China Restaurant DJ Griffith, Birmingham CC, 3rd September 2019 Between 11th-24th July 2014, around 100 people contracted salmonella poisoning when eating at the Defendant’s restaurant. 94 claims were made by 15 firms of solicitors. All except the 28 Claimants in these proceedings were brought individually in the MOJ Portal. The Defendant maintained throughout that these claims too should have been brought in the Portal, and that the Claimant’s failure to do so should sound in costs, per the court’s specific powers under CPR 45.24(2) and/or under the court’s general powers per CPR 44. The claimant argued that by lumping all these minor claims together, they were worth more than the portal upper Portal limit and together they were too complex for the portal. Individually each claim was worth below the portal limit and all required only one expert. Most recovered in just a few months. The judge found that the Claimant should have brought the claims in the Portal, it was unreasonable not to do so, and thus he limited the Claimant to no more than Portal costs. What is particularly interesting about this case is that the claims settled before trial. Thus there was no judgment entered as required by CPR 45.24. Whilst the court had the alternative route to get to exactly the same result under CPR 44, per Williams v Secretary of State for Business, Energy & Industrial Strategy [2018] EWCA Civ 852 , the court found there was no need to use that route. Instead it found that Williams did not define 'judgment', and that the CPRs used 'order' and 'judgment' interchangeably. Thus he was content that the Tomlin Order was sufficient to amount to a 'judgment' for the purposes of CPR 45.24. However, he granted the claimant permission to appeal on his interpretation of 'judgment'. Ultimately the Claimant did not pursue their appeal. Roger Mallalieu instructed by Irwin Mitchell for the Claimant, Sarah Robson instructed by Percy Hughes and Roberts for the Defendants. 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

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

Luvin v Ageas Insurance Ltd - DJ Doyle, Birkenhead CC, 17th September 2015 - this case sets out the rules and procedure on interim payments in the Portal. Key Point A stay is an essential pre-requisite for an interim payment Luvin v Ageas Insurance Ltd DJ Doyle, Birkenhead CC, 17th Sept 2015 The Claimant solicitors sought an interim payment in the Portal and £1013.50 was paid. The Claimant wanted more, but the Defendant would not agree. The Claimant therefore removed the claim from the Portal and applied for a further interim payment in Part 7 proceedings. If a Claimant leaves the Portal because they disagree with the amount of any interim payment the Defendant offers, they may leave the Portal to issue Part 7 proceedings and seek an interim payment in the Part 7 proceedings. However to do so puts them at a costs risk, because if they do not secure an order for an interim payment for more than the sum which the Defendant offered in the Portal, then they can be restricted to Portal costs. The court found that requesting a stay was a pre-requisite of applying for an interim payment. The Claimant had not done so, and therefore they were not entitled to request an interim payment in the Portal. Therefore the Claimant's decision to leave the Portal was unreasonable. The Claimant was restricted 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

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

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

Case law on leaving the MOJ Portals and the cost consequences which follow. Includes Unreasonable Exit, Where a judge removed the claim from the Portal. minor technical breaches only, total failure to use the Portal. Leaving the Portals Patel v Fortis Recorder Morgan, Leicester CC, 5th Dec 2011 (Leaving for technical non-compliance only not reasonable) Modhwadia v Modhwadia DJ Atkinson Leicester CC 25th Jan 2014; reviewed DJ Atkinson 29th Sept 2014; on appeal HHJ Hampton 20th Jan 2015 (First Tier Appeal - Failure to explain reason for offer not fatal) Ilahi v Usman HHJ Platts, Manchester CC, 29th Nov 2012 (First Tier Appeal - CPR 45.24 engaged even when case automatically left, where that departure was caused by an act which the Claimant elected to take) Doyle v Manchester Audi DJ Matharu, Manchester CC, 25th Jun 2013 (Omission to act causing claim to leave Portal was an election to leave) Payne v Scott DDJ Smedley, Birkenhead CC, 13th Jul 2015 (Where judge ordered case out of Portal was still Claimant's election to leave) Uppal v Daudia DDJ Matthews, Leicester CC, 14th May 2012 (No obligation to make offer in Portal, unreasonable to leave for that, D's Costs awarded on indemnity basis following finding that C acted unreasonably) Rafiania v All Type Scaffolding Ltd DDJ Corscadden, Manchester CC, 14th Jan 2015 (No test of reasonableness for total failure to use the Portal) Monteith v Carroll Liverpool CC, 17th Oct 2012 (Making a pre-med offer did not justify leaving the Portal) Hussain v Wardle Stoke on Trent CC, DJ Rank, 25th Feb 2017 (Claim left Portal after Claimant failed to include mandatory information in the CNF) Bursuc v EUI Ltd DJ Revere, Clerkenwell & Shoreditch CC, 30th May 2018 (Not unreasonable to leave Portal Protocol because became too complex, applications to limit C to Portal costs cannot be made until claim concluded) Go Back to Index Click on the button below to go back to the case law index Index Search the site here:

The court held that you cannot raise anything in a Stage 3 MOJ Portal hearing which has not been raised in Stage 2. Offers in the MOJ Portal do not amount to admissions. Claimants have to repay over-payment of damages in Portal non-settlement payment. Key Point Neither party can raise anything at a Stage 3 hearing which has not been raised in Stage 2 Mulholland v Hughes HHJ Freedman, Newcastle CC, 18th Sept 2015 This case dealt with three different issues; the status of offers in the Portal, whether it is open to a Defendant to rely on matters not raised during Stage 2, whether a court can order repayment of the Stage 2 payments where the court later awards less than that sum. The common theme of all four appeals was that they were cases where the court awarded the Claimant less than the Defendants had offered and in three of those cases there was an overpayment which the Claimants were ordered to repay to the Defendants. The court held firstly that offers in the Portal were not the same as admissions, and thus they did not bind the Defendant in that the Defendant was able to argue for less than the sum they had offered. Secondly, the court held that a Defendant could not rely on arguments not raised during Stage 2 within Stage 3. Thirdly the court found that a court could order a repayment of an over-payment of a Stage 2 payment. Fourthly the court found that parties could not raise an issue in a Stage 3 hearing which had not been raised in Stage 2. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index