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Key Point Common law Mistake does apply in the MOJ Portal Protocol where offeree knows of mistake when accepts Harris v Brown HHJ Davey QC, Bradford CC, 18th June 2019 An interesting judicial difference of opinion was formed in this case on whether the Portal is an entirely stand-alone code, or whether common law doctrines can apply. Here the judge found that common law mistake did apply. Unfortunately the judge was mis-informed by both counsel that in Draper v Newport and Fitton v Ageas, the party accepting the offer did not know that a mistake had been made. The judge thus distinguished those two cases and decided that common law mistake did apply. It is interesting to speculate over whether the decision would have been any different had the judge been given the correct details. Permission to appeal to the Court of Appeal was refused. Click here for a copy of the refusal decision. Click here for a copy of the judgment Go back to Main Index Go back to Topic Index Main Index Topic Index

Part 36 Offers and SIIIA Fixed Costs Cookson v Manchester City Council HHJ Main QC, Manchester CC, 28.04.17 (Acceptance of a Part 36 offer removes the court's powers under CPR 45.24 to limit the claimant to Portal costs) Ansell v AT&T DDJ Lynch, Slough County Court, 12th June 2017 (first instance) HHJ Clarke, Oxford County Court, 14th December 2017 (on appeal) (Acceptance of a Part 36 offer does not remove the court's powers under CPR 45.24 to limit the claimant to Portal costs) Go Back to Index Click on the button below to go back to the case law index Index

Key Point CNF rejected for lack of information - no test of reasonableness in CPR 45.24(2)(a) - unlike with leaving the Portal under CPR 45.24(2)(b)(i-iii) Hussain v Wardle Stoke on Trent CC, DJ Rank, 25th February 2017 The Claimant brought a claim in the MOJ Portal but failed to provide the Defendant's name in the CNF. The Defendant's name had not been provided at the scene. The Defendant Insurer rejected the CNF for incomplete information on it. The Defendant's name is a mandatory field. The Claimant then issued Part 7 proceedings and the claim settled by way of Part 36 offer. Costs went to Detailed Assessment. On Provisional Assessment the court found that the Claimant was in breach of the Portal Protocol, and restricted the Claimant to Portal costs. However, the Claimant applied for Oral Review, arguing it was not their fault they had failed to provide this mandatory information, and they had made good efforts to settle the claim after the claim left the Portal and before proceedings were issued, which should count in their favour. The court found there was a breach of the Portal Protocol, and went on to consider whether to exercise their discretion under CPR 45.24(2)(b). The court agreed with the Defendant that they could not use hindsight and speculation, per Tennant v Cottrell and Dawrant v Part & Parcel Network . Thus what happened after the Portal breach was irrelevant. The court agreed with the non-binding finding in Raja v Day & MIB , that the default position on the finding of a breach was that Portal costs should apply. The court found there were no exceptional circumstances which would justify a change from the default position. There were well-established ways of finding out the Defendant's details. The court also considered the fact that the claim had settled by way of a Part 36 offer, but rejected the Claimant's argument that this precluded an award under CPR 45.24(2). DJ Rank relied on the judgment of Lo rd Justice Moore-Bick in Solomon v Cromwell in this regard and quoted him at [17] thus: If the appellants' argument were correct, the acceptance of a Part 36 offer would always result in an order for costs on the standard basis in low-value road traffic accident cases. That would undermine the fixed costs regime and provide a powerful incentive for defendants not to make Part 36 offers in such cases... In the absence of any exceptional circumstances which would justify departing from the established default position, the court found that they would restrict the Claimant to Portal costs. There are not many cases of claims which have come out of the Portal because of lack of information on the CNF, so this is a particularly useful case. Note that there is no test of reasonableness in CPR 45.24(2)(a) as there is in CPR 45.24(2)(b). Thus even though the Claimant had ostensibly a good reason for not completing one of the mandatory fields, it could not and did not avail him. The rule in CPR 45.24(2)(a) only requires the Defendant to have rejected the claim because of INSUFFICIENT information. There is no requirement for the missing information to be mandatory. There is a curious further Portal provision at para 6.8 of the RTA Protocol, which provides that where a Defendant considers inadequate MANDATORY information has been provided, that shall be a valid reason for the Defendant to decide that the claim should no longer continue under the Protocol. There is no assessment of the reasonableness or not of the Defendant anywhere in CPR 45.24, there is no weighing of each party's behaviour, so it is unclear why this rule exists. In practice, it seems to operate to strengthen a Defendant's position when seeking an order under CPR 45.24(2)(a) where the insufficient information arises from a missing or incomplete mandatory field. However it does appear to some litigants into thinking that there is a benefit in trying to establish that a Defendant's decision to reject a CNF was invalid. Time will tell. 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

About Sarah Robson Sarah Robson Barrister Fixed Costs Specialist Call now on 0800 634 9650 Geographical Area Covered The yellow circle shows the courts that Sarah Robson normally works in for in person hearings, although most of her work is still remote so all courts in England & Wales are available. Sarah Robson is closest to courts around the Coventry / Northampton / Milton Keynes / Birmingham / Leicester / Reading area, but also regularly travels to Birkenhead, Liverpool, Leeds, Cardiff, Manchester, Bristol and across London. Sarah will travel further by arrangement. The Sun Newspaper - December 2023 Sarah Robson was recently interviewed by a National Newspaper, The Sun, regarding a specialist court case concerning liability orders for the boxer, Tyson Fury. This article appeared on the front page of The Sun in December 2023. Read the article here: Tyson Fury's next big fight is against the tax man - after champ accused of dodging massive bill | The Sun Counsel Magazine Oct 2023 Lessons learnt: The black belt barrister | COUNSEL | The Magazine of the Bar of England and Wales (counselmagazine.co.uk) Counsel magazine recently ran an article about Sarah Robson being a black belt and a barrister, in particular how each 'skill set' impacts on the other. Alpha Court Chambers Sarah practices at: Alpha Court Chambers alphacourtchambers.co.uk 12 Paddock Close Bidford-on-Avon, Alcester Warwickshire B50 4PJ Professional clients should ring for Sarah's postal address if needed.

Oct 23 New Fixed Costs Cases Asmat Bi v Tesco Underwriting Ltd When settled pre-Oct 23 pre proceedings, which costs apply Go Back to Index Click on the button below to go back to the case law index Index

Key Point Claimant must act proportionately, no absolute right to issue proceedings after 21 days from disclosure Bobby Prior v Silverline International Ltd HHJ Wood QC, Liverpool CC, 8th Jul 2015 Here the court considered whether to impose a costs sanction where the Claimant had acted unreasonably in issuing proceedings. The Claimant had sent the Defendant their medical report, waited 21 days, then having not received a satisfactory offer from the Defendant, they issued proceedings. As it happens the Defendant had sent an offer, but the Claimant had not received it. The Claimant relied on the fact they had complied with the Protocol by waiting 21 days from sending the medical report to issuing proceedings, as has happened here. However, on appeal at [12], HHJ Wood QC said: “So I ask the question has the Claimant, even if strictly permitted so to do, acted unreasonably by embarking on a course which is wholly disproportionate to the value of the claim and the relief sought?” (My emphasis.) At [15] HHJ Wood QC said that the PI Protocol was to promote early resolution and to avoid the escalation of disproportionate costs, and attention should be drawn to para 2.16 (now 9.1.1) which emphasised that litigation should be a last resort. At [23] HHJ Wood QC said: “If litigation was to be conducted on the basis, ‘Ah you’re too late now. Tough. You’re just going to have to pay the consequences,’ then the system, which is predicated upon a degree of cooperation as exemplified in the Protocol, would break down. There must be more flexibility in the system than that…”. The court concluded at [24] that it was: “… insufficient in my judgment, for the Claimant to rely solely upon the fact, this fact, to justify this proportionately expensive course of action. It cannot in my judgment, be assumed that entitlement to assessed costs is absolute if the issue ball starts rolling at one-minute past midnight.” (My emphases). And at [25]: “… it should not be assumed that a legitimate Protocol issue automatically entitles a party to its costs without regard to the background… the entitlement is not absolute in the context of a requirement to act proportionately in the circumstances.” Click here for a copy of the judgment Back to Other Cases Back to Cases Index

Key Points Cannot change reason for breach of Portal and there can be no 'Retrospective Justification' of an earlier Portal breach Tennant v Cottrell DJ Jenkinson, Liverpool CC, 11th December 2014 The Claimant removed this claim from the Portal when the Defendant made an offer of zero for one head of loss. Part 7 proceedings were issued in which the Defendant sought allocation to the fast track, and for the Claimant to attend for cross-examination. Costs went to Detailed Assessment. In Replies to Points of Dispute, the Claimant tried to argue for the first time that the claim had left the Portal because it was too complex, and pointed to the fact that the Defendant had sought to cross-examine the Claimant and allocate the claim. However, DJ Jenkinson found that the reason the Claimant had left the Portal was completely clear. That was set out in their letter at the time they left the Portal, stating they were doing so because the Defendant had offered zero on one head of loss. The judge said that you could not change your reason for leaving the Portal later, and there could be no argument that a claim 'would have left anyway'. o allow such an argument would be to allow a Claimant to 'retrospectively justify' their earlier unreasonable exit. He would not allow this. The Claimant was restricted to Portal costs. Claimants often try to argue that a claim 'would have left the Portal anyway'. However as this case makes clear, a party cannot change their reasons for leaving later, nor can they rely on anything which happened after a breach of the Portal when assessing whether they had acted unreasonably under CPR 45.24(2). Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

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Are Portal Admissions binding outside the Portal? Ullah v Jon DJ Parker, Croydon CC, 20th Mar 2013 (Portal Admissions are binding outside the Portals) Malak v Nasim DJ Woods, Watford CC, December 2014 (Portal Admissions are not binding outside the Portals) Chim el v Chibwana & Williams HHJ Simpkiss, Reigate CC, 31st October 2016 (First Tier Appeal - Portal Admission is binding outside the Portal, Ullah and Malak considered, Ullah preferred) Maddocks v Lyne HHJ Wood QC, Chester CC, 22nd Jan 2016 (First Tier Appeal - Entire Portal settlements are binding) Mukadam v Nazir HHJ Khan, Preston CC, 14th May 2020 (First Tier Appeal - side note on Portal admission noting was made without driver's instructions did not change effect of admission made by employer's insurers) Mullen v Nelson Insurance Co Ltd HHJ Wood QC, Liverpool CC, 2nd Oct 2020 (First Tier Appeal - Portal admission made by Insurer of Employer was binding on Employee, Chimel followed) Go Back to Index Click on the button below to go back to the case law index Index

Key Point An offer of zero is a valid offer in the Portal Piotr Glazer v Nathan Reid DDJ Johnson, Liverpool CC, 2nd March 2012 The Defendant made an offer of zero for one head of loss in the Portal. The Claimant removed the claim from the Portal, claiming that the Defendant had breached the Portal rules. When it came to costs the Claimant argued that the requirement to propose an amount for every head of damage (now para 7.41 RTA Protocol, 7.35 EL/PL Protocol) required the Defendant to propose a figure other than zero. They claimed that by offering zero, the Defendant was in breach of that requirement which justified their departure from the Portal. However, the court found that an offer of zero was a perfectly valid offer. To find otherwise would be to find that a Defendant would have to offer at least 1p for any head of loss claimed, however ludicrous it might be. That could not be right. Whilst an offer of zero might be perfectly valid as an offer on one head of loss, it is unclear whether the situation would be the same if every head of loss had an offer of zero made. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Item List Asmat Bi v Tesco Underwriting Ltd HHJ Sephton KC, Manchester CC, Aug 2024, claim no K04MA298 Read More This is a Title 02 This is placeholder text. To change this content, double-click on the element and click Change Content. Read More This is a Title 01 This is placeholder text. To change this content, double-click on the element and click Change Content. Read More