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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

Key Point Key Point The bar for exceptional circumstances is a high one and The basket of cases against which one assesses exceptionality is all those cases which start in the Portal and then leave Ferri v Gill [2019] EWHC 952 (QB) The lower court had erred in finding that the bar was low. It was in fact a very high bar. At [43] the court held: "As the House of Lords said in R v Soneji, an expression such as “exceptional circumstances” must take its colour from the setting in which it appears. The setting in which it appears informs the Court whether a strict approach to exceptional is or is not warranted. " The second question was whether the Master was right in defining the ‘basket’ of cases compared with which a case needs to have “exceptional circumstances”. At [47] the court held "It is clear that the basket of cases against which a case must demonstrate “exceptional circumstances” is the type of cases that have exited the Portal and are subject to the Part IIIA regime." The case was remitted back to Master Gordon-Saker to be assessed again. However, no judgment appears anywhere I can find, so it does seem likely the case then settled. If anyone knows any differently, please let me know. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Harris v Brown HHJ Davey QC, Bradford CC, 18th June 2019 - An interesting judicial difference of opinion was formed in this case on whether the Portal is an entirely stand-alone code, or whether common law doctrines can apply. Here the judge found that common law mistake did apply. Key Point Common law Mistake does apply in the MOJ Portal Protocol where offeree knows of mistake when accepts Harris v Brown HHJ Davey QC, Bradford CC, 18th June 2019 An interesting judicial difference of opinion was formed in this case on whether the Portal is an entirely stand-alone code, or whether common law doctrines can apply. Here the judge found that common law mistake did apply. Unfortunately the judge was mis-informed by both counsel that in Draper v Newport and Fitton v Ageas, the party accepting the offer did not know that a mistake had been made. The judge thus distinguished those two cases and decided that common law mistake did apply. It is interesting to speculate over whether the decision would have been any different had the judge been given the correct details. Permission to appeal to the Court of Appeal was refused. Click here for a copy of the refusal decision. Click here for a copy of the judgment Go back to Main Index Go back to Topic Index Main Index Topic Index

Raja v Day & MIB HHJ Gregory, Liverpool CC, 2nd March 2015 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. Raja v Day & MIB HHJ Gregory, Liverpool CC, 2nd Mar 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 Click here for a PDF copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

This is a Title 02 This is placeholder text. To change this content, double-click on the element and click Change Content. This is placeholder text. To change this content, double-click on the element and click Change Content. Want to view and manage all your collections? Click on the Content Manager button in the Add panel on the left. Here, you can make changes to your content, add new fields, create dynamic pages and more. You can create as many collections as you need. Your collection is already set up for you with fields and content. Add your own, or import content from a CSV file. Add fields for any type of content you want to display, such as rich text, images, videos and more. You can also collect and store information from your site visitors using input elements like custom forms and fields. Be sure to click Sync after making changes in a collection, so visitors can see your newest content on your live site. Preview your site to check that all your elements are displaying content from the right collection fields. Judgment Go back to Main Index Go back to Topic Index Index Index

Ampratwum & Zbigniew Samajeden v Esure Birkenhead CC, 5th June 2013 - the court held that a Claimant must have paid for vehicle damages personally before an interim payment can be claimed for them in the MOJ Portal. Key Point A Claimant must have paid for vehicle damages personally before an interim payment can be claimed for them Ampratwum & Zbigniew Samajeden v Esure Birkenhead CC, 5th June 2013 Sarah successfully argued here that a Claimant was not justified in leaving the Portal when a Defendant failed to make a payment for an interim payment within the requisite time. The entitlement to an interim payment for damages, sometimes called additional damages, only arises where a Claimant personally has paid out for that head of loss. If an interim payment for normal damages had not been made in time then a Claimant could leave the Portal. Please note there is no available copy of this judgment. This case makes the point that portal rules must be carefully studied! Go back to Main Index Main Index Go back to Topic Index Topic Index

Rafiania v All Type Scaffolding Ltd DDJ Corscadden, Manchester CC, 14th January 2015. The court held that there is no test of reasonableness in not using the Portal at all, unlike in leaving or causing a claim to leave the Portal. It was not unlike 'strict liability'. Therefore the Claimant's ostensibly good reasons could not avail them. The Claimant was restricted to Portal costs. Key Point No test of reasonableness in not using the Portal at all Rafiania v All Type Scaffolding Ltd DDJ Corscadden, Manchester CC, 14th January 2015 The Defendant wrote to the Claimant and denied liability before a CNF was ever sent. CNFs sent for other occupants of the same vehicle in this accident and liability was denied. The Claimant, therefore, did not bother to send a CNF, thinking there was no point. The matter went through Part 7 proceedings, and damages were settled although costs were not. The Defendant argued that the Claimant should be restricted to Portal costs, per CPR 45.24(2)(c), as opposed to the more common CPR 45.24(2)(b). The Claimant argued that they had acted reasonably in not using the Portal at all. However, the court held that there is no test of reasonableness in not using the Portal at all, unlike in leaving or causing a claim to leave the Portal. It was not unlike 'strict liability'. Therefore the Claimant's ostensibly good reasons could not avail them. The Claimant was restricted to Portal costs. This case shows the importance of looking carefully at the Portal rules. The Claimant solicitors appeared in court all ready to argue how reasonable they had been, having completely missed the point that the rules are different for leaving the Portal and not using the Portal at all. Whilst arguably, it would have been pointless to have used the Portal, the rules are highly prescriptive and parties should note they must follow them closely. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

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Key Point Key Point Interpreter's fees are recoverable under SIIIA Santiago v MIB [2023] EWCA Civ 838 Here the Court of Appeal grappled with the problem that interpreter's fees were, prima facie, not recoverable as a disbursement in a case to which SIIIA fixed costs applied. Following Cham v Aldred, it was generally accepted that a disbursement could only be recoverable if it arose because of a particular feature of the dispute. In Cham, the disbursement there arose because of a particular feature of the Claimant, namely that they were a child, and thus needed an opinion on quantum before any settlement could be approved. CPR 45.19(2)(e) stipulated that any disbursement not specified could only be recoverable it is arose because of a particular feature of the dispute. As the disbursement arose because of a particular feature of the Claimant, it was not recoverable. The same would therefore apply to interpreter's fees. However, since Cham had been decided, the Civil Justice Council published a report called 'Vulnerable Witnesses and Parties within the Civil Proceedings/ Current position and Recommendations for Change.' This report was addressing the critical need to ensure fair access to justice, and noted the need for interpreters, and that being unable to understand the proceedings made a person vulnerable, in that they could not participate nor give their best evidence. The court had regard to CPR 1.2(b) which required the court to give effect to the overriding objective when interpreting any rule, to ensure parties are on an equal footing and that the case is dealt with fairly. At [62] the court held: the use of the word “other” in sub-paragraph (h) supports the broader interpretation because it implies that the travel expenses and loss of earnings incurred by a party and allowed under sub-paragraphs (f) and (g) are disbursements that are “due to a particular feature of the dispute.” The common feature of such costs is that they facilitate the attendance of a party or witness and thus put the parties on an equal footing by enabling the party or witness to participate fully in the hearing. That is also a defining feature of the cost of an interpreter, without whom the party or witness cannot participate fully in the hearing and, specifically, cannot give their best evidence. Allowing the interpreter’s fee to be recovered under subparagraph (h) is therefore consistent with the inclusion of the disbursements allowed under sub-paragraphs (f) and (g). I would therefore hold that the application of normal principles of construction does not preclude the interpretation of sub-paragraph (h) for which Mr Williams contends. Far from it: in my judgment, the application of normal principles strongly supports his proposed interpretation. I would have reached this conclusion before the 2021 Amendments. At [59] the court noted that in Cham, the disbursement was only incurred after parties had settled, so had no impact on reaching the settlement concerned, whereas without an interpreter, a Claimant who did not speak English could not even get their claim off the ground. The court also noted that the cost of counsel's advice was deemded to be included in the costs allowed in Table 6B, whereas if an interpreter's fee was not recoverable as a disbursement, it was not remunerated at all, either actually or notionally. Therefore the Court of Appeal held that the cost of translator fees were recoverable. At [64] they concluded: "This distinction permits us to conclude that we are not bound by Cham to adopt an interpretation of sub-paragraph (h) which is not in accordance with the overriding objective on the different facts that are in play in the present appeal. I would accept that the effect of Cham is that a disbursement should ordinarily be held to be “reasonably incurred due to a particular feature of the dispute” within sub-paragraph (h) if it was required to enable the determination by the Court of a particular issue in the case rather than because of a particular characteristic of a party or witness. However, where considerations of access to justice arise, a broader interpretation is necessary to enable the dispute to be determined by the Court in accordance with the overriding objective. It follows, in my judgment, that the independent interpreter’s fee (assuming it to be reasonably incurred) is properly to be regarded as a disbursement falling within sub-paragraph (h)." Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

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

Ilahi v Usman - HHJ Platts, Manchester CC, 29th November 2012 - A decision to take a step which automatically removes a case from the Portal is an election to leave the Portal Key Point A decision to take a step which automatically removes a case from the Portal is an election to leave the Portal Ilahi v Usman HHJ Platts, Manchester CC, 29th Nov 2012 The Claimant withdrew all offers at the end of Stage 2, which caused the claim to automatically leave the Portal. The Claimant then argued that they could not be reduced to Portal costs because they had not elected to leave the Portal, it had happened automatically. The Claimant won at first instance. However, on first tier appeal, HHJ Platts found that if a party elects to take a step which has the automatic consequence of leaving the Portal, then they have elected to leave the Portal. He restricted the Claimant to Portal costs only. The Claimant sought permission to appeal to the Court of Appeal. However, Jackson LJ refused permission on paper, noting he agreed with the reasoning given by HHJ Platts. Click here for the First Tier appeal judgment Click here for the Court of Appeal decision Go back to Main Index Main Index Go back to Topic Index Topic Index