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Key Point Interpreter's fees are recoverable under SIIIA Santiago v MIB [2023] EWCA Civ 838 Here the Court of Appeal grappled with the problem that interpreter's fees were, prima facie, not recoverable as a disbursement in a case to which SIIIA fixed costs applied. Following Cham v Aldred, it was generally accepted that a disbursement could only be recoverable if it arose because of a particular feature of the dispute. In Cham, the disbursement there arose because of a particular feature of the Claimant, namely that they were a child, and thus needed an opinion on quantum before any settlement could be approved. CPR 45.19(2)(e) stipulated that any disbursement not specified could only be recoverable it is arose because of a particular feature of the dispute. As the disbursement arose because of a particular feature of the Claimant, it was not recoverable. The same would therefore apply to interpreter's fees. However, since Cham had been decided, the Civil Justice Council published a report called 'Vulnerable Witnesses and Parties within the Civil Proceedings/ Current position and Recommendations for Change.' This report was addressing the critical need to ensure fair access to justice, and noted the need for interpreters, and that being unable to understand the proceedings made a person vulnerable, in that they could not participate nor give their best evidence. The court had regard to CPR 1.2(b) which required the court to give effect to the overriding objective when interpreting any rule, to ensure parties are on an equal footing and that the case is dealt with fairly. At [62] the court held: the use of the word “other” in sub-paragraph (h) supports the broader interpretation because it implies that the travel expenses and loss of earnings incurred by a party and allowed under sub-paragraphs (f) and (g) are disbursements that are “due to a particular feature of the dispute.” The common feature of such costs is that they facilitate the attendance of a party or witness and thus put the parties on an equal footing by enabling the party or witness to participate fully in the hearing. That is also a defining feature of the cost of an interpreter, without whom the party or witness cannot participate fully in the hearing and, specifically, cannot give their best evidence. Allowing the interpreter’s fee to be recovered under subparagraph (h) is therefore consistent with the inclusion of the disbursements allowed under sub-paragraphs (f) and (g). I would therefore hold that the application of normal principles of construction does not preclude the interpretation of sub-paragraph (h) for which Mr Williams contends. Far from it: in my judgment, the application of normal principles strongly supports his proposed interpretation. I would have reached this conclusion before the 2021 Amendments. At [59] the court noted that in Cham, the disbursement was only incurred after parties had settled, so had no impact on reaching the settlement concerned, whereas without an interpreter, a Claimant who did not speak English could not even get their claim off the ground. The court also noted that the cost of counsel's advice was deemded to be included in the costs allowed in Table 6B, whereas if an interpreter's fee was not recoverable as a disbursement, it was not remunerated at all, either actually or notionally. Therefore the Court of Appeal held that the cost of translator fees were recoverable. At [64] they concluded: "This distinction permits us to conclude that we are not bound by Cham to adopt an interpretation of sub-paragraph (h) which is not in accordance with the overriding objective on the different facts that are in play in the present appeal. I would accept that the effect of Cham is that a disbursement should ordinarily be held to be “reasonably incurred due to a particular feature of the dispute” within sub-paragraph (h) if it was required to enable the determination by the Court of a particular issue in the case rather than because of a particular characteristic of a party or witness. However, where considerations of access to justice arise, a broader interpretation is necessary to enable the dispute to be determined by the Court in accordance with the overriding objective. It follows, in my judgment, that the independent interpreter’s fee (assuming it to be reasonably incurred) is properly to be regarded as a disbursement falling within sub-paragraph (h)." Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Key Point Common law Mistake does not apply in the MOJ Portal Protocol Draper v Newport DJ Baker, Birkenhead CC, 3rd September 2014 Here the only issue was whether common law mistake applied to cases in the Portal. The Claimant's solicitor accidentally accepted the Defendant's offer. She immediately rang the Defendant but was unable to get through to the correct person. She uploaded a letter to the Portal within half an hour to confirm that the offer had been accepted in error. The judge considered the nature of the Portal and went through the facts against the over-riding objective. He determined that it would fundamentally undermine the Portal if common law mistake was allowed to apply. The Claimant's solicitor simply should have been more careful. It has been interesting to see how often this first instance and non-binding decision has been followed. It took 4 years for anyone to bring the issue to first tier appeal in Fitton v Ageas. Interestingly both counsel in the later case of Harris v Brown submitted that the Claimant here did not know that a mistake had been made, and thus distinguished it. Unfortunately that is clearly wrong, as the Claimant here was well aware that they had made a mistake, as shown by them uploading the letter to say exactly that. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Key Point Unreasonable to leave portal for technical non-compliance only Smith v Owen Birkenhead CC, DJ Campbell, 30th Nov 2016 Here the claimant removed the claim from the MOJ RTA Portal for of two disbursements, one for photographs and one for the DVLA disbursements. The issue was whether the Claimant had acted unreasonably in doing so. The disbursement for photographs was not agreed. The Defendant said as much and it was virtually common ground that in disputing the disbursement, saying why it was in dispute, then the Defendant was not in breach by failing to pay that. The main argument was on the non-payment of the DVLA disbursement, a mere £2.50. The Claimant relied on the case of Chisanga which had held it was reasonable to leave the Portal for non-payment of the DVLA disbursement. However, DJ Campbell disagreed, noting she had been a solicitor for 20 years and would have been appalled at the idea of anyone in her firm issuing proceedings simply because of a non payment of £2.50 which it was well known would easily be 'scooped up' to be paid when the final order was made. The court decided at [47] that whilst there was no obligation under the rules for a Claimant to check with a Defendant why the £2.50 had not been paid, it was incumbent on any solicitor acting reasonably to have queried where the £2.50 was. She confirmed the approach of DJ Peake in Kilby v Brown to act reasonably and enquire before issuing. Whilst she acknowledged this made her decision at odds with another judge at the same court, she reached this decision based on her interpretation of the rules and meant no criticism on the other judge. The Claimant had acted unreasonably in leaving the Portal, and would be restricted 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 A claim which starts in the Portal - but the claimant then dies - is not the same claim and thus is not subject to the fixed costs of SIIIA of CPR 45 West (Executor of the Estate of the late Kenneth Morriss) v Burton [2021] EWCA Civ 1005 The Court upheld the decision of HHJ Wood QC on whether fixed costs of SIIIA applied to a claim where it had started in the Portal process, but left because the Claimant had died (unrelated to the accident.) The Court of Appeal noted at [39] that the meaning of 'claim' and 'claimant' were not the same in the Portal process as with 'normal' litigation and thus the definition of 'claim' in para 1.1(6) of the Portal protocol was not to be equated with the definition of 'claim' in CPR 2.3. The person who concluded the claim was the claimant's executor, not the same person as the person who started the claim in the Portal. Therefore SIIIA costs did not apply. The Claimant was entitled to SII fixed costs, the old 'predictive' costs. The judgment concludes by noting it would be a matter for the Rules Committee to consider if they should amend the rules to cover this situation in express terms. This seems unlikely given that this is the first case since the inception of the Portal in 2010 where such an issue appears to have arisen. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Key Point Soft Tissue Injury Claims must disclose first report before subsequent reports are disclosed Mason v Laing HHJ Gosnell, Bradford CC, 20th Jan 2020 HHJ Gosnell held that a Claimant in a soft tissue injury claim could not rely on subsequent reports where the first report had not been disclosed before the subsequent reports. Damages were assessed based on the first report only. He noted that PD8B stipulated that parties could only rely on evidence in Stage 3 where this had been sent under the relevant protocol and as this had not been sent in accordance with the protocol rules, it could not be relied upon. He also found that there was no provision in the Portal Protocol to allow any application for Relief from Sanctions, complying with the usual finding that the Portal is an entirely stand-alone code. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Key Point Late acceptance of a Part 36 offer in SIIIA CPR 45 Fixed Costs Hislop v Perde;Kaur v Committee (for the time being) of Ramgarhia Board Leicester [2018] EWCA Civ 1726 Costs consequences of acceptance of a Part 36 offer are prescribed in CPR 36.13. However, not when a claim is governed by SIIIA, i.e. it was previously in the Portal, because CPR 36.20 operates INSTEAD not as well as 36.13. CPR 36.20 does not disapply fixed costs where there has been late acceptance. CPR 45.29J costs are still available but are unaffected by late acceptance alone. At para 44 of the judgment it says: Whilst the general rule dealing with costs consequences following judgment (r.36.17) is expressly preserved by the particular rule relating to the fixed costs regime (r.36.21), that is not the position in relation to the rules relating to the costs consequences of accepting Part 36 offers before trial. For that situation, the general rule (r.36.13, old rule r.36.10) is not preserved by the rule applicable to fixed costs cases (r.36.20, old rule r.36.10A). Instead, r.36.20 makes plain that it is the only rule which applies to the costs consequences of acceptance of a Part 36 offer in fixed costs cases. It preserves no part of the general rule set out in r.36.13. 45. What is more, r.36.13 itself says that it is “subject to” r.36.20 which, because that rule applies to fixed costs cases and r.36.13 does not, also leads to the conclusion that r.36.13 does not apply to fixed costs cases. Where (without more) a general rule is made ‘subject to’ a specific rule that governs a particular class of case then, in that class of case (here, those subject to fixed costs), it will be the specific rule that applies, not the general rule (see Solomon). 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

Sarah Robson Barrister Fixed Costs Specialist Call now on 0800 634 9650 MOJ RTA & EL/PL Portals & Fixed Costs Sarah has a wealth of knowledge and experience in dealing with fixed costs cases, including those to do with the MOJ Portals. See the Portal & Fixed Costs Cases Index page for details of Fixed Costs case law. THE MOJ PORTAL PROTOCOLS EL/PL Portal Protocol The EL/PL Portal Protocol can be found here: https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/pre-action-protocol-for-low-value-personal-injury-employers-liability-and-public-liability-claims Current RTA Portal Protocol The current RTA Portal Protocol can be found here: https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/pre-action-protocol-for-low-value-personal-injury-claims-in-road-traffic-accidents-31-july-2013 Published Articles Sarah has written a number of articles on the MOJ Portal and Fixed Costs and often lectures on this topic. These include: PI Briefing Ordered out by judge - held to be an election to leave Portal Click here for an article by Sarah which appeared in PI Briefing Sept 15 the case of Payne v Scott - on how she persuaded the court to find that where an earlier judge had ordered a claim out of the Portal and into Part 7 proceedings, that was still an election by the claimant to leave the portal. Inside the Portal Click here for an article by Sarah which appeared in Claim Magazine in December 2012 "Sarah Robson - Inside the Portal." Claim Magazine PI Focus Binding nature of Portal Settlements PI Focus June 16 - Sarah had an article published regarding accepting individual heads of loss in the Portal, and the binding nature of Portal settlements. The Quirks of the MOJ Portal Click here for an interview with Sarah Robson which appeared in FOIL (Forum of Insurance Lawyers) November 2012 "The Quirks of the MOJ Portal." FOIL Magazine Lexis Nexis Webinar The claims Portal, Protocols and Fast Track Click below for details of a webinar by Sarah Robson on Lexis Nexis. http://www.lexiswebinars.co.uk/speakers/sarah-robson Speaking Engagements Sarah is often invited to speak at events, seminars and training sessions. She can tailor her courses to suit the audience from senior partner level to the man on the Clapham Omnibus. Please call or email for details.

Key Point Where there are two claimants in a SIIIA fixed costs claim, each claimant is entitled to a separate award of fixed costs Melloy & Anor v UK Insurance Ltd [2022] EW Misc 4 (CC) The court had to consider what costs to award two claimants where they had brought separate claims in the portal, but a joint claim in Part 7 proceedings. At [10], HHJ Glen held that 'claim' and 'claimant' refer to the claim started by, and the claimant who submitted the CNF, rather than to the claim or claimant in the proceedings. He derived support for this position from West v Burton [2021] EWCA Civ 1005, where the court found that the executor of a claimant who had died after Portal proceedings had commenced was not 'the claimant' for the purposes of fixed costs on leaving the Portal. Therefore, he concluded that where there were two or more claimants in proceedings for damages that fall within SIIIA of CPR 45, assuming each had submitted a CNF, were separately entitled to all the costs set out in Table 6B. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Key Point Recoverability of disbursements in SIIIA cases Coleman v Townsend Master Haworth, SCCO, 13th July 2020 This was an appeal from an Oral Review of a Provisional Assessment. The appeal was limited to two items; Counsel's abated brief fee for trial and Counsel's skeleton argument. The costs were governed by SIIIA of CPR 45. The defendant made a Part 36 offer just over 21 days before trial. There was an order for skeleton arguments to be exchanged two clear days before trial, so the relevant period of the offer included the due date for the skeleton arguments. The claimant accepted the defendant's offer the day before trial, and sought their costs of the ordered skeleton argument and abated brief fee. At first instance the court had disallowed counsel's fee for drafting the Particulars of Claim, but allowed the fee for the skeleton argument and abated brief fee. The defendant appealed. The claimant was represented by Ben Williams QC and the defendant by Sarah Robson . Mr Williams argued that the brief had to be delivered before the day of the trial, it would have been unreasonable not to have done so. He sought the abated brief fee not under Table 6B section D as that is clearly only payable on the day of trial which had not been reached but rather under CPR 45.29I(2)(h). He further argued that the defendant could not complain where they had made an offer open for acceptance for 21 days where those 21 days included the due date for skeleton arguments - there was nothing wrong with waiting to see what arguments were going to be presented before deciding to accept the defendant's offer. He also argued that the 'swings and roundabouts' argument no longer applied in the post-LASPO world. The hearing was adjourned part heard pending the decision in Cham v Aldred . Once that decision was published, the claimant then argued that the trial advocates' fee was not earned under Table 6B, as that fee is only earned on the date of trial itself, but rather simply as a disbursement and was recoverable under ss(h). There was therefore no duplication of the trial advocacy fee in Table 6B. The defendant argued that fixed costs were designed to give certainty and the trial advocacy fee was clearly intended to only be recoverable inter-parties once the day of trial had been reached. Likewise the skeleton argument was part of the trial preparation and should similarly be disallowed. The judge preferred the submissions of the Appellant/Defendant, finding that the costs of preparing for trial included preparing the skeleton argument and that stage had simply not been reached. It was therefore not payable, and 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 Portal Admission binding outside the Portal even when m ade by Employer's Insur er Mullen v Nelson Insurance Co Ltd HHJ Wood QC, Liverpool CC, 2nd Oct 2020 Both parties brought claims in the Portal against one another for the same accident. The Claimant was driving his employer's vehicle and unknown to him, the insurers admitted liability for the accident in the Portal. Mr Mullen's Portal claim dropped out, and Part 7 proceedings were issued. The Defendant relied on the Portal admission in the Part 7 proceedings, and invited the Claimant to discontinue. However, the Claimant insisted it was not his admission and he was not bound by it. The Portal was a highly self-contained code and therefore an admission in one claim to which he was not a party could not affect another separate claim. However, the court disagreed, noting that the Claimant's employer's insurers had admitted that the accident was caused by Mr Mullen's negligence and he was bound by the admission. The court followed Chimel v Chibwana & Williams . Instructed by Matt Dowrick of Canford Law Solicitors. Click here for a Word 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 No test of reasonableness in not using the Portal at all Rafiania v All Type Scaffolding Ltd DDJ Corscadden, Manchester CC, 14th January 2015 The Defendant wrote to the Claimant and denied liability before a CNF was ever sent. CNFs sent for other occupants of the same vehicle in this accident and liability was denied. The Claimant, therefore, did not bother to send a CNF, thinking there was no point. The matter went through Part 7 proceedings, and damages were settled although costs were not. The Defendant argued that the Claimant should be restricted to Portal costs, per CPR 45.24(2)(c), as opposed to the more common CPR 45.24(2)(b). The Claimant argued that they had acted reasonably in not using the Portal at all. However, the court held that there is no test of reasonableness in not using the Portal at all, unlike in leaving or causing a claim to leave the Portal. It was not unlike 'strict liability'. Therefore the Claimant's ostensibly good reasons could not avail them. The Claimant was restricted to Portal costs. This case shows the importance of looking carefully at the Portal rules. The Claimant solicitors appeared in court all ready to argue how reasonable they had been, having completely missed the point that the rules are different for leaving the Portal and not using the Portal at all. Whilst arguably, it would have been pointless to have used the Portal, the rules are highly prescriptive and parties should note they must follow them closely. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index