Sarah Robson Barrister

Key Point

A claim which starts in the Portal but the claimant then dies is not subject to the fixed costs under SIIIA of CPR 45

West (Executor of the Estate of Kenneth Morriss deceased) v Burton

HHJ Wood QC, Liverpool CC, 16th Oct 2020

The Court had to consider whether the fixed costs of SIIIA applied to a claim where it had started in the Portal process, but left because the Claimant had died.  In a lengthy and reserved judgment, HHJ Wood QC, the Designated Circuit Judge for Liverpool, held that they did not.  Instead SII of CPR 45 costs would apply, the old 'predictable costs'.  He held that the protocol process was rendered nugatory by the death of the original claimant.  He said when the estate then pursued a claim it was a different claimant entirely to the one who started a claim in the portal.  At [57] HHJ Wood QC said That did not involve a 'sleight of hand' but 'was the only sensible interpretation bearing in mind the unequivocal preclusion of personal representatives from the portal process.'  Para 4.5 of the portal protocol was rightly given primacy, the claimant under the protocol is the person starting the claim under the protocol.

Permission to appeal to the Court of Appeal granted December 2020.  Watch this space!

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