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Guess the Silk - Christmas Game ​ Here's a bit of a twist on an old favourite Christmas game. Yes, there is snow. Yes, the old judges are back. But this time, can you guess the silk - from just their squeals as the snowballs fire down? And whilst you're doing your detective work on the 'ever so slightly familiar' voice behind some of the judges here, can you also rack up the highest score? Full Screen Toggle on/off Volume - to toggle sound effects & music off/on Take a screen shot How to Play Guess the Silk Submit your guess here First name Last name Email Who is the Silk? > Thanks for submitting! I will let you know if you are correct.

Not my Christmas game Maybe just some autumn fun? This is Not a Game No Leaderboard. No winners. No losers. No game in fact. Or...

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

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