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Key Point A disposal hearing is a trial for the purposes of SIIIA Fixed costs Bird v Acorn Group Ltd [2016] EWCA Civ 1096 The Court of Appeal held that listing a claim for not just a trial still triggered the highest stage of SIIIA CPR 45 fixed costs for cases which leave the Portal. A disposal was a trial for the purposes of fixed SIIIA costs. There was no requirement for a case to go through all the stages in order. 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 restrict to Portal costs under CPR 44 generally following a Portal breach, not just under CPR 45.24(2) Williams v Secretary of State for Business, Energy & Industrial Strategy [2018] EWCA Civ 852 Here the court considered a case where CPR 45.24 was not available as Part 7 proceedings had not been issued. The court found that they could reach the same result via a different route, namely by the use of CPR 44.11. Court of Appeal noted it was hardly unusual for the CPRs to provide for two concurrent routes to the same result. This is exactly as the SCCO found in Davies v Greenway and Tunbridge Wells CC found on appeal in Brown v Ezeugwa . 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 special rules on Soft Tissue Injury Claims do not apply once a subsequent report takes the claim out of being a soft tissue injury claim, irrespective of when the reports were disclosed Moesaid v Calder DDJ Kube, Manchester CC, 27th August 2021 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 therefore the special rules in 7.8A did not apply to this claim. It therefore did not need to go on and decide if the second report had been disclosed in accordance with the rules. 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

Sarah Robson Barrister Fixed Costs Specialist Call now on 0800 634 9650 Legal Articles* * This website is intended to provide general guidance only. It does not give legal or professional and is not to be used in providing the same. Whilst all efforts have been made to ensure that the information is accurate, any liability including that arising in is excluded to the fullest extent lawfully permitted for any loss or damage howsoever arising from the use of this information. Precedent U.xlsx Precedent U The new Precedent U has just been released for assessement of fixed costs under the new regime. Download it here. SCCO Guide 2023 The latest SCCO guide is now out. Click here for a copy. Premature Issue Article on the case of Bobby Prior v Silverline International Ltd, HHJ Wood QC, Liverpool CC, 8th July 2015 now available. Claimant issue proceedings after 21 days in accordance with the letter of the personal injury pre-action protocol. However, there was no compliance with the spirit of the protocol. The Claimant was reduced to pre-issue costs by the Designated Circuit Judge of Liverpool. Click here for article including copy of the judgment. Legal Humour A light-heartedly look at the law and legal profession. (Submissions for inclusion here gratefully received.) A poor solicitor can cause a trial to be delayed for months. A good solicitor can cause a trial to be delayed for years. Caveat : No lawyers were harmed during the construction of this site. When a person assists a criminal they are aiding and abetting. When a person assists a criminal we call them a defence lawyer. The pupil barrister carefully warned his client not to lie when giving evidence. He asked if his client appreciated what could happen if he did not tell the truth in court. "We'll probably win" his client replied. Why did the lawyer cross the road? To sue the chicken. What's the difference between a good lawyer and a great lawyer? A good lawyer knows the law, a great lawyer knows the judge. Never mind the dog - Beware of the dog's lawyer. When does a claim start? Sarah has again successfully argued a claim does not start for the purposes of Part 7 until the court issues the claim. A claim which settles before the court has issued it only attracts predictive costs, per CPR 7.2, PD 7A 5.1 and CPR 44.12A (c), even if the papers have been sent to the court. Provisional Assessment Oral Review In order to recover the costs of an oral review of a Provisional assessment, CPR 47.15(10) requires the applicant to obtain an adjustment in its own favour by 20% or more of the sum provisionally assessed. Is that just the items reviewed or 20% of the whole bill? This issue was considered by Master O'Hare in Keah M B O'Reilly v H R Richmond Ltd, SCCO, 16.09.14. The court confirmed it was 20% of the whole bill, not just the part(s) being reviewed. The court was also invited to use its discretion under CPR 47.15(1)(b) because of the adjustment of more than 20% achieved on the items reviewed, but declined to do so. Click here for an approved note of the judgment. What is the nature of a Provisional Assessment Oral Review? This new procedure has little guidance as to what is and is not allowed. Is an Oral Review just a review, a rehearing, or is it more like an appeal where parties are limited to what they raised in the Provisional Assessment hearing? Cook on Costs has one line stating the court will hear issues 'afresh'. Dr Mark Friston confirms the same view in Friston on Costs 3rd Edition. Other than that, there appears to be no guidance at all. HHJ Wood QC, the DCJ at Liverpool has considered this on appeal twice and has concluded that new evidence can be admitted on oral review. Download copies of the judgments here in the cases of: Ion v Ahmed , and Mehmi v Pincher . NB a more recent version is available above, this is just for reference SCCO Guide 2018 SCCO Guide 2018 The first guide published by the SCCO since 2013 is available. Click here to download a free copy of this important procedural guide . Miscellaneous Expenses A lot of fuss and bother over nothing? Ghattaorya v Bailey LTLPI 05/10/2009 My case of Ghattaorya v Bailey on miscellaneous expenses is several years old, yet it still attracts vast numbers of hits on my site. One cannot its importance when Part 36 offers are close, and thousands of pounds in costs can turn on whether this is allowed or disallowed. Do not ignore miscellaneous expenses! Claimant solicitors plead ‘miscellaneous’ expenses as an almost mandatory ‘add-on.’ This is to cover the cost of subsidiary expenses which have been incurred because of the litigation. Whilst it is that you cannot recover stress and anguish incurred because of litigation, the miscellaneous claim seems to have slipped through the net as a legitimate expense. This head of deserves closer inspection: The miscellaneous claim is for telephone calls, postage and stationary - travel is usually claimed for separately. Miscellaneous claims in your average fast track case typically range from about £10 to £50. There may have been the cost of posting an initial form reporting the incident to the insurer or solicitor, perhaps with a covering letter. However, many insurance companies take a claim over the phone now, rather than requiring the completion of a form, or provide a pre-paid envelope. The postage, therefore, is probably no more than one or two stamps, so less than say, £1. The cost of stationery – a single sheet of writing if any, well with a ream costing around the £3 mark for 500 sheets that’s not even a penny. Many insurance companies and solicitors firms provide free-phone numbers or call numbers, e.g. 0845. Some solicitors firms now encourage all correspondence with the lay client to be by email. BT charge mere pennies per minute for geographic calls from a landline, and if the claimant is on an all-inclusive package then there is no extra cost to them. All-inclusive phone packages are more common now, and the chances are more claimants will be on some form of ‘TV/Telephone/Broadband’ package. Put the claimant to proof and a judge will laugh at you, as there are hardly ever any receipts for these sorts of expenses. Cross-examine, and you risk the wrath of the judge and a stop being placed on cross-examination thus deemed ‘unnecessary’. Most sensible Counsel (with sensible instructions) will get their heads together before trial and some compromise figure. However, if you must press ahead and attack the claim in court, zip in with a pin-point question. The most devastating attack, however, is simply to ask the judge to compare the length of time claimed on the cost schedule for telephone attendances on the claimant, with the cost at even 5.25p/min for even every single call. The miscellaneous claim is then often dealt a hefty blow by the judge’s pen. In this case, the judge dismissed the entire head of claim for miscellaneous expenses, noting that claiming for miscellaneous expenses was ‘a bad habit claimant solicitors had got into’. That principle was approved by HHJ Harrington in Harwood v Kapek (2010) LTLPI 21/7/2010 citing the failure to correctly plead the losses under this head as the reason for not allowing a miscellaneous claim, Ghattaorya v Bailey approved. There are a few (easier to spell) other cases on miscellaneous expenses, but Ghattaorya v Bailey is the most well known and often referred to. Click here for a copy of the judgment.

Key Point Recoverability of disbursements in SIIIA cases Cham (by their Litigation Friend Laura Martin) v Aldred [2019] EWCA Civ 1780 The SIIIA fixed costs regime provides for an advice from counsel in infant cases in the sum of £150. This seemingly untroubling disbursement was awarded at first instance and first tier appeal. However, the Defendant appealed again, and argued it was not recoverable in addition to fixed profit costs. The matter came before LJs Coulson, McCombe and Davies on 8th October, and judgment was handed down on 25th October 2019. LJ Coulson gave the lead judgment and found that the infant approval advice was required not because of a particular feature of the dispute, but because of a particular feature of the Claimant, namely that they were an infant. Therefore it was not recoverable. The court also considered the potential for overlap, claiming the same disbursement under the ‘catch all’ provision in CPR 45.29I(2)(h). At [51] the court held that if an item was specifically within Table 6B, it would not be recoverable in addition to fixed costs. The brief fee was the most obvious example. The court also churned out the oft repeated ‘swings and roundabouts’ argument mentioned in Sharp v Leeds City Council [2017] EWCA Civ 33 . Thus, the appeal was allowed. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Key Point Cannot argue 'would have left the Portal anyway' Raja v Day & MIB HHJ Gregory, Liverpool CC, 2nd March 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 Go back to Main Index Main Index Go back to Topic Index Topic Index

Key Point Portal offers remain open for acceptance until withdrawn, even after Part 7 proceedings have been issued Akinrodoye v Esure DJ Goodchild, Romford CC, 16th Feb 2015 This claim had started in the MOJ RTA Portal and Part 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 because Part 7 proceedings had been issued (trying to distinguish this from Purcell v McGarry .) However, the court found that a Portal offer remains open for acceptance unless withdrawn and that it could not be implicitly withdrawn nor withdrawn automatically because certain events such as proceedings had been issued. This is an important case as it extends the decision in Purcell to make it clear that Portal offers remain open for acceptance unless and until withdrawn. Litigants need to be careful to ensure that they have not left any unsuitable Portal offers open if circumstances have changed. 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

Cannot use Hindsight or Speculation Raja v Day & MIB HHJ Gregory, Liverpool CC, 2nd Mar 2015 (Cannot take into account would have left the Portal anyway) Tennant v Cottrell DJ Jenkinson, Liverpool CC, 11th Dec 2014 (Cannot change reason for leaving, nor retrospectively justify reason) Dawrant v Part & Parcel Network Ltd HHJ Parker, Liverpool CC, 28th April 2016 Sitting with Regional Costs Judge Jenkinson, as Assessor (First Tier Appeal - Cannot use hindsight when a case has left the Portal) Ryan v Hackett [2020] EWHC 288 (QB) (Could take into account what happens after a claim leaves the Portal when determining costs on the facts of this case) Go Back to Index Click on the button below to go back to the case law index Index

Key Point SIIIA Exceptional Circumstances Costs awarded under CPR 45.29J Lloyd v 2 Sisters Poultry Ltd HHJ Howells, Mold County Court, 29th Jan 2019 This was an appeal in a SIIIA case where the lower court had found exceptional circumstances and awarded costs under CPR 45.29J. On appeal the court considered the swings and roundabouts nature of fixed costs, but found the lower court had correctly weighed all the relevant issues in the balance, and that decision could not be faulted. The claim arose from a personal injury accident at the Claimant's place of employment. Liability was not disputed. Initially the claim began relying on one medical report, but a subsequent report gave a much gloomier picture and indicated the Claimant had a permanent injury and would be disabled within the meaning of the Equality Act 2010. The appeal court noted at [13] that the lower court's attention had been drawn to the extensive work carried out, with the solicitor correspondence running to some 63 pages with little padding, the schedule of special damages alone amounting to over £71,500 which was 27 pages long, a detailed Ogden 7 calculations for future loss of earnings, an alternative Billet approach with a witness statement from the Claimant running to 16 pages dealing in detail with the Claimant's pre-existing medical conditions, current conditions, education, employment, need for care and assistance - all of which was relevant to the future loss of earnings and Ogden/Billet calculations. At [17-18] the court considered Hislop v Perde , and noted how LJ Coulson had 'uncoupled' the link between the causation of increased costs and the award of exceptional circumstances costs there. HHJ Howells noted that the lower court had taken all the relevant factors into account, particularly the permanent disability and the Ogden calculations, but also the value of the claim, and concluded they were appropriate factors for the court to consider made this case exceptional for the test in CPR 45.29J. The appeal was dismissed and the Claimant kept their award of open costs. This case is unusual in that it is one of only two cases (the other being Jackson v Barfoot Farms ) I am aware of where non-fixed costs have been awarded under CPR 45.29J. In both cases, the Claimant suffered significant and permanent injuries. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index