Sarah Robson Barrister
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 & MIB.
On appeal it was held that the lower court had taken into account a number of issues which were irrelevant. In particular at  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  that the Defendant had failed to file an acknowledgment of service, and at  had filed a long defence and applied for the matter to be allocated to track.
Finally at  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.
"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.