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2. Individual Heads of Loss Bewicke-Copley v Ibeh (Agreed individual heads of loss are binding) Bushell v Parry (First Tier Appeal - Agreed individual heads of loss are not binding) Maddocks v Lyne (First Tier Appeal - Agreed individual heads of loss are normally binding, entire Portal settlements are binding) Phillips v Willis [2016] EWCA Civ 401 (Irrational for judge to order case out of Portal, individual heads of loss can be agreed) Go Back to Index Click on the button below to go back to the case law index Index

Key Point A claim which should never have been brought in the MOJ Portal did not attract SIIIA fixed costs Petit v MIB & 5 Ors DJ Pollard, Brighton CC, 15.02.17 This claim started in the MOJ RTA Portal Protocol, but should not have done. The accident occurred on 18 Oct 2011 when the Portal upper limit was £10,000. The Portal upper limit was changed to £25,000 for all accidents which happened after 31 July 2013, and the new Protocol applied to all claims where the CNF was submitted after that date too. In this case the CNF was submitted on 19 Sept 2014. Thus the claim was subject to the new Protocol, but the old upper limit, a point which eluded the claimant solicitors at the time. The MIB objected to the claim being brought in the MOJ Portal protocol because of its value stated on the CNF to be between £10,000 - £25,000. The claim was later removed from the Portal for that very reason and Part 7 proceedings were brought. The Defendant sought to limit the Claimant's costs to fixed costs under SIIIA of CPR 45. However the court disagreed, finding that as the claim had not 'properly' started in the MOJ Portal Protocol, SIIIA costs did not follow. Please note it has not yet been possible to obtain a copy of the approved judgment, however the link below is to the draft transcript agreed by both counsel in the case. Click here for a copy of the unapproved judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Key Point Portal admissions were not binding outside that claim SINCE OVERTURNED Malak v Nasim DJ Woods, Watford CC, December 2014 Here the issue was whether the claimant was bound by an admission which his insurers had made in the Portal on an entirely separate claim. The court found they were bound only within those same proceedings, not otherwise, rejecting the finding of Ullah v Jon . Please note that after this case was decided, the issue of whether Ullah v Jon or Malak v Nasim was correct was determined in the appeal of Chimel v Chibwana & Williams . The appellate court decided that Malak was wrongly decided. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

15. Soft Tissue Injuries Claims Mason v Laing The Portal rules are strict; if in a soft tissue injury claim the first report is not disclosed before subsequent ones, a Claimant cannot rely on the subsequent reports. Greyson v Fuller The High Court held that where the reports were served together, the sanction was costs, not the admissibility of the report. ​ Moesaid v Calder Where a subsequent report took the claim out of the definition of soft tissue injury claim, it did not matter when the reports were disclosed, the special rules on soft tissue injuries did not apply. Abdulmalik v Calder There was no requirement for the first report to be disclosed before the second report was obtained, only disclosed. However, compliance with the order of disclosure required did not mean that the cost of the report would automatically be allowed - the court could still disallow it for other reasons. The time to consider whether the claim was a soft tissue injury claim was when the second report was being disclosed. Go Back to Index Click on the button below to go back to the case law index Index

Key Point Judge should not raise a point in Stage 3 which parties would not be permitted to do, on the grounds of fairness and A Defendant can only challenge matters in the Portal on fairly limited grounds - Part 7 might be more appropriate Khan v Alliance HHJ Gosnell, Leeds CC, 1st June 2020 The court considered an appeal from a Stage 3 hearing, where Hussain v EUI had not been raised by either party during Stage 2, thus per Mulholland v Hughes neither party could raise it. However, at the Stage 3 hearing, the judge raised the issue himself and awarded the credit hire claim by reference to loss of earnings. On appeal HHJ Gosnell held that where parties are not permitted to raise an issue, it would not be fair for a judge to do so [40-41]. In keeping with the fact that the Portal gives fairly rough justice, he also found at [30] that the extent to which you can challenge a claim in the Portal is limited and thus some disputes should be brought in Part 7 proceedings. It was not unfair for the Defendant to have to choose between running a claim through the cheaper Portal system with limited challenge, or full Part 7 proceedings with its higher 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 The Portal does not apply to Montreal Convention Claims McKendry v British Airways Plc DJ Baldwin (sitting as Regional Costs Judge) Liverpool County Court, 16th May 2018 Here the Claimant sent a Letter Before Action, claiming under the Montreal Convention. The Defendant replied admitting liability, but requested that the matter proceeded under the Portal Protocol. The Claimant declined, noting that they were not claiming a breach of duty, so the Portal did not apply. Parties later settled damages without the need for proceedings, but costs could not be agreed. Part 8 costs only proceedings were commenced with the central dispute concerning whether fixed costs applied or not. Article 29 of the Montreal Convention gives exclusivity for the convention to apply, and so there can be no question of common law torts applying either instead or as well. Liability under Article 17 arises not from any 'notional' breach of duty, but rather by international agreement. The convention is a stand-alone code, much like the Portal itself. The new Package Travel Protocol specifically excludes both the Athens Convention and the Montreal Convention from its scope, which supports the view that claims under the Montreal Convention should not be brought in the Portal. This case, together with the similar case of Mead v British Airways , makes it clear that claims brought under the Montreal Convention are strict liability claims. Liability arises not from any duty of care but is a strict liability arising from international agreement. Claims brought in the Portal require a duty and breach. Admitting liability in the Portal also admits that the defendant has no accrued defence under the Limitation Act 1980, and the Limitation Act does not apply to Montreal Convention claims. It is perhaps slightly surprising that a whole raft of claims is excluded from the Portal Protocols without being specified. However, on a quick drilling down into the nature of Montreal Convention claims and the exclusivity provided therein, it is clear this approach must be right. Whilst neither case is binding, there is a lot of sense to these decisions. They are supported by the fact the new Package Travel Protocol specifically excludes such claims. There would also be inherent difficulties in international travel cases over whether the accident occurred within England & Wales. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Key Points Portal exit was not unreasonable given D's behaviour and It was premature to apply to restrict a Claimant to Portal costs before the claim had concluded Bursuc v EUI Ltd DJ Revere, Clerkenwell & Shoreditch CC, 30th May 2018 This claim started in the MOJ RTA Portal Protocol, but the Claimant removed it from the Portal following the Defendant's repeated requests for more information and further disclosure. The Claimant had warned the Defendant that if they kept requiring further information, that they risked making the claim too complex for the Portal, but the Defendant continued to ask for more. The Claimant then removed the claim from the Portal because it was too complex, and issued Part 7 proceedings. Whilst those proceedings were ongoing, the Defendant made an application for the Claimant to be restricted to Portal costs under CPR 45.24. The Claimant argued that it was premature to seek such an order before the claim had concluded, and in any event, the claim had become too complex a nd was no longer suitable for the portal. In a reserved judgment the court found that the application was made too early, and in any event the departure fr om the Portal was not unreasonable in all the circumstances. The Claimant had supplied over 50 pages of evidence, the credit hire claim was not insignificant at over £17K, and it was clear that two of the heads of loss were going to be strongly defended, and the Claimant had warned (not 'threatened' as D argued) the Defendant that the claim may leave the Portal if they sought any further information , yet they still asked for more. This is an unusual decision, finding that a Portal exit was reasonable as most cases have held the opposite. However, it does demonstrate that the Portal Protocol is only suitable for straightforward claims, and Defendants need to be careful they do not make a claim too complex by how they approach defending such claims, particularly where the vehicle related damages are larger. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Key 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

10. Are Portal Admissions binding outside the Portal? Ullah v Jon (Portal Admissions are binding outside the Portals) Malak v Nasim (Portal Admissions are not binding outside the Portals) Chim el v Chibwana & Williams (First Tier Appeal - Portal Admission is binding outside the Portal, Ullah and Malak considered, Ullah preferred) Maddocks v Lyne (First Tier Appeal - Entire Portal settlements are binding) Mukadam v Nazir (First Tier Appeal - side note on Portal admission noting was made without driver's instructions did not change effect of admission made by employer's insurers) Mullen v Nelson Insurance Co Ltd (First Tier Appeal - Portal admission made by Insurer of Employer was binding on Employee, Chimel followed) Go Back to Index Click on the button below to go back to the case law index Index

Key Point A decision to take a step which automatically removes a case from the Portal is an election to leave the Portal Ilahi v Usman HHJ Platts, Manchester CC, 29th November 2012 The Claimant withdrew all offers at the end of Stage 2, which caused the claim to automatically leave the Portal. The Claimant then argued that they could not be reduced to Portal costs because they had not elected to leave the Portal, it had happened automatically. The Claimant won at first instance. However, on first tier appeal, HHJ Platts found that if a party elects to take a step which has the automatic consequence of leaving the Portal, then they have elected to leave the Portal. He restricted the Claimant to Portal costs only. The Claimant sought permission to appeal to the Court of Appeal. However, Jackson LJ refused permission on paper, noting he agreed with the reasoning given by HHJ Platts. Click here for the First Tier appeal judgment Click here for the Court of Appeal decision Go back to Main Index Main Index Go back to Topic Index Topic Index

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

Sarah Robson Barrister Fixed Costs Specialist Call now on 0800 634 9650 About Sarah Robson The yellow circle shows the courts that Sarah Robson normally works in for in person hearings, although most of her work is still remote so all courts in England & Wales are available. Sarah Robson is closest to courts around the Coventry / Northampton / Milton Keynes / Birmingham / Leicester / Reading area, but also regularly travels to Birkenhead, Liverpool, Leeds, Cardiff, Manchester, Bristol and across London. Sarah will travel further by arrangement. Geographical Area Covered The Sun Newspaper - December 2023 Sarah Robson was recently interviewed by a National Newspaper, The Sun, regarding a specialist court case concerning liability orders for the boxer, Tyson Fury. This article appeared on the front page of The Sun in December 2023. ​ Read the article here: ​ Tyson Fury's next big fight is against the tax man - after champ accused of dodging massive bill | The Sun Counsel Magazine Oct 2023 Lessons learnt: The black belt barrister | COUNSEL | The Magazine of the Bar of England and Wales (counselmagazine.co.uk) ​ Counsel magazine recently ran an article about Sarah Robson being a black belt and a barrister, in particular how each 'skill set' impacts on the other. Alpha Court Chambers Sarah practices at: Alpha Court Chambers alphacourtchambers.co.uk ​ 12 Paddock Close Bidford-on-Avon, Alcester Warwickshire B50 4PJ Professional clients should ring for Sarah's postal address if needed.