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KeyPoint Practical guidance on what to do when faced with multiple CNFs for the same claim Mozzano v Riwa DDJ Dawson, Birkenhead CC, 24th April 2012 The Defendant received a CNF, accepted the claim and admitted liability. The Defendant paid the Stage 1 costs. The Defendant then received a second CNF from a different firm for the same accident they already had a live Portal claim for. The Defendant solicitors sought confirmation from the second firm that they were properly acting for the Claimant, which was received 17 days later. The Defendant admitted liability within 15 days of receiving that confirmation but the claim had timed out of the Portal by then. Part 7 proceedings were issued and damages were later settled but not costs. The matter went to a hearing to determine what costs the parties were entitled to. The court noted that there was nothing in the rules which provided for what to do in this sort of case. However, the judge found at [10] that because of the doubt over the identity of who exactly was the authorised representative, it was incumbent on the Claimant to confirm who was acting for him. The judge also held at [11] that time would only start to run from the delivery of the confirmation of authority to act and clarification of the correct identity of the Claimant's solicitors on the Defendant. The judge also held at [11] that it was a matter for the second Claimant solicitors to sort out Stage 1 costs with the first firm of solicitors, that was not for the Defendant to do. The judge held that the Claimant was only entitled to Portal costs, and the second firm was only entitled to Stage 2 costs, Stage 1 costs having already been paid to the first firm. Please note there are two judgments, the first deals with a late skeleton argument, the second with the substantive matter. 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 court can order Portal costs under CPR 45.24 even where a Part 36 offer has been accepted (Inconsistent with Cookson v Manchester City Council) Ansell & Evans v AT&T DDJ Lynch, Slough County Court, 12th June 2017 (first instance) HHJ Clarke, Oxford County Court, 14th December 2017 (on appeal) Here the Claimants left the RTA Portal unreasonably, then settled the matter by way of Part 36 offer. The Claimants, represented by Kevin Latham, argued that on acceptance of a Part 36 offer, the Defendant could not seek costs to be limited under CPR 45.24 because the costs were governed by CPR 36.20, which specifically directed the tables in CPR 45 SIIIA, rather than more generally to SIIIA. However, Sarah successfully argued that if the Claimant had not left the Portal unreasonably, parties would not have been able to make a Part 36 offer, and you could not retrospectively 'correct' an earlier unreasonable exit. Furthermore CPR 36.20 was headed 'Cost consequences of acceptance of a Part 36 offer where SIIIA of Part 45 applies. Thus if costs were to be assessed under CPR 36.20, the costs were those under SIIIA, which included CPR 45.24. The lower court accepted Sarah's submissions and confirmed that CPR 45.24 remains open for a court to use even on acceptance of a Part 36 offer. The Claimant appealed, but unsuccessfully. The appellate court upheld the decision at first instance, noting that CPR 45.29(1) specifically stated it was subject to ss(3) which preserved the court's power in CPR 45.24. NB There are now two inconsistent decisions at the same level, so some higher authority would be welcome to clarify which is the correct approach. Readers are reminded of the principle in Patel v Secretary of State for the Home Dept [2013] UKSC 72 at [59] where the court found that as a matter of general principle, thus Where there are conflicting decisions from judges of co-ordinate jurisdiction, then, in the absence of cogent reasons to the contrary, the second of those decisions should be followed. As Ansell is the later decision, this should therefore, be preferred over Cookson v Manchester City Council . 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 Portal admission is binding to the World Chimel v Chibwana & Williams HHJ Simpkiss, Reigate CC, 31st Oct 2016 This first tier appeal directly resolved the position of the two inconsistent first instance decisions of Ullah v Jon and Malak v Nasim on whether an admission in the Portal is binding outside the Portal, and concurs with the almost accidental finding of the same in Maddocks v Lyne . The court confirmed that a Portal admission is binding to the world, i.e. both in and outside of the Portal. 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 must have paid for vehicle damages personally before an interim payment can be claimed for them Ampratwum & Zbigniew Samajeden v Esure Birkenhead CC, 5th June 2013 Sarah successfully argued here that a Claimant was not justified in leaving the Portal when a Defendant failed to make a payment for an interim payment within the requisite time. The entitlement to an interim payment for damages, sometimes called additional damages, only arises where a Claimant personally has paid out for that head of loss. If an interim payment for normal damages had not been made in time then a Claimant could leave the Portal. Please note there is no available copy of this judgment. This case makes the point that portal rules must be carefully studied! Go back to Main Index Main Index Go back to Topic Index Topic Index

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 Dec 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 the then CPR 45.36(2)(b)(i) (now CPR 45.35). 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. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Key Point Where range of prognosis given, should use mid-point, as for future loss claims Dominic v Martin HHJ Stewart QC, Manchester CC, 21st Jul 2011 Under the 2010 Portal protocol there was no specific provision for witness statements, and Lamb v Gregory had not yet been decided. The judge faced with a paper assessment at Stage 3 and no witness statement, decided to award damages on the basis of the lowest end of the range of prognosis given. The Claimant appealed. On appeal (understood to be the very first Portal appeal) the court held that where a medical report gave a range of prognosis, in the absence of a witness statement, the court should award in the middle of the period, as with future loss cases. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Key Points Agreements on individual heads of loss are binding at Stage 2 and (Obiter) Portal settlements on complete claims are binding to the World Maddocks v Lyne HHJ Wood QC, Chester CC, 22nd Jan 2016 Parties agreed some individual heads of loss during Stage 2, but at the Stage 3 hearing the Claimant re-opened them, which the judge allowed. The Defendant appealed, arguing that agreements reached in the Portal on individual heads of were binding. The Defendant argued how the a Stage 3 hearing was defined as a hearing to determine items which remained in dispute. The Claimant argued that the wording of the rules only referred to 'offer' in the singular. The Defendant relied on Bewicke-Copley v Ibeh which said they are, and the Claimant relied on Bushell v Parry which said they were not. Permission to appeal, in some delicious irony, was given to the Defendants by HHJ Gregory, who had decided the Bushell case. In a long and reserved judgment, HHJ Wood QC held that where a claim remained in the Portal, as here, those items agreed at Stage 2 would be binding on both parties except in very exceptional cases. The judge went on to find, obiter, that if the matter left the Portal, then individual heads of loss were not binding, although the judgment notes that no argument was heard on this point. The court also went on to find, again obiter, that if all heads of loss were agreed in the Portal then it was binding on the world. Whilst confirming the original position as found in Bewicke-Copley v Ibeh , this decision also resolved the dispute between the inconsistent decisions of Ullah v Jon and Malak v Nasim , on whether admissions in the Portal are binding outside of that Portal claim where there is no judgment, by confirming that where settlement is reached on all heads of loss that the agreement is binding on the world, it does not require a judgment to be binding. That point was then confirmed, ratio, 10 months later in the appeal decision of Chimel v Chibwana & Williams . 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 Point The bar for exceptional circumstances is a high one and The basket of cases against which one assesses exceptionality is all those cases which start in the Portal and then leave Ferri v Gill [2019] EWHC 952 (QB) The lower court had erred in finding that the bar was low. It was in fact a very high bar. At [43] the court held: "As the House of Lords said in R v Soneji, an expression such as “exceptional circumstances” must take its colour from the setting in which it appears. The setting in which it appears informs the Court whether a strict approach to exceptional is or is not warranted. " The second question was whether the Master was right in defining the ‘basket’ of cases compared with which a case needs to have “exceptional circumstances”. At [47] the court held "It is clear that the basket of cases against which a case must demonstrate “exceptional circumstances” is the type of cases that have exited the Portal and are subject to the Part IIIA regime." The case was remitted back to Master Gordon-Saker to be assessed again. However, no judgment appears anywhere I can find, so it does seem likely the case then settled. If anyone knows any differently, please let me know. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

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

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

Key Point Judge has power to vary level of SIIIA fixed costs to reflect poor conduct Chapman v Tameside Hospital NHS Foundation Trust DJ Swindley, Bolton County Court, 15th June 2016 Here the court considered whether when awarding costs under SIIIA CPR 45 fixed costs on leaving the portal, there was any discretion to award a different level of costs from the point which the claim had actually reached. The court found that it did have discretion, at [18] the judge said: "I am satisfied that the provisions of Rule 44.2 can be applied. It would be a nonsensical situation if the rules which are provided by Rule 44.2 to give the Court the power to impose sanctions to penalise those who abuse the system, and clearly there has been abuse here by the Trust and possibly by the Litigation Authority initially representing them. I am certainly not suggesting that Weightmans have been dealing with it improperly, they are obviously having to deal with what information they are supplied. But it would be a nonsensical situation if the rules, in an appropriate case where the fixed costs regime did apply, precluded the Court from imposing the sanctions provided under Rule 44.2 and 44.2, of course, gives the Court an unqualified discretion. I do not accept that I am bound by the Part 45 scales, but I clearly have to bear them in mind. It would be nonsensical if the Claimant's solicitors could achieve a windfall and recover more costs than they would have done had the matter gone to trial or settled in favour of the Claimant at the stage that it was discontinued. That would be absolutely nonsensical." An odd decision, given that fixed costs are supposed to be fixed. However, courts do retain discretion on costs and it fits the over-riding objective for courts to be able to reflect poor conduct when awarding costs. It is interesting to see that the Court of Appeal used the same approach, deploying CPR 44 to reduce costs in the case of Williams v Secretary of State for Business, Energy and Industrial Strategy [2018] EWCA Civ 852 . Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

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.)