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High Court Appeal decision in Miss Laura Attersley v UK Insurance Ltd [2025] EWHC 884 (KB). The claim had started in the portal but then left, so prima facie was subject to SIIIA fixed costs. The defendant made a Part 36 offer before the claim was allocated. The offer was later accepted, after the claim had been allocated to the multi track. The issue for the Court of Appeal was wehether open costs or fixed SIIIA costs should apply. The High Court found open costs applied. Attersley v UK Insurance Ltd [2025] EWHC 884 (KB) 11th April 2025 The High Court grappled with the issue of what costs to award on acceptance of a Part 36 offer in a claim which had started in the Portal and then left, but which had been allocated to the multi track after the offer had been made, but before acceptance. The matter had first gone to HHJ Duddridge in Southend/Chelmsford on 26 Sept 2023, where he had decided it was unfair for the claimant to benefit in costs from late acceptance of the Part 36 offer. It had been common ground that had the offer been accepted at the time it would have been made, the Claimant would have only been entitled to fixed costs under SIIIA of CPR 45. However, the Circuit Judge had found that because Part 36 was a self-contained code, the rules of Part 36 should triumph. However, CPR 36.20 was headed "where SIIIA of Part 45 applies". SIIIA was disapplied retrospectively by the allocation to the multi track. At [62] the court held: "...there was in any event more force in the claimant’s argument that the defendant’s argument produced an absurd result: it would lead a claimant who has properly started her claim under a relevant Protocol in what then appeared to be a fairly standard RTA whiplash claim that turned out to be a claim of very significant value requiring very considerable expenditure on expert evidence and legal costs in a claim suitable for the multi-track – to be subsequently penalised in costs. It may well deter claimants from using the RTA Protocol in any case where there was any uncertainty about prognosis and sequelae and thus be counter to the intention of the 2013 reforms and the overriding objective. It could have a deterrent effect on using the relevant Protocols at an early stage and risk preventing cases from being dealt with expeditiously and fairly." The High Court found that the Claimant was entitled to open costs at [74] thus: "...on allocation to the multi-track costs fall to be assessed in accordance with Pt 44 and are not fixed and calculated by reference to the tables." and at [76]: "..CPR 36.20 did not therefore apply to this case at the moment when the Pt 36 offer was accepted." and at [81]: "I therefore conclude that both on a purposive and also a literal reading of the rules where an ex-Protocol case is allocated to the multi-track, it comes out of Section IIIA by the wording of CPR 45.29B and Part 36(20) does not apply." Alex Hutton KC and Thomas Mason for the Claimant Appellant Andrew Roy KC for the Defendant Respondent Click here for the judgment Key Point The Claimant was entitled to open costs in an ex-Portal case, where a Part 36 offer made before the offer was accepted after the claim had been allocated to the multi-track. Go back to Main Index Main Index Go back to Topic Index Topic Index

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

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

DJ Jackson, Canterbury County Court, 29th November 2017. An unusual case where CPR 45.29J exceptional circumstances were found. The claim settled for £350K, there were multiple experts and much in issue. C also argued unsuccessfully that having agreed standard basis costs that excluded fixed costs, before Adelekun v Ho was decided. Key Point SIIIA Exceptional Circumstances Costs under CPR 45.29J Jackson v Barfoot Farms DJ Jackson, Canterbury County Court, 29th Nov 2017 Here the Claimant argued that having agreed terms that the Defendant would pay the Claimant's costs on the standard basis, that fixed costs were excluded. However, the judge found this did not, interestingly the same decision was reached in the SCCO in Davies v Greenway , although the court was not referred to that. Secondly, the claimant was able to successfully argue that the case was so exceptional that non-fixed costs would apply, per CPR 45.29J. Click here for a copy of the 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

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

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

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

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.

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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

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