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Sarah Robson Barrister
0800 634 9650
The original Black Belt Barrister
email@sarahrobsonbarrister.co.uk
Fixed Costs Specialist
Key Points
Leaving the Portal for technical non-compliance only
is not reasonable
and
Non-Portal CPRs have no application in Portal Protocol cases
Patel v Fortis
Recorder Morgan, Leicester CC, 5th December 2011
The Claimant removed this case from the Portal because the Defendant had not sent an acknowledgement of the claim within 24 hours, which is a mandatory requirement. The Claimant then issued Part 7 proceedings, although the parties later settled quantum without a hearing.
The issue was what costs should apply. The Defendant argued firstly that they had acknowledged the claim in time, but in the alternative, the claimant had acted unreasonably and should be restricted to Portal costs under CPR 45.36(2)(b)(i) [now CPR 45.24(2)(b)(i)].
The Defendant argued that whether the CNF was a claim form or either way, their Insurer Response sent 48 hours later (which it was accepted counted as an acknowledgement) was not late.
The court held that the CPR rules on service did not apply to service of the CNF; the Portal was a highly stand-alone code and one could not simply import non-Portal CPRs into it. Thus the fact that the CNF had been sent after did not make any difference. The Portal rules required an acknowledgement to be sent the next day, whatever time of day the CNF had been sent.
However, the court did find that the Claimant had acted unreasonably in leaving the Portal and issuing Part 7 proceedings. Whilst there was a breach, it was a technical breach only and made no real difference. If the Claimant solicitors had been genuinely concerned to see if their claim had been received, they could have checked by either looking on the Portal or contacting the Defendant, but they did nothing. The judge held that it was unreasonable to leave the Portal for a technical breach only, it was not reasonable, and he restricted the Claimant to Portal costs.
The court also considered the application of CPR 45.36 (now CPR 45.24) as the matter had settled, so there was no judgment. The court had no difficulty in finding that the rule applied equally to cases which settled as well as to those where was given. there would be a lacuna in the rules and it would discourage settlement.