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Soft Tissue Injuries Claims Mason v Laing HHJ Gosnell, Bradford CC, 20.01.20 The Portal rules are strict; if in a soft tissue injury claim the first report is not disclosed before subsequent ones, a Claimant cannot rely on the subsequent reports. Greyson v Fuller [2022] EWHC 211 (QB) The High Court held that where the reports were served together, the sanction was costs, not the admissibility of the report. Moesaid v Calder DDJ Kube, Manchester CC, 27th August 2021 Where a subsequent report took the claim out of the definition of soft tissue injury claim, it did not matter when the reports were disclosed, the special rules on soft tissue injuries did not apply. Abdulmalik v Calder DJ Carter, Manchester CC, 2nd Feb 2022 There was no requirement for the first report to be disclosed before the second report was obtained, only disclosed. However, compliance with the order of disclosure required did not mean that the cost of the report would automatically be allowed - the court could still disallow it for other reasons. The time to consider whether the claim was a soft tissue injury claim was when the second report was being disclosed. Go Back to Index Click on the button below to go back to the case law index Index

Key Point 'Blanket' application of SIIIA Costs Sharp v Leeds City Council [2017] EWCA Civ 33 Here the issue was whether SIIIA CPR 45 fixed costs applied on Pre-Action Disclosure ("PAD") applications. At first instance, it was held they did not apply, however on first-tier appeal the court said SIIIA did apply. The Court of Appeal held that SIIIA costs did apply. PAD applications were not in a class of their own. To recognise implied exceptions to the application of fixed costs would undermine the whole fixed costs scheme. This case confirms the 'blanket' application of SIIIA fixed costs. The only exceptions are as stated in CPR 45.29A(2), for disease claims, CPR 4529A(3) for costs assessed under CPR 45.24 and CPR 45.29B for claims allocated to the multi-track. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Key Points Portal exit was not unreasonable given D's behaviour and It was premature to apply to restrict a Claimant to Portal costs before the claim had concluded Bursuc v EUI Ltd DJ Revere, Clerkenwell & Shoreditch CC, 30th May 2018 This claim started in the MOJ RTA Portal Protocol, but the Claimant removed it from the Portal following the Defendant's repeated requests for more information and further disclosure. The Claimant had warned the Defendant that if they kept requiring further information, that they risked making the claim too complex for the Portal, but the Defendant continued to ask for more. The Claimant then removed the claim from the Portal because it was too complex, and issued Part 7 proceedings. Whilst those proceedings were ongoing, the Defendant made an application for the Claimant to be restricted to Portal costs under CPR 45.24. The Claimant argued that it was premature to seek such an order before the claim had concluded, and in any event, the claim had become too complex and was no longer suitable for the portal. In a reserved judgment the court found that the application was made too early, and in any event the departure from the Portal was not unreasonable in all the circumstances. The Claimant had supplied over 50 pages of evidence, the credit hire claim was not insignificant at over £17K, and it was clear that two of the heads of loss were going to be strongly defended, and the Claimant had warned (not 'threatened' as D argued) the Defendant that the claim may leave the Portal if they sought any further information , yet they still asked for more. This is an unusual decision, finding that a Portal exit was reasonable as most cases have held the opposite. However, it does demonstrate that the Portal Protocol is only suitable for straightforward claims, and Defendants need to be careful they do not make a claim too complex by how they approach defending such claims, particularly where the vehicle related damages are larger. Click here for a copy of the judgment 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 December 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 CPR 45.36(2)(b)(i) [now CPR 45.24(2)(b)(i)]. 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 Raising legal argument and offering zero for some heads of loss did not justify removal from Portal Dickinson v Langford Birkenhead CC, 14th February 2013 Here the Claimant sought care as a head of loss. The Defendant offered zero for this and entered a full defence. The Claimant removed the claim from the Portal and issued Part 7 proceedings in response, claiming that given the dispute and the nature of the defence, the Portal was no longer suitable. However, the court found that the claim should have stayed in the Portal and restricted 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 Tomlin Order held to equate to a 'judgment' for the purposes of CPR 45.24 Timothy Taylor & 27 Ors v ZStage (UK) Ltd Real China Restaurant DJ Griffith, Birmingham CC, 3rd September 2019 Between 11th-24th July 2014, around 100 people contracted salmonella poisoning when eating at the Defendant’s restaurant. 94 claims were made by 15 firms of solicitors. All except the 28 Claimants in these proceedings were brought individually in the MOJ Portal. The Defendant maintained throughout that these claims too should have been brought in the Portal, and that the Claimant’s failure to do so should sound in costs, per the court’s specific powers under CPR 45.24(2) and/or under the court’s general powers per CPR 44. The claimant argued that by lumping all these minor claims together, they were worth more than the portal upper Portal limit and together they were too complex for the portal. Individually each claim was worth below the portal limit and all required only one expert. Most recovered in just a few months. The judge found that the Claimant should have brought the claims in the Portal, it was unreasonable not to do so, and thus he limited the Claimant to no more than Portal costs. What is particularly interesting about this case is that the claims settled before trial. Thus there was no judgment entered as required by CPR 45.24. Whilst the court had the alternative route to get to exactly the same result under CPR 44, per Williams v Secretary of State for Business, Energy & Industrial Strategy [2018] EWCA Civ 852 , the court found there was no need to use that route. Instead it found that Williams did not define 'judgment', and that the CPRs used 'order' and 'judgment' interchangeably. Thus he was content that the Tomlin Order was sufficient to amount to a 'judgment' for the purposes of CPR 45.24. However, he granted the claimant permission to appeal on his interpretation of 'judgment'. Ultimately the Claimant did not pursue their appeal. Roger Mallalieu instructed by Irwin Mitchell for the Claimant, Sarah Robson instructed by Percy Hughes and Roberts for the Defendants. 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 Neither party can raise anything at a Stage 3 hearing which has not been raised in Stage 2 Mulholland v Hughes HHJ Freedman, Newcastle CC, 18th Sept 2015 This case dealt with three different issues; the status of offers in the Portal, whether it is open to a Defendant to rely on matters not raised during Stage 2, whether a court can order repayment of the Stage 2 payments where the court later awards less than that sum. The common theme of all four appeals was that they were cases where the court awarded the Claimant less than the Defendants had offered and in three of those cases there was an overpayment which the Claimants were ordered to repay to the Defendants. The court held firstly that offers in the Portal were not the same as admissions, and thus they did not bind the Defendant in that the Defendant was able to argue for less than the sum they had offered. Secondly, the court held that a Defendant could not rely on arguments not raised during Stage 2 within Stage 3. Thirdly the court found that a court could order a repayment of an over-payment of a Stage 2 payment. Fourthly the court found that parties could not raise an issue in a Stage 3 hearing which had not been raised in Stage 2. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Other Useful Fixed Costs Cases Ahmed v Pryce DJ Bellamy, Sheffield CC, 11.12.18 Ashraf v Savage DDJ Nix, Leeds CC, 16.01.19 Aslam v Gavin DJ Underwood, Bradford CC, 15.12.17 Baker v Flynn DDJ LeBas, Guildford CC, 19.11.19 (upheld on appeal) Bobby Prior v Silverline International Ltd HHJ Wood QC, Liverpool CC, 08.07.15 Cable v Liverpool Victoria Insurance Co Ltd [2020] EWCA Civ 1015 Ionas v Clennell HHJ Gargan, Middlesbrough CC, 23.10.17 Moon v Catley HHJ Gargan, Middlesbrough CC, 11.01.17 R (on the application of Bhatti) v Bury Metropolitan Borough Council [2013] All ER (D) 355 (Oct) Rennie v Logistic Management Services Ltd and Smith v Wyatt [2011] EWCA Civ 941 Talbot v South Western Ambulance Service NHS Foundation Trust DJ Stewart, Southampton CC, 21.09.19 Wilkinson-Mulvanny v UK Insurance Ltd Regional Costs Judge Phillips, Cardiff CC, on 19.01.23

Key Point Portal admissions were not binding outside that claim SINCE OVERTURNED Malak v Nasim DJ Woods, Watford CC, December 2014 Here the issue was whether the claimant was bound by an admission which his insurers had made in the Portal on an entirely separate claim. The court found they were bound only within those same proceedings, not otherwise, rejecting the finding of Ullah v Jon . Please note that after this case was decided, the issue of whether Ullah v Jon or Malak v Nasim was correct was determined in the appeal of Chimel v Chibwana & Williams . The appellate court decided that Malak was wrongly decided. 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 claim which should never have been brought in the MOJ Portal did not attract SIIIA fixed costs Petit v MIB & 5 Ors DJ Pollard, Brighton CC, 15.02.17 This claim started in the MOJ RTA Portal Protocol, but should not have done. The accident occurred on 18 Oct 2011 when the Portal upper limit was £10,000. The Portal upper limit was changed to £25,000 for all accidents which happened after 31 July 2013, and the new Protocol applied to all claims where the CNF was submitted after that date too. In this case the CNF was submitted on 19 Sept 2014. Thus the claim was subject to the new Protocol, but the old upper limit, a point which eluded the claimant solicitors at the time. The MIB objected to the claim being brought in the MOJ Portal protocol because of its value stated on the CNF to be between £10,000 - £25,000. The claim was later removed from the Portal for that very reason and Part 7 proceedings were brought. The Defendant sought to limit the Claimant's costs to fixed costs under SIIIA of CPR 45. However the court disagreed, finding that as the claim had not 'properly' started in the MOJ Portal Protocol, SIIIA costs did not follow. Please note it has not yet been possible to obtain a copy of the approved judgment, however the link below is to the draft transcript agreed by both counsel in the case. Click here for a copy of the unapproved judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Key Point Omission to act causing claim to leave Portal was an election to leave Doyle v Manchester Audi DJ Matharu, Manchester CC, 25th June 2013 The Claimant gave his 'known as' name and his then girlfriend's address at the scene of an accident. He then consulted with solicitors and they submitted a CNF with his legal name on and, having split up with his girlfriend, his parents address where he then lived. On receipt of a CNF with a different name and address than that provided at the scene, the Defendant was naturally unwilling to simply admit liability. The Defendant sought confirmation from the Claimant of his identity, and in particular for photographic evidence of his identity. The Claimant delayed in providing this for several months, during which time the claim automatically timed out of the Portal. The claim then went through Part 7 proceedings, and when it came to costs, the Defendant averred that the Claimant should be restricted to Portal costs, per CPR 45.36 (now CPR 45.35) because they had caused the claim to leave the Portal by their omission to supply the information reasonably sought, albeit not required by the Protocol. The Claimant argued that the Portal rules were strict, and that there was no requirement to have provided the information sought. They maintained that as the Defendant had not admitted liability within Stage 1, irrespective of the identity position, then they were perfectly entitled to leave the Portal. The Defendant relied on Ilahi v Usman to show that doing something which had the automatic effect of causing a claim to leave the Portal was just the same as not doing something (in this case failing to confirm the Claimant's identity in time) which had the automatic consequence of making the claim leave the Portal. The court found that the Claimant had failed to provide the information reasonably sought which had caused the claim to leave the Portal. The Claimant was restricted to no more than 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 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