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[2021] EWCA Civ 1005. Court of Appeal upheld HHJ Woods that claim run by executors was a different claim form that started in Portal. Key Point A claim which starts in the Portal - but the claimant then dies - is not the same claim and thus is not subject to the fixed costs of SIIIA of CPR 45 West (Executor of the Estate of the late Kenneth Morriss) v Burton [2021] EWCA Civ 1005 The Court upheld the decision of HHJ Wood QC on whether fixed costs of SIIIA applied to a claim where it had started in the Portal process, but left because the Claimant had died (unrelated to the accident.) The Court of Appeal noted at [39] that the meaning of 'claim' and 'claimant' were not the same in the Portal process as with 'normal' litigation and thus the definition of 'claim' in para 1.1(6) of the Portal protocol was not to be equated with the definition of 'claim' in CPR 2.3. The person who concluded the claim was the claimant's executor, not the same person as the person who started the claim in the Portal. Therefore SIIIA costs did not apply. The Claimant was entitled to SII fixed costs, the old 'predictive' costs. The judgment concludes by noting it would be a matter for the Rules Committee to consider if they should amend the rules to cover this situation in express terms. This seems unlikely given that this is the first case since the inception of the Portal in 2010 where such an issue appears to have arisen. 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 Common law Mistake does not apply in the MOJ Portal Protocol Draper v Newport DJ Baker, Birkenhead CC, 3rd September 2014 Here the only issue was whether common law mistake applied to cases in the Portal. The Claimant's solicitor accidentally accepted the Defendant's offer. She immediately rang the Defendant but was unable to get through to the correct person. She uploaded a letter to the Portal within half an hour to confirm that the offer had been accepted in error. The judge considered the nature of the Portal and went through the facts against the over-riding objective. He determined that it would fundamentally undermine the Portal if common law mistake was allowed to apply. The Claimant's solicitor simply should have been more careful. It has been interesting to see how often this first instance and non-binding decision has been followed. It took 4 years for anyone to bring the issue to first tier appeal in Fitton v Ageas. Interestingly both counsel in the later case of Harris v Brown submitted that the Claimant here did not know that a mistake had been made, and thus distinguished it. Unfortunately that is clearly wrong, as the Claimant here was well aware that they had made a mistake, as shown by them uploading the letter to say exactly that. 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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Legal Articles by Sarah Robson Barrister Fixed Costs Specialist Including the new Precdent U for download, and the SCCO Guide 2023 as well as further details on Bobby Prior v Silverline International Ltd, HHJ Wood QC. 8th July 2015. Sarah Robson Barrister Fixed Costs Specialist Call now on 0800 634 9650 Legal Articles* * This website is intended to provide general guidance only. It does not give legal or professional and is not to be used in providing the same. Whilst all efforts have been made to ensure that the information is accurate, any liability including that arising in is excluded to the fullest extent lawfully permitted for any loss or damage howsoever arising from the use of this information. precedent-u (2) Precedent U Precedent U has been updated for assessement of fixed costs under the new regime. Download version 2 it here. Premature Issue Article on the case of Bobby Prior v Silverline International Ltd, HHJ Wood QC, Liverpool CC, 8th July 2015 now available. Claimant issue proceedings after 21 days in accordance with the letter of the personal injury pre-action protocol. However, there was no compliance with the spirit of the protocol. The Claimant was reduced to pre-issue costs by the Designated Circuit Judge of Liverpool. Click here for article including copy of the judgment. Legal Humour A light-heartedly look at the law and legal profession. (Submissions for inclusion here gratefully received.) A poor solicitor can cause a trial to be delayed for months. A good solicitor can cause a trial to be delayed for years. Caveat : No lawyers were harmed during the construction of this site. When a person assists a criminal they are aiding and abetting. When a person assists a criminal we call them a defence lawyer. The pupil barrister carefully warned his client not to lie when giving evidence. He asked if his client appreciated what could happen if he did not tell the truth in court. "We'll probably win" his client replied. Why did the lawyer cross the road? To sue the chicken. What's the difference between a good lawyer and a great lawyer? A good lawyer knows the law, a great lawyer knows the judge. Never mind the dog - Beware of the dog's lawyer. When does a claim start? Sarah has again successfully argued a claim does not start for the purposes of Part 7 until the court issues the claim. A claim which settles before the court has issued it only attracts predictive costs, per CPR 7.2, PD 7A 5.1 and CPR 44.12A (c), even if the papers have been sent to the court. SCCO Guide 2023 The latest SCCO guide is now out. Click here for a copy. What is the nature of a Provisional Assessment Oral Review? Is an Oral Review just a review, a rehearing, or is it more like an appeal where parties are limited to what they raised in the Provisional Assessment hearing? Cook on Costs has one line stating the court will hear issues 'afresh'. Dr Mark Friston confirms the same view in Friston on Costs 3rd Edition. HHJ Wood QC, the DCJ at Liverpool has considered this on appeal twice and has concluded that new evidence can be admitted on oral review. Download copies of the judgments here in the cases of: Ion v Ahmed , and Mehmi v Pincher. However, more recently he has reversed himself, finding that you cannot adduce new evidence at Oral Review. Keeps us on our toes, I suppose! Provisional Assessment Oral Review In order to recover the costs of an oral review of a Provisional assessment, CPR 47.15(10) requires the applicant to obtain an adjustment in its own favour by 20% or more of the sum provisionally assessed. Is that just the items reviewed or 20% of the whole bill? This issue was considered by Master O'Hare in Keah M B O'Reilly v H R Richmond Ltd, SCCO, 16.09.14. The court confirmed it was 20% of the whole bill, not just the part(s) being reviewed. The court was also invited to use its discretion under CPR 47.15(1)(b) because of the adjustment of more than 20% achieved on the items reviewed, but declined to do so. Click here for an approved note of the judgment. Miscellaneous Expenses A lot of fuss and bother over nothing? Ghattaorya v Bailey LTLPI 05/10/2009 My case of Ghattaorya v Bailey on miscellaneous expenses is years old, yet it still attracts vast numbers of hits on my site. One cannot its importance when Part 36 offers are close, and thousands of pounds in costs can turn on whether this is allowed or disallowed. Do not ignore miscellaneous expenses! Claimant solicitors plead ‘miscellaneous’ expenses as an almost mandatory ‘add-on.’ This is to cover the cost of subsidiary expenses which have been incurred because of the litigation. Whilst it is that you cannot recover stress and anguish incurred because of litigation, the miscellaneous claim seems to have slipped through the net as a legitimate expense. This head of deserves closer inspection: The miscellaneous claim is for telephone calls, postage and stationary - travel is usually claimed for separately. Miscellaneous claims in your average fast track case typically range from about £10 to £50.There may have been the cost of posting an initial form reporting the incident to the insurer or solicitor, perhaps with a covering letter. However, many insurance companies take a claim over the phone now, rather than requiring the completion of a form, or provide a pre-paid envelope. The postage, therefore, is probably no more than one or two stamps. The cost of stationery – well everything is done by email now. Many insurance companies and solicitors firms provide free-phone numbers or call numbers, e.g. 0845. Most mobile phone packages now include unlimited phone calls. Put the claimant to proof and a judge will laugh at you, as there are hardly ever any receipts for these sorts of expenses. Cross-examine, and you risk the wrath of the judge and a stop being placed on cross-examination thus deemed ‘unnecessary’. Most sensible Counsel (with sensible instructions) will get their heads together before trial and some compromise figure. In this case, the judge dismissed the entire head of claim for miscellaneous expenses, noting that claiming for miscellaneous expenses was ‘a bad habit claimant solicitors had got into’. That principle was approved by HHJ Harrington in Harwood v Kapek (2010) LTLPI 21/7/2010 citing the failure to correctly plead the losses under this head as the reason for not allowing a miscellaneous claim, Ghattaorya v Bailey approved. There are a few (easier to spell) other cases on miscellaneous expenses, but Ghattaorya v Bailey is the most well known and often referred to. Click here for a copy of the judgment.

Castle v Andrews & Dickens Ltd DJ Doyle, Birkenhead CC, 21st Nov 2019. When is a portal offer not a portal offer? Protocol offers remain open for acceptance until withdrawn, even after Part 7 proceedings have been issued, but not all offers made in the portal are Protocol offers. Key Point Protocol offers remain open for acceptance until withdrawn, even after Part 7 proceedings have been issued, but not all offers made in the portal are Protocol offers Castle v Andrews & Dickens Ltd DJ Doyle, Birkenhead CC, 21st Nov 2019 This claim had started in the MOJ RTA Portal butPart 7 proceedings were issued. Later the Defendant sought to accept the Claimant's Portal offer, but the Claimant argued that their offer was no longer available for acceptance, distinguishing Purcell v McGarry and Akinroyde v EUI. The court found that there was some conflation in previous cases between a Stage 2 portal offer and a Protocol offer, noting that a Protocol offer was a formal term with various cost consequences. Per CPR 36.25 defines a Protocol offer as one set out in the Court Proceedings Pack (Part B) form, and CPR 36.20(8) also converts a defendant's Stage 2 offer to a Protocol offer if a claim leaves the portal before Stage 3 is commenced. Protocol offers were open for acceptance after claims left the portal, whilst Stage 2 offers were not. Otherwise in a case where a claimant wanted to bring in vehicle related damages at the end of Stage 2 per 7.52 of the portal protocol, a defendant could fail to make an offer in Stage 2 causing the claim to leave the portal before the claimant could seek their vehicle related damages in the portal, and then accept the claimant's first Portal offer and not have to pay anything for vehicle related damages at all. The court held this could not be what was intended. Click here for a copy of a note of Judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Hislop v Perde [2018] EWCA Civ 1726 - Late acceptance of a Part 36 offer in SIIIA CPR 45 Fixed Costs. At [44] the court said the general rule (r.36.13, old rule r.36.10) is not preserved by the rule applicable to fixed costs cases (r.36.20, old rule r.36.10A). Instead, r.36.20 makes plain that it is the only rule which applies to the costs consequences of acceptance of a Part 36 offer in fixed costs cases. It preserves no part of the general rule set out in r.36.13. Key Point Late acceptance of a Part 36 offer in SIIIA CPR 45 Fixed Costs Hislop v Perde;Kaur v Committee (for the time being) of Ramgarhia Board Leicester [2018] EWCA Civ 1726 Costs consequences of acceptance of a Part 36 offer are prescribed in CPR 36.13. However, not when a claim is governed by SIIIA, i.e. it was previously in the Portal, because CPR 36.20 operates INSTEAD not as well as 36.13. CPR 36.20 does not disapply fixed costs where there has been late acceptance. CPR 45.29J costs are still available but are unaffected by late acceptance alone. At para 44 of the judgment it says: Whilst the general rule dealing with costs consequences following judgment (r.36.17) is expressly preserved by the particular rule relating to the fixed costs regime (r.36.21), that is not the position in relation to the rules relating to the costs consequences of accepting Part 36 offers before trial. For that situation, the general rule (r.36.13, old rule r.36.10) is not preserved by the rule applicable to fixed costs cases (r.36.20, old rule r.36.10A). Instead, r.36.20 makes plain that it is the only rule which applies to the costs consequences of acceptance of a Part 36 offer in fixed costs cases. It preserves no part of the general rule set out in r.36.13. 45. What is more, r.36.13 itself says that it is “subject to” r.36.20 which, because that rule applies to fixed costs cases and r.36.13 does not, also leads to the conclusion that r.36.13 does not apply to fixed costs cases. Where (without more) a general rule is made ‘subject to’ a specific rule that governs a particular class of case then, in that class of case (here, those subject to fixed costs), it will be the specific rule that applies, not the general rule (see Solomon). 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

Case law on the new expanded fixed costs regime from October 2023. Including Asmat Bi v Tesco Underwriting Ltd. Oct 23 New Fixed Costs Cases Asmat Bi v Tesco Underwriting Ltd When settled pre-Oct 23 pre proceedings, which costs apply Go Back to Index Click on the button below to go back to the case law index Index

Mason v Laing HHJ Gosnell, Bradford CC, 20.01.20. The court held that soft tissue injury claims must disclose the first report before subsequent reports are disclosed. The damages were assessed without reference to the subsequent report. The Portal rule are strict; parties could only rely on evidence sent according to the rules, and PD8B had not been complied with. Key Point Soft Tissue Injury Claims must disclose first report before subsequent reports are disclosed Mason v Laing HHJ Gosnell, Bradford CC, 20th Jan 2020 HHJ Gosnell held that a Claimant in a soft tissue injury claim could not rely on subsequent reports where the first report had not been disclosed before the subsequent reports. Damages were assessed based on the first report only. He noted that PD8B stipulated that parties could only rely on evidence in Stage 3 where this had been sent under the relevant protocol and as this had not been sent in accordance with the protocol rules, it could not be relied upon. He also found that there was no provision in the Portal Protocol to allow any application for Relief from Sanctions, complying with the usual finding that the Portal is an entirely stand-alone code. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Ansell & Evans v AT&T HHJ Clarke, Oxford County Court, 14th December 2017 Key Point A court can order Portal costs under CPR 45.24 even where a Part 36 offer has been accepted (Inconsistent with Cookson v Manchester City Council) Ansell & Evans v AT&T DDJ Lynch, Slough County Court, 12th June 2017 (first instance) HHJ Clarke, Oxford County Court, 14th December 2017 (on appeal) Here the Claimants left the RTA Portal unreasonably, then settled the matter by way of Part 36 offer. The Claimants, represented by Kevin Latham, argued that on acceptance of a Part 36 offer, the Defendant could not seek costs to be limited under CPR 45.24 because the costs were governed by CPR 36.20, which specifically directed the tables in CPR 45 SIIIA, rather than more generally to SIIIA. However, Sarah successfully argued that if the Claimant had not left the Portal unreasonably, parties would not have been able to make a Part 36 offer, and you could not retrospectively 'correct' an earlier unreasonable exit. Furthermore CPR 36.20 was headed 'Cost consequences of acceptance of a Part 36 offer where SIIIA of Part 45 applies. Thus if costs were to be assessed under CPR 36.20, the costs were those under SIIIA, which included CPR 45.24. The lower court accepted Sarah's submissions and confirmed that CPR 45.24 remains open for a court to use even on acceptance of a Part 36 offer. The Claimant appealed, but unsuccessfully. The appellate court upheld the decision at first instance, noting that CPR 45.29(1) specifically stated it was subject to ss(3) which preserved the court's power in CPR 45.24. NB There are now two inconsistent decisions at the same level, so some higher authority would be welcome to clarify which is the correct approach. 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

Qader v Esure Services Ltd [2016] EWCA Civ 1109 - Fixed costs per SIIIA of CPR 45 do not apply to cases allocated to the multi-track. It had to be actual allocation, not merely expected or anticipated, to give certainty and avoid satellite litigation. Inco Europe Ltd v First Choice Distribution [2002] 1 WLR 586 applied re correcting obvious drafting errors. Key Point Fixed SIIIA costs do not apply to cases allocated to the multi-track Qadar v Esure Services Ltd [2016] EWCA Civ 1109 This claim had started in the Portal then left, and was allocated to the multi-track and so, prima facie, fell into fixed costs under SIIIA of CPR 45. The Claimant argued that these costs should not apply. They demonstrated a clear intention that fixed costs were intended to apply to claims allocated to the fast track, pointing out how this had been the stated intention from Jackson LJ's reports and consultations and replies to consultations. The Claimant was thus able to establish that the intention of Parliament had not been included in the CPRs by mere inadvertence. The Court of Appeal found authority in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 for correcting obvious drafting errors including omissions in rules. This was a clear case where the court should exercise that jurisdiction. The court, therefore, added in the words 'unless allocated to the multi-track' to the rules to achieve that end. It is interesting to see that the Claimant demonstrated that the fixed costs were intended to apply only to fast-track cases. However, the Court of Appeal excluded cases unless allocated to the multi-track, rather than specify it was for cases allocated to the fast-track. They also made it clear there has to be that allocation. This gives certainty, removing arguments around whether a case would have been allocated to the multi-track, but arguably does not follow from the precise position which the Claimant established. 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