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Sarah Robson Barrister
0800 634 9650
The original Black Belt Barrister
email@sarahrobsonbarrister.co.uk
Fixed Costs Specialist
Key Point
Judge should not raise a point in Stage 3 which parties would not be permitted to do, on the grounds of fairness
and
A Defendant can only challenge matters in the Portal on fairly limited grounds - Part 7 might be more appropriate
Khan v Alliance
HHJ Gosnell, Leeds CC, 1st June 2020
The court considered an appeal from a Stage 3 hearing, where Hussain v EUI had not been raised by either party during Stage 2, thus per Mulholland v Hughes neither party could raise it. However, at the Stage 3 hearing, the judge raised the issue himself and awarded the credit hire claim by reference to loss of earnings.
On appeal HHJ Gosnell held that where parties are not permitted to raise an issue, it would not be fair for a judge to do so [40-41]. In keeping with the fact that the Portal gives fairly rough justice, he also found at [30] that the extent to which you can challenge a claim in the Portal is limited and thus some disputes should be brought in Part 7 proceedings. It was not unfair for the Defendant to have to choose between running a claim through the cheaper Portal system with limited challenge, or full Part 7 proceedings with its higher costs.