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MOJ Portal / Fixed Costs
Alpha Court Chambers' Sarah Robson is leading the way with Fixed Costs cases, particularly MOJ Portal fixed costs.
Here's a run-down of some of her successes, and details of other significant cases to do with fixed Portal and ex-Portal costs under SIIIA of CPR 45.
When parties have consented to 'Standard Basis' costs, can a court limit the claimant to Portal costs only?
Sarah Robson represented two Defendants on appeal, where in both cases the Claimant maintained that a court could not restrict them to Portal costs only where the parties had consented to 'Standard Basis' costs.
The first to be handed down on (30.10.13) was Davies & Ors v Greenway LTL19/11/2013, where on appeal to the High Court the Claimant argued 'standard basis' meant normal Part 7 costs, despite having left the Portal for no good reason. The court held that CPR 45.36 (now CPR 45.24) was not available, but gave no reasons why. the court did find that it could still restrict a Claimant to Portal costs only under its general powers, which it did and awarded the Defendant all their costs of defending the unreasonably brought Part 7 proceedings.
The second was Brown v Ezeugwa, heard 23.01.14 by HHJ Simkiss, sitting with the Regional Costs Judge DJ Lethem at Tunbridge Wells County Court. the court considered the availability of CPR 45.36 as a matter of construction, and gave a detailed judgment identifying three stages in which costs are dealt with; the first stage is the award of costs, the second stage is the interpretation of what that costs order means, and the third is the quantification of those costs. The court said the nub of the issue was what the parties had agreed. It held that the consent order agreeing 'standard basis' costs in the first stage, and the lower court had been wrong not to apply a distinction to the award of costs and the process of assessment itself. CPR 44 was concerned with the award and basis of costs, whereas CPR 45 was concerned with the quantification of those costs. In there was no reason why they could not exercise that power on and respectfully disagreed with the judge in Davies & Ors v Greenway.
Portal Admissions are binding in Part 7 proceedings
In the unusual case of Ullah v Jon, both parties issued a claim in the portal against one another for the same accident. In the claim brought by Ullah, liability was disputed and so the matter fell out of the portal and Part 7 proceedings were issued. In the claim brought by Jon, however, the defendant (Mr Ullah, claimant in the Part 7 proceedings) admitted liability. Mr Jon's solicitors in the Part 7 proceedings then sought to rely on the portal admission of liability. Our Sarah Robson represented Mr Jon in the Part 7 proceedings.
Mr Ullah argued that the portal admission was only an admission of liability for the claimant's claim, not for the accident as a whole. They argued the settled portal claim was a contractual compromise and could not bind the court in the Part 7 proceedings. They also argued that the insurers who admitted liability were not able to make that admission for him, as it prejudiced Mr Ullah's position.
However, in a reserved judgment, the court held that Mr Jon could rely on the portal admission, and gave summary judgment to Mr Jon in the Part 7 proceedings.
For a transcript of the judgment please click here (Pdf file).
However in Malak v Nasim,
DJ Woods, Watford CC, December 2014, the court found the reverse.
Fortunately the issue was cleared up on appeal in the case of Chimel v Chibwana & Williams, HHJ Simpkiss, Reigate CC, 31.10.16. The judge held that Malak had been wrongly decided, and preferred the approach in Ullah v Jon.
Click here for a copy of the judgment.
Care claims can proceed through Portal
In Dickinson v Langford, Birkenhead CC, 14.02.13 (unreported), Sarah Robson successfully argued that offering zero for care and raising a full legal defence to the care claim did not justify the matter coming out of the Portal. The judge held that witness statements could be filed, as was held in Lamb v Gregory 2011 (unreported) and with the detailed schedule filed the judge had everything they needed in the portal to be able to assess the care claim. The claimant was restricted to Portal costs and D was awarded their costs.
Sarah repeated her success on similar points in the case of Gillian Davies v Sally Leadbetter 1IR67023, Liverpool CC, 08.04.13 and Langton v Akin Liverpool CC, 09.04.13. Even where a strong legal defence was raised, the matter should proceed in the portal.
It is notable that in courts around the Liverpool area, they are generally holding that not only could a witness statement have been included, but that one should have been filed. Leaving the Portal just because the claimant wanted to use a witness statement is unreasonable, and claimants are being restricted to no more than Portal costs. This is probably the effect of the Lamb judgment having been given by the Designated Circuit Judge for Liverpool.
Stage 3 Costs not payable where court not issued CPP
In the case of Morris v Gibbs, 3SK0049 Stockport CC, 09.04.13, (unreported) Sarah successfully argued that despite Behavioural Guidance Committee advice to the contrary, stage 3 costs were not payable until the court had issued the CPP. The rule in PD8B 6.2 was clear, and in the situation where guidance was in conflict with a clear rule, the judge found he was bound to follow the rule.
Interestingly, Birkenhead CC found repeatedly that Stage 3 costs were payable on completing the CPP. They explain that the Rules Committee could not have possibly meant that a claimant solicitor could only get their Stage 3 costs once the court had issued the CPP. However, this is now a mute point with the change in rules allowing an extra £250 where parties settle after the end of Stage 2.
Sarah Robson successfully argued on 05.06.13 that a claimant was not justified in coming out of the Portal when a defendant failed to make payment for an interim payment within the requisite time.
The entitlement to an interim payment for vehicle related damages, sometimes called additional damages, only arises where the claimant themselves has paid out for that head of loss. However if an interim payment for normal damages was not paid in time, then a claimant would be entitled to leave the Portal and issue Part 7 proceedings.
In this case the claimant had not paid out for these themselves and so they could not rely on the defendant's failure to comply with their non-portal compliant request within portal timescales to leave the portal.
This case emphasizes the point that the portal rules must be carefully studied!
Ilahi v Usman
Portal appeal case on withdrawing offers - Manchester
HHJ Platts gave a reserved judgment in Ilahi v Usman, 20th November 2012; case number 2YJ60324.
The case proceeded through the MOJ Portal but then C withdrew their Stage 2 offer after Stage 2 had ended, and issued Part 7. At first instance they were awarded their standard basis Part 7 costs of £10K.
The defendants appealed on the basis that it was unreasonable of the claimant to withdraw the offer, there was no change to the medical position for example. The claimant claims that withdrawing their offer makes a case leave the portal automatically and thus bypasses the reasonableness test.
The judge held this was not a case where the matter automatically left the portal. It did engage CPR CPR 45.36(1)(b), the test of reasonableness, and it failed that test.
HHJ Platts restricted the claimant to Portal costs, and awarded the defendant their costs. He also said that he would have found unreasonable conduct under CPR 44 in any event as there was no reason for the matter not to have stayed in the portal.
Permission to Appeal to the Court of Appeal refused
On 11 January 2013 the Court of Appeal refused permission for a second appeal in Ilahi v Usman. The Right Hon. Lord Justice Jackson himself considered the application on paper, and in refusing permission stated he agreed with the analysis of the Pre-action Protocol for Low Value PI Claims in RTAs made by Judge Platts. He said he also agreed with the judge's application of those provisions to the facts of this case.
Please email Sarah Robson for a copy of the judgments.
Sarah Robson extended this to include omissions in Doyle v Audi, Manchester CC 25/6/13 on Detailed Assessment. In her case the claimant had given a different name and address at the scene of the accident from those given on the CNF, and no explanation was given. Within Stage 1, the defendant sought confirmation that the claimant was the same person as in the accident, but the claimant failed to do so within the 15 days and the case automatically dropped out of the portal.
The judge held that the claimant solicitors had acted unreasonably in failing to provide an explanation in the CNF amounting to a failure to provide sufficient information to enable a defendant to continue in the portal, contrary to CPR 45.36(2)(a) and that alone would have been enough to restrict the claimant to Portal costs only. The judge also went on to find that the solicitor's failure to provide the information when asked which resulted in the case automatically falling out of the Portal was an election to leave the Portal, which would also have resulted in the claimant being restricted to no more than Portal costs.
MOJ Portal Wrongful Fall-out
Requirement to make offers
Sarah Robson was once again successful in arguing in the case of Uppal v Daudia LTLPI 9/7/2012 that the case should not have come out of the Portal. The claimant argued they were entitled to remove it because the defendant had failed to respond within the portal and within stage 2 to their second offer. However, the judge held that there was no such requirement and that the departure from the portal was unreasonable. He awarded the defendant their costs of defending unnecessary and unreasonably brought Part 7 proceedings on an indemnity basis. The claimant lost over £20K in costs.
There have been a number of similar cases recently in Liverpool, where claimant solicitors have argued that offering zero for any head of loss entitles them to leave the portal as offering zero does not equate to making an offer. The court has repeatedly given a firm 'no' to all such cases; zero is just as much an offer as £1 or even 50p, although the now deputy DJ Smedley (formerly the regional costs judge) has suggested that might be different if zero was offered if that was the only head of loss.
Please email Sarah if you would like a copy of the report.
Purcell v McGarry
Liverpool Appeal re status of Offers
The appeal in the MOJ case of Purcell v McGarry (2BI00320) was heard on 7th December 2012.
HHJ Gore held that a Stage 2 offer is open for acceptance even after the end of the Stage 2 negotiation period, unless specifically withdrawn. He also held that, like Part 36 offers, a later offer does not make an earlier offer incapable of acceptance.
Unfortunately there is no transcript of the judgment and it has not been reported. It seems likely that it would have been reported by now if it was going to be.
MOJ Portal Wrongful Fall-out
Sarah Robson successfully argued that making an offer in Stage 1 - commonly known as a pre-med offer - does not justify a claim from leaving the Portal in Monteith v Carroll (17.10.12 - Liverpool CC, report pending). The claimant argued that doing so gave them extra work in having to advise a client on an offer when they did not know what the claim was worth. Sarah restricted the claimant to MOJ Portal costs, and recovered all her extra costs of defending unnecessary Part 7 proceedings.
MOJ Portal Wrongful Fall-out
Sarah Robson successfully argued that technical non-compliance with the MOJ Portal Protocol was not sufficient grounds for a claimant to remove a case from the Portal and recover Part 7 costs in Patel v Fortis Insurance Ltd LTL11/1/2012 (2011).
This was an important test case as there was no other case law on this or any similar points, and the rules were silent as to the effect of non-compliance.
The defendants had used the A2A system to access the Portal, which, in conjunction with CRIF the Portal developers, had been designed without the ability to send acknowledgments of CNFs (Claim Notification Forms) contrary to paragraph 6.10 of the Portal Protocol. However, the defendant had responded within 48 hours with the Full Insurer Response, accepting the claim and admitting liability. The claimant decided to remove the matter from the Portal on the same day they received the Full Insurer Response.
In a reserved judgment, the court held that removing a matter from the Portal for non-compliance with paragraph 6.10 was not a recognised ground for bringing the process under the RTA Protocol to an end. This ran directly contrary to the letter and spirit of the Portal Protocol and was exactly the sort of conduct that should be classed as 'unreasonable.'
The court also warned that removing a matter from the Portal was drastic; parties should not do it lightly and should certainly not do it on non-justified technical grounds as were found in this case.
The court also held that once a party has communicated their decision not to continue with the Portal process then it ceases to 'continue' and parties are not at liberty to resume the process, even if Part 7 proceedings had not commenced and even if still physically in the Portal.
The claimant was restricted to Portal costs only per CPR 45.36, against a Part 7 cost schedule which claimed costs of over £16,000. Further the defendant was awarded some of their costs of defending the claim, to reflect the costs they had incurred which they would not have done had the claimant not removed the matter from the Portal.
Instructed by Louisa Martindale of Berrymans Lace Mawer LLP (Liverpool).
Dominic v Martin (2011) LTLPI 1/9/2011
On appeal in this MOJ Portal case, HHJ Stewart QC considered the odd position where a medical report gives a range in the prognosis period, and under the portal scheme no witness evidence is possible. What is the correct approach be to this situation? He held that the correct approach is to assess damages on a mid-point, in the same way future loss cases are traditionally assessed.
Thus a thorny issue has been resolved and provides welcome certainty for both litigants and practioners alike.
Instructed by Amber Almeida of Berrymans Lace Mawer LLP (Manchester).