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Key Point 'Blanket' application of SIIIA Costs Sharp v Leeds City Council [2017] EWCA Civ 33 Here the issue was whether SIIIA CPR 45 fixed costs applied on Pre-Action Disclosure ("PAD") applications. At first instance, it was held they did not apply, however on first-tier appeal the court said SIIIA did apply. The Court of Appeal held that SIIIA costs did apply. PAD applications were not in a class of their own. To recognise implied exceptions to the application of fixed costs would undermine the whole fixed costs scheme. This case confirms the 'blanket' application of SIIIA fixed costs. The only exceptions are as stated in CPR 45.29A(2), for disease claims, CPR 4529A(3) for costs assessed under CPR 45.24 and CPR 45.29B for claims allocated to the multi-track. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Key Point Portal offers remain open for acceptance until withdrawn, even after Part 7 proceedings have been issued Akinrodoye v Esure DJ Goodchild, Romford CC, 16th February 2015 This claim had started in the MOJ RTA Portal and Part 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 because Part 7 proceedings had been issued (trying to distinguish this from Purcell v McGarry .) However, the court found that a Portal offer remains open for acceptance unless withdrawn and that it could not be implicitly withdrawn nor withdrawn automatically because certain events such as proceedings had been issued. This is an important case as it extends the decision in Purcell to make it clear that Portal offers remain open for acceptance unless and until withdrawn. Litigants need to be careful to ensure that they have not left any unsuitable Portal offers open if circumstances have changed. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

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

Sarah Robson Barrister Fixed Costs Specialist Call now on 0800 634 9650 Liability Orders Members of the General Public are reminded that they should see a SOLICITOR if they have a problem with a liability order. Sarah Robson cannot speak to members of the public directly. How to Appeal a Liability Order Challenge liability to pay in the Valuation Tribunal The Valuation Tribunal The Valuation Tribunal is the place to dispute liability for non-domestic or business rates. See their website for more details at: www.valuationtribunal.gov.uk Can I Appeal a Liability Order? I am often asked if liability orders can be appealed. Yes you can, but that is an expensive route and the timescales are tiny. If you believe the liability order should not have been made in the first place, and/or it was made in error, then it would be far cheaper instead to apply to set it aside - but you need to act really fast. Challenges to liability to pay non-domestic rates are often better brought in the Valuation Tribunal . The secret to successfully challenging a liability order is to act fast as soon as you receive a summons or think a liability order may have been made. It is not unlike applying to set aside a statutory demand when it comes to time running. Write to the court and ask for a hearing to consider your application to set the liability order aside. Setting Aside Liability Orders Magistrates are creatures of statute, and do not have a statutory power to re-open civil cases, even when they know they have made an error! This used to mean that the only way to challenge a liability order was to judicially review the order - a highly expensive process. A common law power to re-open a civil case by magistrates developed in case law, which is unusual for civil matters in the largely criminal court of the magistrates. This was set out in Liverpool City Council v Pleroma Distribution Ltd [2002] EWHC 2467 (Admin) (“Plemora”) as where there had been a substantial procedural defect, where it has done something which is unlawful and in excess of its jurisdiction. R (on the application of Newham London Borough Council) v Stratford Magistrates' Court & Selwyn Dublin R (on the application of Newham London Borough Council) v Stratford Magistrates' Court & Selwyn Dublin (Interested Party) [2008] EWHC 125 (Admin), [2008] RA 108, [2008] All ER (D) 17 (Jan) [2008] In this case, Dublin claimed he had not been aware of the proceedings. He did not submit nor prove that order was unlawful or made in excess of jurisdiction, or in ignorance of a significant fact concerning their procedure of which the justices should have been aware, as required in Brighton & Hove. The District Judge allowed the application because he had an ‘arguable case’. The council applied to Judicially Review the decision of the District Judge to set aside the liability order. At Judicial Review Sarah successfully argued that was the wrong test. The test to set aside a liability order was not simply where it would be reasonable and in the interests of justice to do so – such a test would be too wide and vague. A liability order cannot be overturned simply by showing an arguable case. The court must be satisfied: the order was made as a result of a substantial procedural error, defect or mishap, that there was both a genuine and dispute as to that liability, and that the application was made promptly. Finding ‘some doubt’ over the original decisions does not satisfy the correct test, neither would allegations as to non-receipt of summonses, etc, even if proved. However he went on to say: “If non-attendance at a hearing because of a traffic accident would be sufficient to satisfy that criterion, I find it difficult to see why non-receipt of the notice of the hearing might not also qualify.” How the power to set aside developed In R (Brighton and Hove City Council) v Brighton and Hove Justices [2004] EWHC 1980 (Admin) (“Brighton & Hove”), HHJ Burnton said it was important to note that the power Maurice Kay J held to exist in Plemora to set aside a liability order could not be exercised simply where the defendant disputed his liability. There must be a substantial defect, and not on the part of the defendant. Further, in Camberwell, at para 37, LJ Waller expressed disquiet over the Plemora case, saying it was not free from doubt. Further, at para 34, HHJ Burnton stated the proper consideration was: “whether there had been any procedural defect in the proceedings that led to making of the liability orders, and whether (the defendant) had applied promptly for them to be set aside after learning they had been made.” In Brighton & Hove, HHJ Burnton (at para 31) held that it would be exceptional to set aside a liability order, something to be undertaken cautiously. Further (para 37) he stressed the importance of the need for finality in proceedings for liability orders, and how it is inappropriate to re-open orders simply where it would be reasonable and in the interests of justice to do so – that test was too wide and vague. HHJ Burnton further held that a court should not set aside a liability order unless it is satisfied that there is a genuine and arguable dispute as to the defendant’s liability for the rates in question, AND a. the order was made as a result of a substantial procedural error, defect or mishap. (The court must be satisfied that the order was unlawful or made in excess of jurisdiction, or in ignorance of a significant fact concerning their procedure of which the justices should have been aware) AND b. the application to the justices for the order to be set aside is made promptly after the defendant learns that it has been made or has notice that an order may have been made. Prompt action should be taken within a matter of days or at most a very few weeks, not months, and certainly not as much as a year, (para 33). (Brighton and Hove City Council) v Brighton and Hove Justices [2004] EWHC 1980 (Admin) When does time start to run? Time starts to run from constructive notice that an order may have been made Prompt Application Those wishing to apply to set aside a liability order should note that as a matter of principle for all challenges to administrative and judicial decisions, the application should be made promptly. Time starts to run from the date of the order, or from when a defendant has notice or constructive notice of the order. Constructive notice of a liability order can be deemed from as little as notice of the issue of a summons with no notice of the actual outcome – para 33 Brighton & Hove; “the jurisdiction to reopen a liability order will be unavailable to a defendant who delays in circumstances in which he has notice that an order may have been made, although he had not received a copy or been informed that an order has been made." Those who wish to challenge a finding of liability to pay council tax will be pleased to note that there is no time limit for appealing to the council concerned, providing they have not already given a decision notice or 'final decision'.

Key Point Unreasonable to leave portal for technical non-compliance only Smith v Owen Birkenhead CC, DJ Campbell, 30th November 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 A stay is an essential pre-requisite for an interim payment Luvin v Ageas Insurance Ltd DJ Doyle, Birkenhead CC, 17th September 2015 The Claimant solicitors sought an interim payment in the Portal and £1013.50 was paid. The Claimant wanted more, but the Defendant would not agree. The Claimant therefore removed the claim from the Portal and applied for a further interim payment in Part 7 proceedings. If a Claimant leaves the Portal because they disagree with the amount of any interim payment the Defendant offers, they may leave the Portal to issue Part 7 proceedings and seek an interim payment in the Part 7 proceedings. However to do so puts them at a costs risk, because if they do not secure an order for an interim payment for more than the sum which the Defendant offered in the Portal, then they can be restricted to Portal costs. The court found that requesting a stay was a pre-requisite of applying for an interim payment. The Claimant had not done so, and therefore they were not entitled to request an interim payment in the Portal. Therefore the Claimant's decision to leave the Portal was unreasonable. The Claimant was 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 A court cannot use hindsight or speculation when awarding costs following a Portal breach - the test was on the facts as at the date of the breach Dawrant v Part & Parcel Network Ltd HHJ Parker, Liverpool CC, 28th April 2016 Sitting with Regional Costs Judge Jenkinson, as Assessor Here the Claimant failed to send a CNF, and the Defendant sought to limit the Claimant's costs to Portal costs, per CPR 45.24(2). At first instance the lower court declined to restrict the Claimant to Portal costs. The Defendant appealed, saying the judge had applied hindsight and speculated about what would have happened had the claim been brought in the Portal, relying on Raja v Day & MI B . On appeal it was held that the lower court had taken into account a number of issues which were irrelevant. In particular at [44] it was noted the lower court had considered that the Defendant had failed to admit liability and had failed to explain why quantum could not be agreed, at [45] that the Defendant had failed to file an acknowledgment of service, and at [46] had filed a long defence and applied for the matter to be allocated to track. Finally at [47] the judge found that there was evidence that had the matter been submitted in the Portal it may well have never reached Stage 2 because the Defendant had not admitted liability in Part 7 proceedings within the timescale required in the Portal. The appeal court held that the court engaged in clear speculation using the benefit of hindsight. At [48] the judge said: "This in my submission, is clear speculation using the benefit of hindsight and the deputy district judge was clearly asking herself the question, 'would it have made any difference if the Claimant had complied with the protocol and served a claim notification form on the defendant's insurer', and arriving at the answer no. She did not think that that would have made any difference and that was, in my judgment, dangerous speculation and she was wrong so to do." HHJ Parker went on to limit 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

Key Point Recoverability of disbursements in SIIIA cases Coleman v Townsend Master Haworth, SCCO, 13th July 2020 This was an appeal from an Oral Review of a Provisional Assessment. The appeal was limited to two items; Counsel's abated brief fee for trial and Counsel's skeleton argument. The costs were governed by SIIIA of CPR 45. The defendant made a Part 36 offer just over 21 days before trial. There was an order for skeleton arguments to be exchanged two clear days before trial, so the relevant period of the offer included the due date for the skeleton arguments. The claimant accepted the defendant's offer the day before trial, and sought their costs of the ordered skeleton argument and abated brief fee. At first instance the court had disallowed counsel's fee for drafting the Particulars of Claim, but allowed the fee for the skeleton argument and abated brief fee. The defendant appealed. The claimant was represented by Ben Williams QC and the defendant by Sarah Robson. Mr Williams a rgued that the brief had to be delivered before the day of the trial, it would have been unreasonable not to have done so. He sought the abated brief fee not under Table 6B section D as that is clearly only payable on the day of trial which had not been reached but rather under CPR 45.29I(2)(h). He further argued that the defendant could not complain where they had made an offer open for acceptance for 21 days where those 21 days included the due date for skeleton arguments - there was nothing wrong with waiting to see what arguments were going to be presented before deciding to accept the defendant's offer. He also argued that the 'swings and roundabouts' argument no longer applied in the post-LASPO world. The hearing was adjourned part heard pending the decision in Cham v Aldred . Once that decision was published, the claimant then argued that the trial advocates' fee was not earned under Table 6B, as that fee is only earned on the date of trial itself, but rather simply as a disbursement and was recoverable under ss(h). There was therefore no duplication of the trial advocacy fee in Table 6B. The defendant argued that fixed costs were designed to give certainty and the trial advocacy fee was clearly intended to only be recoverable inter-parties once the day of trial had been reached. Likewise the skeleton argument was part of the trial preparation and should similarly be disallowed. The judge preferred the submissions of the Appellant/Defendant, finding that the costs of preparing for trial included preparing the skeleton argument and that stage had simply not been reached. It was therefore not payable, and the appeal was allowed. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Key Point Acceptance of individual heads of loss in the Portal is binding at Stage 3 Bewicke-Copley v Ibeh DJ Vincent, Oxford CC, 4th June 2015 The Defendant accepted the Claimant's offers for personal injury and pre-accident value, but not the claim for credit hire and storage. The Defendant sought further information about those heads of loss, but the Claimant responded by removing the claim from the Portal because it was 'too complex'. Part 7 proceedings were issued claiming for all heads of loss including those agreed in the Portal. The Defendant applied for judgment to be entered for those heads of loss already agreed in the Portal, and for the remaining heads of loss to be allocated to the small claims track. DJ Vincent (as she then was) held that individual heads of loss could be agreed in the Portal and that they were binding. ​ There have been a few cases on this point since. See Bushell v Parry (first tier appeal) which held that agreement on individual heads of loss are not binding but the circumstances were odd, and Maddocks v Lyne (first tier appeal by DCJ) which held that they are binding in the Portal and mostly binding outside the Portal, Bewicke-Copley preferred over Bushell. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

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

Key Points The time to consider whether a case was a soft tissue injury claim was on the facts (not evidence) when the second report was disclosed and There was no requirement for the first report to be disclosed before the second expert was instructed, only disclosed HOWEVER just because reports were disclosed correctly did not mean costs would always follow Abdulmalik v Calder DJ Carter, Manchester CC, 2nd Feb 2022 The Claimant disclosed a GP report, then started Stage 2 of the MOJ Portal and disclosed both reports with the Stage 2 pack. Damages were settled without a hearing. D argued that para 7.8A of the RTA Portal Protocol required the Claimant to disclose the first report before obtaining the second report. C argued that the rules only required that the first report be disclosed before the second report is disclosed. In any event, C argued that the claim was not a soft tissue injury claim so the special rules in RTA Protocol cases did not apply to this claim. D argued that the case only ceased to be a soft tissue injury claim on the receipt of the second report, and thus if the second report was inadmissible because it had not been disclosed in accordance with the rules then the claim remained a soft tissue injury claim. The court found that this was a soft tissue injury claim, and that the time to assess that was when the subsequent report was disclosed. At that stage in this case, the claim was no longer a soft tissue injury claim, and therefore the special rules did not have to be complied with. However, even if he was wrong on that the judge went on to consider what 7.8B actually required and he concluded that the rules only required the first report to be disclosed before the second was disclosed. There was nothing in the rules to support the contention held in Mason v Laing that the first report had to be disclosed before the second report was obtained/sought/instructed. The Defendant was refused permission to appeal. Instructed by Steven Sherlock, Bespoke Costs Ltd Click here for judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Key Point Admission in Portal by Employer's Insurers was binding ALSO A side note to the Portal admission stating: 'made without driver's instructions' did not change effect of Portal Admission Mukadam v Nazir HHJ Khan, Preston CC, 14th May 2020 Both parties brought a claim against the other in the Portal. In the one brought by Mr Nazir, the Defendant in that claim admitted liability. Mr Mukadam was driving his employer's vehicle under their policy of insurance. He argued that the admission made by the insurers should not bind him outside of the claim, noting that because it was not his insurance policy, he had no privity of contract with the insurers. Furthermore, when the admission of liability was made in the portal, it was accompanied by a side note which stated: "Please note that we are dealing with your client’s claim on a without admission of liability from our insured." The court held that nonetheless, the admission was binding on the driver outside the portal, preferring Ullah v Jon to Malak v Nasim , and following Chimel v Chibwana & Williams . Instructed by Matt Dowrick, Canford Law Solicitor Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index