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Uppal v Daudia DDJ Matthews, Leicester CC, 14th May 2012 - The defendant recovered their own costs of defending the Part 7 proceedings on the indemnity basis because of C's unreasonable exit from Portal Key Point Defendant recovered indemnity costs because of C's unreasonable exit from Portal Uppal v Daudia DDJ Matthews, Leicester CC, 14th May 2012 The Claimant removed the claim from the Portal after the Defendant failed to reply to its second offer. The court confirmed that the Defendant only needs to make one offer in the Portal. Therefore the exit from the Portal was unreasonable. As the Claimant had acted unreasonably, it followed that the Defendant was entitled to their costs of the Part 7 proceedings on an indemnity basis. Click here for the Lawtel case summary Go back to Main Index Main Index Go back to Topic Index Topic Index

A helpful selection of cases for the busy lawyer. These concern all sorts of Fixed Costs, with short summaries of cases, copies of judgments, and all fully indexed. Sarah Robson Barrister Fixed Costs Specialist Call now on 0800 634 9650 MOJ RTA & EL/PL Portals & Fixed Costs Sarah has a wealth of knowledge and experience in dealing with fixed costs cases, including those to do with the MOJ Portals. See the Portal & Fixed Costs Cases Index page for details of Fixed Costs case law. THE MOJ PORTAL PROTOCOLS EL/PL Portal Protocol The EL/PL Portal Protocol can be found here: https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/pre-action-protocol-for-low-value-personal-injury-employers-liability-and-public-liability-claims Current RTA Portal Protocol The current RTA Portal Protocol can be found here: https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/pre-action-protocol-for-low-value-personal-injury-claims-in-road-traffic-accidents-31-july-2013 Published Articles Sarah has written a number of articles on the MOJ Portal and Fixed Costs and often lectures on this topic. These include: PI Briefing Ordered out by judge - held to be an election to leave Portal Click here for an article by Sarah which appeared in PI Briefing Sept 15 the case of Payne v Scott - on how she persuaded the court to find that where an earlier judge had ordered a claim out of the Portal and into Part 7 proceedings, that was still an election by the claimant to leave the portal. Inside the Portal Click here for an article by Sarah which appeared in Claim Magazine in December 2012 "Sarah Robson - Inside the Portal." Claim Magazine PI Focus Binding nature of Portal Settlements PI Focus June 16 - Sarah had an article published regarding accepting individual heads of loss in the Portal, and the binding nature of Portal settlements. The Quirks of the MOJ Portal Click here for an interview with Sarah Robson which appeared in FOIL (Forum of Insurance Lawyers) November 2012 "The Quirks of the MOJ Portal." FOIL Magazine Lexis Nexis Webinar The claims Portal, Protocols and Fast Track Click below for details of a webinar by Sarah Robson on Lexis Nexis. http://www.lexiswebinars.co.uk/speakers/sarah-robson Speaking Engagements Sarah is often invited to speak at events, seminars and training sessions. She can tailor her courses to suit the audience from senior partner level to the man on the Clapham Omnibus. Please call or email for details.

David Grant v Dawn Meats (UK) [2018] EWCA Civ 2212 Key Point A stay on a Portal claim meant that no procedural steps were to be taken, even service of a claim form David Grant v Dawn Meats (UK) [2018] EWCA Civ 2212 In this case, limitation arose before the parties had been able to complete all the steps of Stage 1 and Stage 2 in the Portal. In accordance with para 5.7 of the EL/PL Protocol, the Claimant issued stage 3 and the proceedings were stayed. During the period of the stay, the Claimant did not serve the claimant form on the Defendant. The Defendant argued that the failure to serve the claim form within 4 months meant that the claim lapsed and there were no proceedings. At first instance the Claimant won, however the defendant appealed and HHJ Gore QC reversed that decision, finding that the stay did not operate to stay the time within which the claimant must serve the proceedings. Permission to appeal to the Court of Appeal was given by LJ Hamblen. The Court of Appeal considered that a stay 'halts' or 'freezes' proceedings. No steps are required or even permitted during a stay. When a stay is lifted, the position is exactly as it was between the parties the moment the stay was imposed. The Court of Appeal also noted that para 16 of PD 8B requires the claimant to 'send' the defendant the claim form, rather than 'serve' it. There was no justification in the argument that the claim form stood outside the rules, there was no distinction in the CPRs between the service of a claim form and any other procedural step. Also the interpretation of the CPRs could be 'sense-tested' by noting that if there were a requirement to serve the claim form within 4 months despite a stay, then that would require the appellant to seek a stay, then apply to lift the say in order to serve the claim form, then presumably apply to re-impose the stay. Such a procedure would be unnecessarily cumbersome and contrary to the intention that the rules in this area should be straightforward. This is an interesting judgment on the issue of limitation and the Portal. It does not appear that the Court of Appeal were directed to the decision in Patel v Fortis which dealt specifically with service in the Portal. Indeed it is also clear that the Court of Appeal were labouring under the mis-apprehension that there was a requirement to serve a Portal claim form within 4 months, which does not appear anywhere in the Portal Protocol or PD 8B. However, it does give welcome clarity on the position once a claim is issued and the status of a stay. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Sharp v Leeds City Council [2017] EWCA Civ 33 on wehther SIIIA CPR 45 fixed costs applied on Pre-Action Disclosure ("PAD") applications. The Court of Appeal held SIIIA applied. To recognise implied exceptions to the application of fixed costs would undermine the whole fixed costs scheme. The 'blanket' application of SIIIA fixed costs was confirmed. The only exceptions are in CPR 45.29A(2) for disease claims, CPR 4529A(3) for costs assessed under CPR 45.24 and CPR 45.29B for multi track claims Key Point 'Blanket' application of SIIIA Costs Sharp v Leeds City Council [2017] EWCA Civ 33 Here the issue was whether SIIIA CPR 45 fixed costs applied on Pre-Action Disclosure ("PAD") applications. At first instance, it was held they did not apply, however on first-tier appeal the court said SIIIA did apply. The Court of Appeal held that SIIIA costs did apply. PAD applications were not in a class of their own. To recognise implied exceptions to the application of fixed costs would undermine the whole fixed costs scheme. This case confirms the 'blanket' application of SIIIA fixed costs. The only exceptions are as stated in CPR 45.29A(2), for disease claims, CPR 4529A(3) for costs assessed under CPR 45.24 and CPR 45.29B for claims allocated to the multi-track. Click here for a copy of the 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

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

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:

Brown v Ezeugwa HHJ Simpkiss (Designated Circuit Judge) with DJ Lethem (Regional Costs Judge) as assessor Tunbridge Wells CC, 23rd January 2014 - A court can order Portal costs under CPR 45.24 even where a Part 36 offer has been accepted. Key Point A court can order Portal costs under CPR 45.24 even where a Part 36 offer has been accepted Brown v Ezeugwa HHJ Simpkiss (Designated Circuit Judge) with DJ Lethem (Regional Costs Judge) as assessor Tunbridge Wells CC, 23rd January 2014 The claim left the Portal and went into Part 7 proceedings where it was settled by a consent order. That read that the Defendant was to pay the Claimant standard basis costs to be assessed if not agreed. The Claimant argued that meant they could not be restricted to fixed Portal and had the Defendant wanted to argue that fixed costs applied they should have done so before the order was made, not when costs were being assessed. The court noted there were two issued, firstly whether the paying party could take a point under CPR 45.36 (now 45.24) at the time the judgment was given and secondly whether an award of costs on the standard basis precluded an argument under CPR 45.36 (now CPR 45.24). The court held there was nothing in the rules which supported the contention that an order for costs under CPR 45.36 (now 45.24) had to be made at the time the order for costs was made. The court also noted that if the Rules Committee had intended that power should only be exercised at the stage when a costs order was made then it was surprising that the provision was not included in Part 44. At [28] the court held: 28. ...The issues in relation to costs fall into three stages. Stage 1 is the award of costs. Stage 2 is the decision by the assessing judge of what the order for costs means, and stage 3 is the quantification on that basis. 29. In this case Stage 1 was consented to in the order of 12th December 2012. The Defendant was to pay the Claimant’s costs, and the basis of costs was to be the standard basis. Stage 2 was, not surprisingly and not unusually, elided into Stage 3, but the deputy district judge did set about the assessment on the basis of a standard basis assessment. 30. Where, in our judgment, he went wrong was not to apply his mind to the distinction between the award of costs and the direction as to the basis that the assessment should take place with the quantification or assessment process itself. CPR 44.3 and 4 are concerned with the award and the basis of assessment. CPR 45, albeit relating to fixed costs, is one of the provisions that deals with the quantification of those costs, and therefore in our judgment there is no reason why the assessing judge cannot exercise the powers under 45.36 in carrying out that assessment. Thus the court confirmed that an order for standard basis costs does not preclude costs being assessed under CPR 45.24 (was 45.36). The court also confirmed the position found in Patel v Fortis that a court has the power to restrict a Claimant to Portal costs following settlement, not just judgment, a position reversed in Williams v Secretary of State for Business, Energy & 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

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

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

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

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