Search Results

Key Point Where defence silent re Portal agreement on individual heads of loss, parties not bound by those agreements (departing from Bewicke-Copley ) SINCE OVERTURNED BY MADDOCKS V LYNE Bushell v Parry HHJ Gregory, Liverpool CC, 15th March 2015 This claim had started in the Portal where some heads of loss were agreed, but then the claim left the Portal and Part 7 proceedings were issued. The Defendants put in a Defence putting the Claimant to and said nothing about some of the heads of loss having already been agreed in the Portal. The issue was whether the Claimant was bound by the agreements reached on individual heads of loss in the Portal. Most significantly that included personal injury, without which the Part 7 claim would have been in the small claims track. The judge found that the Claimant was not bound by individual heads of loss in the Portal. He said if he was wrong on that then the defence which acted as though everything was and had not pleaded the Portal agreement, Bewicke-Copley v Ibeh distinguished. Please note this case has now been overturned by Maddocks v Lyne , a case which HHJ Gregory himself gave permission to appeal on. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Miscellaneous cases Offer of Zero is a Valid Offer Dickinson v Langford Birkenhead CC, 14th Feb 2013 Piotr Glazer v Nathan Reid DDJ Johnson, Liverpool CC, 2nd Mar 2012 Range of Prognosis Period given Dominic v Martin 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 evidenc e) Interim Payments Luvin v Ageas Insurance Ltd 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 Mead v British Airways PLC DJ Moss, Manchester County Court, 15th Jan 2018 (The Portal does not apply to Montreal Convention Claims) McKendry v Br itish Airways PLC DJ Baldwin (sitting as Regional Costs Judge) Liverpool County Court, 16th May 2018 (The Portal does not apply to Montreal Convention Claims) Go Back to Index Click on the button below to go back to the case law index Index Search the site here:

Exceptional Circumstances Costs - CPR 45.29J (now CPR 45x.29J) Ferri v Gill [2019[ EWHC 952 (QB) (Considered what the basket of cases was in a CPR 45.29J application, noted the test was a high bar) Jackson v Barfoot Farms DJ Jackson, Canterbury County Court, 29th Nov 2017 (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 c ircumstances 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 NB only the first instance judgment is available West v Ol akanpo [2020] EWHC 3830 (QB) (Exceptional circumstances costs awarded at first instance for fundamental dishonesty, overturned on appeal as evidence not tested in cross-examination) Go Back to Index Click on the button below to go back to the case law index Index Search the site here:

Old SIIIA CPR 45x Fixed costs on leaving the Portal Cases which leave the portals are still subject to the old fixed costs regime under SIIIA of CPR 45x. An x is used after CPR 45 following the convention in the White Book to denote these are the old rules albeit they are still in force for some claims. Melloy & Anor v UK Insurance Ltd [2002] EW Misc 4 (CC) (Where there is more than one claimant in a SIIIA claim, each party is entitled to a set of SIIIA fixed costs) West v Burton [2021] EWCA Civ 1005 (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 DJ Swindley, Bolton County Court, 15th Jun 2016 (A court has the power to vary quantum of fixed SIIIA costs for conduct) Petit v MIB v 5 Ors DJ Pollard, Brighton CC, 15.02.17 (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) Santiago v MIB [2023] EWCA Civ 838 (Interpreter's fees are recoverable under SIIIA) Go Back to Index Click on the button below to go back to the case law index Index Search the site here:

When CPR 45x.24 (now CPR 45.35) can be applied Brown v Ezeugwa HHJ Simpkiss (Designated Circuit Judge) with DJ Lethem (Regional Costs Judge) as assessor Tunbridge Wells CC, 23rd Jan 2014 (First Tier Appeal - Fixed costs can be awarded on assessment; not limited to when order for costs made/agreed) Davies v Greenway Master Simmons, SCCO, 30th October 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 [2018] EWCA Civ 852 (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 September 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)) The Claimant indicated they were going to appeal, but ultimately did not do so Patel v Fortis Recorder Morgan, Leicester CC, 5th Dec 2011 (The court held that CPR 45.24 applied to restrict the Claimant to no more than Portal costs where they had left the Portal unreasonably.) Go Back to Index Click on the button below to go back to the case law index Index Search the site here:

Key Point 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 Here the Claimant sent a Letter Before Action, claiming under the Montreal Convention. The Defendant replied admitting liability, but requested that the matter proceeded under the Portal Protocol. The Claimant declined, noting that they were not claiming a breach of duty, so the Portal did not apply. Parties later settled damages without the need for proceedings, but costs could not be agreed. Part 8 costs only proceedings were commenced with the central dispute concerning whether fixed costs applied or not. Article 29 of the Montreal Convention gives exclusivity for the convention to apply, and so there can be no question of common law torts applying either instead or as well. Liability under Article 17 arises not from any 'notional' breach of duty, but rather by international agreement. The convention is a stand-alone code, much like the Portal itself. The new Package Travel Protocol specifically excludes both the Athens Convention and the Montreal Convention from its scope, which supports the view that claims under the Montreal Convention should not be brought in the Portal. This case, together with the similar case of Mead v British Airways , makes it clear that claims brought under the Montreal Convention are strict liability claims. Liability arises not from any duty of care but is a strict liability arising from international agreement. Claims brought in the Portal require a duty and breach. Admitting liability in the Portal also admits that the defendant has no accrued defence under the Limitation Act 1980, and the Limitation Act does not apply to Montreal Convention claims. It is perhaps slightly surprising that a whole raft of claims is excluded from the Portal Protocols without being specified. However, on a quick drilling down into the nature of Montreal Convention claims and the exclusivity provided therein, it is clear this approach must be right. Whilst neither case is binding, there is a lot of sense to these decisions. They are supported by the fact the new Package Travel Protocol specifically excludes such claims. There would also be inherent difficulties in international travel cases over whether the accident occurred within England & Wales. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Using the Portals 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) 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. Wickes Building Supplies Ltd v Blair [2019] EWCA Civ 1934 The Court of Appeal considered whether objecting to the claimant's late witness statement, served just a couple of days after the end of Stage 2, was objecting to the claim under para 9.1 of PD 8B. At first instance the court had simply rejected the late statement. At first tier appeal the court found that the defendant was opposing the claim because the evidence was not provided under the relevant protocol. However, the Court of Appeal held the judge at first instance was correct, and quashed the first tier appeal decision. (1) Akram v Aviva Insurance Ltd and (2) Mahmood v Tillott HHJ Jarman QC, Wrexham CC, 29th Sept 2021 (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, 18th Sept 2015 (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, 1st Jun 2020 (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 DDJ Dawson, Birkenhead CC, 24th April 2012 (Multiple CNFs - how to deal.) 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 Birkenhead CC, DJ Campbell, 30th November 2016 (Unreasonable exit for non payment of tiny 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.) Go Back to Index Click on the button below to go back to the case law index Index Search the site here:

Leaving the Portals Patel v Fortis Recorder Morgan, Leicester CC, 5th Dec 2011 (Leaving for technical non-compliance only not reasonable) Modhwadia v Modhwadia 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) Ilahi v Usman 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) Doyle v Manchester Audi DJ Matharu, Manchester CC, 25th Jun 2013 (Omission to act causing claim to leave Portal was an election to leave) Payne v Scott DDJ Smedley, Birkenhead CC, 13th Jul 2015 (Where judge ordered case out of Portal was still Claimant's election to leave) Uppal v Daudia 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) Monteith v Carroll Liverpool CC, 17th Oct 2012 (Making a pre-med offer did not justify leaving the Portal) Hussain v Wardle Stoke on Trent CC, DJ Rank, 25th Feb 2017 (Claim left Portal after Claimant failed to include mandatory information in the CNF) Bursuc v EUI Ltd 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) Go Back to Index Click on the button below to go back to the case law index Index Search the site here:

Are Portal Admissions binding outside the Portal? Ullah v Jon DJ Parker, Croydon CC, 20th Mar 2013 (Portal Admissions are binding outside the Portals) Malak v Nasim DJ Woods, Watford CC, December 2014 (Portal Admissions are not binding outside the Portals) Chim el v Chibwana & Williams HHJ Simpkiss, Reigate CC, 31st October 2016 (First Tier Appeal - Portal Admission is binding outside the Portal, Ullah and Malak considered, Ullah preferred) Maddocks v Lyne HHJ Wood QC, Chester CC, 22nd Jan 2016 (First Tier Appeal - Entire Portal settlements are binding) Mukadam v Nazir HHJ Khan, Preston CC, 14th May 2020 (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 HHJ Wood QC, Liverpool CC, 2nd Oct 2020 (First Tier Appeal - Portal admission made by Insurer of Employer was binding on Employee, Chimel followed) Go Back to Index Click on the button below to go back to the case law index Index Search the site here:

Individual Heads of Loss in the MOJ Portals Bewicke-Copley v Ibeh DJ Vincent, Oxford CC, 4th Jun 2015 (Agreed individual heads of loss are binding) Bushell v Parry HHJ Gregory, Liverpool CC, 15th March 2015 (First Tier Appeal - Agreed individual heads of loss are not binding) Maddocks v Lyn e HHJ Wood QC, Chester CC, 22nd January 2016 (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) Go Back to Index Click on the button below to go back to the case law index Index Search the site here:

Other Reported Cases In addition to many cases reported on the All England Law Reports, Bailii, Current Law, Kemp & Kemp and Lawtel, Sarah has the following reported cases: Please see 'Index Portal & Fixed costs Cases' for details of Fixed Costs cases McNiven v Walsh (2011) LTLPI 26/1/2012 Sarah successfully argued premature issue and breach of the personal injury pre-action protocol/practice direction on pre-action conduct in this non- MOJ Portal disposal case. The claimant served a medical report pre-issue detailing one set of injuries/loss of amenity, but shortly before trial served a witness statement extending some of the symptoms, an extending the loss of amenity, thereby putting the defendant's part 36 offer at risk. In a reserved judgment, the judge held this was a clear breach of the personal injury pre-action protocol as well as not in compliance with the Practice Direction on pre-action conduct. He found that this was premature issue because the claimant's solicitors had not taken adequate instructions pre-issue, and they had not provided the defendant with sufficient information to enable the defendant to make a protective offer. The claimant was restricted to predictive costs and was ordered to pay all the defendant's costs. Harwood v Kapek (2010) LTLPI 21/7/2010 Sarah was defending in this personal injury disposal case in front of HHJ Harrington. C sought to recover £50 miscellaneous expenses. However, the court accepted Sarah's submissions that the claim for miscellaneous expenses should be disallowed in its entirety, confirming the lower judge's decision on this point in Ghattaorya v Bailey (below). The judge added that it was 'only common sense that sums should be particularised and that as the round figures referred to in the witness statements were fairly general, such an award should not be made.' This is an important decision for defendants - particularly when defending close part 36 offers, as reducing special damages can be the key to success. Instructed by Judith Hartley (now Judith Hall) of Ashton Morton Slack (now Horwich Farrelly LLP Sheffield.) Alrahi v Ellis (2009) LTLPI 04/06/2010 Sarah was defending in this personal injury disposal case. Whilst the defendant had beaten their pre-issue part 36 offer, she also argued the claimant should not get all their predictive costs because of their failure to follow the pre-action protocol. (Pre-issue, the claimant had only made 2 highly unrealistic offers which was not ‘negotiation’ as required by the protocol, further C had failed to supply evidence in support of some of the specials. Jamil v Harling (2007) LTLPI 18/3/2008 considered.) The judge agreed and reduced the claimant's costs to 2/3rds of the profit costs allowable under the predictive fees regime, plus the medical disbursements. The defendant was also awarded interest on their costs at 8%. This decision shows that where there is a breach of the pre-action protocol, the judge has a wide range of cost sanctions available even where a defendant has beaten their offer and the starting position in practice is for C to get predictive costs. Instructed by Graham Isaacs of Berrymans Lace Mawer LLP Manchester (now of Hill Dickinson LLP.) Ghattaorya v Bailey (2009) LTLPI 05/10/2009 Sarah was again defending in this personal injury disposal case. The claimant claimed for a 24 - 38 month neck and lumbar spine whiplash injury, with a 2 years travel anxiety. However, the court found the evidence of the claimant to be extremely unsatisfactory. The court awarded for a 6-months neck injury, disallowing the claim for the lumbar spine and all specials relating to the lumbar spine. The court also disallowed the claim for miscellaneous expenses in its entirety, noting that the cost of telephone calls was relatively low nowadays. The judge commented that claiming for miscellaneous expenses was a bad habit claimant solicitors had got into. Instructed by Patrick McCarthy of Horwich Farrelly Solicitors, Manchester. Pathak v Collins Stafford County Court LTLPI 27/3/2009 In a personal injury disposal case, Sarah successfully argued that the winning claimant should not be entitled to any costs. The claimant suffered a 4 month cervical spine whiplash injury. Prior to the issue of proceedings, the claimant had made a global Pt 36 offer in the sum of £2,362.35 and the defendant had made a global Pt 36 offer in the sum of £1,900. The defendant beat her offer. Sarah successfully argued that the claimant’s single pre-issue offer was highly unrealistic (approx £2,000 for generals for a bare 4-month whiplash) and therefore the claimant had failed to comply with the pre-action protocol by not entering into any genuine negotiations. She further contended that to further the over-riding objective, the court had to disallow all the claimant’s costs because to allow even predictive costs would give the claimant what they would have received had the protocol been complied with. The judge held that the claimant’s offer was wholly unrealistic and they had not complied with the rules and pre-action protocol wholeheartedly. The claimant could not recover her costs for up to 21 days after D’s offer, which would normally apply, nor even predictive costs, but only the medical report disbursement. This was because of the claimant’s unrealistic stance pre-issue on a bare four-month whiplash and her failure to comply with the protocol. Also, her costs schedule was, on any view, inflated. Yvonne Hazel Painting v University of Oxford (2005) [2005] EWCA Civ 161, Haywood v Haywood (2006) LTLPI 2/6/2006, Smith v Chantelle Irving (2006) LTLPI 26/2/2007, Mark Chatburn v Spicer (2007) LTLPI 19/6/2007 and Jamil v Harling (2007) LTLPI 18/3/2008 considered. Instructed by Graham Isaacs, Berrymans Lace Mawer Solicitors, Manchester (now of Hill Dickinson LLP.) R (on the application of Newham London Borough Council) v Stratford Magistrates' Court [2008] EWHC 125 (Admin), [2008] All ER (D) 17 (Jan) [2008] RA 108, 173 JP 30 2008 On judicial review Sarah successfully argued in the RCJ that the Magistrates’ Court had erred in setting aside liability orders which had been made 2½ - 5½ years earlier. The lower court should have had regard to the principle of finality of litigation; if a defendant's case was a liability order should be set aside and the delay in applying was because he had only very recently learnt of its existence, the court had to investigate how long that notice was. It was insufficient to say it would be in the interests of justice to set aside a liability order. Postscript: The matter was re-listed by the Magistrates. The Magistrates Court found that Mr Dublin had failed to make his application sufficiently promptly from when he had knowledge of the liability orders. Instructed by Robert Taylor, Barclay Taylor Solicitors, London. Jamil v Harling (2007) LTLPI 18/3/2008 Sarah successfully resisted an application by the claimant to accept the defendant’s payment in out of time, whilst still retaining Pt 36 costs protection. Also the claimant advanced a head of claim for which there was no evidence. The judge held the solicitors for the claimant should have come off the record once it became apparent they could not support this head of claim. Sarah successfully argued the claimant should not recover any costs because of their poor conduct. The court ordered the claimant was not entitled to any costs or disbursements, not even up to 21 days before the defendant’s payment in, and the claimant had to pay all the defendant’s costs. Instructed by Philip Dearden, Ashton Morton Slack, Sheffield (Now part of Horwich Farrelly.) Smith v Chantelle Irving (2006) LTLPI 26/2/2007 Sarah successfully argued no costs should be awarded to the successful claimant in a disposal hearing because of the conduct of the claimant’s solicitors. The court held the claimant’s solicitors had grossly over-valued the claim and failed to enter into real negotiations having only made one unrealistic offer before issue. Further, the claimant’s costs were exaggerated and difficult to justify. The court ordered a partner from the claimant’s solicitors to file and serve a witness statement explaining their conduct to the judge. Instructed by Philip Dearden, Ashton Morton Slack, Sheffield (Now part of Horwich Farrelly.) Search the site here:

Key Point The Portal does not apply to Montreal Convention Claims Mead v British Airways Plc DJ Moss, Manchester County Court, 15th Jan 2018 This was a claim brought under the Montreal Convention where damages were settled without the need for proceedings. Costs could not be agreed, and so they went to Detailed Assessment. The Points of Dispute argued the Portal should have been used. The DJ found on provisional assessment that the Portal should not have been used. The Defendant sought oral review of that point. On oral review the court again found that claims brought under the Montreal Convention did not have to be brought under the Portal. The Montreal Convention governs liability of international carriers to air passengers, and it is an exclusive cause of action. Claims under the Montreal Convention are not common law claims, they do not arise out of a breach of duty. They are strict liability claims, and with that comes some limits, including for example the total amount of damages which can be claimed and which types of injuries are covered. The Montreal Convention does not create any duties. Therefore the Portal does not apply and costs would not be limited. The judge noted the circumstances would have given rise to a common law or other breach of duty, but held that was immaterial - there was no duty of care created by the Montreal Convention. The Montreal Convention was the exclusive remedy. I am grateful to Peter Bland of Scott Rees for sending me a copy of this case. This case, together with the McKendry v BA case, whilst not binding, seems to confirm that Montreal Convention claims do not proceed through the Portal. At first blush this may seem surprising, especially given that there is no specific exclusion of Montreal Convention claims in the Portal protocol, and the general unwillingness to implied exceptions to fixed costs. However, once one considers properly the nature of Montreal Convention claims; strict liability claims arising out of international agreement, rather than breach of duty claims, then it is clear to see it does not match with the Portal Protocol. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index