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Mazur Run & Gun is the answer to the Mazur problem. Get away from it all! Run - and very fast! Armed only with deadly mince pies, you'll have to move fast to dodge the bullets sent at the unqualified, however supervised you may be. If you're not careful, you could end up floating away, and let's face it, no-one wants that! Mazur, like you've never seen it before! Christmas Game Mazur has had us all on the run, but can you outrun them? Armed only with deadly mince pies, your job is to chase the baddies away before they get to you, or even blow you away! Ahem. You all thought you could get a game about Mazur, but as it turns out, the Association of Gaming Designers* and the Board of Satire and Christmas Spirit*, in terms reminiscent of the CA in Denton speaking of Mitchell, have said you all mis-understood them. They have never approved you doing this. You cannot play a Mazur game, even when supervised. You can, however, play a game called 'Track Attack'. Which, as LJ Waller once famously said, may be a distinction without a difference... For years you've been conducting litigation under supervision. But no more, it seems everyone is out to get you. You can no longer do this. However, all is not lost! You might be able to outrun and outgun the baddies! Run away as fast as you can, and use your deadly mince pie gun to shoot others out of the way. But watch out, the occasional train will randomly fly off the tracks - so be quick! Track Attack is a perfectly suitable fun Christmas game for all litigators, qualified or not. Just run around and shoot stuff. Nothing to do with Mazur. Play here How to Play Controls A - Left D - Right W - Up S - Down Or use the arrow buttons: < - Left > - Right /\ - Up v - Down Space bar - shoot your deadly mince pie! Search the site here: Mazur Run & Gun does not work on mobile phones. It is designed to give my clients a few minutes reprieve when working hard at their desks. So next time you're at your PC or Laptop, come back and play the Mazur game. Meanwhile, just so you don't miss out entirely, have a go at this Christmas Match game. Nothing to do with Mazur! :) When you're done, why not browse through the fixed costs cases on here - see the Index or use the search function to see if there's a case or two you can use. I am particularly keen to get any judgments on the new Oct 23+ expanded fixed costs, so if you get any - reported or not - please do send them to me! Thank you. * entirely fictional and any similarity to any real organisations is entirely coincidental

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

Purcell v McGarry - the court held that offer and acceptance have no place in the MOJ Portal - it is a stand-alone code. Key Point Contract Law, including offer and acceptance, has no place in MOJ Portal Protocol cases Purcell v McGarry HHJ Gore QC, Liverpool CC, Friday 7th December 2012 The issue here on first tier appeal was whether a Defendant could accept an offer after the end of Stage 2. The judge held that a Portal offer remains open for acceptance after the end of Stage 2. Importantly he noted that contract rules such as offer and acceptance have no place in the Portal arena. This case is important as it establishes that a Portal offer does not automatically cease to be open for acceptance. It has been followed by other cases which have held how offers made in the Portal remain open for acceptance even after Part 7 proceedings have been issued. It also makes it clear that the Portal is 'its own man' and thus contract law does not apply. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Portal Admissions binding outside? Disapplication of Common Law

Key Point Key Point Common law Mistake does not apply in the MOJ Portal Protocol Draper v Newport DJ Baker, Birkenhead CC, 3rd September 2014 Here the only issue was whether common law mistake applied to cases in the Portal. The Claimant's solicitor accidentally accepted the Defendant's offer. She immediately rang the Defendant but was unable to get through to the correct person. She uploaded a letter to the Portal within half an hour to confirm that the offer had been accepted in error. The judge considered the nature of the Portal and went through the facts against the over-riding objective. He determined that it would fundamentally undermine the Portal if common law mistake was allowed to apply. The Claimant's solicitor simply should have been more careful. It has been interesting to see how often this first instance and non-binding decision has been followed. It took 4 years for anyone to bring the issue to first tier appeal in Fitton v Ageas. 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 they had made a mistake, as shown by them uploading the letter to say exactly that. 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

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

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

Purcell v McGarry - HHJ Gore QC, Liverpool CC, Friday 7th December 2012. The court held that the portal offers were still open for acceptance after Stage 2 had ended, despite the portal protocol implying otherwise. Contract Law, including offer and acceptance, has no place in MOJ Portal Protocol cases. Key Points Contract Law, including offer and acceptance, has no place in MOJ Portal Protocol cases Purcell v McGarry HHJ Gore QC, Liverpool CC, Friday 7th Dec 2012 The issue here on first tier appeal was whether a Defendant could accept an offer after the end of Stage 2. The judge held that a Portal offer remains open for acceptance after the end of Stage 2. Importantly he noted that contract rules such as offer and acceptance have no place in the Portal arena. This case is important as it establishes that a Portal offer does not automatically cease to be open for acceptance. It has been followed by other cases which have held how offers made in the Portal remain open for acceptance even after Part 7 proceedings have been issued. It also makes it clear that the Portal is 'its own man' and thus contract law does not apply. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

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

Mozzano v Riwa DDJ Dawson, Birkenhead CC, 24th April 2012. How to deal with multiple CNFs. KeyPoint Practical guidance on what to do when faced with multiple CNFs for the same claim Mozzano v Riwa DDJ Dawson, Birkenhead CC, 24th April 2012 The Defendant received a CNF, accepted the claim and admitted liability. The Defendant paid the Stage 1 costs. The Defendant then received a second CNF from a different firm for the same accident they already had a live Portal claim for. The Defendant solicitors sought confirmation from the second firm that they were properly acting for the Claimant, which was received 17 days later. The Defendant admitted liability within 15 days of receiving that confirmation but the claim had timed out of the Portal by then. Part 7 proceedings were issued and damages were later settled but not costs. The matter went to a hearing to determine what costs the parties were entitled to. The court noted that there was nothing in the rules which provided for what to do in this sort of case. However, the judge found at [10] that because of the doubt over the identity of who exactly was the authorised representative, it was incumbent on the Claimant to confirm who was acting for him. The judge also held at [11] that time would only start to run from the delivery of the confirmation of authority to act and clarification of the correct identity of the Claimant's solicitors on the Defendant. The judge also held at [11] that it was a matter for the second Claimant solicitors to sort out Stage 1 costs with the first firm of solicitors, that was not for the Defendant to do. The judge held that the Claimant was only entitled to Portal costs, and the second firm was only entitled to Stage 2 costs, Stage 1 costs having already been paid to the first firm. Please note there are two judgments, the first deals with a late skeleton argument, the second with the substantive matter. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Dickinson v Langford - Birkenhead CC, 14th February 2013 - Raising legal argument and offering zero for some heads of loss did not justify removal from Portal Key Point Raising legal argument and offering zero for some heads of loss did not justify removal from Portal Dickinson v Langford Birkenhead CC, 14th February 2013 Here the Claimant sought care as a head of loss. The Defendant offered zero for this and entered a full defence. The Claimant removed the claim from the Portal and issued Part 7 proceedings in response, claiming that given the dispute and the nature of the defence, the Portal was no longer suitable. However, the court found that the claim should have stayed in the Portal and restricted 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

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: