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Sarah Robson Barrister
0800 634 9650
The original Black Belt Barrister
email@sarahrobsonbarrister.co.uk
Fixed Costs Specialist
Key Point
CNF rejected for lack
of information
- no test of reasonableness in CPR 45.24(2)(a) -
unlike with leaving
the Portal under
CPR 45.24(2)(b)(i-iii)
Hussain v Wardle
Stoke on Trent CC, DJ Rank, 25th February 2017
The Claimant brought a claim in the MOJ Portal but failed to provide the Defendant's name in the CNF. The Defendant's name had not been provided at the scene. The Defendant Insurer rejected the CNF for incomplete information on it. The Defendant's name is a mandatory field.
The Claimant then issued Part 7 proceedings and the claim settled by way of Part 36 offer. Costs went to Detailed Assessment. On Provisional Assessment the court found that the Claimant was in breach of the Portal Protocol, and restricted the Claimant to Portal costs. However, the Claimant applied for Oral Review, arguing it was not their fault they had failed to provide this mandatory information, and they had made good efforts to settle the claim after the claim left the Portal and before proceedings were issued, which should count in their favour.
The court found there was a breach of the Portal Protocol, and went on to consider whether to exercise their discretion under CPR 45.24(2)(b).
The court agreed with the Defendant that they could not use hindsight and speculation, per Tennant v Cottrell and Dawrant v Part & Parcel Network. Thus what happened after the Portal breach was irrelevant.
The court agreed with the non-binding finding in Raja v Day & MIB, that the default position on the finding of a breach was that Portal costs should apply. The court found there were no exceptional circumstances which would justify a change from the default position. There were well-established ways of finding out the Defendant's details.
The court also considered the fact that the claim had settled by way of a Part 36 offer, but rejected the Claimant's argument that this precluded an award under CPR 45.24(2).
DJ Rank relied on the judgment of Lo
rd Justice Moore-Bick in Solomon v Cromwell in this regard and quoted him at [17] thus:
If the appellants' argument were correct, the acceptance of a Part 36 offer would always result in an order for costs on the standard basis in low-value road traffic accident cases. That would undermine the fixed costs regime and provide a powerful incentive for defendants not to make Part 36 offers in such cases...
In the absence of any exceptional circumstances which would justify departing from the established default position, the court found that they would restrict the Claimant to Portal costs.
There are not many cases of claims which have come out of the Portal because of lack of information on the CNF, so this is a particularly useful case.
Note that there is no test of reasonableness in CPR 45.24(2)(a) as there is in CPR 45.24(2)(b). Thus even though the Claimant had ostensibly a good reason for not completing one of the mandatory fields, it could not and did not avail him. The rule in CPR 45.24(2)(a) only requires the Defendant to have rejected the claim because of INSUFFICIENT information. There is no requirement for the missing information to be mandatory.
There is a curious further Portal provision at para 6.8 of the RTA Protocol, which provides that where a Defendant considers inadequate MANDATORY information has been provided, that shall be a valid reason for the Defendant to decide that the claim should no longer continue under the Protocol. There is no assessment of the reasonableness or not of the Defendant anywhere in CPR 45.24, there is no weighing of each party's behaviour, so it is unclear why this rule exists.
In practice, it seems to operate to strengthen a Defendant's position when seeking an order under CPR 45.24(2)(a) where the insufficient information arises from a missing or incomplete mandatory field. However it does appear to some litigants into thinking that there is a benefit in trying to establish that a Defendant's decision to reject a CNF was invalid. Time will tell.
Watch this space!