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

Cookson v Manchester City Council, HHJ Main QC, Manchester CC, 28.04.17 - On acceptance of a Part 36 offer, CPR 45.24 was not available. Notably this is inconsistent with Ansell v AT & T. Key Point On acceptance of a Part 36 offer, CPR 45.24 was not available (inconsistent with Ansell v AT & T) Cookson v Manchester City Council HHJ Main QC, Manchester CC, 28.04.17 In this case, the claim had started in the MOJ Portal but then left. Proceedings were settled by way of Part 36. The Defendant argued that the claim had unreasonably left the Portal and that the Claimant should be restricted to no more than Portal costs, per CPR 45.24. However, the court found there was no discretion to award Portal costs where there had been acceptance of a Part 36 offer. It seems unlikely that the Rules Committee intended that where a claimant has acted unreasonably in leaving the Portal, they could evade the costs consequences of their unreasonable behaviour simply by making a Part 36 offer. This is particularly so when one considers the parties could not make costs bearing Part 36 offers whilst a claim is in the portal (CPR 36.24(4), and the clear indication given in 45.29A(4). It also appears that the court was not referred to the binding CA case of Solomon v Cromwell which decided that Part 36 offers do not preclude awarding fixed costs. It appears this is another badly drafted rule. It is also inconsistent with the case of Ansell & Evans v AT&T . Readers are reminded of the principle in Patel v Secretary of State for the Home Dept [2013] UKSC 72 at [59] where the court found that as a matter of general principle, thus: Where there are conflicting decisions from judges of co-ordinate jurisdiction, then, in the absence of cogent reasons to the contrary, the second of those decisions should be followed. As Ansell is the later decision, this should therefore, be preferred over Cookson v Manchester City Council . Click here for a 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

Other Cases concerning fixed costs, from the Court of Appeal down to Deputy District Judges. See what is going on at the coal face! Other Useful Fixed Costs Cases Ahmed v Pryce DJ Bellamy, Sheffield CC, 11.12.18 Ashraf v Savage DDJ Nix, Leeds CC, 16.01.19 Aslam v Gavin DJ Underwood, Bradford CC, 15.12.17 Baker v Flynn DDJ LeBas, Guildford CC, 19.11.19 (upheld on appeal) Bobby Prior v Silverline International Ltd HHJ Wood QC, Liverpool CC, 08.07.15 Cable v Liverpool Victoria Insurance Co Ltd [2020] EWCA Civ 1015 Ionas v Clennell HHJ Gargan, Middlesbrough CC, 23.10.17 Moon v Catley HHJ Gargan, Middlesbrough CC, 11.01.17 R (on the application of Bhatti) v Bury Metropolitan Borough Council [2013] All ER (D) 355 (Oct) Rennie v Logistic Management Services Ltd and Smith v Wyatt [2011] EWCA Civ 941 Talbot v South Western Ambulance Service NHS Foundation Trust DJ Stewart, Southampton CC, 21.09.19 Wilkinson-Mulvanny v UK Insurance Ltd Regional Costs Judge Phillips, Cardiff CC, on 19.01.23

Piotr Glazer v Nathan Reid DDJ Johnson, Liverpool CC, 2nd March 2012 - here the court held an offer of zero on one head of law was a valid offer in the MOJ Portal. Key Point An offer of zero is a valid offer in the Portal Piotr Glazer v Nathan Reid DDJ Johnson, Liverpool CC, 2nd March 2012 The Defendant made an offer of zero for one head of loss in the Portal. The Claimant removed the claim from the Portal, claiming that the Defendant had breached the Portal rules. When it came to costs the Claimant argued that the requirement to propose an amount for every head of damage (now para 7.41 RTA Protocol, 7.35 EL/PL Protocol) required the Defendant to propose a figure other than zero. They claimed that by offering zero, the Defendant was in breach of that requirement which justified their departure from the Portal. However, the court found that an offer of zero was a perfectly valid offer. To find otherwise would be to find that a Defendant would have to offer at least 1p for any head of loss claimed, however ludicrous it might be. That could not be right. Whilst an offer of zero might be perfectly valid as an offer on one head of loss, it is unclear whether the situation would be the same if every head of loss had an offer of zero made. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Cases on the interplay of Part 36 offers and cases which are subject to fixed ex portal SIIIA CPR 45 costs Part 36 Offers and SIIIA Fixed Costs Cookson v Manchester City Council HHJ Main QC, Manchester CC, 28.04.17 (Acceptance of a Part 36 offer removes the court's powers under CPR 45.24 to limit the claimant to Portal costs) Ansell v AT&T DDJ Lynch, Slough County Court, 12th June 2017 (first instance) HHJ Clarke, Oxford County Court, 14th December 2017 (on appeal) (Acceptance of a Part 36 offer does not remove the court's powers under CPR 45.24 to limit the claimant to Portal costs) Go Back to Index Click on the button below to go back to the case law index Index Search the site here:

Williams v Secretary of State [2018] EWCA Civ 852. The Court of Appeal famously held that where CPR 45.24 could not be used, but the court could get to the same result otherwise by use of CPR 44. Key Point A Court can restrict to Portal costs under CPR 44 generally following a Portal breach, not just under CPR 45.24(2) Williams v Secretary of State for Business, Energy & Industrial Strategy [2018] EWCA Civ 852 Here the court considered a case where CPR 45.24 was not available as Part 7 proceedings had not been issued. The court found that they could reach the same result via a different route, namely by the use of CPR 44.11. Court of Appeal noted it was hardly unusual for the CPRs to provide for two concurrent routes to the same result. This is exactly as the SCCO found in Davies v Greenway and Tunbridge Wells CC found on appeal in Brown v Ezeugwa . Click here for a copy of the 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

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

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

DJ Woods, Watford CC, December 2014 NB now overturned by Chimel v Chibwana Key Point Portal admissions were not binding outside that claim SINCE OVERTURNED Malak v Nasim DJ Woods, Watford CC, December 2014 Here the issue was whether the claimant was bound by an admission which his insurers had made in the Portal on an entirely separate claim. The court found they were bound only within those same proceedings, not otherwise, rejecting the finding of Ullah v Jon . Please note that after this case was decided, the issue of whether Ullah v Jon or Malak v Nasim was correct was determined in the appeal of Chimel v Chibwana & Williams . The appellate court decided that Malak was wrongly decided. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

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