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Key Point Protocol offers remain open for acceptance until withdrawn, even after Part 7 proceedings have been issued, but not all offers made in the portal are Protocol offers Castle v Andrews & Dickens Ltd DJ Doyle, Birkenhead CC, 21st Nov 2019 This claim had started in the MOJ RTA Portal butPart 7 proceedings were issued. Later the Defendant sought to accept the Claimant's Portal offer, but the Claimant argued that their offer was no longer available for acceptance, distinguishing Purcell v McGarry and Akinroyde v EUI. The court found that there was some conflation in previous cases between a Stage 2 portal offer and a Protocol offer, noting that a Protocol offer was a formal term with various cost consequences. Per CPR 36.25 defines a Protocol offer as one set out in the Court Proceedings Pack (Part B) form, and CPR 36.20(8) also converts a defendant's Stage 2 offer to a Protocol offer if a claim leaves the portal before Stage 3 is commenced. Protocol offers were open for acceptance after claims left the portal, whilst Stage 2 offers were not. Otherwise in a case where a claimant wanted to bring in vehicle related damages at the end of Stage 2 per 7.52 of the portal protocol, a defendant could fail to make an offer in Stage 2 causing the claim to leave the portal before the claimant could seek their vehicle related damages in the portal, and then accept the claimant's first Portal offer and not have to pay anything for vehicle related damages at all. The court held this could not be what was intended. Click here for a copy of a note of Judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Key Point Fixed SIIIA costs do not apply to cases allocated to the multi-track Qadar v Esure Services Ltd [2016] EWCA Civ 1109 This claim had started in the Portal then left, and was allocated to the multi-track and so, prima facie, fell into fixed costs under SIIIA of CPR 45. The Claimant argued that these costs should not apply. They demonstrated a clear intention that fixed costs were intended to apply to claims allocated to the fast track, pointing out how this had been the stated intention from Jackson LJ's reports and consultations and replies to consultations. The Claimant was thus able to establish that the intention of Parliament had not been included in the CPRs by mere inadvertence. The Court of Appeal found authority in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 for correcting obvious drafting errors including omissions in rules. This was a clear case where the court should exercise that jurisdiction. The court, therefore, added in the words 'unless allocated to the multi-track' to the rules to achieve that end. It is interesting to see that the Claimant demonstrated that the fixed costs were intended to apply only to fast-track cases. However, the Court of Appeal excluded cases unless allocated to the multi-track, rather than specify it was for cases allocated to the fast-track. They also made it clear there has to be that allocation. This gives certainty, removing arguments around whether a case would have been allocated to the multi-track, but arguably does not follow from the precise position which the Claimant established. 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 Defendant recovered indemnity costs because of C's unreasonable exit from Portal Uppal v Daudia DDJ Matthews, Leicester CC, 14th May 2012 The Claimant removed the claim from the Portal after the Defendant failed to reply to its second offer. The court confirmed that the Defendant only needs to make one offer in the Portal. Therefore the exit from the Portal was unreasonable. As the Claimant had acted unreasonably, it followed that the Defendant was entitled to their costs of the Part 7 proceedings on an indemnity basis. Click here for the Lawtel case summary 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 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

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

Portal Offers outside the Portal Purcell v McGarry HHJ Gore QC, Liverpool CC, Friday 7th Dec 2012 (Portal offers are open for acceptance in Stage 3) Akinrodoye v Esure DJ Goodchild, Romford CC, 16th Feb 2015 (Portal offers are open for acceptance even after Part 7 proceedings issued) Ingrid Smith v Greater Manchester Buses South Ltd HHJ Main QC, Manchester CC, 17th Dec 2015 (Protocol offers only remain open for acceptance after a claim leaves the Portal) Castle v Andrews & Dickens Ltd DJ Doyle, Birkenhead CC, 21st Nov 2019 (Protocol offers are open for acceptance after a claim leaves the Portal, not Portal offers) Go Back to Index Click on the button below to go back to the case law index Index

Key Point Considerations of Contempt over completion of CNF Liverpool Victoria Insurance Co Ltd v Yavuz & Ors [2017] EWHC 3088 (QB) (6 Dec 2017) The court here was considering whether or not to commit the defendants for contempt following this 'crash for cash' case. The court considered whether knowing providing false statements in a Claim Notification Form ("CNF"), forms which are electronically signed, and usually by the Claimant's solicitor, could amount to contempt. The court side-stepped the issue but noted that CPR 32.14 and 22.1 made it contempt to make a false statement in certain documents verified by a statement of truth. The court also noted that neither the Protocol nor PD8B mandated compliance, it merely 'expected' compliance, which was not the same as saying parties were required to comply, which was needed to find contempt. It thus seems likely that the Rules Committee will review the rules in this area. Watch this space! 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 Brown v Ezeugwa HHJ Simpkiss (Designated Circuit Judge) with DJ Lethem (Regional Costs Judge) as assessor Tunbridge Wells CC, 23rd January 2014 The claim left the Portal and went into Part 7 proceedings where it was settled by a consent order. That read that the Defendant was to pay the Claimant standard basis costs to be assessed if not agreed. The Claimant argued that meant they could not be restricted to fixed Portal and had the Defendant wanted to argue that fixed costs applied they should have done so before the order was made, not when costs were being assessed. The court noted there were two issued, firstly whether the paying party could take a point under CPR 45.36 (now 45.24) at the time the judgment was given and secondly whether an award of costs on the standard basis precluded an argument under CPR 45.36 (now CPR 45.24). The court held there was nothing in the rules which supported the contention that an order for costs under CPR 45.36 (now 45.24) had to be made at the time the order for costs was made. The court also noted that if the Rules Committee had intended that power should only be exercised at the stage when a costs order was made then it was surprising that the provision was not included in Part 44. At [28] the court held: 28. ...The issues in relation to costs fall into three stages. Stage 1 is the award of costs. Stage 2 is the decision by the assessing judge of what the order for costs means, and stage 3 is the quantification on that basis. 29. In this case Stage 1 was consented to in the order of 12th December 2012. The Defendant was to pay the Claimant’s costs, and the basis of costs was to be the standard basis. Stage 2 was, not surprisingly and not unusually, elided into Stage 3, but the deputy district judge did set about the assessment on the basis of a standard basis assessment. 30. Where, in our judgment, he went wrong was not to apply his mind to the distinction between the award of costs and the direction as to the basis that the assessment should take place with the quantification or assessment process itself. CPR 44.3 and 4 are concerned with the award and the basis of assessment. CPR 45, albeit relating to fixed costs, is one of the provisions that deals with the quantification of those costs, and therefore in our judgment there is no reason why the assessing judge cannot exercise the powers under 45.36 in carrying out that assessment. Thus the court confirmed that an order for standard basis costs does not preclude costs being assessed under CPR 45.24 (was 45.36). The court also confirmed the position found in Patel v Fortis that a court has the power to restrict a Claimant to Portal costs following settlement, not just judgment, a position reversed in Williams v Secretary of State for Business, Energy & 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

Key Point A stay on a Portal claim meant that no procedural steps were to be taken, even service of a claim form David Grant v Dawn Meats (UK) [2018] EWCA Civ 2212 In this case, limitation arose before the parties had been able to complete all the steps of Stage 1 and Stage 2 in the Portal. In accordance with para 5.7 of the EL/PL Protocol, the Claimant issued stage 3 and the proceedings were stayed. During the period of the stay, the Claimant did not serve the claimant form on the Defendant. The Defendant argued that the failure to serve the claim form within 4 months meant that the claim lapsed and there were no proceedings. At first instance the Claimant won, however the defendant appealed and HHJ Gore QC reversed that decision, finding that the stay did not operate to stay the time within which the claimant must serve the proceedings. Permission to appeal to the Court of Appeal was given by LJ Hamblen. The Court of Appeal considered that a stay 'halts' or 'freezes' proceedings. No steps are required or even permitted during a stay. When a stay is lifted, the position is exactly as it was between the parties the moment the stay was imposed. The Court of Appeal also noted that para 16 of PD 8B requires the claimant to 'send' the defendant the claim form, rather than 'serve' it. There was no justification in the argument that the claim form stood outside the rules, there was no distinction in the CPRs between the service of a claim form and any other procedural step. Also the interpretation of the CPRs could be 'sense-tested' by noting that if there were a requirement to serve the claim form within 4 months despite a stay, then that would require the appellant to seek a stay, then apply to lift the say in order to serve the claim form, then presumably apply to re-impose the stay. Such a procedure would be unnecessarily cumbersome and contrary to the intention that the rules in this area should be straightforward. This is an interesting judgment on the issue of limitation and the Portal. It does not appear that the Court of Appeal were directed to the decision in Patel v Fortis which dealt specifically with service in the Portal. Indeed it is also clear that the Court of Appeal were labouring under the mis-apprehension that there was a requirement to serve a Portal claim form within 4 months, which does not appear anywhere in the Portal Protocol or PD 8B. However, it does give welcome clarity on the position once a claim is issued and the status of a stay. 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 January 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 Go back to Main Index Main Index Go back to Topic Index Topic Index

Key Point A decision to take a step which automatically removes a case from the Portal is an election to leave the Portal Ilahi v Usman HHJ Platts, Manchester CC, 29th Nov 2012 The Claimant withdrew all offers at the end of Stage 2, which caused the claim to automatically leave the Portal. The Claimant then argued that they could not be reduced to Portal costs because they had not elected to leave the Portal, it had happened automatically. The Claimant won at first instance. However, on first tier appeal, HHJ Platts found that if a party elects to take a step which has the automatic consequence of leaving the Portal, then they have elected to leave the Portal. He restricted the Claimant to Portal costs only. The Claimant sought permission to appeal to the Court of Appeal. However, Jackson LJ refused permission on paper, noting he agreed with the reasoning given by HHJ Platts. Click here for the First Tier appeal judgment Click here for the Court of Appeal decision 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 justified and Common Law Waiver and Affirmation do not apply in the Portal Kilby v Brown DJ Peake, Birkenhead CC, 10th February 2014 Here the Defendants inadvertently underpaid the Claimant their Stage 2 payment by a mere £15. The Claimant solicitors ceased upon the opportunity to remove the claim from the Portal. The costs went to a separate hearing where the court considered whether the Claimant had acted reasonably in removing the claim from the Portal in circumstances where there had been a clear and admitted breach of the Portal Protocol. The judge held that the Claimant solicitors had been wholly unreasonable and restricted the claimant to Portal costs under CPR 45.24(2)(b)(i). The Defendant also argued that as the Claimant had banked their cheque, they had thereby affirmed their breach. However, the judge held that the Portal is and that the common law doctrines of waiver and affirmation do not apply. Click here for a link to an article about this case in the Liverpool Echo People often say this case was only decided this way because the Claimant had run up an unreasonable £16K of costs in a simple low-level case. However, those were the total costs of both sides and included the additional costs arising from the additional hearing the costs dispute caused. The principle applies equally however much the parties costs are, and indeed now most would fall under SIIIA fixed costs. Click here for a copy of the judgment Main Index Go back to Topic Index Topic Index Go back to Main Index