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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

Cham v Aldred [2019] EWCA Civ 1780. Here the court famously held that an infant approval opinion by counsel was not required because of a particular feature of the dispute, but a particular feature of the Claimant. Therefore it was not a recoverable disbursement inter partes in CPR 45 SIIIA fixed costs cases. Key Point Recoverability of disbursements in SIIIA cases Cham (by their Litigation Friend Laura Martin) v Aldred [2019] EWCA Civ 1780 The SIIIA fixed costs regime provides for an advice from counsel in infant cases in the sum of £150. This seemingly untroubling disbursement was awarded at first instance and first tier appeal. However, the Defendant appealed again, and argued it was not recoverable in addition to fixed profit costs. The matter came before LJs Coulson, McCombe and Davies on 8th October, and judgment was handed down on 25th October 2019. LJ Coulson gave the lead judgment and found that the infant approval advice was required not because of a particular feature of the dispute, but because of a particular feature of the Claimant, namely that they were an infant. Therefore it was not recoverable. The court also considered the potential for overlap, claiming the same disbursement under the ‘catch all’ provision in CPR 45.29I(2)(h). At [51] the court held that if an item was specifically within Table 6B, it would not be recoverable in addition to fixed costs. The brief fee was the most obvious example. The court also churned out the oft repeated ‘swings and roundabouts’ argument mentioned in Sharp v Leeds City Council [2017] EWCA Civ 33 . Thus, 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 how Common Law principles and doctrines do not apply in the MOJ Portal Protocols, such as offer and acceptance, common law mistake, waiver and affirmation, even non-Portal CPRs Common Law Principles do not apply in Portal Draper v Newport DJ Baker, Birkenhead CC, 3rd Sept 2014 (Common Law Mistake does not apply in the Portals) Fitton v Ageas DJ Parker, Liverpool CC, 8th Nov 2018 (Common Law Mistake does not apply in the Portals) Harris v Brown HHJ Davey QC, Bradford CC, 18th Jun 2019 (Common Law Mistake does apply in the Portals) Kilby v Brown DJ Peake, Birkenhead CC, 10th Feb 2014 (Waiver & Affirmation do not apply in the Portals ) Purcell v McGarry HHJ Gore QC, Liverpool CC, 7th Dec 2012 (First Tier Appeal - Offer and Acceptance does not apply in the Portals) Patel v Fortis Recorder Morgan, Leicester CC, 5th Dec 2011 (Non-Portal CPRs do not apply in the Portals) Go Back to Index Click on the button below to go back to the case law index 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

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

HHJ Wood QC, Chester CC, 22nd January 2016 - Parties cannot renege on individual heads of loss agreed at Stage 2 except in exceptional circumstances, so long as the claim remains in the portal. Thus Agreements on individual heads of loss are binding at Stage 2. Also the court held (Obiter) that Portal settlements on complete claims are binding to the World. Key Points Agreements on individual heads of loss are binding at Stage 2 and (Obiter) Portal settlements on complete claims are binding to the World Maddocks v Lyne HHJ Wood QC, Chester CC, 22nd Jan 2016 Parties agreed some individual heads of loss during Stage 2, but at the Stage 3 hearing the Claimant re-opened them, which the judge allowed. The Defendant appealed, arguing that agreements reached in the Portal on individual heads of were binding. The Defendant argued how the a Stage 3 hearing was defined as a hearing to determine items which remained in dispute. The Claimant argued that the wording of the rules only referred to 'offer' in the singular. The Defendant relied on Bewicke-Copley v Ibeh which said they are, and the Claimant relied on Bushell v Parry which said they were not. Permission to appeal, in some delicious irony, was given to the Defendants by HHJ Gregory, who had decided the Bushell case. In a long and reserved judgment, HHJ Wood QC held that where a claim remained in the Portal, as here, those items agreed at Stage 2 would be binding on both parties except in very exceptional cases. The judge went on to find, obiter, that if the matter left the Portal, then individual heads of loss were not binding, although the judgment notes that no argument was heard on this point. The court also went on to find, again obiter, that if all heads of loss were agreed in the Portal then it was binding on the world. Whilst confirming the original position as found in Bewicke-Copley v Ibeh , this decision also resolved the dispute between the inconsistent decisions of Ullah v Jon and Malak v Nasim , on whether admissions in the Portal are binding outside of that Portal claim where there is no judgment, by confirming that where settlement is reached on all heads of loss that the agreement is binding on the world, it does not require a judgment to be binding. That point was then confirmed, ratio, 10 months later in the appeal decision of Chimel v Chibwana & Williams . 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

Akinrodoye v Esure DJ Goodchild, Romford CC, 16th February 2015 - Portal offers remain open for acceptance until withdrawn, even after Part 7 proceedings have been issued. Key Point Portal offers remain open for acceptance until withdrawn, even after Part 7 proceedings have been issued Akinrodoye v Esure DJ Goodchild, Romford CC, 16th Feb 2015 This claim had started in the MOJ RTA Portal and Part 7 proceedings were issued. Later the Defendant sought to accept the Claimant's Portal offer, but the Claimant argued that their offer was no longer available for acceptance because Part 7 proceedings had been issued (trying to distinguish this from Purcell v McGarry .) However, the court found that a Portal offer remains open for acceptance unless withdrawn and that it could not be implicitly withdrawn nor withdrawn automatically because certain events such as proceedings had been issued. This is an important case as it extends the decision in Purcell to make it clear that Portal offers remain open for acceptance unless and until withdrawn. Litigants need to be careful to ensure that they have not left any unsuitable Portal offers open if circumstances have changed. Click here for a copy of the 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

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