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Key Point SIIIA Exceptional Circumstances Costs under CPR 45.29J Jackson v Barfoot Farms DJ Jackson, Canterbury County Court, 29th November 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

Sarah Robson 2002 Call Black Belt Barrister (4th Dan) Sarah recently spoke at the ACL Costs Conference in Manchester on Black Belt Court Craft. She ended the entertaining talk with a board break. Kevin Latham was not injured in the making of this talk. Search the site here: Black Belt Barrister Sarah Robson is the original "Black Belt Barrister." By day she is a Fixed Costs specialist. By night, she can be found at the local Dojang, practising her Dark Arts, aka Taekwondo. Sarah deals with Detailed Assessments, Oral Reviews, Preliminary Costs Hearings, CCMCs, Appeals, Fast and Multi-Track matters. She is THE go-to barrister for anything to do with Fixed costs. As well as being an excellent advocate in court, she is also happy to advise, particularly on technical points and procedural tactics. Sarah represents both Claimants and Defendants - she feels working for both sides gives her a better understanding of how the other side are likely to run a case. Sarah Robson East Midlands based - Costs Specialist Where? Sarah Robson is part of Alpha Court Chambers based in Warwickshire, home of Warwick Castle. Sarah Robson appears in the SCCO, as well as High Courts and County Courts across much of Central England and Wales, covering from Leeds to London, Cardiff to Norwich - Nationwide for remote hearings - or on request for in person. Fixed Costs Specialist Sarah Robson is a specialist costs barrister with a strong reputation in court. Sarah is known for her thorough preparation, and for providing detailed and practical advice. Solicitors often comment how they have never seen counsel so well prepared. Sarah is the top counsel for cases concerning Fixed Costs. Service Speaking Engagements Sarah speaks around the country on fixed costs. Sarah is a popular and engaging speaker. She is not phased by addressing large audiences. She can also be persuaded to provide a Taekwondo demonstration too. Sarah speaks to both Claimant and Defendant audiences, and to professional and lay clients. Please email to find out about her speaking availability. Sarah Robson does not have a clerk - she does not need one. Once clients have seen how Sarah works and how good she is they keep coming back! Solicitors can talk directly to Sarah when they book a case and often benefit from discussing the case with her at that point. There is usually time then to take steps to strengthen your case, whereas where a clerk has taken the booking it is often too late by the time counsel receive papers for a hearing. It is not unusual for cases to settle once the other side hear that Sarah Robson is the barrister on your side. Reputation Sarah is an experienced advocate with a strong reputation in court. Sarah is known for her thorough preparation, and for providing detailed and practical advice. Solicitors often comment how they have never seen counsel so well prepared. Sarah is the top counsel for cases concerning fixed costs. Awards and Scholarships Sarah was awarded the London University Prize for Distinguished Exam Performance in her LLB (Hons) (1999) Sarah received a major award from the Honourable Society of the Inner Temple for her Bar School year (2001) Sarah received a major award from her Bar School, the University of the West of England (2001) Sarah is the original Black Belt Barrister. She is a current practicing 4th degree black belt in Tae kwon do, a fully qualified Tae kwon do instructor and referee. She is registered with the British Taekwondo Council. She regularly judges Tae kwon do competitions at both local and national level. Bar Standards Board Sarah Robson is a barrister regulated by the Bar Standards Board (BSB). She is governed by the Bar Standards Board Code of Conduct. https://www.barstandardsboard.org.uk/regulatory-requirements/the-barristers’-register/ shows (1) who has a current practising certificate, and (2) whether a barrister has any disciplinary findings, which are published on the Barristers’ Register in accordance with the BSB’s policy. Contractual Terms All work is carried out under COMBAR's standard terms and conditions, payment option A. These can be found her e . ​ These terms will apply to all instructions and briefs accepted from solicitors and other authorised persons unless other terms have been agreed in writing. Instruction Sarah aims to make the process of instructing her straight-forward. She understand the need to be flexible and to work together as a team to provide practical solutions. If you would like to instruct her please call or email direct. Please do not supply details about the case before checking if she is conflicted. Work in England and Wales Sarah accepts instructions from: •Solicitors, other authorised litigators, employed barristers and legal advice centres in England & Wales •European lawyers registered with the Law Society and qualified lawyers from other jurisdictions •Licensed professionals in the UK under the Licensed Access scheme Please note Sarah is not Direct Access Qualified . Members of the public should seek a solicitor. Fees/Timescales Sarah is happy to discuss fees, which are usually based on her hourly/daily rate, and agree a fixed fee, which will vary depending on the work required. These fees are likely to be higher if your case is particularly complex or urgent. A fixed fee means she will charge you a set amount of money for the work required. She will need to agree a fee in advance for each piece of work going forward. She is willing to provide quotations or estimates of fees and a timetable for completing work. Fee quotations or estimates will usually be based on hourly/daily rates. She can also in some circumstances offer a fixed or capped fee for drafting or a hearing. For trials will be provide an estimate of a brief fee and where appropriate, a refresher rate. Fees may be structured in a way to suit the client, for instance charging agreed fees for preparation of a skeleton argument, for general preparation, and for attendance at court. Timescales Timescales for completion of work can depend on a number of factors, examples being: availability of Counsel and or client; complexity of the matter; and number of papers involved; and will obviously be affected by the volume of other work being undertaken. For instance if counsel is engaged in a two-week trial it may not be possible to complete work within the usual timescale. As a guide, she would normally expect to complete paperwork within three weeks unless external factors (which will be explained at the outset) prevent this. As regards court work, much depends on the timetables provided by the courts, over which she has no control, and the need to comply with court prescribed timetables. Work required to comply with these timetables has to take priority over other work. Complaints Complaints Policy A copy of Chambers' Complaints policy can be found here . ​ If you are unhappy with the response to your complaint, or if you receive no final response within eight weeks and you fall within their jurisdiction you may take up your complaint with the Legal Ombudsman, the independent complaints body for complaints about lawyers. The Ombudsman is not able to consider your complaint until it has first been investigated by Chambers. Please note that You must complain to the Legal Ombudsman either within six years of your barrister’s actions/failure to act, or no later than three years after you should reasonably have known there were grounds to complain. ​ You must also complain to the Legal Ombudsman within six months of receiving your barrister’s final response to your complaint.” You can write to them at: Legal Ombudsman PO Box 6806, Wolverhampton WV1 9WJ Telephone number: 0300 555 0333 Email: enquiries@legalombudsman.org.uk More information about the Legal Ombudsman is available on their website: http://www.legalombudsman.org.uk/ The Ombudsman’s website of decisions during the last 12 months, showing against whom the Ombudsman has made any ruling, or any decision requiring a remedy, is available at http://www.legalombudsman.org.uk/raising-standards/data-and-decisions/#ombudsman-decision-data Youtube video showing Sarah Robson's Black Belt skills Or click here for video Not afraid of difficult cases Why not call and ask to speak to Sarah to find out what she can do for you? That case you hate in the bottom of your cupboard, we know it's there. Sarah can help. Contact Sarah Robson Taekwondo World Championships 2023 ​ Sarah is a Black Belt in Taekwondo, and has her own club. They attended the 2023 Taekwondo World Championships and came back with 22 new World Champions! Total medal count: 22 Gold medals, 17 Silver medals and 20 Bronze medals. Oh, and her own instructor retains his title as the World Champion too. ​ Not all Black Belt Barristers can say this.

Key Points Leaving the Portal for technical non-compliance only is not justified and Common Law Waiver and Affirmation do not apply in the Portal Kilby v Brown DJ Peake, Birkenhead CC, 10th February 2014 Here the Defendants inadvertently underpaid the Claimant their Stage 2 payment by a mere £15. The Claimant solicitors ceased upon the opportunity to remove the claim from the Portal. The costs went to a separate hearing where the court considered whether the Claimant had acted reasonably in removing the claim from the Portal in circumstances where there had been a clear and admitted breach of the Portal Protocol. The judge held that the Claimant solicitors had been wholly unreasonable and restricted the claimant to Portal costs under CPR 45.24(2)(b)(i). The Defendant also argued that as the Claimant had banked their cheque, they had thereby affirmed their breach. However, the judge held that the Portal is and that the common law doctrines of waiver and affirmation do not apply. Click here for a link to an article about this case in the Liverpool Echo People often say this case was only decided this way because the Claimant had run up an unreasonable £16K of costs in a simple low-level case. However, those were the total costs of both sides and included the additional costs arising from the additional hearing the costs dispute caused. The principle applies equally however much the parties costs are, and indeed now most would fall under SIIIA fixed costs. Click here for a copy of the judgment Main Index Go back to Topic Index Topic Index Go back to Main Index

Key Point Claimant must act proportionately, no absolute right to issue proceedings after 21 days from disclosure Bobby Prior v Silverline International Ltd HHJ Wood QC, Liverpool CC, 8th July 2015 ​ Here the court considered whether to impose a costs sanction where the Claimant had acted unreasonably in issuing proceedings. The Claimant had sent the Defendant their medical report, waited 21 days, then having not received a satisfactory offer from the Defendant, they issued proceedings. As it happens the Defendant had sent an offer, but the Claimant had not received it. The Claimant relied on the fact they had complied with the Protocol by waiting 21 days from sending the medical report to issuing proceedings, as has happened here. However, on appeal at [12], HHJ Wood QC said: “So I ask the question has the Claimant, even if strictly permitted so to do, acted unreasonably by embarking on a course which is wholly disproportionate to the value of the claim and the relief sought?” (My emphasis.) At [15] HHJ Wood QC said that the PI Protocol was to promote early resolution and to avoid the escalation of disproportionate costs, and attention should be drawn to para 2.16 (now 9.1.1) which emphasised that litigation should be a last resort. At [23] HHJ Wood QC said: “If litigation was to be conducted on the basis, ‘Ah you’re too late now. Tough. You’re just going to have to pay the consequences,’ then the system, which is predicated upon a degree of cooperation as exemplified in the Protocol, would break down. There must be more flexibility in the system than that…”. The court concluded at [24] that it was: “… insufficient in my judgment, for the Claimant to rely solely upon the fact, this fact, to justify this proportionately expensive course of action. It cannot in my judgment, be assumed that entitlement to assessed costs is absolute if the issue ball starts rolling at one-minute past midnight.” (My emphases). And at [25]: “… it should not be assumed that a legitimate Protocol issue automatically entitles a party to its costs without regard to the background… the entitlement is not absolute in the context of a requirement to act proportionately in the circumstances.” Click here for a copy of the judgment Back to Other Cases Back to Cases Index

Index of Cases on Fixed and Portal Costs There are now a number of cases concerning fixed costs on and around the MOJ Portals. They are sub-divided by topic/theme below. Where a case establishes more than one point, it may appear in more than one sub-section. Scroll down to the section your require, or click on the 'Topic' links below to see a list of relevant cases. Click on the case name for more details and for a copy of the judgment. Search the site here: List of Topics 1. Common Law Principles do not apply 2. Individual Heads of Loss 3. SIIIA CPR 45 - Fixed costs on leaving the Portals 4. Part 36 offers and SIIIA Fixed costs 5. When CPR 45.24 can be applied 6. Leaving the Portals 7. Cannot use Hindsight or Speculation 8. Using the Portals 9. Montreal Convention Claims 10. Are Portal Admissions binding outside the Portal? 11. Portal Offers outside the Portal 12. Offer of Zero is a Valid Offer 13. Interim Payments 14. Range of Prognosis Period given 15. Soft Tissue Injuries Claims 16. Exceptional Circumstances Costs CPR 45.29J 1. Common Law Principles do not apply Draper v Newport (Common Law Mistake does not apply in the Portals) Fitton v Ageas (Common Law Mistake does not apply in the Portals) Harris v Brown (Common Law Mistake does apply in the Portals) Kilby v Brown (Waiver & Affirmation do not apply in the Portals ) Purcell v McGarry (First Tier Appeal - Offer and Acceptance does not apply in the Portals) Patel v Fortis (Non-Portal CPRs do not apply in the Portals) 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 Lyn e (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) 3. SIIIA CPR 45 Fixed costs on leaving the Portal Melloy & Anor v UK Insurance Ltd [2002] EW Misc 4 (CC) Where there is more than one claimant in a SIIIA claim, each party is entitled to a set of SIIIA fixed costs ​ West v Burton [2021] EWCA Civ 1005 (SIIIA costs do not apply where the claimant dies whilst the claim is in the Portal) Coleman v Townsend (Master Haworth, SCCO, 13.07.20) (What disbursements can be allowed post- Cham in SIIIA cases) Hislop v Perde: Kaur v Committee (for the time being) of Ramgarhia Board Leicester [2018] EWCA Civ 1726 (No indemnity costs on late acceptance of a Part 36 where SIIIA applies) Broadhurst v Tan; Taylor v Smith [2016] EWCA Civ 94 (SIIIA Indemnity costs are hourly rate not fixed) Qader v Esure Services Ltd [2016] EWCA Civ 1109 (Exception to SIIIA costs where allocated to multi-track) Sharp v Leeds City Council [2017] EWCA Civ 33 (SIIIA fixed costs for interim applications apply even for Pre-Action Disclosure applications) Bird v Acorn [2016] EWCA Civ 1096 (Re stage of fixed costs) Chapman v Tameside Hospital NHS Foundation Trust (A court has the power to vary quantum of fixed SIIIA costs for conduct) Petit v MIB & 5 Ors (Where claim not properly started in the Portal, SIIIA costs did not follow) Cham (by their Litigation Friend Laura Martin) v Aldred (Deals with disbursements under SIIIA) ​ Santiago v MIB [2023] EWCA Civ 838 (Interpreter's fees are recoverable under SIIIA) ​ 4. Part 36 offers and SIIIA Fixed costs Cookson v Manchester City Council (Acceptance of a Part 36 offer removes the court's powers under CPR 45.24 to limit the claimant to Portal costs) Ansell v AT&T (Acceptance of a Part 36 offer does not remove the court's powers under CPR 45.24 to limit the claimant to Portal costs) 5. When CPR 45.24 can be applied Brown v Ezeugwa (First Tier Appeal - Fixed costs can be awarded on assessment; not limited to when order for costs made/agreed) Davies v Greenway (Appeal to SCCO - Fixed costs can be awarded on assessment and standard basis does not exclude fixed costs) Williams v Secretary of State for Business, Energy & Industrial Strategy [2018] EWCA Civ 852 (Where CPR 45.24 could not be used, but the court could get to the same result otherwise) Timothy Taylor & 27 Ors v ZStage (UK) Ltd Real China Restaurant (Following total non-use of the Portal, an agreement by way of Tomlin Order to settle damages counted as a judgment for the purposes of CPR 45.24, and the court ordered the Defendant to pay no more than portal costs under CPR 45.24(2)(c).) The Claimant indicated they were going to appeal, but ultimately did not do so 6. Leaving the Portals Patel v Fortis (Leaving for technical non-compliance only not reasonable) Modhwadia v Modhwadia (First Tier Appeal - Failure to explain reason for offer not fatal) Ilahi v Usman (First Tier Appeal - CPR 45.24 engaged even when case automatically left, where that departure was caused by an act which the Claimant elected to take) Doyle v Manchester Audi (Omission to act causing claim to leave Portal was an election to leave) Payne v Scott (Where judge ordered case out of Portal was still Claimant's election to leave) Uppal v Daudia (No obligation to make offer in Portal, unreasonable to leave for that, D's Costs awarded on indemnity basis following finding that C acted unreasonably) Rafiania v All Type Scaffolding Ltd (No test of reasonableness for total failure to use the Portal) Monteith v Carroll (Making a pre-med offer did not justify leaving the Portal) Hussain v Wardle (Claim left Portal after Claimant failed to include mandatory information in the CNF) Bursuc v EUI Ltd (Not unreasonable to leave Portal Protocol because became too complex, applications to limit C to Portal costs cannot be made until claim concluded) ​ 7. Cannot use Hindsight or Speculation Raja v Day & MIB HHJ Gregory, Liverpool CC, 02.03.15 (Cannot take into account would have left the Portal anyway) ​ Tennant v Co ttrell (Cannot change reason for leaving, nor retrospectively justify reason) ​ Dawrant v Pa rt & Parcel Network Ltd (First Tier Appeal - Cannot use hindsight when a case has left the Portal) ​ Ryan v Hack ett [2020] EWHC 288 (QB) (Could take into account what happens after a claim leaves the Portal when determining costs on the facts of this case) 8. Using the Portals London Borough of Islington v Bourous, Davis & Yousaf [2022] EWCA Civ 1242 Approved Mulholland v Hughes that a party cannot argue something in Stage 3 not raised in Stage 2, and commented that the Whi te Book note re Phillips v Willis is not accurate. Wickes Building Supplies Ltd v Blair (No.2) Costs [2020] EWCA Civ 17 The Court of Appeal agreed with Sarah Robson that QOCS applied to this second tier appeal, preferring the reasoning of Edis J in Parker v Butler [2016] EWHC 1251 (QB) over that in both Wagenaar v Weekend Travel Ltd [2014] EWCA Civ 1105 and Hawksf ord Trustees Jersey Ltd v Stella Global UK Ltd and another [2012] EWCA Civ 987 . Not to apply QOCS on appeals would deny access to justice. (1) Akram v Aviva Insurance Ltd and (2) Mahmood v Tillott, HHJ Jarman QC, Wrexham CC, 29.09.21 (The Claimants in both appeals relied on emails from their solicitors uploaded in Stage 2 at the Stage 3 hearings. The Defendant appealed both arguing no weight should be given to the contents of those emails, and that the information therein could only be provided by way of witness statement. HHJ Jarman QC upheld both lower court decisions finding that this was appropriate in the fairly rough justice of the Portal.) Mulholland v Hughes HHJ Freedman, Newcastle CC, 18.09.15 (First Tier Appeal - Offers in the Portal do not amount to admissions, Claimants have to repay over-payment of damages in non-settlement payment, Arguments at Stage 3 limited by those in Stage 2 pack) Khan v Alliance Insurance Plc HHJ Gosnell, Leeds CC, 01.06.20 (Judge cannot raise an issue in Stage 3 not raised by the parties in Stage 2; Defendant can only challenge claim in limited way in the Portal) Mozzano v Riwa (Multiple CNFs - how to deal) Lamb v Gregory (Witness statements permitted under the [2010] Protocol) Raja v Day & MIB HHJ Gregory, Liverpool CC, 02.03.15 (First Tier Appeal - Default position on finding a Portal breach is fixed costs, burden shifts to Claimant to show why should not apply) ​ Smith v Owen (Unreasonable exit for non payment of disbursement) ​ Liverpoo l Victoria Insurance Co Ltd v Yavuz & Ors [2017] EWHC 3088 (QB) (6 Dec 2017) (Contempt re completion of CNF) ​ David G rant v Dawn Meats (UK) [2018] EWCA Civ 2212 (Limitation, Stays and Service of a Portal Claim form) ​ 9. Montreal Convention Claims Mead v British Airways PLC (The Portal does not apply to Montreal Convention Claims) ​ McKendry v Br itish Airways PLC (The Portal does not apply to Montreal Convention Claims) 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) Chimel 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) 11. Portal Offers outside the Portal Purcell v McGarry (Portal offers are open for acceptance in Stage 3) Akinrodoye v Esure (Portal offers are open for acceptance even after Part 7 proceedings issued) Ingrid Smith v Greater Manchester Buses South Ltd (Protocol offers only remain open for acceptance after a claim leaves the Portal.) Castle v Andrews & Dickens Ltd (Protocol offers are open for acceptance after a claim leaves the Portal, not Portal offers) 12. Offer of Zero is a Valid Offer Dickinson v Langford Piotr Glazer v Nathan Reid 13. Interim Payments Luvin v Ageas Insurance Ltd (Sets out the rules and procedure on interim payments) Ampratwum v Zbigniew Samajeden & Esure (special rules on interim payments for vehicle related damages - judgment not available) 14. Range of Prognosis Period given Dominic v Martin (First Portal appeal, established that should award in middle where range of prognosis given in absence of witness evidenc e) 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 A claimant failed to disclose a first report before a subsequent report, so were held to be in breach of para 7.8A of the RTA Protocol. However, the judge allowed the claimant Relief from Sanction. On appeal the High Court said the pro per sanction was costs, not exclusion of the evidence. ​ ​ Moesaid v Calder Where a subsequent report took the claim ou t 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. 16. Exceptional Circumstances Costs - CPR 45.29J Ferri v Gill [2019] EWHC 952 (QB) (Considered what the basket of cases was in a CPR 45.29J application, and test was a high bar) Jackson v Barfoot Farms (Whether agreement to pay costs on the standard basis excluded the award of fixed costs, and non-fixed costs were awarded as the case was exceptional per CPR 45.29J) Crompton v Meadowcroft (Costs ) [2021] EW Misc 20 (24 Aug 21) (CPR 45.29J Exceptional circumstances costs awarded in case with multiple experts, 13 reports, 11 sets of records , MRI scans, multiple surgeries caused, CBT & Physio needed, Ogden calculations, Smith & Manchester calculation) Lloyd v 2 Sisters Poultry Ltd (Costs) [2019] EW Misc (29 Jan 19) (Exceptional circumstances costs awarded under CPR 45.29J where C had permanent disability, complex loss of earnings claim/Billet calculation using Ogden tables, extensive specials, very long witness statements) Baker v Flynn (The lower court awarded exceptional circumstances costs under CPR 45.29J - the fact that liability was in dispute was a major consideration, there were also issues under the Equality Act, use of Ogden tables, pension loss and so forth. Upheld on appeal for same reasons) West v Olakanpo [2020] EWHC 3830 (QB) (Exceptional circumstances costs awarded at first instance for fundamental dishonesty, overturned on appeal as evidence not tested in cross-examination) Submissions gratefully received Sarah Robson is always very happy to receive any cases on matters related to fixed costs to add to her website.

Key Point A Claimant can be limited to Portal costs only where costs unreasonably or disproportionately incurred, per CPR 44 - court's powers not limited to CPR 45.24 Davies v Greenway Master Simmons, SCCO, 30th October 2013 The Claimant failed to use the Portal against the correct Defendant. Parties agreed damages and costs went for assessment. At first instance, the court held that an order for standard basis costs precluded an award under CPR 45.36 (now 45.24). However, Master Simmons held that he could only award costs which were proportionate and reasonably incurred. He found that all costs incurred above Portal costs were disproportionate and thus the Claimant was awarded Portal costs only. NB the later decision of Brown v Ezeugwa found that standard basis costs did allow an award directly under CPR 45.36 (now 45.24) as well as under the proportionality test here. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Key Points Leaving the Portal for technical non-compliance only is not reasonable and Non-Portal CPRs have no application in Portal Protocol cases Patel v Fortis Recorder Morgan, Leicester CC, 5th December 2011 The Claimant removed this case from the Portal because the Defendant had not sent an acknowledgement of the claim within 24 hours, which is a mandatory requirement. The Claimant then issued Part 7 proceedings, although the parties later settled quantum without a hearing. The issue was what costs should apply. The Defendant argued firstly that they had acknowledged the claim in time, but in the alternative, the claimant had acted unreasonably and should be restricted to Portal costs under CPR 45.36(2)(b)(i) [now CPR 45.24(2)(b)(i)]. The Defendant argued that whether the CNF was a claim form or either way, their Insurer Response sent 48 hours later (which it was accepted counted as an acknowledgement) was not late. The court held that the CPR rules on service did not apply to service of the CNF; the Portal was a highly stand-alone code and one could not simply import non-Portal CPRs into it. Thus the fact that the CNF had been sent after did not make any difference. The Portal rules required an acknowledgement to be sent the next day, whatever time of day the CNF had been sent. However, the court did find that the Claimant had acted unreasonably in leaving the Portal and issuing Part 7 proceedings. Whilst there was a breach, it was a technical breach only and made no real difference. If the Claimant solicitors had been genuinely concerned to see if their claim had been received, they could have checked by either looking on the Portal or contacting the Defendant, but they did nothing. The judge held that it was unreasonable to leave the Portal for a technical breach only, it was not reasonable, and he restricted the Claimant to Portal costs. The court also considered the application of CPR 45.36 (now CPR 45.24) as the matter had settled, so there was no judgment. The court had no difficulty in finding that the rule applied equally to cases which settled as well as to those where was given. there would be a lacuna in the rules and it would discourage settlement. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Key Point Tomlin Order held to equate to a 'judgment' for the purposes of CPR 45.24 Timothy Taylor & 27 Ors v ZStage (UK) Ltd Real China Restaurant DJ Griffith, Birmingham CC, 3rd September 2019 Between 11th -24th July 2014, around 100 people contracted salmonella poisoning when eating at the Defendant’s restaurant. 94 claims were made by 15 firms of solicitors. All except the 28 Claimants in these proceedings were brought individually in the MOJ Portal. The Defendant maintained throughout that these claims too should have been brought in the Portal, and that the Claimant’s failure to do so should sound in costs, per the court’s specific powers under CPR 45.24(2) and/or under the court’s general powers per CPR 44. The claimant argued that by lumping all these minor claims together, they were worth more than the portal upper Portal limit and together they were too complex for the portal. Individually each claim was worth below the portal limit and all required only one expert. Most recovered in just a few months. The judge found that the Claimant should have brought the claims in the Portal, it was unreasonable not to do so, and thus he limited the Claimant to no more than Portal costs. What is particularly interesting about this case is that the claims settled before trial. Thus there was no judgment entered as required by CPR 45.24. Whilst the court had the alternative route to get to exactly the same result under CPR 44, per Williams v Secretary of State for Business, Energy & Industrial Strategy [2018] EWCA Civ 852 , the court found there was no need to use that route. Instead it found that Williams did not define judgment, and that the CPRs used 'order' and 'judgment' interchangeably. Thus he was content that the Tomlin Order was sufficient to amount to a 'judgment' for the purposes of CPR 45.24. However, he granted the claimant permission to appeal on his interpretation of 'judgment'. Ultimately the Claimant did not pursue their appeal. Roger Mallalieu instructed by Irwin Mitchell for the Claimant, Sarah Robson instructed by Percy Hughes and Roberts for the Defendants. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

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

13. Interim Payments Luvin v Ageas Insurance Ltd (Sets out the rules and procedure on interim payments) Ampratwum v Zbigniew Samajeden & Esure (special rules on interim payments for vehicle related damages - judgment not available) Go Back to Index Click on the button below to go back to the case law index Index

Key Point Fixed SIIIA costs do not apply to cases allocated to the multi-track Qadar v Esure Services Ltd [2016] EWCA Civ 1109 This claim had started in the Portal then left, and was allocated to the multi-track and so, prima facie, fell into fixed costs under SIIIA of CPR 45. The Claimant argued that these costs should not apply. They demonstrated a clear intention that fixed costs were intended to apply to claims allocated to the fast track, pointing out how this had been the stated intention from Jackson LJ's reports and consultations and replies to consultations. The Claimant was thus able to establish that the intention of Parliament had not been included in the CPRs by mere inadvertence. The Court of Appeal found authority in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 for correcting obvious drafting errors including omissions in rules. This was a clear case where the court should exercise that jurisdiction. The court, therefore, added in the words 'unless allocated to the multi-track' to the rules to achieve that end. It is interesting to see that the Claimant demonstrated that the fixed costs were intended to apply only to fast-track cases. However, the Court of Appeal excluded cases unless allocated to the multi-track, rather than specify it was for cases allocated to the fast-track. They also made it clear there has to be that allocation. This gives certainty, removing arguments around whether a case would have been allocated to the multi-track, but arguably does not follow from the precise position which the Claimant established. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

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