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Sarah Robson Barrister
0800 634 9650
The original Black Belt Barrister
email@sarahrobsonbarrister.co.uk
Fixed Costs Specialist
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.