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Sarah Robson Barrister
0800 634 9650
The original Black Belt Barrister
email@sarahrobsonbarrister.co.uk
Fixed Costs Specialist
Index Fixed Costs Cases
List of Topics
New Fixed Costs cases from Oct 2023
Common Law Principles do not apply in Portals
Individual Heads of Loss in Portals
Pre-Oct 23 SIIIA CPR 45 - Fixed costs on leaving the Portals
Part 36 offers and Pre-Oct 23 SIIIA Fixed costs
When CPR 45x.24/CPR 45.35 can be applied
Cannot use Hindsight or Speculation in MOJ Portals
Montreal Convention Claims and the Portals
Are Portal Admissions binding outside the Portal?
Portal Offers outside the Portal
Portal Exceptional Circumstances Costs CPR 45x.29J
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Oct 23+
New Fixed Costs Cases
Asmat Bi v Tesco Underwriting Ltd
HHJ Sephton KC, Manchester CC, Aug 2024, claim no K04MA298
Whilst only a first tier hearing, Asmat Bi v Tesco Underwriting is useful as a point of reference given the paucity of case law on the October 23 extension to fixed costs. Here the court was considering the incidence of costs in a case where a non-personal injury claim had settled by acceptance of a Part 36 offer without the need for proceedings, and notably before the commencement of the new fixed costs regime. Costs could not be agreed, and so the claimant brought Part 8 proceedings.
HHJ Sephton found that the Amendment Rules (SI 572/2023) were procedural in nature, and therefore followed the general convention that they were retrospective in effect. He found the Claimant's entitlement to costs only crystallised after the costs had been assessed, allowed or agreed. Thus the case fell to be decided under the costs rules then rather than at the point of settlement, which was under the extended fixed costs.
This case is not without its critics. Clearly the parties contracted for settlement on the basis they would pay the costs applicable at the time of settlement. Clarity from a higher court would be very much appreciated!
Mason v Laing
HHJ Gosnell, Bradford CC, 20th Jan 20
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 proper sanction was costs, not exclusion of the evidence.
Moesaid v Calder
DDJ Kube, Manchester CC, 27th Aug 2021
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.
DJ Carter, Manchester CC, 2nd Feb 2022
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.
DJ Baker, Birkenhead CC, 3rd Sept 2014
(Common Law Mistake does not apply in the Portals)
DJ Parker, Liverpool CC, 8th Nov 2018
(Common Law Mistake does not apply in the Portals)
HHJ Davey QC, Bradford CC, 18th Jun 2019
(Common Law Mistake does apply in the Portals)
DJ Peake, Birkenhead CC, 10th Feb 2014
(Waiver & Affirmation do not apply in the Portals)
HHJ Gore QC, Liverpool CC, Friday 7th Dec 2012
(First Tier Appeal - Offer and Acceptance does not apply in the Portals)
Recorder Morgan, Leicester CC, 5th Dec 2011
(Non-Portal CPRs do not apply in the Portals)
DJ Vincent, Oxford CC, 4th Jun 2015
(Agreed individual heads of loss are binding)
HHJ Gregory, Liverpool CC, 15th March 2015
(First Tier Appeal - Agreed individual heads of loss are not binding)
HHJ Wood QC, Chester CC, 22nd January 2016
(First Tier Appeal - Agreed individual heads of loss are normally binding, entire Portal settlements are binding)
(Irrational for judge to order case out of Portal, individual heads of loss can be agreed)
Melloy & Anor v UK Insurance Ltd
Where there is more than one claimant in a SIIIA claim, each party is entitled to a set of SIIIA fixed costs
(SIIIA costs do not apply where the claimant dies whilst the claim is in the Portal)
Master Haworth, SCCO, 13th July 2020
(What disbursements can be allowed post-Cham in SIIIA cases)
Hislop v Perde: Kaur v Committee (for the time being) of Ramgarhia Board Leicester
(No indemnity costs on late acceptance of a Part 36 where SIIIA applies)
Broadhurst v Tan; Taylor v Smith
(SIIIA Indemnity costs are hourly rate not fixed)
(Exception to SIIIA costs where allocated to multi-track)
(SIIIA fixed costs for interim applications apply even for Pre-Action Disclosure applications)
(Re stage of fixed costs)
Chapman v Tameside Hospital NHS Foundation Trust
DJ Swindley, Bolton County Court, 15th Jun 2016
(A court has the power to vary quantum of fixed SIIIA costs for conduct)
DJ Pollard, Brighton CC, 15th Feb 2017
(Where claim not properly started in the Portal, SIIIA costs did not follow)
Cham (by their Litigation Friend Laura Martin) v Aldred
[2019] EWCA Civ 1780
(Deals with disbursements under SIIIA)
(Interpreter's fees are recoverable under SIIIA)
Cookson v Manchester City Council
HHJ Main QC, Manchester CC, 28.04.17
(Acceptance of a Part 36 offer removes the court's powers under CPR 45.24 to limit the claimant to Portal costs)
DDJ Lynch, Slough County Court, 12th June 2017 (first instance)
HHJ Clarke, Oxford County Court, 14th December 2017 (on appeal)
(Acceptance of a Part 36 offer does not remove the court's powers under CPR 45.24 to limit the claimant to Portal costs)
HHJ Simpkiss (Designated Circuit Judge)
with DJ Lethem (Regional Costs Judge) as assessor
Tunbridge Wells CC, 23rd January 2014
(First Tier Appeal - Fixed costs can be awarded on assessment; not limited to when order for costs made/agreed)
Master Simons, SCCO, 30th Oct 2013
(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
(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
DJ Griffith, Birmingham CC, 3rd Sept 2019
(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). Sarah Robson for the Defendant, against Roger Mallalieu.)
The Claimant indicated they were going to appeal, but ultimately did not do so.
Recorder Morgan, Leicester CC, 5th Dec 2011
(Leaving for technical non-compliance only not reasonable)
DJ Atkinson Leicester CC 25th Jan 2014;
reviewed DJ Atkinson 29th Sept 2014;
on appeal HHJ Hampton 20th Jan 2015
(First Tier Appeal - Failure to explain reason for offer not fatal)
HHJ Platts, Manchester CC, 29th Nov 2012
(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)
DJ Matharu, Manchester CC, 25th Jun 2013
(Omission to act causing claim to leave Portal was an election to leave)
DDJ Smedley, Birkenhead CC, 13th Jul 2015
(Where judge ordered case out of Portal was still Claimant's election to leave)
DDJ Matthews, Leicester CC, 14th May 2012
(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
DDJ Corscadden, Manchester CC, 14th Jan 2015
(No test of reasonableness for total failure to use the Portal)
Liverpool CC, 17th October 2012
(Making a pre-med offer did not justify leaving the Portal)
Stoke on Trent CC, DJ Rank, 25th Feb 2017
(Claim left Portal after Claimant failed to include mandatory information in the CNF)
DJ Revere, Clerkenwell & Shoreditch CC, 30th May 2018
(Not unreasonable to leave Portal Protocol because became too complex, applications to limit C to Portal costs cannot be made until claim concluded)
Raja v Day & MIB HHJ Gregory, Liverpool CC, 02.03.15
(Cannot take into account would have left the Portal anyway)
Tennant v Cottrell
(Cannot change reason for leaving, nor retrospectively justify reason)
Dawrant v Part & Parcel Network Ltd
(First Tier Appeal - Cannot use hindsight when a case has left the Portal)
Ryan v Hackett [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)
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 White Book note re Phillips v Willis is not accurate.
Wickes Building Supplies Ltd v Blair (No.2)
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 Hawksford 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.)
(Multiple CNFs - how to deal.)
(Witness statements are permitted under the [2010] Protocol - which did not specify these under the permitted items.)
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.)
Liverpool Victoria Insurance Co Ltd v Yavuz & Ors [2017] EWHC 3088 (QB) (6 Dec 2017)
(Contempt re completion of CNF.)
David Grant v Dawn Meats (UK) [2018] EWCA Civ 2212
(Limitation, Stays and Service of a Portal Claim form.)
(Portal offers are open for acceptance in Stage 3)
(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)
(Portal Admissions are binding outside the Portals)
(Portal Admissions are not binding outside the Portals)
(First Tier Appeal - Portal Admission is binding outside the Portal, Ullah and Malak considered, Ullah preferred)
(First Tier Appeal - Entire Portal settlements are binding)
(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)
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)
(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)
(First Portal appeal, established that should award in middle where range of prognosis given in absence of witness evidence)
(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)
(The Portal does not apply to Montreal Convention Claims)
McKendry v British Airways PLC
(The Portal does not apply to Montreal Convention Claims)
Offer of Zero is a Valid Offer
Birkenhead CC, 14th Feb 2013
DDJ Johnson, Liverpool CC, 2nd Mar 2012
Range of Prognosis Period given
HHJ Stewart QC, Manchester CC, 21st Jul 2011
(First Portal appeal, established that should award in middle where range of prognosis given in absence of witness evidence)
Interim Payments
DJ Doyle, Birkenhead CC, 17th Sept 2015
(Sets out the rules and procedure on interim payments)
Ampratwum v Zbigniew Samajeden & Esure
Birkenhead CC, 5th Jun 2013
(special rules on interim payments for vehicle related damages - judgment not available)
Montreal Convention Claims
DJ Moss, Manchester County Court, 15th Jan 2018
(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
(The Portal does not apply to Montreal Convention Claims)
Submissions gratefully received
Sarah Robson is always very happy to receive any cases on matters related to fixed costs to add to her website.