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

Phillips v Willis [2016] EWCA Civ 401 - the Court of Appeal held that it was irrational for a judge to order a claim out of the portal. They also confirmed that individual heads of loss can be agreed in the Portal. Key Point Unreasonable to remove a claim from the Portal for a small Credit Hire dispute Phillips v Willis [2016] EWCA Civ 401 This claim went through the MOJ Portal where some heads of loss were agreed in Stage 2, but not all. Only credit hire remained when the matter went to Stage 3. Despite the sum in dispute being less than £500, and the dispute over that sum being very narrow, the judge of his own volition ordered the claim out of the Portal with a long list of disproportionate directions which would have cost vastly more than was reasonable for the sum in dispute and nature of the dispute between the parties. The Claimant appealed and it was upheld at first tier appeal. However, the Court of Appeal overturned the decision, noting that the decision to remove the case from the Portal was irrational in that case. Clearly, it was unnecessary and unreasonable in this case to remove the matter from the Portal, especially where neither party wanted this, and especially with the extensive directions given which were completely disproportionate. This is not to say it would be unreasonable and irrational in all circumstances, but it would appear that this is not expected to be routine. 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

Key Point

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

HHJ Wood QC, Chester CC, 22nd January 2016. Individual heads of loss agreed in the Portal are binding whilst the case remains in the Portal, overturning Bushell v Parry and upholding Bewicke-Copley v Ibeh Key Points Agreements on individual heads of loss are binding at Stage 2 and (Obiter) Portal settlements on complete claims are binding to the World Maddocks v Lyne HHJ Wood QC, Chester CC, 22nd January 2016 Parties agreed some individual heads of loss during Stage 2, but at the Stage 3 hearing the Claimant re-opened them, which the judge allowed. The Defendant appealed, arguing that agreements reached in the Portal on individual heads of were binding. The Defendant argued how the a Stage 3 hearing was defined as a hearing to determine items which remained in dispute. The Claimant argued that the wording of the rules only referred to 'offer' in the singular. The Defendant relied on Bewicke-Copley v Ibeh which said they are, and the Claimant relied on Bushell v Parry which said they were not. Permission to appeal, in some delicious irony, was given to the Defendants by HHJ Gregory, who had decided the Bushell case. In a long and reserved judgment, HHJ Wood QC held that where a claim remained in the Portal, as here, those items agreed at Stage 2 would be binding on both parties except in very exceptional cases. The judge went on to find, obiter, that if the matter left the Portal, then individual heads of loss were not binding, although the judgment notes that no argument was heard on this point. The court also went on to find, again obiter, that if all heads of loss were agreed in the Portal then it was binding on the world. Whilst confirming the original position as found in Bewicke-Copley v Ibeh , this decision also resolved the dispute between the inconsistent decisions of Ullah v Jon and Malak v Nasim , on whether admissions in the Portal are binding outside of that Portal claim where there is no judgment, by confirming that where settlement is reached on all heads of loss that the agreement is binding on the world, it does not require a judgment to be binding. That point was then confirmed, ratio, 10 months later in the appeal decision of Chimel v Chibwana & Williams . 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

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

Payne v Scott DDJ Smedley, Birkenhead CC, 13th July 2015 Key Point A Claimant can still have caused a claim to leave the Portal under CPR 45.24(2) when they ask a judge to order it out and that judge does so Payne v Scott DDJ Smedley, Birkenhead CC, 13th July 2015 The Claimant claimed loss of earnings in the Portal but did not properly evidence that head of loss during Stage 2. At the start of the Stage 3 hearing, the Claimant asked the court to remove the claim from the Portal and place it into Part 7 proceedings, saying it was unsuitable and further evidence was required. The Defendant weakly objected. The judge duly ordered the claim out of the Portal and into Part 7 proceedings. The Defendant argued that the Claimant should be restricted to Portal costs under CPR 45.24(2)(b). However, the Claimant argued that they did not remove the claim from the Portal, the court ordered it out. The Defendant relied on Ilahi v Usman and Doyle v Manchester Audi , arguing that where a party chooses to take a step or omit to take a step, which causes a claim to leave the Portal, then they have chosen to remove the claim from the Portal. The judge was hesitant to find that the Claimant had acted unreasonably in circumstances where the Defendant had not really objected to the claim leaving the Portal. However, on balance he found that the Claimant had acted unreasonably, they had caused the claim to leave the Portal, and he did restrict 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

Costs awarded under CPR 45.29J for exceptional circumstances in SIIIA CPR 45 fixed costs. Key Point SIIIA Exceptional Circumstances Costs awarded under CPR 45.29J Lloyd v 2 Sisters Poultry Ltd HHJ Howells, Mold County Court, 29th Jan 2019 This was an appeal in a SIIIA case where the lower court had found exceptional circumstances and awarded costs under CPR 45.29J. On appeal the court considered the swings and roundabouts nature of fixed costs, but found the lower court had correctly weighed all the relevant issues in the balance, and that decision could not be faulted. The claim arose from a personal injury accident at the Claimant's place of employment. Liability was not disputed. Initially the claim began relying on one medical report, but a subsequent report gave a much gloomier picture and indicated the Claimant had a permanent injury and would be disabled within the meaning of the Equality Act 2010. The appeal court noted at [13] that the lower court's attention had been drawn to the extensive work carried out, with the solicitor correspondence running to some 63 pages with little padding, the schedule of special damages alone amounting to over £71,500 which was 27 pages long, a detailed Ogden 7 calculations for future loss of earnings, an alternative Billet approach with a witness statement from the Claimant running to 16 pages dealing in detail with the Claimant's pre-existing medical conditions, current conditions, education, employment, need for care and assistance - all of which was relevant to the future loss of earnings and Ogden/Billet calculations. At [17-18] the court considered Hislop v Perde , and noted how LJ Coulson had 'uncoupled' the link between the causation of increased costs and the award of exceptional circumstances costs there. HHJ Howells noted that the lower court had taken all the relevant factors into account, particularly the permanent disability and the Ogden calculations, but also the value of the claim, and concluded they were appropriate factors for the court to consider made this case exceptional for the test in CPR 45.29J. The appeal was dismissed and the Claimant kept their award of open costs. This case is unusual in that it is one of only two cases (the other being Jackson v Barfoot Farms ) I am aware of where non-fixed costs have been awarded under CPR 45.29J. In both cases, the Claimant suffered significant and permanent injuries. 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

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