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Key Point Pre-Med offer does not justify Portal exit Monteith v Carroll Liverpool CC, 17th October 2012 The Defendant made a pre-med offer. The Claimant removed the claim from the Portal claiming they could not advise their client within the Portal as to whether they should accept the offer or not. The court held that was not a good reason to leave the Portal, and restricted the Claimant to Portal costs. Please note there is no copy of the judgment itself. Go back to Main Index Main Index Go back to Topic Index Topic Index

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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

Key Point A court cannot use hindsight or speculation when awarding costs following a Portal breach - the test was on the facts as at the date of the breach Dawrant v Part & Parcel Network Ltd HHJ Parker, Liverpool CC, 28th Apr 2016 Sitting with Regional Costs Judge Jenkinson, as Assessor Here the Claimant failed to send a CNF, and the Defendant sought to limit the Claimant's costs to Portal costs, per CPR 45.24(2). At first instance the lower court declined to restrict the Claimant to Portal costs. The Defendant appealed, saying the judge had applied hindsight and speculated about what would have happened had the claim been brought in the Portal, relying on Raja v Day & MI B. On appeal it was held that the lower court had taken into account a number of issues which were irrelevant. In particular at [44] it was noted the lower court had considered that the Defendant had failed to admit liability and had failed to explain why quantum could not be agreed, at [45] that the Defendant had failed to file an acknowledgment of service, and at [46] had filed a long defence and applied for the matter to be allocated to track. Finally at [47] the judge found that there was evidence that had the matter been submitted in the Portal it may well have never reached Stage 2 because the Defendant had not admitted liability in Part 7 proceedings within the timescale required in the Portal. The appeal court held that the court engaged in clear speculation using the benefit of hindsight. At [48] the judge said: "This in my submission, is clear speculation using the benefit of hindsight and the deputy district judge was clearly asking herself the question, 'would it have made any difference if the Claimant had complied with the protocol and served a claim notification form on the defendant's insurer', and arriving at the answer no. She did not think that that would have made any difference and that was, in my judgment, dangerous speculation and she was wrong so to do." HHJ Parker went on to limit the Claimant to Portal costs. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Key Point A stay is an essential pre-requisite for an interim payment Luvin v Ageas Insurance Ltd DJ Doyle, Birkenhead CC, 17th Sept 2015 The Claimant solicitors sought an interim payment in the Portal and £1013.50 was paid. The Claimant wanted more, but the Defendant would not agree. The Claimant therefore removed the claim from the Portal and applied for a further interim payment in Part 7 proceedings. If a Claimant leaves the Portal because they disagree with the amount of any interim payment the Defendant offers, they may leave the Portal to issue Part 7 proceedings and seek an interim payment in the Part 7 proceedings. However to do so puts them at a costs risk, because if they do not secure an order for an interim payment for more than the sum which the Defendant offered in the Portal, then they can be restricted to Portal costs. The court found that requesting a stay was a pre-requisite of applying for an interim payment. The Claimant had not done so, and therefore they were not entitled to request an interim payment in the Portal. Therefore the Claimant's decision to leave the Portal was unreasonable. The Claimant was restricted to Portal costs. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Asmat Bi v Tesco Underwriting Ltd HHJ Sephton KC, Manchester CC, Aug 2024, claim no K04MA298 Whilst only a first tier hearing, it is useful as a point of reference given the paucity of case law on the October 23 extention to fixed costs. Here the court was considering the incidence of costs in a case where a non-personal injury claim had settled by acceptance of a Part 36 offer without the need for proceedings, and notably before the commencement of the new fixed costs regime. Costs could not be agreed, and so the claimant brought Part 8 proceedings. HHJ Sephton found that the Amendment Rules (SI 572/2023) were procedural in nature, and therefore followed the general convention that they were retrospective in effect. He found the Claimant's entitlement to costs only crystallised after the costs had been assessed, allowed or agreed. Thus the case fell to be decided under the costs rules then rather than at the point of settlement, which was under the extended fixed costs. Judgment Go back to Main Index Go back to Topic Index Index Index

Raja v Day & MIB HHJ Gregory, Liverpool CC, 2nd Mar 2015 The Claimant had some difficulty in locating the correct and sent CNFs to a number of incorrect Defendants before finding the correct one. However, instead of sending them a CNF first, the Claimant issued Part 7 proceedings against them. At first instance, the lower court found that the claim would have left the Portal anyway, and declined to restrict the Claimant to Portal costs. However, on appeal, the court found the Claimant had acted unreasonably. The court also held that the lower court had been wrong to find that the claim would have left the Portal anyway. The Claimant was restricted to Portal costs. This case, along with Tennant v Cottrell , Dawrant v Part & Parcel Network and Hussain v Wardle confirms that a court cannot use hindsight when assessing whether a Claimant has acted unreasonably in breaching the Portal. A court must look at things as they were at the time of the breach. There can be no retrospective justification for an earlier Portal breach. Click here for a copy of the judgment Click here for a PDF copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Key Points Contract Law, including offer and acceptance, has no place in MOJ Portal Protocol cases Purcell v McGarry HHJ Gore QC, Liverpool CC, Friday 7th Dec 2012 The issue here on first tier appeal was whether a Defendant could accept an offer after the end of Stage 2. The judge held that a Portal offer remains open for acceptance after the end of Stage 2. Importantly he noted that contract rules such as offer and acceptance have no place in the Portal arena. This case is important as it establishes that a Portal offer does not automatically cease to be open for acceptance. It has been followed by other cases which have held how offers made in the Portal remain open for acceptance even after Part 7 proceedings have been issued. It also makes it clear that the Portal is 'its own man' and thus contract law does not apply. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Key Point A Claimant can still have caused a claim to leave the Portal under CPR 45.24(2) when they ask a judge to order it out and that judge does so Payne v Scott DDJ Smedley, Birkenhead CC, 13th July 2015 The Claimant claimed loss of earnings in the Portal but did not properly evidence that head of loss during Stage 2. At the start of the Stage 3 hearing, the Claimant asked the court to remove the claim from the Portal and place it into Part 7 proceedings, saying it was unsuitable and further evidence was required. The Defendant weakly objected. The judge duly ordered the claim out of the Portal and into Part 7 proceedings. The Defendant argued that the Claimant should be restricted to Portal costs under CPR 45.24(2)(b). However, the Claimant argued that they did not remove the claim from the Portal, the court ordered it out. The Defendant relied on Ilahi v Usman and Doyle v Manchester Audi , arguing that where a party chooses to take a step or omit to take a step, which causes a claim to leave the Portal, then they have chosen to remove the claim from the Portal. The judge was hesitant to find that the Claimant had acted unreasonably in circumstances where the Defendant had not really objected to the claim leaving the Portal. However, on balance he found that the Claimant had acted unreasonably, they had caused the claim to leave the Portal, and he did restrict the Claimant to Portal costs. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Key Point Indemnity costs under SIIIA escaped fixed costs Broadhurst v Tan [2016] EWCA Civ 94 Parties agreed that indemnity costs applied because the Claimant had beaten their own Part 36 offer at trial, but they did not agree on the quantification of those costs. The case had started in the Portal and thus on the face of it, CPR SIIIA fixed costs applied. However, as that made the quantification of those fixed costs the same as standard basis costs, the Claimant appealed. On first tier appeal, the judge held that fixed costs applied. The Court of Appeal, however, determined that open hourly rate costs should apply where indemnity costs were awarded. Click here for a copy of the judgment Click here for a Word copy of the judgment Click here for a PDF copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Key Points The time to consider whether a case was a soft tissue injury claim was on the facts (not evidence) when the second report was disclosed and There was no requirement for the first report to be disclosed before the second expert was instructed, only disclosed HOWEVER just because reports were disclosed correctly did not mean costs would always follow Abdulmalik v Calder DJ Carter, Manchester CC, 2nd Feb 2022 The Claimant disclosed a GP report, then started Stage 2 of the MOJ Portal and disclosed both reports with the Stage 2 pack. Damages were settled without a hearing. D argued that para 7.8A of the RTA Portal Protocol required the Claimant to disclose the first report before obtaining the second report. C argued that the rules only required that the first report be disclosed before the second report is disclosed. In any event, C argued that the claim was not a soft tissue injury claim so the special rules in RTA Protocol cases did not apply to this claim. D argued that the case only ceased to be a soft tissue injury claim on the receipt of the second report, and thus if the second report was inadmissible because it had not been disclosed in accordance with the rules then the claim remained a soft tissue injury claim. The court found that this was a soft tissue injury claim, and that the time to assess that was when the subsequent report was disclosed. At that stage in this case, the claim was no longer a soft tissue injury claim, and therefore the special rules did not have to be complied with. However, even if he was wrong on that the judge went on to consider what 7.8B actually required and he concluded that the rules only required the first report to be disclosed before the second was disclosed. There was nothing in the rules to support the contention held in Mason v Laing that the first report had to be disclosed before the second report was obtained/sought/instructed. The Defendant was refused permission to appeal. Instructed by Steven Sherlock, Bespoke Costs Ltd Click here for judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Key Point Common Law Mistake does not apply in the Portal Fitton v Ageas DJ Parker, Liverpool CC, 8th November 2018 Here the Claimant made a global offer in the Portal as well as offers for each individual head of loss. When the Defendant made a counter-offer by stating amounts for each head of loss, they omitted to clear the global offer field. Thus when they sent their counter-offer, they effectively re-stated the Claimant's own offer back to them. Perhaps unsurprisingly, the Claimant accepted the global offer. Because of the differences in how the Portal shows settlements reached in the Portal where the A2A system has been used over the Web-based system, detailed statements were submitted by the Defendant to confirm what had been accepted. At first instance the judge accepted the peculiarity of the differing output, but refused to accept that where the Defendants clearly mistakenly simply sent the Stage 2 pack to the Claimant containing the Claimant's own global offer that there was any meeting of minds and thus found settlement had not been reached, and stated she was distinguishing the matter from Draper . On appeal, Sarah argued that Draper did not say only one class of mistake did not apply in the Portal, all common law mistake was disapplied. It was not the type nor quality of mistake which mattered. All mistake was disapplied to cases in the Portal, it was a highly stand-alone code. The court agreed and found that common law mistake had no place in the Portals. Interestingly both counsel in the later case of Harris v Brown submitted that the Claimant here did not know that a mistake had been made, and thus distinguished it. Unfortunately that is clearly wrong, as the Claimant here was well aware that their own offer had been sent back to them by the Defendant. Click here for a copy of the judgment Go back to Topic Index Topic Index Go back to Main Index Main Index