Sarah Robson Barrister

MOJ Portal and Fixed Costs Cases

There are now a number of cases concerning fixed costs on and around the MOJ Portals.  They are subdivided below by topic/theme below.

Where a case establishes more than one point, it may appear more than once in the below index.

Scroll down to the section you 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 link to the judgment.

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List of Topics 

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)

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)

West v Burton (HHJ Wood QC, Liverpool CC, 24.09.20)

(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)


Jackson v Barfoot Farms

(Whether agreement to pay costs on the standard basis excluded the award of fixed costs, and whether non-fixed costs could be awarded as the case was exceptional per CPR 45.29J)


Cham (by their Litigation Friend Laura Martin) v Aldred

(Deals with disbursements under SIIIA)

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)

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

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)

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)

(Can take into account what happens after a claim leaves the Portal when determining costs)

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 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)


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)


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)

Mead v British Airways PLC

(The Portal does not apply to Montreal Convention Claims)


McKendry v British Airways PLC

(The Portal does not apply to Montreal Convention Claims)

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)

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)

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)

Dominic v Martin

(First Portal appeal, established that should award in middle where range of prognosis given in absence of witness evidence)

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.  

Please note this has been appealed to the High Court as of 19th April 20201, and judgment is awaited.


Moesaid v Calder

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.

Submissions gratefully received

Sarah Robson is always very happy to receive any cases on matters related to the Portal Protocol or fixed costs to add to her website.

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