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Raja v Day & MIB - HHJ Gregory, Liverpool CC, 02.03.15 - on appeal the court held that you cannot argue a claim 'would have left the portal anyway'. Key Point Cannot argue 'would have left the Portal anyway' Raja v Day & MIB HHJ Gregory, Liverpool CC, 2nd March 2015 The Claimant had some difficulty in locating the correct and sent CNFs to a number of incorrect Defendants before finding the correct one. However, instead of sending them a CNF first, the Claimant issued Part 7 proceedings against them. At first instance, the lower court found that the claim would have left the Portal anyway, and declined to restrict the Claimant to Portal costs. However, on appeal, the court found the Claimant had acted unreasonably. The court also held that the lower court had been wrong to find that the claim would have left the Portal anyway. The Claimant was restricted to Portal costs. This case, along with Tennant v Cottrell , Dawrant v Part & Parcel Network and Hussain v Wardle confirms that a court cannot use hindsight when assessing whether a Claimant has acted unreasonably in breaching the Portal. A court must look at things as they were at the time of the breach. There can be no retrospective justification for an earlier Portal breach. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Hindsight Topic Using Portals

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

Khan v Alliance - HHJ Gosnell, Leeds CC, 1st June 2020. The Judge should not raise a point in Stage 3 which parties would not be permitted to do, on the grounds of fairness, following Mulholland v Hughes. Also a Defendant can only challenge matters in the Portal on fairly limited grounds - Part 7 might be more appropriate. Key Point Judge should not raise a point in Stage 3 which parties would not be permitted to do, on the grounds of fairness and A Defendant can only challenge matters in the Portal on fairly limited grounds - Part 7 might be more appropriate Khan v Alliance HHJ Gosnell, Leeds CC, 1st June 2020 The court considered an appeal from a Stage 3 hearing, where Hussain v EUI had not been raised by either party during Stage 2, thus per Mulholland v Hughes neither party could raise it. However, at the Stage 3 hearing, the judge raised the issue himself and awarded the credit hire claim by reference to loss of earnings. On appeal HHJ Gosnell held that where parties are not permitted to raise an issue, it would not be fair for a judge to do so [40-41]. In keeping with the fact that the Portal gives fairly rough justice, he also found at [30] that the extent to which you can challenge a claim in the Portal is limited and thus some disputes should be brought in Part 7 proceedings. It was not unfair for the Defendant to have to choose between running a claim through the cheaper Portal system with limited challenge, or full Part 7 proceedings with its higher costs. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Mead v British Airways Plc - DJ Moss, Manchester County Court, 15th Jan 2018 - Here the Regional Costs Judge determined that the MOJ Portal does not apply to Montreal Convention Claims. This is despite the portal rules being totally silent re this. Key Point The Portal does not apply to Montreal Convention Claims Mead v British Airways Plc DJ Moss, Manchester County Court, 15th Jan 2018 This was a claim brought under the Montreal Convention where damages were settled without the need for proceedings. Costs could not be agreed, and so they went to Detailed Assessment. The Points of Dispute argued the Portal should have been used. The DJ found on provisional assessment that the Portal should not have been used. The Defendant sought oral review of that point. On oral review the court again found that claims brought under the Montreal Convention did not have to be brought under the Portal. The Montreal Convention governs liability of international carriers to air passengers, and it is an exclusive cause of action. Claims under the Montreal Convention are not common law claims, they do not arise out of a breach of duty. They are strict liability claims, and with that comes some limits, including for example the total amount of damages which can be claimed and which types of injuries are covered. The Montreal Convention does not create any duties. Therefore the Portal does not apply and costs would not be limited. The judge noted the circumstances would have given rise to a common law or other breach of duty, but held that was immaterial - there was no duty of care created by the Montreal Convention. The Montreal Convention was the exclusive remedy. I am grateful to Peter Bland of Scott Rees for sending me a copy of this case. This case, together with the McKendry v BA case, whilst not binding, seems to confirm that Montreal Convention claims do not proceed through the Portal. At first blush this may seem surprising, especially given that there is no specific exclusion of Montreal Convention claims in the Portal protocol, and the general unwillingness to implied exceptions to fixed costs. However, once one considers properly the nature of Montreal Convention claims; strict liability claims arising out of international agreement, rather than breach of duty claims, then it is clear to see it does not match with the Portal Protocol. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Liverpool Victoria Insurance Company Ltd v Yavuz & Ors [2017] EWHC 3088 (QB) (6 December 2017). The High Court considered if knowingly providing false statements in a CNF could amount to contempt. The Court noted cPR 32.14 and CPR 22.1 made it contempt to make a false statement certified by a statement of truth, but neither the Protocol nor PD8B mandated compliance, it merely expected compliance, and a requirement to comly was needed to find contempt. Key Point Considerations of Contempt over completion of CNF Liverpool Victoria Insurance Co Ltd v Yavuz & Ors [2017] EWHC 3088 (QB) (6 Dec 2017) The court here was considering whether or not to commit the defendants for contempt following this 'crash for cash' case. The court considered whether knowing providing false statements in a Claim Notification Form ("CNF"), forms which are electronically signed, and usually by the Claimant's solicitor, could amount to contempt. The court side-stepped the issue but noted that CPR 32.14 and 22.1 made it contempt to make a false statement in certain documents verified by a statement of truth. The court also noted that neither the Protocol nor PD8B mandated compliance, it merely 'expected' compliance, which was not the same as saying parties were required to comply, which was needed to find contempt. It thus seems likely that the Rules Committee will review the rules in this area. Watch this space! Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Mullen v Nelson Insurance Co Ltd HHJ Wood QC, Liverpool CC, 2nd Oct 2020. Here the Designated Circuit Judge held that an admission in the MOJ Portal by the Claimant's employers' vehicle insurance was binding on the Claimant. The court followed Chimel v Chibwana & Williams, HHJ Simpkiss, Reigate CC, 31st October 2016. Key Point Portal Admission binding outside the Portal even when m ade by Employer's Insur er Mullen v Nelson Insurance Co Ltd HHJ Wood QC, Liverpool CC, 2nd Oct 2020 Both parties brought claims in the Portal against one another for the same accident. The Claimant was driving his employer's vehicle and unknown to him, the insurers admitted liability for the accident in the Portal. Mr Mullen's Portal claim dropped out, and Part 7 proceedings were issued. The Defendant relied on the Portal admission in the Part 7 proceedings, and invited the Claimant to discontinue. However, the Claimant insisted it was not his admission and he was not bound by it. The Portal was a highly self-contained code and therefore an admission in one claim to which he was not a party could not affect another separate claim. However, the court disagreed, noting that the Claimant's employer's insurers had admitted that the accident was caused by Mr Mullen's negligence and he was bound by the admission. The court followed Chimel v Chibwana & Williams . Instructed by Matt Dowrick of Canford Law Solicitors. 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

Kilby v Brown - DJ Peake, Birkenhead CC, 10th February 2014 - Leaving the Portal for technical non-compliance only is not justified and Common Law Waiver and Affirmation do not apply in the Portal Key Points Leaving the Portal for technical non-compliance only is not justified and Common Law Waiver and Affirmation do not apply in the Portal Kilby v Brown DJ Peake, Birkenhead CC, 10th February 2014 Here the Defendants inadvertently underpaid the Claimant their Stage 2 payment by a mere £15. The Claimant solicitors ceased upon the opportunity to remove the claim from the Portal. The costs went to a separate hearing where the court considered whether the Claimant had acted reasonably in removing the claim from the Portal in circumstances where there had been a clear and admitted breach of the Portal Protocol. The judge held that the Claimant solicitors had been wholly unreasonable and restricted the claimant to Portal costs under CPR 45.24(2)(b)(i). The Defendant also argued that as the Claimant had banked their cheque, they had thereby affirmed their breach. However, the judge held that the Portal is and that the common law doctrines of waiver and affirmation do not apply. Click here for a link to an article about this case in the Liverpool Echo People often say this case was only decided this way because the Claimant had run up an unreasonable £16K of costs in a simple low-level case. However, those were the total costs of both sides and included the additional costs arising from the additional hearing the costs dispute caused. The principle applies equally however much the parties costs are, and indeed now most would fall under SIIIA fixed costs. Click here for a copy of the judgment Main Index Go back to Topic Index Topic Index Go back to Main Index

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

Ullah v Jon DJ Parker, Croydon CC, 20th March 2013. The court held that an admission in the portal is binding to the world. Notably Malak v Nasim later held the opposite, but order was restored with Chimel v Chibwana & Williams finding that Ullah v Jon was correct all along. Key Point Portal Admissions are binding to the world Ullah v Jon DJ Parker, Croydon CC, 20th Mar 2013 Both parties brought claims in the Portal blaming one another for the accident. Jon as defendant rejected liability, but Ullah as defendant admitted liability in the Portal claim brought against him. Part 7 proceedings were then brought against Jon by Ullah, despite his admission of liability. During proceedings the Portal admission came to light. Jon applied to rely on the admission and sought summary judgment. Ullah cross applied for a declaration that they were not bound by the decision, or in the alternative that they should be allowed to resile from the admission. The court held that Mr Ullah was bound by his admission of liability made in the Portal. Summary judgment was given for Jon. NB a different result was found in Malak v Nasim . However, in a separate appeal on which case was correct, Chimel v Chibwana & Williams , the court held that Ullah v Jon was the right decision. This confirmed the seemingly inadvertent obiter conclusion of the same point in Maddocks v Lyne . Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

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

Dawrant v Part & Parcel Network HHJ Parker, Liverpool CC, 28th April 2016 - Sitting with Regional Costs Judge Jenkinson, as Assessor. The court held a court cannot use hindsight or speculation when awarding costs following a Portal breach - the test was on the facts as at the date of the breach. Key Point A court cannot use hindsight or speculation when awarding costs following a Portal breach - the test was on the facts as at the date of the breach Dawrant v Part & Parcel Network Ltd HHJ Parker, Liverpool CC, 28th Apr 2016 Sitting with Regional Costs Judge Jenkinson, as Assessor Here the Claimant failed to send a CNF, and the Defendant sought to limit the Claimant's costs to Portal costs, per CPR 45.24(2). At first instance the lower court declined to restrict the Claimant to Portal costs. The Defendant appealed, saying the judge had applied hindsight and speculated about what would have happened had the claim been brought in the Portal, relying on Raja v Day & MI B. On appeal it was held that the lower court had taken into account a number of issues which were irrelevant. In particular at [44] it was noted the lower court had considered that the Defendant had failed to admit liability and had failed to explain why quantum could not be agreed, at [45] that the Defendant had failed to file an acknowledgment of service, and at [46] had filed a long defence and applied for the matter to be allocated to track. Finally at [47] the judge found that there was evidence that had the matter been submitted in the Portal it may well have never reached Stage 2 because the Defendant had not admitted liability in Part 7 proceedings within the timescale required in the Portal. The appeal court held that the court engaged in clear speculation using the benefit of hindsight. At [48] the judge said: "This in my submission, is clear speculation using the benefit of hindsight and the deputy district judge was clearly asking herself the question, 'would it have made any difference if the Claimant had complied with the protocol and served a claim notification form on the defendant's insurer', and arriving at the answer no. She did not think that that would have made any difference and that was, in my judgment, dangerous speculation and she was wrong so to do." HHJ Parker went on to limit the Claimant to Portal costs. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

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