Sarah Robson Barrister
No test of reasonableness in not using the Portal at all
Rafiania v All Type Scaffolding Ltd
DDJ Corscadden, Manchester CC, 14th January 2015
The Defendant wrote to the Claimant and denied liability before a CNF was ever sent. CNFs sent for other occupants of the same vehicle in this accident and liability was denied. The Claimant, therefore, did not bother to send a CNF, thinking there was no point.
The matter went through Part 7 proceedings, and damages were settled although costs were not. The Defendant argued that the Claimant should be restricted to Portal costs, per CPR 45.24(2)(c), as opposed to the more common CPR 45.24(2)(b). The Claimant argued that they had acted reasonably in not using the Portal at all.
However, the court held that there is no test of reasonableness in not using the Portal at all, unlike in leaving or causing a claim to leave the Portal. It was not unlike 'strict liability'. Therefore the Claimant's ostensibly good reasons could not avail them. The Claimant was restricted to Portal costs.
This case shows the importance of looking carefully at the Portal rules. The Claimant solicitors appeared in court all ready to argue how reasonable they had been, having completely missed the point that the rules are different for leaving the Portal and not using the Portal at all. Whilst arguably, it would have been pointless to have used the Portal, the rules are highly prescriptive and parties should note they must follow them closely.