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

High Court Appeal decision in Miss Laura Attersley v UK Insurance Ltd [2025] EWHC 884 (KB). The claim had started in the portal but then left, so prima facie was subject to SIIIA fixed costs. The defendant made a Part 36 offer before the claim was allocated. The offer was later accepted, after the claim had been allocated to the multi track. The issue for the Court of Appeal was wehether open costs or fixed SIIIA costs should apply. The High Court found open costs applied. Attersley v UK Insurance Ltd [2025] EWHC 884 (KB) 11th April 2025 The High Court grappled with the issue of what costs to award on acceptance of a Part 36 offer in a claim which had started in the Portal and then left, but which had been allocated to the multi track after the offer had been made, but before acceptance. The matter had first gone to HHJ Duddridge in Southend/Chelmsford on 26 Sept 2023, where he had decided it was unfair for the claimant to benefit in costs from late acceptance of the Part 36 offer. It had been common ground that had the offer been accepted at the time it would have been made, the Claimant would have only been entitled to fixed costs under SIIIA of CPR 45. However, the Circuit Judge had found that because Part 36 was a self-contained code, the rules of Part 36 should triumph. However, CPR 36.20 was headed "where SIIIA of Part 45 applies". SIIIA was disapplied retrospectively by the allocation to the multi track. At [62] the court held: "...there was in any event more force in the claimant’s argument that the defendant’s argument produced an absurd result: it would lead a claimant who has properly started her claim under a relevant Protocol in what then appeared to be a fairly standard RTA whiplash claim that turned out to be a claim of very significant value requiring very considerable expenditure on expert evidence and legal costs in a claim suitable for the multi-track – to be subsequently penalised in costs. It may well deter claimants from using the RTA Protocol in any case where there was any uncertainty about prognosis and sequelae and thus be counter to the intention of the 2013 reforms and the overriding objective. It could have a deterrent effect on using the relevant Protocols at an early stage and risk preventing cases from being dealt with expeditiously and fairly." The High Court found that the Claimant was entitled to open costs at [74] thus: "...on allocation to the multi-track costs fall to be assessed in accordance with Pt 44 and are not fixed and calculated by reference to the tables." and at [76]: "..CPR 36.20 did not therefore apply to this case at the moment when the Pt 36 offer was accepted." and at [81]: "I therefore conclude that both on a purposive and also a literal reading of the rules where an ex-Protocol case is allocated to the multi-track, it comes out of Section IIIA by the wording of CPR 45.29B and Part 36(20) does not apply." Alex Hutton KC and Thomas Mason for the Claimant Appellant Andrew Roy KC for the Defendant Respondent Click here for the judgment Key Point The Claimant was entitled to open costs in an ex-Portal case, where a Part 36 offer made before the offer was accepted after the claim had been allocated to the multi-track. Go back to Main Index Main Index Go back to Topic Index Topic Index

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

Chimel v Chibwana & Williams HHJ Simpkiss, Reigate CC, 31st October 2016 - This appeal confirmed that a Portal admission is binding to the world, i.e. both in and outside of the Portal. This resolved the position of the two inconsistent first instance decisions of Ullah v Jon and Malak v Nasim concerning whether an admission in the Portal is binding outside the Portal, and concurs with Maddocks v Lyne which almost accidentally found the same. Key Point A Portal admission is binding to the World Chimel v Chibwana & Williams HHJ Simpkiss, Reigate CC, 31st Oct 2016 This first tier appeal directly resolved the position of the two inconsistent first instance decisions of Ullah v Jon and Malak v Nasim on whether an admission in the Portal is binding outside the Portal, and concurs with the almost accidental finding of the same in Maddocks v Lyne . The court confirmed that a Portal admission is binding to the world, i.e. both in and outside of the Portal. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

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

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

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.

Broadhurst v Tan [2016] EWCA Civ 94. The Court of Appeal held that SIIIA indemnity costs are hourly rate costs, not fixed costs.) Key Point Indemnity costs under SIIIA escaped fixed costs Broadhurst v Tan [2016] EWCA Civ 94 Parties agreed that indemnity costs applied because the Claimant had beaten their own Part 36 offer at trial, but they did not agree on the quantification of those costs. The case had started in the Portal and thus on the face of it, CPR SIIIA fixed costs applied. However, as that made the quantification of those fixed costs the same as standard basis costs, the Claimant appealed. On first tier appeal, the judge held that fixed costs applied. The Court of Appeal, however, determined that open hourly rate costs should apply where indemnity costs were awarded. Click here for a copy of the judgment Click here for a Word copy of the judgment Click here for a PDF copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index