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HHJ Stewart QC, Manchester CC, 21st July 2011 - believed to be the first ever Portal appeal. Here the court had no witness statement and a range of prognosis was given - the court had to consider what level of award to give - HHJ Stewart held one should approach this the same as a future loss claim. Key Point Where range of prognosis given, should use mid-point, as for future loss claims Dominic v Martin HHJ Stewart QC, Manchester CC, 21st Jul 2011 Under the 2010 Portal protocol there was no specific provision for witness statements, and Lamb v Gregory had not yet been decided. The judge faced with a paper assessment at Stage 3 and no witness statement, decided to award damages on the basis of the lowest end of the range of prognosis given. The Claimant appealed. On appeal (understood to be the very first Portal appeal) the court held that where a medical report gave a range of prognosis, in the absence of a witness statement, the court should award in the middle of the period, as with future loss cases. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Tennant v Cottrell DJ Jenkinson, Liverpool CC, 11th December 2014 - you cannot change your reason for breach of Portal after the event, and there can be no 'Retrospective Justification' of an earlier Portal breach by what happened later. Key Points Cannot change reason for breach of Portal and there can be no 'Retrospective Justification' of an earlier Portal breach Tennant v Cottrell DJ Jenkinson, Liverpool CC, 11th December 2014 The Claimant removed this claim from the Portal when the Defendant made an offer of zero for one head of loss. Part 7 proceedings were issued in which the Defendant sought allocation to the fast track, and for the Claimant to attend for cross-examination. Costs went to Detailed Assessment. In Replies to Points of Dispute, the Claimant tried to argue for the first time that the claim had left the Portal because it was too complex, and pointed to the fact that the Defendant had sought to cross-examine the Claimant and allocate the claim. However, DJ Jenkinson found that the reason the Claimant had left the Portal was completely clear. That was set out in their letter at the time they left the Portal, stating they were doing so because the Defendant had offered zero on one head of loss. The judge said that you could not change your reason for leaving the Portal later, and there could be no argument that a claim 'would have left anyway'. o allow such an argument would be to allow a Claimant to 'retrospectively justify' their earlier unreasonable exit. He would not allow this. The Claimant was restricted to Portal costs. Claimants often try to argue that a claim 'would have left the Portal anyway'. However as this case makes clear, a party cannot change their reasons for leaving later, nor can they rely on anything which happened after a breach of the Portal when assessing whether they had acted unreasonably under CPR 45.24(2). Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Davies v Greenway, Master Simons, SCCO, 30th October 2013 - on appeal the court held that the Claimant can be limited to Portal costs only where costs unreasonably or disproportionately incurred, per CPR 44 - court's powers not limited to CPR 45.24 which was not available in this case. Key Point A Claimant can be limited to Portal costs only where costs unreasonably or disproportionately incurred, per CPR 44 - court's powers not limited to CPR 45.24 Davies v Greenway Master Simmons, SCCO, 30th Oct 2013 The Claimant failed to use the Portal against the correct Defendant. Parties agreed damages and costs went for assessment. At first instance, the court held that an order for standard basis costs precluded an award under CPR 45.36 (now 45.24). However, Master Simmons held that he could only award costs which were proportionate and reasonably incurred. He found that all costs incurred above Portal costs were disproportionate and thus the Claimant was awarded Portal costs only. NB the later decision of Brown v Ezeugwa found that standard basis costs did allow an award directly under CPR 45.36 (now 45.24) as well as under the proportionality test here. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

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

Hussain v Wardle - DJ Rank, Stoke on Trent CC, 25th February 2017. Here the CNF was rejected for lack of information. There was no test of reasonableness in CPR 45.24(2)(a) - unlike with leaving the Portal under CPR 45.24(2)(b)(i-iii). Key Point CNF rejected for lack of information - no test of reasonableness in CPR 45.24(2)(a) - unlike with leaving the Portal under CPR 45.24(2)(b)(i-iii) Hussain v Wardle Stoke on Trent CC, DJ Rank, 25th February 2017 The Claimant brought a claim in the MOJ Portal but failed to provide the Defendant's name in the CNF. The Defendant's name had not been provided at the scene. The Defendant Insurer rejected the CNF for incomplete information on it. The Defendant's name is a mandatory field. The Claimant then issued Part 7 proceedings and the claim settled by way of Part 36 offer. Costs went to Detailed Assessment. On Provisional Assessment the court found that the Claimant was in breach of the Portal Protocol, and restricted the Claimant to Portal costs. However, the Claimant applied for Oral Review, arguing it was not their fault they had failed to provide this mandatory information, and they had made good efforts to settle the claim after the claim left the Portal and before proceedings were issued, which should count in their favour. The court found there was a breach of the Portal Protocol, and went on to consider whether to exercise their discretion under CPR 45.24(2)(b). The court agreed with the Defendant that they could not use hindsight and speculation, per Tennant v Cottrell and Dawrant v Part & Parcel Network . Thus what happened after the Portal breach was irrelevant. The court agreed with the non-binding finding in Raja v Day & MIB , that the default position on the finding of a breach was that Portal costs should apply. The court found there were no exceptional circumstances which would justify a change from the default position. There were well-established ways of finding out the Defendant's details. The court also considered the fact that the claim had settled by way of a Part 36 offer, but rejected the Claimant's argument that this precluded an award under CPR 45.24(2). DJ Rank relied on the judgment of Lo rd Justice Moore-Bick in Solomon v Cromwell in this regard and quoted him at [17] thus: If the appellants' argument were correct, the acceptance of a Part 36 offer would always result in an order for costs on the standard basis in low-value road traffic accident cases. That would undermine the fixed costs regime and provide a powerful incentive for defendants not to make Part 36 offers in such cases... In the absence of any exceptional circumstances which would justify departing from the established default position, the court found that they would restrict the Claimant to Portal costs. There are not many cases of claims which have come out of the Portal because of lack of information on the CNF, so this is a particularly useful case. Note that there is no test of reasonableness in CPR 45.24(2)(a) as there is in CPR 45.24(2)(b). Thus even though the Claimant had ostensibly a good reason for not completing one of the mandatory fields, it could not and did not avail him. The rule in CPR 45.24(2)(a) only requires the Defendant to have rejected the claim because of INSUFFICIENT information. There is no requirement for the missing information to be mandatory. There is a curious further Portal provision at para 6.8 of the RTA Protocol, which provides that where a Defendant considers inadequate MANDATORY information has been provided, that shall be a valid reason for the Defendant to decide that the claim should no longer continue under the Protocol. There is no assessment of the reasonableness or not of the Defendant anywhere in CPR 45.24, there is no weighing of each party's behaviour, so it is unclear why this rule exists. In practice, it seems to operate to strengthen a Defendant's position when seeking an order under CPR 45.24(2)(a) where the insufficient information arises from a missing or incomplete mandatory field. However it does appear to some litigants into thinking that there is a benefit in trying to establish that a Defendant's decision to reject a CNF was invalid. Time will tell. 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

Bursuc v EUI Ltd DJ Revere, Clerkenwell & Shoreditch CC, 30th May 2018. Here the court held that the Portal exit by the claimant was NOT unreasonable given D's behaviour. Also the court held that it was premature to apply to restrict a Claimant to Portal costs before the claim had concluded. Key Points Portal exit was not unreasonable given D's behaviour and It was premature to apply to restrict a Claimant to Portal costs before the claim had concluded Bursuc v EUI Ltd DJ Revere, Clerkenwell & Shoreditch CC, 30th May 2018 This claim started in the MOJ RTA Portal Protocol, but the Claimant removed it from the Portal following the Defendant's repeated requests for more information and further disclosure. The Claimant had warned the Defendant that if they kept requiring further information, that they risked making the claim too complex for the Portal, but the Defendant continued to ask for more. The Claimant then removed the claim from the Portal because it was too complex, and issued Part 7 proceedings. Whilst those proceedings were ongoing, the Defendant made an application for the Claimant to be restricted to Portal costs under CPR 45.24. The Claimant argued that it was premature to seek such an order before the claim had concluded, and in any event, the claim had become too complex and was no longer suitable for the portal. In a reserved judgment the court found that the application was made too early, and in any event the departure from the Portal was not unreasonable in all the circumstances. The Claimant had supplied over 50 pages of evidence, the credit hire claim was not insignificant at over £17K, and it was clear that two of the heads of loss were going to be strongly defended, and the Claimant had warned (not 'threatened' as D argued) the Defendant that the claim may leave the Portal if they sought any further information , yet they still asked for more. This is an unusual decision, finding that a Portal exit was reasonable as most cases have held the opposite. However, it does demonstrate that the Portal Protocol is only suitable for straightforward claims, and Defendants need to be careful they do not make a claim too complex by how they approach defending such claims, particularly where the vehicle related damages are larger. 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 Where there are two claimants in a SIIIA fixed costs claim, each claimant is entitled to a separate award of fixed costs Melloy & Anor v UK Insurance Ltd [2022] EW Misc 4 (CC) The court had to consider what costs to award two claimants where they had brought separate claims in the portal, but a joint claim in Part 7 proceedings. At [10], HHJ Glen held that 'claim' and 'claimant' refer to the claim started by, and the claimant who submitted the CNF, rather than to the claim or claimant in the proceedings. He derived support for this position from West v Burton [2021] EWCA Civ 1005, where the court found that the executor of a claimant who had died after Portal proceedings had commenced was not 'the claimant' for the purposes of fixed costs on leaving the Portal. Therefore, he concluded that where there were two or more claimants in proceedings for damages that fall within SIIIA of CPR 45, assuming each had submitted a CNF, were separately entitled to all the costs set out in Table 6B. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Birkenhead CC, DJ Campbell, 30th November 2016. Yes friend, they seriously litigated over £2.50p. Key Point Unreasonable to leave portal for technical non-compliance only Smith v Owen Birkenhead CC, DJ Campbell, 30th Nov 2016 Here the claimant removed the claim from the MOJ RTA Portal for of two disbursements, one for photographs and one for the DVLA disbursements. The issue was whether the Claimant had acted unreasonably in doing so. The disbursement for photographs was not agreed. The Defendant said as much and it was virtually common ground that in disputing the disbursement, saying why it was in dispute, then the Defendant was not in breach by failing to pay that. The main argument was on the non-payment of the DVLA disbursement, a mere £2.50. The Claimant relied on the case of Chisanga which had held it was reasonable to leave the Portal for non-payment of the DVLA disbursement. However, DJ Campbell disagreed, noting she had been a solicitor for 20 years and would have been appalled at the idea of anyone in her firm issuing proceedings simply because of a non payment of £2.50 which it was well known would easily be 'scooped up' to be paid when the final order was made. The court decided at [47] that whilst there was no obligation under the rules for a Claimant to check with a Defendant why the £2.50 had not been paid, it was incumbent on any solicitor acting reasonably to have queried where the £2.50 was. She confirmed the approach of DJ Peake in Kilby v Brown to act reasonably and enquire before issuing. Whilst she acknowledged this made her decision at odds with another judge at the same court, she reached this decision based on her interpretation of the rules and meant no criticism on the other judge. The Claimant had acted unreasonably in leaving the Portal, and would be restricted 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

Key Point

Purcell v McGarry - HHJ Gore QC, Liverpool CC, Friday 7th December 2012. The court held that the portal offers were still open for acceptance after Stage 2 had ended, despite the portal protocol implying otherwise. Contract Law, including offer and acceptance, has no place in MOJ Portal Protocol cases. Key Points Contract Law, including offer and acceptance, has no place in MOJ Portal Protocol cases Purcell v McGarry HHJ Gore QC, Liverpool CC, Friday 7th Dec 2012 The issue here on first tier appeal was whether a Defendant could accept an offer after the end of Stage 2. The judge held that a Portal offer remains open for acceptance after the end of Stage 2. Importantly he noted that contract rules such as offer and acceptance have no place in the Portal arena. This case is important as it establishes that a Portal offer does not automatically cease to be open for acceptance. It has been followed by other cases which have held how offers made in the Portal remain open for acceptance even after Part 7 proceedings have been issued. It also makes it clear that the Portal is 'its own man' and thus contract law does not apply. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

[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