Kerry Underwood

FIXED COSTS, ALL THE PORTALS AND FIXED RECOVERABLE COSTS

with 543 comments


All of these matters are dealt with in my new book – Personal Injury Small Claims, Portals and Fixed Costs, running to three volumes and 1,300 pages and costing £80.00 and available from me here or Amazon here.

ALL THE PORTALS AND FIXED RECOVERABLE COSTS

Personal Injury claims falling in the portal are the subject of an entirely different process. The Pre-action Protocol for Personal Injury Claims does not apply, but where the claim falls out of the process the protocols will then apply.

The original Road Traffic Accident portal came in to effect on 30 April 2010 in relation to qualifying road traffic accidents which occurred on or after that date.

In the first year, ending 30 April 2011, no fewer that 630,070 claims were submitted through the portal.

In the year 1 May 2011 to 30 April 2012 a total of 796,920 claims were submitted through the portal and in the year ending 30 April 2013 a total number of 883,363 claims were submitted through the portal.

From 1 May 2013 to 31 December 2013 a total of 497,675 claims were submitted through the road traffic accident portal.

The new Road Traffic portal effective 31 July 2013, appears as Annex B of the 65th Update – Practice Direction Amendments and the new Employers’ Liability and Public Liability portal, also effective 31 July 2013, appears at Annex C of the same document. Strictly they are known as the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents and the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims.

The 65th Update itself, as compared to those two annexes, does not make any significant changes.

Road Traffic

 Claims brought within the Road Traffic Accident portal process operate within three key stages:-

  1.  Stage 1

The claimant completes a Claim Notification Form (CNF) on https://www.rapidclaimsettlement.org.uk/ and sends it electronically to the defendant insurer. Insurers have 15 business days to respond with a decision on liability, but the Motor Insurers’ Bureau (MIB) has 30 days to respond. In each case the response must be electronic.

  1. Stage 2

Once the defendant’s insurer has made an admission of liability, the claimant solicitor obtains a medical report. Where it is clear from the outset that an additional medical report is necessary from a medical expert in a different discipline, a second report may be obtained from a medical expert in that discipline. There is no fixed timetable for obtaining the medical report.

Within 15 business days of the report being confirmed as factually accurate, the claimant solicitor completes the Stage 2 settlement pack form. This is sent electronically to the insurer together with the medical report and any receipts/evidence of special damages claimed.

The insurer has 15 business days from receipt of the settlement pack to consider and either accept the claimant’s offer or make a counter offer. Where the defendant’s insurer makes a counter offer, there is a further 20 business days for consideration and negotiation between the parties.

Where agreement on quantum has not been reached at the end of the 20-day consideration and negotiation period, the claimant will prepare the Stage 3 version of the settlement pack form. Where the parties have not reached agreement to settle the case by the end of the negotiation period, the next step will be a Stage 3 hearing to determine quantum.

  1. Stage 3

Where quantum cannot be agreed by the end of Stage 2 and the court has to determine the amount of damages, this involves the further exchange and submission of pro-forma documents to the court. There will be a paper only hearing unless the judge otherwise directs or either party requests an oral hearing. Stage 3 is instigated by Part 8 proceedings being issued.

Where an offer has been made and settlement is reached after the issue of the claim but before the trial commences, fixed recoverable costs of £250 apply.

The agreed damages and fixed costs must be paid within ten days of settlement.

Pre 31 July 2013

In relation to road traffic accidents where the Claim Notification Form (CNF) was issued on or after 30 April 2013, the new, much lower, portal fees apply, but the system is essentially unchanged.

Cases where the conditional fee agreement was entered in to prior to 1 April 2013 still attract a success fee from the defendant, even in the new lower costs regime. This will apply to all cases taken on under a CFA prior to 1 April 2013 even if not portalled until 30 April 2013 or afterwards.

The position is the same in relation to after-the-event insurance recoverability.

Road Traffic Accidents

Fixed recoverable costs under the road traffic accident portal unsurprisingly apply only where the dispute arises from a road traffic accident (CPR 45.7(2)(a)). So what is a “road traffic accident”?

CPR 45.7(4) states:

‘(4)         In this Section–

(a)       ‘road traffic accident’ means an accident resulting in bodily injury to any person or damage to property caused by, or arising out of, the use of a motor vehicle on a road or other public place in England and Wales;

(b)      ‘motor vehicle’ means a mechanically propelled vehicle intended for use on roads; and

(c)       ‘road’ means any highway and any other road to which the public has access and includes bridges over which a road passes.’

In Schneider v Door2door PTS Ltd [2011] EWHC 90210 (Costs), the issue was:

‘did the Claimant, Mrs Schneider, suffer injury in a road traffic accident, in which case her costs are limited to those fixed under the recoverable costs regime in CPR rule 45 Part II; or are they “at large” because the accident was an accident, but not a road traffic accident and accordingly her costs are recoverable without limit, subject to being proportionate and reasonable?’

The facts were that the claimant was offered transport by an NHS Trust after a hospital appointment. Following the appointment the claimant was waiting with another patient. Transport was provided by the defendant. The claimant was informed by the defendant that the steps at the side of the transport vehicle were not working. They were supposed to unfold so that the patients could use them to gain access to the vehicle. Instead, the defendant offered the claimant a steep ramp which was for wheelchairs or passage through the central part of the vehicle. She chose the latter. She was holding on to two contact points (one of which was a handle). She placed her foot high up and this was on the floor of the vehicle. As she transferred weight onto the right foot, she felt her hip dislocate. The subsequent claim for damages against the defendant for negligence succeeded with a costs order in the claimant’s favour.

The claimant’s bill of costs sought a total of £22,982.91 including VAT and disbursements, whereas it was the defendant’s case that the costs should be limited to those payable under the fixed costs RTA regime in CPR 45, section 2 so that no more than £800, plus 20% of the damages calculated at £1,000 and a success fee of 12.5% plus VAT together with a reasonable sum for the disbursements listed in CPR.45.10(2), would be payable.

The rules state, so far as relevant:

‘In this Section –

(a)    “road traffic accident” means an accident resulting in bodily injury to any person or damage to property caused by, or arising out of, the use of a motor vehicle on a road or other public place in England and Wales;

(b)   “motor vehicle” means a mechanically propelled vehicle intended for use on roads; and

(c)    “road” means any highway and any other road to which the public has access and includes bridges over which a road passes.’

It was common ground that the transport vehicle belonging to the defendant was a ‘motor vehicle’ within the meaning of CPR 47.7(4)(b) and that at the date of the accident it was parked on a ‘road’ within the meaning of sub-section (4)(c). Following the Court of Appeal’s reasoning in Dunthorne v Bentley & Hume (Administrators of the Estate of Diane Elizabeth Bentley) and Cornhill Insurance Plc [1996] PIQR 323, the Master concluded:

‘Whilst I accept in layman’s terms that it might appear to defy logic were I to find on the facts of this case, that a road traffic accident could have taken place when, at the moment of injury, (1) Mrs Schneider was not the owner of the vehicle, (2) she was not inside the vehicle, (3) she was not the driver of the vehicle, (4) the vehicle was not in motion and (5) the vehicle was not in collision with Mrs Schneider or another vehicle, it is clear from Dunthorne that for a road traffic accident to occur, the tortfeasor’s vehicle does not need to be moving, nor must it be involved in a collision. On the contrary, in Dunthorne the Court of Appeal held that a road traffic accident had occurred through Mrs Bentley’s use of the car, even though at the moment of injury, it was stationary, undriveable and she was moving away from it. It follows that simply because the mini-bus had not commenced its journey, nor had it collided with another vehicle or pedestrian, that no road traffic accident could have taken place*. As was the case in Betty Green, I consider that use of the minibus occurred when Mrs Schneider placed her foot on the floor and her hands on the holding contact points, one such point being a handle. From that moment, she was engaged in an act or mode of “using” the vehicle and contrary to Mr James’ submission, in my judgment, what Mrs Schneider was not doing was simply putting herself into a position so that she could use it and that that use would not start until she was safely in her seat and the mini-bus had set off. Far from being a “causal concomitant”, in my judgment, her injury arose out of her use of the contact points and vehicle floor which were causal to the injury Mrs Schneider suffered.’

The claim was therefore deemed to be an RTA under the rules. As the claim settled for £5,000, the costs fell within the fixed recoverable costs regime in CPR 45 and were limited accordingly.

 

Exclusions

Note that the new RTA portal does NOT apply to a claim in respect of a breach of duty owed to a road user by a person who is not a road user.

Thus although an injury allegedly caused by, for example, defective road repairs is a road traffic accident it does not enter the road traffic accident portal.

It is arguable that it does not enter the new Employers’ Liability/Public Liability portal either as that portal excludes claims

“for damages arising out of a road traffic accident (as defined in paragraph 1.1(16) of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents.”

Paragraph 1.1(16) reads:-

“(16) ‘road traffic accident’ means an accident resulting in bodily injury to any person caused by, or arising out of, the use of a motor vehicle on a road or other public place in England and Wales unless the injury was caused wholly or in part by a breach by the defendant of one or more of the relevant statutory provisions1  as defined by section 53 of the Health and Safety at Work etc Act 1974;”

and thus does not take matters any further.

Now it is likely that that exclusion from the Employers’ Liability/Public Liability portal was to stop RTA matters being brought in the Employers’ Liability/Public Liability portal where fees are higher, but the exclusion in the RTA portal appears to mean that such cases do not go in to either portal.

A case not going in to either portal cannot go in to Fixed Recoverable Costs, but rather goes straight to open standard costs.

 

COSTS IN THE PORTALS

 Pre 30 April 2013

From   £1,000.00 to £10,000.00 £
Stage 1 – £400.00
Stage 2 – £800.00
Total      £1,200.00

 

Post 29 April 2013

The post 29 April 2013 road traffic accident fees are:-

From   £1,000.00 to £10,000.00 £
Stage 1 – £200.00
Stage 2 – £300.00
Total      £500.00

(The Civil Procedure (Amendment No. 3) Rules 2013, SI 2013 No 789 (L.7))

The post 30 July 2013 fees are:-

From   £10,000.00 to £25,000.00 £
Stage 1 – £200.00
Stage 2 – £600.00
Total      £800.00

 In both portals the Stage 1 fee is payable 10 days after receiving the Stage 2 Settlement pack and the Stage 2 fee is payable 10 days after settlement is agreed.

 

Stage 3 Hearings

In all cases in all portals, whatever the value of the claims, the Stage 3 fee is £250 for a paper hearing and £500 for an oral hearing.

All fixed costs at all stages are exclusive of VAT.

 

Type A, B and C fixed costs

 Type A

Type A fixed costs are the legal representative’s Stage 3 costs for a paper hearing and in the Road Traffic Accident portal are £250.00 plus VAT.

In the Employers Liability and Public Liability portal which came into place on 31 July 2013, Type A fixed costs are £250.00 plus VAT.

  

Type B

Type B costs are additional advocate’s costs for conducting an oral Stage 3 hearing and are also £250 for Road Traffic Accident portal cases and are the same for the Employers’ Liability and Public Liability portals, giving a total fee of £500 for an oral Stage 3 hearing in all portals.

 

 Type C

Type C fixed costs are the costs for the advice on the amount of damages where the claimant is a child and are £150 in the Road Traffic Accident portal and are the same in the new Employers’ Liability and Public Liability portals.

Note that neither of the portals applies to protected parties within the meaning of CPR 21.1(2), for example a person lacking capacity within the meaning of the Mental Capacity Act 2005 (paragraph 4.3(2) of the EL and PL portal and paragraph 4.5(2) of the new RTA portal).

Although children are dealt with in CPR 21 they are not protected parties. The heading of CPR 21, and the term used throughout, is Children and Protected Parties. (My emphasis).

Note also that while both the portal and the Fixed Recoverable Costs Scheme allow for an additional fee in relation to a matter involving a child there appears to be no provision for such an additional fee if the matter is settled after exiting the portal but before proceedings are issued.

There appears to be nothing to stop a claimant issuing proceedings while the matter is still in one of the portals, provided that the appropriate time has expired since lodging the Claim Notification Form, which stands as the Letter of Claim.

Claimants may wish to do this in children cases to avoid the lacuna whereby no additional fee is payable in a child case where the matter has exited the portal but not yet been issued.

 London enhancement

The 12.5% uplift continues to apply where the claimant lives or works in certain areas of London – see below.

Road Traffic

Post 30 July 2013

On 31 July 2013 the road traffic portal was extended to cover claims up to £25,000, but only where the accident occurs on or after 31 July 2013 for claims between £10,001 and £25,000. (Paragraph 1.2(1)(a) and (b) of the new RTA protocol).

The trigger for road traffic accidents between £1,000 and £10,000 entering the portal is that the accident occurred between 30 April 2013 and 30 July 2013 inclusive.

On 31 July 2013 the new portal was introduced covering Employers’ Liability and Public Liability claims up to £25,000.

KEY DATES: ALL PORTALS

Road Traffic

£1,000 – £10,000

CNF pre 30 April 2013 = Old, higher costs
CNF 30 April 2013 onwards = New, lower costs

£10,001 – £25,000

Cause of action pre 31 July 2013 = does not enter portal
Cause of action 31 July 2013 onwards = enters new portal

Employers’ Liability and Public Liability except industrial diseases

Cause of action pre 31 July 2013 = does not enter portal
Cause of action 31 July 2013 onwards = enters new portal

 Industrial diseases

Letter of claim pre 31 July 2013 = does not enter portal
Letter of claim 31 July 2013 onwards = enters new portal

The protocols are generally well-written, clear and logical, but one small point to note concerns paragraph 4.1 of the new RTA portal which states that the portal applies to accidents where the CNF is submitted on or after 31 July 2013.

On the face of it, this picks up pre 31 July 2013 accidents up to £25,000. In fact it does not, due to paragraph 1.2(1)(b) of the RTA portal which provides that the portal’s upper limit is £10,000 for pre 31 July 2013 accidents.

Thus from 31 July 2013 the starting point is that all road traffic, public liability and employers’ liability claims up to £25,000 go in to one of the two portals where the cause of action arose on or after 31 July 2013.

Small claims, that is currently all personal injury claims where general damages are £1,000 or less are excluded from the portal. (Paragraph 4.1(4) of RTA portal and Paragraph 4.1(4) of the EL and PL portal).

The new Employers’ Liability and Public Liability Portal

The key date for Employers’ Liability and Public Liability claims is the cause of action, NOT the date of notification.

In an industrial disease claim the key date is the date of the letter of claim.

Thus the new portal applies where the cause of action arose on or after 31 July 2013, or in the case of a disease claim, where the letter of claim is sent on or after 31 July 2013. (Paragraph 4.1(1)).

£25,000 is the valuation on a full liability basis including pecuniary losses but excluding interest. (Paragraph 4.1(3)).

In the first six months of the portal, that is from 1 August 2013 to 31 January 2014, a total of 10,568 accident claims have been submitted through the Employers’ Liability portal and a total of 3,777 disease claims have been submitted through the Employers’ Liability portal.

In the same period a total of 18,265 Public Liability claim have been submitted through the portal.

Conditional Fee Agreements

 The key date is 1 April 2013. If the CFA is pre-1 April 2013 then the success fee is recoverable from the other side; if not then it is not. The date of the CNF and whether the case is portalled or not, or goes into Fixed Recoverable Costs or not, is irrelevant to the issue of recoverability of the success fee.

After-the-Event Insurance

 Exactly the same conditions apply as for conditional fee agreements in relation to recoverability.

LEVEL OF COSTS – ALL PORTALS

Portal costs are dealt with in CPR 45.18 and are as follows:-

Fixed recoverable costs for claims within the rta and el/pl protocols

Claims of£1k-£10k

Stage 1              Stage 2             Total

Claims of£10k-£25k

Stage 1              Stage 2             Total

RTAClaims £200 £300 £500 £200 £600 £800
EL/PLClaims £300 £600 £900 £300 £1,300 £1,600

Claimants’ Costs

The fixed recoverable costs, set out in CPR 45.18, apply only in relation to a claimant who has a legal representative. (Paragraph 4.6 of the RTA portal and Paragraph 4.4 of the EL and PL portal).

Thus no-one but a legal representative can get portal costs, although claimants in person may use the portal (see Paragraph 5.10 of each portal). Thus a Claims Management Company cannot recover portal costs.

Where the claimant reasonably believes that the claim is valued at between £1,000 and £25,000 but it subsequently becomes apparent that the value of the claim is less than £1,000, the claimant is entitled to the Stage 1 and (where relevant) the Stage 2 fixed costs. (Paragraph 5.9 of each portal).

 

Defendants’ Costs

New CPR 45.29F has introduced capped, not fixed, costs for a defendant where a costs order is made in a case within the Fixed Recoverable Costs Scheme. The amount of the defendant’s recoverable costs is limited to the amount that the claimant would have received had s/he been successful at the same stage of proceedings.

Exemptions to the new rule capping defendants’ costs

Where the new Qualified One Way Costs Shifting rule applies, but is then disapplied, for example where a claim is found to have been fundamentally dishonest then the defendants’ costs are not capped.

CPR 45.29F(10) states that “where, in a case to which this Section applies, any of the exceptions to qualified one way costs shifting in rules 44.15 and 44.16 is established, the court will assess the defendant’s costs without reference to this rule”.

If Qualified One Way Costs Shifting never applied, eg because of the existence of a pre-1 April 2013 recoverable additional liability, then the new rule still applies.

The other exceptions, and the interplay between CPR 36 and new CPR 45.29 are of extreme complexity and are the worst drafted provisions that I have ever seen – and I have seen a few.

CPR 45.29F (9) reads:-

“Where, in a case to which this Section applies, upon judgment being entered, the claimant fails to obtain a judgment more advantageous than the claimant’s Part 36 offer, rule 36.14A will apply instead of this rule.”

This should read:-

“Where, in a case to which this Section applies, upon judgment being entered, the claimant fails to obtain a judgment more advantageous than the defendant’s Part 36 offer, rule 36.14A will apply instead of this rule.” (my emphasis)

Correction of this error in CPR 45.29F (9) would bring the rule in line with CPR 36.14A (3) which states as follows:-

(3)    Where the claimant fails to obtain a judgment more advantageous than the defendant’s Protocol offer—

(a)    the claimant will be entitled to the applicable Stage 1 and Stage 2 fixed costs in Table 6 or Table 6A in Section III of Part 45; and

(b)   the claimant will be liable for the defendant’s costs from the date on which the Protocol offer is deemed to be made to the date of judgment; and

(c)    in this rule, the amount of the judgment is less than the Protocol offer where the judgment is less than the offer once deductible amounts identified in the judgment are deducted.

(‘Deductible amount’ is defined in rule 36.15(1)(d).)

The new portals, Fixed Recoverable Costs and Part 36

 CPR 36.21 envisages three scenarios in relation to costs consequences following a Stage 3 hearing:

  • where the claimant fails to beat the defendant’s portal offer then the claimant must pay the defendant’s Stage 3 costs as well as not recovering its own Stage 3 costs;
  •  where the claimant beats the defendant’s offer but does not match its own offer the defendant pays the claimant’s Stage 3 costs;
  • where the claimant beats the defendant’s offer and matches or beats its own offer the defendant pays:

– the claimant’s Stage 3 costs;

–  interest on those Stage 3 costs at a rate not exceeding 10% above base rate;

– 10% additional damages;

– interest on all damages at a rate not exceeding 10% above base rate running from the first business day after the court proceedings pack (part A and part B) was sent to the defendant.

FIXED RECOVERABLE COSTS AND PART 36

 Section 1 of Part 36 remains in force for non-portal cases and also applies to cases which exit either of the portals.

A new CPR 36.10A provides that where a claimant accepts a Part 36 offer within the relevant period the defendant will pay the claimant’s costs up to the stage reached when the offer is accepted.

This is clearly open to abuse.   A defendant makes an offer which the claimant intends to accept but during the 21 day acceptance period another stage is due to be passed.  The claimant delays acceptance thus triggering an additional fee as the next stage is passed.

Where a defendant’s Part 36 offer is accepted after the relevant period the claimant gets the appropriate fixed costs applicable at the date of expiry of the relevant period, and the claimant pays the defendant’s costs from expiry to acceptance.

Where a claimant accepts the defendant’s protocol offer after the claim has exited the portal the claimant gets Stage 1 and 2 costs but pays the defendant’s costs from expiry to acceptance.

Judgment

 A new CPR 36.14A deals with the position on judgment, rather than acceptance of an offer, but the principles are exactly the same, save that the claimant who matches his or her own offer at trial gets indemnity costs, not fixed recoverable costs, from the date of expiry of the period for accepting the offer.

Defendants’ costs are capped, not fixed, by reference to the level of the claimants’ fixed recoverable costs.

Counterclaims

 Where a successful counterclaim is brought in an RTA claim which counterclaim includes a counterclaim for personal injury that counterclaim will attract the same fixed costs as though it had been a claim.

CPR 45.29G states:-

“(1) If in any case to which this Section applies—

(a) the defendant brings a counterclaim which includes a claim for personal injuries to which the RTA Protocol applies;

(b) the counterclaim succeeds; and

(c) the court makes an order for the costs of the counterclaim,

rules 45.29B, 45.29C, 45.29I, 45.29J, 45.29K and 45.29L shall apply”.

Where a successful counterclaim is brought in an RTA claim which counterclaim does not include personal injury, that counterclaim will attract 50% of the fixed costs applicable had it been a personal injury claim.

The new Employers’ Liability and Public Liability portal, and the accompanying Fixed Recoverable Costs Scheme, apply only to matters where the cause of action occurred on or after 31 July 2013, and thus by definition there will not be a recoverable success fee or after-the-event insurance premium and so Qualified One Way Costs Shifting (QOCS) will apply.

There is one possible exception and that is a pre-1 April 2013 industrial disease case with a pre-1 April 2013 recoverable success fee or after-the-event insurance premium. The date determining whether such a case is portalled is the date of notification, not the date of cause of action. Thus such a case may go in to the new portal AND not have QOCS protection. Industrial disease cases can never go in to Fixed Recoverable Costs; if they exit the portal they go straight to open costs for both sides.

When an Industrial Disease or illness claim exits the portal, then the Claim Notification Form can be used as the letter of claim under the protocol unless the defendant has notified the claimant that there is inadequate information in the CNF. (6.15 of the new portal).

However QOCS protection is lost in a whole host of situations – see Qualified One Way Costs Shifting (“QOCS”) – the most important of which is the failure to beat a defendant’s Part 36 offer. In such a case open, standard costs will be awarded to the defendant for the full sum.

The fixed costs sums are cumulative, although by deducting the cumulative total at the previous stage one can work out the extra costs at any given stage.

Procedure

The procedure is set out in detail in the relevant protocols, all of which are attached

–          Pre-action protocol for low value personal injury (Employers’ Liability and Public Liability) claims

–          Pre-action protocol for low value personal injury claims in road traffic accidents

Note that by paragraph 4.2 of the new RTA protocol the old protocol, that is the one that commenced on 30 April 2010, will continue to apply as it stands immediately before 31 July 2013 to all claims where the CNF was submitted before 31 July 2013.

PROCEDURE – EL AND PL PORTALS

Exclusions

Paragraph 4.3 lists 11 exclusions from the portal and thus the new EL and PL portal does NOT apply:-

(1)    where the claimant acts as personal representative of a deceased person;

(2)    where the claimant or defendant is a protected party as defined in CPR 21.1(2);

(3)    in the case of a public liability claim, where the defendant is an individual (‘individual’ does not include a defendant who is sued in their business capacity or in their capacity as an office holder);

(4)    where the claimant is bankrupt;

(5)    where the defendant is insolvent and there is no identifiable insurer;

(6)    in the case of a disease claim, where there is more than one employer defendant;

(7)    for personal injury arising from an accident or alleged breach of duty occurring outside England and Wales;

(8)    for damages in relation to harm, abuse or neglect of or by children or vulnerable adults;

(9)    which includes a claim for clinical negligence;

(10) for mesothelioma;

(11) for damages arising out of a road traffic accident (as defined in paragraph 1.1(16) of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents).

Key points to note are that mesothelioma, clinical negligence and road traffic accidents are excluded, with road traffic accidents entering a separate portal. Cases involving children, but not those involving protected parties, go in the portal.

Paragraph 6.1(2) of the Employers’ Liability and Public Liability protocol provides that if the insurer’s identity is not known or the defendant is known not to hold insurance cover, then the CNF must be sent to the defendant’s registered office or principle place of business and a Defendant Only CNF in not required.

6.1(3) provides that were the insurer’s identity is not known, the claimant must make a reasonable attempt to identify the insurer and, in an Employers’ Liability claim, the claimant must have carried out a database search through the Employers’ Liability Tracing Office.

In a disease claim the CNF should be sent to the insurer identified as the insurer identified as the insurer last on risk for the employer for the material period of employment (6.1(4)).

PROCEDURE – RTA PORTAL

Exclusions

The new RTA portal does NOT apply to a claim

(1)    in respect of a breach of duty owed to a road user by a person who is not a road user;

(2)    made to the Motor Insurers’ Bureau pursuant to the Untraced Drivers’ Agreement 2003 or any subsequent or supplementary Untraced Drivers’ Agreements;

(3)    where the claimant or defendant acts as personal representative of a deceased person;

(4)    where the claimant or defendant is a protected party as defined in CPR 21.1(2);

(5)    where the claimant is bankrupt;

(6)    where the defendant’s vehicle is registered outside the United Kingdom

Note that the portal DOES apply to MIB uninsured driver claims. (Paragraph 4.5), and does apply to children, but not to cases involving protected parties.

Note that the new RTA portal does NOT apply to a claim in respect of a breach of duty owed to a road user by a person who is not a road user.

Thus although an injury allegedly caused by, for example, defective road repairs is a road traffic accident it does not enter the road traffic accident portal.

It is arguable that it does not enter the new Employers’ Liability/Public Liability portal either as that portal excludes claims

“for damages arising out of a road traffic accident (as defined in paragraph 1.1(16) of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents.”

Paragraph 1.1(16) reads:-

“(16) ‘road traffic accident’ means an accident resulting in bodily injury to any person caused by, or arising out of, the use of a motor vehicle on a road or other public place in England and Wales unless the injury was caused wholly or in part by a breach by the defendant of one or more of the relevant statutory provisions1  as defined by section 53 of the Health and Safety at Work etc Act 1974;”

and thus does not take matters any further.

Now it is likely that that exclusion from the Employers’ Liability/Public Liability portal was to stop RTA matters being brought in the Employers’ Liability/Public Liability portal where fees are higher, but the exclusion in the RTA portal appears to mean that such cases do not go in to either portal.

A case not going in to either portal cannot go in to Fixed Recoverable Costs, but rather goes straight to open standard costs.

Exiting the portal

 The claim will no longer continue under either protocol where the defendant within the relevant period:-

(1)    makes an admission of liability but alleges contributory negligence, other than in relation to a claimant’s admitted failure to wear a seat belt in an RTA matter; (6.15(1) RTA, 6.13(1) Employers’ Liability and Public Liability)

(2)    does not complete and send the CNF response (6.15(2) RTA, 6.13(2) Employers’ Liability and Public Liability)

(3)    does not admit liability (6.15(3) RTA, 6.13(3) Employers’ Liability and Public Liability)

(4)    notifies the claimant that the defendant considers that –

(a)    there is inadequate information in the CNF; or

(b)   if proceedings were issued, the small claims track would be the normal track for that claim. (6.45(4) RTA, 6.13(4) Employers’ Liability and Public Liability).

Where a party withdraws a Stage 2 offer the matter exits the portal (7.46 RTA, 7.43 Employers’ Liability and Public Liability).

Where the defendant fails to make a counter-offer within the specified period the matter exits the portal (7.40 RTA, 7.37 Employers’ Liability and Public Liability).

There are a number of instances where it is unclear what the sanction is for failure to comply with the protocol requirements, notably:-

  • failure by defendant to acknowledge the CNF the next day, that is electronic acknowledgement of the CNF and sending the claim to the insurer within one working day where the CNF is received directly by the insured;
  • failure by an insurer in an Employers’ Liability case to provide wages information within 20 days where liability has been admitted;
  • failure to pay settlement monies, including Stage 2 costs, within 10 days of settlement;
  • failure to resubmit CNF to the insurer within 30 days where first CNF issued to the defendant (Employers’ Liability and Public Liability only).

Keeping it in the Portal

In Phillips v Willis [2016] EWCA Civ 401

the Court of Appeal said that the starting point should be that any matter that has started in the portal should stay within it and not be transferred to the Small Claims Track, or any other track, unless absolutely necessary and the decision here to transfer the matter to the Small Claims Track was wrong in law and irrational.

“Once a case is within the RTA protocol, it does not automatically exit when the personal injury claim is settled. On the contrary, the RTA process is carefully designed to whittle down the disputes between the parties as the case passes through the various stages. It is to be expected that the sum in issue between the parties will be much smaller when the case reaches Stage 3 than it was back in Stage 1. The mere fact that the personal injury claim has been resolved is not specified as being a reason to exit from the RTA process.”

Here the claimant was injured in a road traffic accident and liability was admitted and general damages for personal injury, together with other losses, were agreed and the only issue remaining in dispute related to car hire charges.

The matter proceeded to Stage 3 of the portal by virtue of the claimant issuing a claim under Part 8 of the Civil Procedure Rules.

However when the parties attended the hearing the District Judge transferred the matter to the Small Claims Track and made directions and this was on the basis that the only issue remaining was car hire charges and that the matter should proceed under Part 7.

The claimant appealed to the Circuit Judge who upheld the decision of the District Judge.

However the Court of Appeal overturned the District Judge’s decision. The Court of Appeal was critical of the District Judge saying that he had caused the parties to incur substantial extra costs as a result of the order which he made of his own motion in circumstances where both parties were happy to have the matter dealt with within Stage 3 of the portal.
The Court of Appeal said:-

“29. The costs which the district judge caused the parties to incur were totally disproportionate to the sum at stake. First, the parties would have to pay a further court fee of £335.00 as a result of the district judge’s order. Secondly, the parties would incur the costs of complying with the district judge’s elaborate directions.”

The Court of Appeal then set out those extensive directions and pointed out that the remaining sum in dispute was just £462.00.

The Court of Appeal went on to say:-

“30. I dread to think what doing all that would have cost, but that was not the end of the matter. Both parties would need to instruct representatives to attend the further hearing. They would also have to write off the costs of the 9 April hearing [the Stage 3 Portal Hearing]. At the end of all that, the winning party would recover virtually no costs, because the case was now proceeding on the small claims track.

  1. In my view, the district judge’s decision taken on 9 April 2014 that further evidence was necessary to resolve the outstanding dispute between the parties was irrational. The district judge was not entitled to reach that conclusion.”

The Court of Appeal recognized that the issue in the appeal is how courts should deal with low value road traffic accident claims where the personal injury element has been resolved and only a modest dispute about car hire charges remains.

Although this case involved the pre-31 July 2013 portal, the principle applies to the current portals.

The Court of Appeal gives a helpful summary of the Stage 1 and Stage 2 portal procedure and says that if the matter is not settled by the end of Stage 2, the “case then proceeds to Stage 3, which is litigation.”

The Court of Appeal then went on to say:-

“9. At this point, Practice Direction 8B takes centre stage. PD 8B requires the claimant to issue proceedings in the County Court under CPR Part 8. The practice direction substantially modifies the Part 8 procedure so as to make it suitable for low value RTA claims where only quantum is in dispute. This modified procedure is designed to minimise the expenditure of further costs and in the process to deliver fairly rough justice. This is justified because the sums in issue are usually small, and it is not appropriate to hold a full blown trial. The evidence which the parties can rely upon at Stage 3 is limited to that which is contained in the court proceedings pack. A court assesses the items of damages which remain in dispute, either on paper or at a single “Stage 3 hearing”.”

The Court of Appeal stated that the provision which was of key importance to the present case is paragraph 7 of Practice Direction 8B, relating to the Stage 3 process, which reads:-

“7.1. The parties may not rely upon evidence unless —

(1) it has been served in accordance with paragraph 6.4;

(2) it has been filed in accordance with paragraph 8.2 and 11.3; or

(3) (where the court considers that it cannot properly determine the claim without it), the court orders otherwise and gives directions.

7.2. Where the court considers that —

(1) further evidence must be provided by any party; and

(2) the claim is not suitable to continue under the Stage 3 procedure,

the court will order that the claim will continue under Part 7, allocate the claim to a track and give directions.

7.3. Where paragraph 7.2 applies the court will not allow stage 3 fixed costs.”

The Court of Appeal dismissed as irrelevant the fact that the personal injury element of the claim had been settled and that that personal injury element was the gateway to the portal.

The court held that the District Judge had no power under paragraph 7.2 of Practice Direction 8B to direct that the case should proceed under Part 7, rather than Part 8.

As to when that paragraph could ever apply the Court of Appeal suggested that there might be cases involving complex issue of law or fact which are not suitable for resolution at a Stage 3 hearing.

The Court of Appeal also considered CPR 8.1(3) which provides:-

“The court may at any stage order the claim to continue as if the claimant had not used the Part 8 procedure and, if it does so, the court may give any directions it considers appropriate.”

The Court of Appeal accepted that the language of that rule is wider than that in paragraph 7.2 of the Practice Direction but said that “CPR 8.1(3) cannot be used to subvert the protocol process”.

The Court of Appeal said that in any event the District Judge here was relying upon paragraph 7.2 of the Practice Direction, and not CPR 8.1(3) but if they were wrong in that view then it would have been an impermissible exercise of the power under CPR 8.1(3) to transfer this particular case out of Part 8 and into Part 7 of the CPR.

I am grateful to Steven Turner, Counsel for the Respondent, for background information in relation to this matter.

Further guidance, interim payments and admissions

In Mulholland v Hughes and Conjoined Appeals, No. AP20/15, Newcastle-upon-Tyne County Court, 18 September 2015

the court held that a defendant cannot raise an issue at a stage 3 hearing that had not been set out in the Response Pack at stage 2.

The court also held that it can order a claimant to repay money if, at the stage 3 hearing, it is found that the damages due are less than the sums already paid.

Here the judge was hearing four appeals in relation to the interpretation of the Pre-Action Protocol for Low Value Injury Claims in Road Traffic Accidents.

In three of the cases the defendant had not raised at stage 2 a point in relation to the need for a hire vehicle, but raised the point at the stage 3 hearing.

The judge rejected an argument that offers made by a defendant at stage 2 should be regarded as admissions but said that it was not open to a defendant to raise something at a stage 3 hearing that had not been raised at stage 2.

The court said that the Settlement Pack and Response are not pleadings but they do require the parties to set out their case and it is incumbent on a defendant to set out clearly the precise nature of the defence, that is what is agreed and what is disputed and why it is disputed.

The court referred to paragraph 7.41 of the Protocol:-

“The defendant must also explain in the counter-offer why a particular head of damage has been reduced. The explanation will assist the claimant when negotiating a settlement and will allow both parties to focus on those areas of the claim that remain in dispute.”

“It follows that it is the intention of the Protocol that if a defendant wishes to raise an issue such as the need for hire, that is to be done at the time of the making of the counter-offer. To allow a defendant to raise the issue of need at Stage 3 runs entirely contrary to the notion that at the end of Stage 2 the parties should have clarity as to what remains in dispute.”

The court also held that requiring the claimant to prove need for car hire in every case was inconsistent with paragraph 7.11 which provides that in most cases witness statements will not be required and this indicates that witness statements will only be needed where hire, or for example the need for care, is formally raised by the defendant at stage 2.

“Irrespective of the above, I regard it as inequitable and unfair for a defendant, for the first time, to raise the issue of need at the Stage 3 hearing. It seems to me that it is tantamount to trial ‘by ambush’. It hardly needs to be said that to litigate in that way runs entirely contrary to the spirit of the Protocol, the expected behaviour of the parties and the intended collaborative approach.”

“Finally, in relation to this ground of appeal, even if it were permissible for a defendant to raise the question of need at a Part 8 hearing, given the absence of any forewarning, in my judgment, the proper course would have been to adjourn to enable the claimant to file evidence to demonstrate need: this is permitted by paragraph 7.1(3) and paragraph 7.2 of the practice direction. As I have made clear, however, in my opinion, the defendant should be estopped from raising need at this very late stage.”

Repayment of sums paid

The court held that there was nothing to prevent the court from ordering repayment of monies already paid under the protocol.

In the fourth appeal, what was in issue was the amount of general damages for pain, suffering and loss of amenity and the judge had awarded a sum less than that offered by the defendant at stage 2 and ordered repayment of the difference and that decision was upheld in this appeal.

“It cannot be just or equitable that a claimant is entitled to retain a sum in excess of that which is awarded by the court at the end of a hearing. That would be, in my view, manifestly unfair to the defendant. I do not think that such was the intention of the Protocol. If the claimant chooses to go to a Stage 3 hearing, he must accept the risk that a court will award less than the non-settlement payment and that he will have to refund the difference.”

“In the final analysis, a Protocol offer is, in essence, what is now generally referred to as a ‘Part 36 offer’. It is, after all, governed by CPR Part 36. Its purpose is the same, principally to obtain protection in costs. There is a difference in that under the usual provisions of Part 36, no money is in fact paid to the claimant but it seems to me that the same principles should apply.”

“Arguably, the closest analogy is a ‘Payment into Court’ pursuant to RSC Ord. 22 and CCR Ord. 11 which were largely superseded by Part 36. (Although there is still provision for payments into Court by virtue of CPR Part 37.) Under the old regime, if a Claimant (Plaintiff) did not recover more than the sum paid into Court, the Defendant was entitled to have the balance returned to him.”

“Accordingly, my view is that the non-settlement payment should be treated as an interim payment and, therefore, governed by CPR Part 25.”

“The claimant should send the Stage 2 Settlement Pack to the defendant within 15 days of the claimant approving —

(1)          the final medical report and agreeing to rely on the prognosis in that  report; or

(2)          any non-medical expert report,

whichever is later.” (My italics)

I realize that that is in the context of a second or subsequent report from the same expert, for the reasons set out in paragraph 7.8, but the use of the word “final” in paragraph 7.33 strongly suggests that one cannot submit further medical evidence once the Stage 2 Settlement Pack has been sent to the defendant.

I am reinforced in that by paragraph 7.66 which provides:-

“Comments in the Court Proceedings Pack (Part A) Form must not raise anything that has not been raised in the Stage 2 Settlement Pack Form.”

One can see the logic of having a cut-off point. It could happen that the medical evidence was obtained after the case had been to court, or had been settled by acceptance of a Part 36 offer or whatever. In those circumstances one would not have been able to reopen the case.

What about a new report dealing with fresh symptoms or unexpected medical developments?

If the new report is relevant and admissible then it should be paid for by the defendant if the case is won. If it is not admissible then obviously the defendant does not have to pay for it.

I am presuming that any additional injury does not take the claim above the portal limit of £25,000.00. If it does there is no problem as that is a reason for exiting the portal.

However that still leaves open the question of whether any evidence not produced by the end of Stage 2 is ever admissible in subsequent Part 7 proceedings. To allow that would effectively allow a claimant to bypass the decision in Phillips v Willis by exiting the portal, issuing Part 7 proceedings and getting the new evidence in that way.

Paragraph 7.76 appears to give the claimant an unfettered right to exit the portal. The problem is that “where the court considers that the claimant acted unreasonably in giving such notice it will award no more than the fixed costs in rule 45.18.”

In Phillips v Willis the Court of Appeal said this at paragraph 11:-

“It is important to note that the RTA process has an inexorable character. If a case falls within the parameters of the RTA process, the parties must take the designated steps or accept the consequences. The rules specify what those consequences are. The rules also specify when a case must remain in the RTA process, when it must drop out of the process, and when it may drop out of the process.”

Exiting the portal to try and get such fresh evidence in is likely to result in the court finding that the claimant has acted unreasonably. In those circumstances the court is likely to order the claimant to pay all of the defendant’s costs for dealing with the matter out of the portal, even though the claimant wins the case.

In Uppal v Daudia LTLPI 9 July 2012

the Defendant successfully argued that the claimant had unreasonably removed the case from the portal.

This resulted in the successful claimant failing to recover over £20,000.00 in costs claimed and being ordered to pay the defendant’s costs on the indemnity basis.

Thus the defendant was awarded indemnity costs for having to defend unnecessarily Part 7 proceedings and the claimant was denied its claimed costs of over £20,000.00.

Practice Direction 8B, paragraph 7.1(3) allows the court to find that it cannot properly determine the claim without further evidence and in those circumstances, under paragraph 7.2, the court may find that the claim is not suitable to continue under the Stage 3 procedure and may order that the claim will continue under Part 7 and allocate the claim to a track and give directions.

However the comments of the Court of Appeal in Phillips v Willis should be noted and in that case they found that the District Judge had no power under paragraph 7.2 of Practice Direction 8B to direct that the case should proceed under Part 7.

At paragraph 36 of the judgment the Court of Appeal looked at the circumstances in which paragraph 7.2 might ever apply and referred to cases possibly involving complex issues of law or fact which are not suitable for resolution at a Stage 3 hearing.

CPR 8.1(3) provides:-

“(3) The court may at any stage order the claim to continue as if the claimant had not used the Part 8 procedure and, if it does so, the court may give any directions it considers appropriate.”

The Court of Appeal accepted that the language of that rule is wider than that in paragraph 7.2 and said that “CPR 8.1(3) cannot be used to subvert the protocol process.”

The cost of an admissible report is recoverable. There is no prohibition in obtaining a second medical report and one would not need to show that it was a disbursement reasonably incurred due to a particular feature of the dispute under CPR 45.29I (2) (h).

Even in a soft tissue injury claim paragraph 7.8B makes provision for a further medical report in certain circumstances.

Paragraph 7.2 of the portal states:-

“It is expected that most claimants will obtain a medical report from one expert, but additional medical reports may be obtained from other experts where the injuries require reports from more than one medical discipline.”
The limitation in paragraph 7.8 is in relation to a subsequent medical report from an expert who has already reported and does not deal with obtaining a medical report from a second or subsequent expert.

Paragraph 7.12 under the heading “Stay of Process” provides:-

“7.12.    Where the claimant needs to obtain a subsequent expert medical report or a non-medical report, the parties should agree to stay the process in this Protocol for a suitable period.  The claimant may then request an interim payment in accordance with paragraphs 7.13 to 7.16.”

Although that does not specify the stage of the proceedings reached where there can be a stay for this reason it does refer to interim payment and that is of course a pre-stage 2 issue and paragraph 7.12 appears amongst other pre-stage 2 matters.

If further medical evidence could be provided after the Stage 2 Settlement Pack has been sent, one would expect that to appear in paragraphs 7.32 onwards dealing with the Stage 2 Settlement Pack and subsequent events.

Other

CPR 45.18 fixed costs are only recoverable where the claimant has a legal representative, and thus are not payable to Claims Management Companies. (paragraph 4.6 of RTA portal and 4.4 of EL and PL portal). A claimant is allowed to portal in person (see Paragraph 5.10 of each portal).

Where the claimant reasonably believes that the claim is valued at between £1,000 and the protocol upper limit, but it subsequently becomes apparent that the value of the claim is less than £1,000, the claimant is entitled to the Stage 1 and (where relevant) the Stage 2 fixed costs. (Paragraph 5.9 of each portal).

Expert Reports – RTA

It is expected that in most claims with a value of no more than £10,000, the medical expert will not need to see any medical records. (Paragraph 7.5 of RTA portal).

In most cases, whatever the value, a report from a non-medical expert will not be required, but a report may be obtained where it is reasonably required to value the claim. (Paragraph 7.9(1) of RTA portal).

Expert Reports – EL and PL

It is expected that most claimants will obtain a medical report from one expert but additional medical reports may be obtained from other experts where the injuries require reports from more than one medical discipline (Paragraph 7.2 EL and PL portal).

Any subsequent medical report from an expert who has already reported must be justified and a report may be justified where –

(1)    the first medical report recommends that further time is required before prognosis of the claimant’s injuries can be determined; or

(2)    the claimant is receiving continuing treatment; or

(3)    the claimant has not recovered as expected in the original prognosis.

(Paragraph 7.6 of EL and PL portal).

Non-medical reports – EL and PL

Paragraph 7.7 of EL and PL portal provides that in most cases a report from a non-medical expert will not be required, but a report may be obtained where it is reasonably required to value the claim.

Counsel / Specialist Solicitor – all portals

The self-explanatory Paragraph 7.10 of RTA portal and 7.8 of EL and PL portal reads-

“In most cases under this Protocol, it is expected that the claimant’s legal representative will be able to value the claim. In some cases with a value of more than £10,000 (excluding vehicle related damages), an additional advice from a specialist solicitor or from counsel may be justified where it is reasonably required to value the claim.”

Paragraph 7.44 of RTA portal refers to “a sum equal to the Type C fixed costs of an additional advice on quantum of damages where such advice is justified under paragraph 7.10.” Exactly the same principle is set out in the EL and PL portal (Paragraph 7.41).

Paragraph 1.1(17) of RTA portal and 1.1(19) of EL and PL portal in the definition section states:-

““Type C fixed Costs” has the same meaning as in rule 45.18(2) of the Civil Procedure Rules 1998.”

CPR 45.18(2) sets Type C fixed costs at £150.00 (plus VAT).

Costs of expert reports and specialist legal advice

Where the claimant obtains more than one expert report or an advice from a specialist solicitor or counsel –

(a)    the defendant at the end of Stage 2 may refuse to pay; or

(b)   the court at Stage 3 may refuse to allow,

the costs of any report or advice not reasonably required.

(Paragraph 7.31(1) of RTA portal and 7.29(1) EL and PL portal).

Consequently where the claimant obtains more than one expert report or obtains an advice from a specialist solicitor or counsel –

(a)    the claimant should explain in the Stage 2 Settlement Pack why they obtained a further report or such advice; and

(b)   if relevant, the defendant should in the Stage 2 Settlement Pack identify the report or reports or advice for which they will not pay and explain why they will not pay for that report or reports or advice.

(Paragraph 7.31(2) of RTA portal and 7.29(2) EL and PL portal).

Claims for loss of earnings for attending court

 Where, under CPR 45.29 I (2)(g) loss of earnings, the court allows a claim for any loss of earnings or loss of leave by a party or witness due to attend a hearing or staying away from home for the purpose of attending a hearing, the specified sums, per day, for each person are:-

(a)    £90, where the value of the claim for damages is not more than £10,000; and

(b)   £135, where the value of the claim for damages is more than £10,000.

(65th Update – Practice Direction Amendments).

The sum of £90 reflects the amount allowable in the Small Claims Track in non-personal injury work; that track is for claims up to £10,000 and thus the witness allowances are unified between Small Claims civil matters and personal injury matters up to £10,000.

Interim Payments

Where a defendant makes an interim payment in accordance with Paragraph 7.19 of RTA portal and 7.18 EL and PL portal. but the claimant is not content with the amount paid, the claimant may start court proceedings.

However if the court makes no award, or an award no more that the defendant’s offer, then the court will order no more than Stage 2 fixed costs.

Offers

Any offer to settle made at any stage by either party will automatically include, and cannot exclude –

(1)    the Stage 1 and Stage 2 fixed costs;

(2)    an agreement in principle to pay a sum equal to the Type C fixed costs (£150 plus VAT) of an additional advice on quantum where such advice is justified under paragraph 7.10 of RTA portal and 7.8 EL and PL portal; (see above).

(3)    an agreement in principle to pay relevant disbursements allowed in accordance with CPR 45.19; or

(4)    where applicable, any success fee in accordance with CPR 45.31(1) as it was in force immediately before 1 April 2013.

(Paragraph 7.44 of RTA portal and 7.41 EL and PL portal).

Disputes re Costs

Where there is a dispute about whether an additional advice on quantum is justified or concerning the amount or validity of any disbursement a party may commence proceedings under CPR 45.29 so that the court may determine the amount.

Unreasonably exiting the Portal

Paragraph 7.76 of RTA portal and 7.59 EL and PL portal provides that where a court considers that the claimant acted unreasonably in serving notice that the claim was unsuitable for the portal it will award no more that CPR 45.18 fixed costs.

Note that the provision in the old portal whereby a case exited the portal if a defendant failed to acknowledge the CNF within one day of receipt has gone.

Although 6.10 of the new road traffic portal requires that the defendant must send to the claimant an electronic acknowledgement the next day after receipt of the CNF failure to do so no longer carries with it the penalty of the claim exiting the portal.

6.11 requires the defendant to complete the Insurer Response section of the CNF, the CNF Response, and send it to the claimant within 15 days and failure to do so does cause the matter to exit the portal (6.15(2)).

In the new Employers’ Liability and Public Liability portal the electronic acknowledgement requirement is at 6.10(a) and the CNF Response requirement is at 6.11 and again the matter does not exit the portal on the defendant’s failure to acknowledge, but does exit on failure to send the CNF Response (3.13(2)).

My view is that it would be unreasonable for a claimant to exit the portal merely because a defendant had failed to send the acknowledgement and that that would result in the claimant recovering only portal fees, even though the defendant is in breach of a requirement.

If the matter exits due to the defendant’s failure to complete and send the CNF Response, then the claimant gets Fixed Recoverable Costs.

There are at least three other areas where there is no sanction for breach of the rules:-

  • failure by the claimant to re-submit CNF within 30 days of first issue to insurer in Employers’ Liability and Public Liability claims;
  •  failure by the claimant to provide details of earnings claim within 20 days of the defendant making an admission of liability in an Employers’ Liability claim;
  •  failure by the defendant to pay the settlement monies within 10 days of the agreed settlement, including Stage 2 fixed costs.

ALL PORTALS

Stage 3 Hearings

In all cases in all portals, whatever the value of the claim, the Stage 3 fee is £250 for a paper hearing and £500 for an oral hearing.

VAT

All fixed costs listed are exclusive of VAT (CPR 45.18(6)).

London enhancement

The 12.5% uplift continues to apply where the claimant lives or works in an area set out in Practice Direction 45 and instructs a legal representative who practices in that area. (CPR 45.18(5)).

Paragraph 2.6 of Practice Direction 45 states that:-

“The area referred to in rules 45.11(2) and 45.18(5) consists of (within London) the county court districts of Barnet, Bow, Brentford, Central London, Clerkenwell and Shoreditch, Edmonton, Ilford, Lambeth, Mayors and City of London, Romford, Wandsworth, West London, Willesden and Woolwich and (outside London) the county court districts of Bromley, Croydon, Dartford, Gravesend and Uxbridge”

Children

An additional Type C payment of £150 plus VAT remains payable in cases involving children. Cases involving protected parties, either as claimant or defendant, do not go in to the portals.

In a portal case involving a child which proceeds to Stage 2 and is settled an application must still be made to the court for approval and the court requires the following information, as set out in Practice Direction 8B:-

  • the draft consent order;
  • advice by counsel, solicitor or other legal representative on the amount of damages;
  • a statement verified by a statement of truth signed by the litigation friend which confirms whether the child has recovered in accordance with the prognosis and whether there are any continuing symptoms. This statement will enable the court to decide whether to order the child to attend the settlement hearing;

If the court approves the settlement at a settlement hearing it will order the defendant to pay

(a)    Stage 1 and 2 fixed costs;

(b)   Stage 3 Type A, B and C fixed costs; and

(c)    disbursements allowed in accordance with rule 45.19 (CPR 45.21(2)).

Where the court does not approve the settlement at a settlement hearing it will order the defendant to pay Stage 1 and 2 fixed costs (CPR 45.21(3)).

Where the court approves the settlement at a second settlement hearing the court will order the defendant to pay:

(a)    Stage 3 Type A and C fixed costs for the first settlement hearing;

(b)   CPR 45.19 disbursements; and

(c)    Stage 3 Type B fixed costs for one of the hearings.

(CPR 45.21(5)).

The court has a discretion to also order either party to pay an amount equivalent to either or both the Stage 3 Type A or Type B fixed costs where the court does not approve the settlement at the first settlement hearing but does approve the settlement at a second settlement hearing (CPR 45.21(6)).

Infant settlement at Stage 3 or portal

CPR 45.22 applies where the claimant is a child and the matter is settled after proceedings are started under the Stage 3 procedure and the settlement is more than the defendant’s Road Traffic Accident protocol offer and an application is made to the court to approve the settlement.

A Stage 3 hearing to approve infant settlement or to assess damages must always be a hearing and will not be assessed on the papers.

Where the court approves the settlement at the hearing it will order the defendant to pay:

(a)    Stage 1 and 2 fixed costs;

(b)   Stage 3 Type A, B and C fixed costs; and

(c)    CPR 45.19 disbursements.

(CPR 45.22(2)).

Where the court does not approve the settlement at the settlement hearing it will order the defendant to pay Stage 1 and 2 fixed costs. (CPR 45.22(3)).

Where the court does not approve the settlement at the first settlement hearing, but does approve it at the Stage 3 hearing, it will order the defendant to pay:

(a)    Stage 3 Type A and C fixed costs for the settlement hearing; and

(b)   CPR 45.19 disbursements; and

(c)    Stage 3 Type B fixed costs for one of the hearings.

The court has a discretion to also order either the defendant or the claimant to pay an amount equivalent to either or both of Stage 3 Type A and Type B costs where the court does not approve the settlement at the first settlement hearing but does approve the settlement at the Stage 3 hearing (CPR 45.22(6)).

Where the settlement is not approved at the Stage 3 hearing the court will order the defendant to pay the Stage 3 Type A fixed costs (CPR 45.22 (7)).

Where the claimant is a child and at a settlement hearing, or Stage 3 hearing, the court orders that the claim is not suitable to be determined under the Stage 3 procedure it will order the defendant to pay:

(i)            Stage 1 and 2 fixed costs; and

(ii)            Stage 3 Type A, B and C fixed costs.

Where the court is to assess damages then an application to the court to determine the amount of damages must be started by a claim form on issuing the claim form the claimant must state the date when the Court Proceedings Pack (Part A and Part B) Form was sent to the defendant, copies of medical reports, evidence of special damages, evidence of disbursements and the value of the claim.

Note also that while both the portal and the Fixed Recoverable Costs Scheme allow for an additional fee in relation to a matter involving a child there appears to be no provision for such an additional fee if the matter is settled after exiting the portal but before proceedings are issued.

There appears to be nothing to stop a claimant issuing proceedings while the matter is still in one of the portals, provided that the appropriate time has expired since lodging the Claim Notification Form, which stands as the Letter of Claim.

Claimants may wish to do this in children cases to avoid the lacuna whereby no additional fee is payable in a child case where the matter has exited the portal but not yet been issued.

 Solicitor and own client costs

All matters set out above are fixed RECOVERABLE costs. Solicitors are allowed to charge client costs over and above these rates.

25% of the Allowed Damages Pool has become the standard. (See my recent blog – Conditional Fee Agreements, Damages-Based Agreements and Contingency Fees.)

FROM PORTAL TO FIXED RECOVERABLE COSTS

With effect from 31 July 2013 any case, except an Industrial Disease case, exiting any portal goes in to a new Fixed Recoverable Costs scheme and those Fixed Recoverable Costs are as per the table below.

Alone, industrial disease cases exiting the portal will go straight to open, standard costs and cannot be the subject of Fixed Recoverable Costs outside the portal.

A pre-31 July 2013 RTA portal case that is where the CNF was issued before 31 July 2013 that exits the portal now goes to the old so-called Predictable Costs Scheme which will soon wither on the vine.

Fixed recoverable costs for RTA, EL and PL claims falling out of the RTA and EL/PL protocols

Pre issue£1,000 – £5,000 Pre issue£5,001 – £10,000 Pre issue£10,001 – £25,000 Issued –Post issue

Pre Allocation

Issued –Post allocation

Pre listing

Issued –Post listing

Pre trial

Trial –Advocacy Fee
Case Settles before issue Case Settles before issue Case Settles before issue
Road   Traffic Accident
Fixed   Costs Greater of £550 or £100 + 20% of Damages £1,100+ 15% of Damages over £5k £1,930+ 10% of Damages over £10k £1,160+ 20% of Damages £1,880+ 20% of Damages £2,655+ 20% of Damages £500 (to £3,000)£710 (£3-10,000)

£1,070 (£10-15,000)

£1,705 (£15,000+)

Escape + 20% + 20% + 20% + 20% + 20% + 20% na
Employers   Liability
Fixed   Costs £950+ 17.5% of Damages £1,855+ 12.5% of Damages over £5k £2,500+ 10% of Damages over £10k £2,630+ 20% of Damages £3,350+ 25% of Damages £4,280+ 30% of Damages £500 (to £3,000)£710 (£3-10,000)

£1,070 (£10-15,000)

£1,705 (£15,000+)

Escape + 20% + 20% + 20% + 20% + 20% + 20% na
Public   Liability
Fixed   Costs £950+ 17.5% of Damages £1,855+ 10% of Damages over £5k £2,370+ 10% of Damages over £10k £2,450+ 17.5% of Damages £3,065+ 22.5% of Damages £3,790+ 27.5% of Damages £500 (to £3,000)£710 (£3-10,000)

£1,070 (£10-15,000)

£1,705 (£15,000+)

Escape + 20% + 20% + 20% + 20% + 20% + 20% na

Advocacy fees in fixed costs cases

The advocacy fee is a fixed add-on to the fee for the stage reached. This will often be at the end of the whole process, but could be at any post-issue stage, for example a quantum hearing post allocation but pre-listing where liability is admitted.

Otherwise you get what is in the box. The figures are most certainly NOT cumulative. All figures carry VAT on top.

In Mendes v Hochtief (UK) Construction Ltd [2016] EWHC 976 (QB)

the Queen’s Bench Division of the High Court held that the advocacy/brief fee in the Road Traffic Accident Fixed Costs Scheme is recoverable if the matter settles on the day of trial, and that “there are sound policy reasons for concluding that the interests of justice would be better served if the advocate was not penalized financially for negotiating a settlement at the door of the court.”

Here the parties attended at court for a fast track trial under the Road Traffic Accident Fixed Costs Scheme which provides for a fixed advocacy fee depending upon the amount awarded by the court.

On the morning of the trial the parties asked the judge for more time and settled the matter on the basis of £20,000.00 plus costs.

The judge assessed costs but refused to award the fixed advocacy fee as the case had been settled before the “final contested hearing” had started.

Under CPR 45.29(C) Table B a reference to “trial” is a reference to the final contested hearing.

The claimant appealed to the High Court.
The single issue was whether a trial advocacy fee is recoverable under the fixed costs scheme if a case settles on the day of trial but before the trial actually commences.

The High Court held that it was. Table B applies if a fixed costs matter is settled “on or after the date of listing but prior [to] the date of trial.”

A matter that settles on the date of trial obviously does not settle “prior” to the date of trial and thus is not covered by Table B.

Thus either the situation fell in Table C or was not covered at all. Table C refers to a “trial advocacy fee”.

The court held that the Civil Procedure Rules in relation to fixed costs “were intended to be a comprehensive guide to what was recoverable and when.”

The court cited with approval the decision of the High Court in

Nizami v Butt [2006] 1 WLR 3307 that the intention of a fixed recoverable costs regime:-

“…was to provide an agreed scheme of recovery which was certain and easily calculated. This was done by providing fixed levels of remuneration which might over-reward in some cases and under-reward in others, but which were regarded as fair when taken as a whole.”

If necessary, although the court doubted that it was, a purposive construction would be given to achieve that result.

The court also noted the difference in wording as compared with that relating to success fees which uses the term “concludes at trial”, the point being that the recoverable success fee jumps to 100% in those circumstances.

In three cases the courts had held that a trial had not started if settlement is reached beforehand, however close to the trial. Those cases are:-

Amin & Hussain v Mullings & Royal Sun Alliance [2011] 3 Costs LR 485

Sitapuria v Moorzadi Khan (Unreported), 10 December 2007, Liverpool County Court; and

James v Ireland [2015] 3 Costs LR 511

Those cases were on a different wording and reinforced the view of the High Court here, that is that a different conclusion on the different wording is not only possible but essential.

Comment

A correct and sensible decision. It should be noted that it is confined to settlements on the day of trial, as anything settled before will come within Table B as settled “prior to the date of trial”.

How many advocacy fees?

The Civil Procedure Rules in relation to the calculation of the fixed advocacy fee where the advocate is representing more than one claimant are silent in relation to the fixed costs scheme which follows on from the Road Traffic Accident Portal and the Employers’ Liability and Public Liability Portal.

There are, and have been for some time, fixed advocacy costs in all fast-track matters, although this is not widely known.

In relation to all fast-track trials except those flowing on from the portals the relevant rule is CPR 45.40 which provides:-

“(1)        Where the same advocate is acting for more than one party –

  • the court may make only one award in respect of fast track trial costs payable to that advocate; and
  • the parties for whom the advocate is acting are jointly entitled to any fast track trial costs awarded by the court.

(2)          Where –

  • the same advocate is acting for more than one claimant; and
  • each claimant has a separate claim against the defendant,

the value of the claim, for the purpose of quantifying the award in respect of fast track trial costs is to be ascertained in accordance with paragraph (3).

(3)          The value of the claim in the circumstances mentioned in paragraph (2) or (5) is –

  • where the only claim of each claimant is for the payment of money –
  • if the award of fast track trial costs is in favour of the claimants, the total amount of the judgment made in favour of all the claimants jointly represented; or
  • if the award is in favour of the defendant, the total amount claimed by the claimants,

and in either case, quantified in accordance with rule 45.38(3);”

Although the rule does not specifically say so it is clear that where there is more than one advocate each advocate gets the separate fixed advocacy  fee.

Thus it will be seen that under that scheme one adds up the total of the awards and that gives the figure upon which the advocacy fee is based.

Thus suppose that an advocate appears for four clients, each of whom recovers £4,000.00. That gives a total of £16,000.00 which is within the upper band and thus attracts an advocacy fee in ex-portal cases of £1,705.00.

If one of those claimants is a London claimant attracting a 12.5% uplift, is that applied to the whole sum or is only a quarter, that is 3.125%, applied to reflect the fact that only a quarter of the claimants is London based?

It becomes more complicated if the claimants recover different sums. Suppose the total awarded is £20,000.00, of which the London claimant gets £8,000.00 and the other three get £4,000.00 each. That total attracts an advocacy fee of £1,705.00.

Given that the London claimant has received 40% of the total damages is the enhancement then 5% of the total to reflect the fact that 5% is 40% of the enhancement of 12.5%?

At present this involves relatively small sums. That will change as Fixed Recoverable Costs spread to all areas of work and to all claims up to £250,000.00.

One would have thought that the courts would apply CPR 45.40 to ex-portal fixed costs cases where CPR 45.29(C) is silent.

However in Neary & Neary v Bedspace Resource Ltd, Chester County Court, Unreported, 4 December 2015, case number B07YJ633

a Circuit Judge allowed two sets of advocacy fees where one advocate was representing the two claimants.

There the judge also considered the issue of whether the solicitors got one or two sets of fees for all the work prior to advocacy and concluded that they got a set for each claimant.

That has generally been regarded as the rule and thus the real issue was whether there was one or two advocacy fees.

The judge had this to say:-

“2.          There is no dispute that the Claimants are entitled to their costs pursuant to the regime for fixed costs set out in section IIIA of CPR Part 45. These were claims started under the Pre-action Protocol for Low Value Personal Claims in Road Traffic Accidents, but which came out of the protocol, with Part 7 proceedings leading to the case being disposed of at trial. Accordingly, pursuant to CPR 45.29B, the Claimants are entitled to the fixed costs set out under paragraph C in Table 6B to CPR 45.29B (that is to say the total of £2,655 and 20% of the damages awarded and the relevant trial advocacy fee) and disbursements in accordance with CPR 45.291.

  1. The main issue that arises is whether, on account of their [sic] being two Claimants, each Claimant is entitled to recover the fees set out in Table 6B to CPR 45.29B (as the Claimants contend) or whether the claim is to be taken as a whole, allowing only the global award of costs (as the Defendant contends). The difference that this makes to the amount of costs is that, if the Claimants’ argument is correct, they are entitled to the fixed sum of £2,655 and the trial advocacy fee twice over, whereas if the Defendant is correct, they are entitled to the fixed sum and the advocacy fee only once jointly. The 20% uplift and the disbursements would amount to the same figure on either analysis, since the 20% would apply either to each individual award of damages or to the total award of damages; and the disbursements are in any event apportioned to each case.
  1. There is nothing in Part 45 which definitively guides the Court as to which of these two interpretations is right. The term “claim” is used interchangeably in the CPR to mean an individual cause of action (see for example CPR 7.3) or a case which may comprise one or more individual causes of action (see for example CPR 19.1), so in principle either interpretation could be said to be consistent with the rules.
  1. Both parties submitted before me that the other gained something of a windfall if their interpretation was correct. Unfortunately this is the nature of fixed costs regime – the amount of costs is inevitably a broad estimate of what is reasonable rather than a reflection of the actual time involved in preparing or presenting a case.
  1. It is not self-evident to me that the potential windfall to the Claimants’ lawyers through recovering the fixed fee and the advocacy fee twice over is any less than the windfall to the Defendant from only paying the fees once. The work involved in representing two Claimants will almost certainly be more than that involved in representing one. It is likely the additional work involved would be more than would be compensated by the recovery of 20% of the damages on two Claimants rather than one (especially as that fee is not intended to cover advocacy), but it is unlikely that the additional work, whether by way of preparation or advocacy, would be twice as burdensome as the work for one client alone. Hence either interpretation of the rules presents a potential windfall to one party.
  1. In my judgement, the correct answer to this issue can be discerned from the wording of Table 6B to CPR 45.29C. It states that it deals with the fixed costs that are recoverable “where a claim no longer continues under the RTA protocol.” Under the protocol there is no possibility of including the claim of more than one injured person in on claim. The protocol provides for a claim notification form which can only relate to a single person, and throughout the protocol the assumption is that only a single Claimant is involved. Table 6B cannot in my judgement properly be interpreted to mean the costs of the claim in any more broad sense than that contemplated by the protocol, that is to say the cause of action of an individual.
  1. Accordingly in my judgement, the Claimants are each entitled to recover the fixed fee and the advocacy fee.”

However it does appear that CPR 45.40 was not spotted by either advocate, and nor by the judge, and therefore this cannot be regarded as a definitive ruling.

However Cardiff County Court has adopted the same view as Chester County Court and I am grateful to Robert Vernon of 9 Park Place Chambers in Cardiff for drawing my attention to that.

Of course there is an argument that as the Civil Procedure Rules specifically have that rule in relation to non-ex-portal matters then the very fact that there is no such rule in relation to ex-portal matters allows the court to reach a conclusion on the basis that had the Civil Procedure Rules intended the advocate to be restricted to one advocacy fee in an ex-portal case then it would have been very simple to apply the existing CPR 45.40, but they had not done so.

However I suspect that that is due to the well-known incompetence of the Rules Committee rather than any deliberate policy decision.

CPR 45.40 itself, specifically dealing with advocacy fees, reinforces the point that the preparation fee is definitely per claimant.

It could hardly be otherwise – claims settle at different stages and thus one may be resolved pre-issue, another post-issue and pre-allocation etc.

Clarification by a court which has considered CPR 45.40 in detail would be welcome.

Escape

In relation to escaping fixed fast track costs, the claimant must succeed in recovering a further 20% or more; if they fail to do so they will be liable for all of the defendant’s costs of dealing with that application. This is the same test as in relation to the existing fixed costs scheme and for all intents and purposes I expect that there will never be such an application. Remember also that even if the case is outside the portal, or is removed from the portal, and does not fall within the fixed fast track costs system any bill of costs of £75,000 or under will be subject to paper assessment and not detailed oral assessment.

If the claimant fails to achieve a further 20% then the claimant receives the lower of the sum as assessed or Fixed Recoverable Costs. (CPR 45.29K as amended by

The Civil Procedure (Amendment No.6) Rules 2013).

No doubt there will be cases which should properly be heard in the multi track, rather than the fast track, even though valued at £25,000 or less. However if this is perceived to have been done for costs reasons then the solicitor will be hit hard, the likely outcome being that as a solicitor you will be ordered personally to pay full indemnity costs to the defendant, even when the claim has been wholly successful.

Remember that personal injury cases of all kinds are subject to qualified one way costs shifting and the courts will be reluctant to move a case out of the fast track system into the multi track system when on the face of it the claimant will be at no risk of costs, and stand to gain a much higher award of costs than if the matter had remained in the fast track.
On the face of it Qualified One Way Costs Shifting applies, and so unless a Part 36 offer has been made in the assessment proceedings a claimant is free to have a go without the risk of a costs penalty. Paying parties are advised always to make a Part 36 offer in such circumstances.

Contributory Negligence

It will be seen that Fixed Recoverable Costs are very much higher than the fixed costs within the portal and this is likely to lead to fundamental changes in the way litigation is conducted by defendants.

For example, succeeding in a contributory negligence argument may cost a defendant more than admitting the claim on a full liability basis, as an allegation of contributory negligence causes the matter to exit the portal.

Take an Employers’ Liability claim worth £15,000 on a full liability basis.

If it settles at Stage 2 of the portal the costs are £1,300 giving a total payment of £16,300.

If it settles, say post-issue but pre-allocation with an agreed 20% deduction for contributory negligence, the position is:-

Damages (£15,000 – £3,000) £12,000.00
Fixed Recoverable Costs
£2,630 plus 20% of £12,000 (£2,400) £5,030
Total £17,030

In addition there will be the court fee and the defendant’s own costs. The further the matter progresses through the Fixed Recoverable Costs matrix, the greater the difference.

Part 36

It is likely that defendants will make much earlier, and more realistic, Part 36 offers, for two principle reasons:-

  • early settlement means much lower and certain claimant’s costs payable by the defendant;
  • Qualified One Way Costs Shifting means that a defendant must make a Part 36 offer to get any costs protection.

 

Damages-Based Agreement

 If acting under a Damages-Based Agreement in a personal injury matter, which at present all FRC cases are, then the indemnity principle limits you to a total of 25% of damages, INCLUDING VAT and counsel’s fees, so you will get nowhere near even Fixed Recoverable Costs.

Example

Let us take an Employer’s Liability case where £15,005 is awarded at court.

Act on an hourly rate basis, getting paid win or lose, and the proposed fixed recoverable costs (FRC) are £12,517.80 including advocacy fees and VAT.

Maximum fee (25% of £15,005) £3,751.25
Less
Counsel fixed advocacy fee including VAT                 £1,980.00
£1,771.25
Say counsel’s fee for conference, advice, etc.£1,500.00 + VAT £1,800.00
Fee to solicitor for taking risk and winning MINUS £       28.75

So you take all of the risk – and win.

Recovery is limited to £3,751.80, all of which – and more – is spent on counsel’s fees.

The defendant gets a windfall of £8,766.55 (FRC of £12,517.80 minus MAXIMUM DBA of £3,751.80).

Alternatively act by the hour and charge what you want.

Thus due to the indemnity principle, the solicitor acting for a successful claimant will only receive the contingency fee, even if recoverable costs would be higher. This point has been picked up by Master Haworth of the Senior Courts Costs Office. Speaking at the Lexis Nexis Costs and Litigation Funding Forum on 31 October 2012 he questioned what would happen in such a case, pointing out that the Legal Aid, Sentencing and Punishment of Offenders Act 2012 does not abrogate the indemnity principle and concluded that this meant that the solicitor would not be able to recover more than he would recover as a contingency fee.

Master Haworth gave as an example of a £12,000.00 personal injury case with recoverable costs of £6,000.00.

A solicitor operating under a Damages-Based Agreement would only be able to recover £3,000.00, providing the defendant’s insurer with a windfall of £3,000.00 and achieving no benefit for the claimant.

A solicitor in the same case with a conditional fee agreement and no success fee, thus totally protecting the claimant from any fees or deduction from damages would receive £6,000.00.

A solicitor with a conditional fee agreement with a success fee would receive up to £9,000.00, being recoverable fees plus a success fee capped at £3,000.00, being 25% of damages.

As Master Haworth so accurately put it:

“It makes DBAs meaningless in low-value claims,”

 

Clinical Negligence

Fixed Recoverable Costs are not yet in for Clinical Negligence cases but the NHS Litigation Authority has published a draft pilot scheme and the proposed fixed costs are set out below.

Clinical Negligence Pilot – Fixed Costs

 Fixed Fee Solicitor On Admission or Settlement  Expert Counsel – for Arbitration  Total
Stage 1Early Admission £500    
Denial £0 £0    
Stage 2No Admission

Expert Advice

£750 (stage 1 + £250) £500    
DenialBased on expert’s conclusions £0 £500 (still payable)    
Stage 3Quantum: Condition and Prognosis Report, Schedule of loss £750 £500    
Stage 3 (Offer)NHSLA Offer £300 or    
Stage 4Arbitration –          £500 (NHSLA offer beaten)

–          £0 (NHSLA offer not beaten)

£500  
Summary 

Repudiated at stage 1

Repudiated at stage 2

Admitted at stage 1 & negotiated at stage 3

Admitted at stage 1 and arbitration at stage 4

Admitted at stage 2 and negotiated at stage 3

Admitted at stage 2 and arbitration at stage 4

£0

£0

£1,550

£1,750

£1,800

£2,000

£0

£500

£500

£500

£1,000

£1,000

  

£0

£0

£0

£500

£0

£500

  

£0

£500

£2,050

£2,750

£2,800

£3,500

 

Statistics

The number and type of personal injury claims issued and for 2012/13 they are as follows:-

Total claims                         1,048,309

Comprised:

Road traffic                         749,555

Public Liability                    164,973

Employers’ Liability         91,115

Clinical negligence           16,006

Other                                    24,485

Unknown                            2,175

The above figures are taken from the Compensation Recovery Unit Performance Statistics.

It will be seen that 96.13% of personal injury cases are covered by three types of work in the FRC scheme, although obviously some are worth over £25,000.

Add in Clinical Negligence cases and on the same basis the figure rises to 97.66%.

 

Case Law

There has been little case law so far in relation to portal claims, but what there has been shows that the courts will not look kindly on claimant lawyers seeking to have cases dealt with outside the portal, and both new portals contain express provision that where a court considers that the claimant acted unreasonably in giving advice to exit the portal it will award no more than fixed costs in CPR 45.18.

This is highlighted in the case of

Ilahi v Usman, Manchester County Court, His Honour Judge Platts, 20 November 2012

In which His Honour Judge Platts stated at paragraphs 30 and 31 of his judgment:-

“30.        I am forced to the conclusion that the real reason for the claimant withdrawing her offer was to take advantage of the costs implications of bringing a Part 7 claim. Those advantages are, first, that a defendant will be under more pressure to settle since it might face a higher costs liability if he does not make an offer which the claimant accepts or fails to beat at hearing; and, second, that if the matter does go to a hearing the claimant’s solicitors will potentially recover more in costs than they otherwise would have done…

31.          In my judgment to manipulate the RTA Protocol procedure to take the claim away from stage 3 and into part 7 because of the costs implications is contrary to the spirit if not the letter of the Protocol and wholly contrary to the overriding objective. The court has developed the RTA Protocol in order to provide a speedy, certain and cost effective way of dealing with these claims.”

In the case of

Bewicke-Copley v Ibeh, Oxford County Court, 1 May 2014

the claim was submitted on to the portal and two heads of loss were agreed within the portal with the remainder being contested.

The Claimant sought to exit the portal and pursue a CPR Part 7 claim with the potential to recover costs that follow from a matter contested on the fast track and the Defendant asked the Court to award the Claimant judgment on the sums it stated had been agreed within stage 2 of the portal process, together with the fixed costs that would have followed from that agreement, and to limit any further costs recoverable by the Part 7 procedure to those that can be recovered in the small claims track.

The judge held that the heads of loss which were accepted in the portal were binding agreements and the remaining heads of loss continue on the small claims track. The judge noted:-

“31.        It defies logic and the aims and intentions of the protocol if at such point, all items that had previously been agreed were regarded as un-agreed.  If that were the case, I would expect the protocol to state this clearly.  It does not.”

Thus the fixed stage 2 portal costs were awarded in relation to the heads of loss that were agreed in stage 2 of the protocol process and the remainder of the claim was allocated to the small claims track.

In Davies and Others v Greenway, Senior Courts Costs Office, 30 October 2013, Case No JMS 1205590

the SCCO held that an order for assessment on the standard basis prevented the court from simply restricting the claimants’ costs to road traffic accident protocol amounts.

However the court was entitled to decide that those protocol amounts were the proportionate and reasonable sums without conducting a line by line assessment.

Here the claims were settled for less than £10,000 and would have been subject to RTA protocol fixed costs, but the claimants’ solicitors sent them to the wrong insurer and failed to re-submit them to the correct insurer, who had admitted liability.

Correspondence with the correct insurer produced a limited response and proceedings were issued and judgment entered with quantum to be assessed and the claims were then settled by consent, and the Consent Order provided:

“The Defendant to pay the Claimants’ costs of this action on the standard basis to be assessed if not agreed”.

The claimants’ solicitors served a bill totalling £17,430.11.  The defendant served Points of Dispute arguing that the claimant had unreasonably failed to comply and/or elected not to continue with the RTA process and its fixed costs scheme and that costs should be limited to “an amount commensurate with the costs under CPR 45 of Section VI pursuant to the express power in CPR 45.36”.

In O’Beirne v Hudson [2011] 1 WLR 17171 the Court of Appeal held that where there was a consent order for assessment on a standard basis the court could not limit the costs to those that are fixed costs for the small claims track.

The defendant argued that the same difficulty does not arise in the RTA protocol as CPR 45.36 expressly provides that the court can limit costs to RTA protocol amounts.

The claimants argued that the consent order was binding and that the defendants were seeking to re-write it, and that pursuant to

Solomon v Cromwell [2011] EWCA Civ 1584

an award of fixed costs cannot constitute a standard basis of assessment.

The court held that CPR 45.36 did not apply; the defendant had consented to an order for detailed assessment on the standard basis and that is a contract that the court had no power to vary.  The Master said that even if he was wrong about that he bore in mind that the power set out in CPR 45.36 is discretionary and not mandatory.

At the detailed assessment the Costs Judge is obliged to have regard to all the circumstances in deciding whether the costs were proportionately and reasonable incurred or were proportionate and reasonable in amount.  The Costs Judge must also have regard to the conduct of the parties including in particular the efforts made, if any, before and during the proceedings in order to try and resolve the dispute.

The Costs Master then quoted at length from the Cambridge County Court decision of 13 January 2011 in Smith v Wyatt.

 In that case the claimants sought permission to appeal to the Court of Appeal and at a permission hearing [2011] EWCA Civ 941, Lord Justice Moore-Bick stated:

“10.        It is the function of the Costs Judge to determine whether costs have been reasonably and necessarily incurred and if he can see that a particular course of conduct has led to a group of costs being incurred unnecessarily , he is entitled to say that and need not to consider each item individually.  In my view the argument to the contrary is not really sustainable”.

The original Cambridge County Court judgment, approved by the Court of Appeal, contained the following passage, quoted by the Costs Master here:

“13.        The essential test that emerges from O’BeIrne and Drew appears to me to have two elements, one of substance and one of process.

(a)    In substantive terms, the test to be applied on a detailed assessment when this problem arises is:

whether it is reasonable for the paying party to pay more than would have been recoverable had the relevant alternative regime applied.

(b)   In process terms, what is important is that the Costs Judge always bears in mind that he is both conducting a detailed assessment and applying the test at (a) above.  If he does so, and having done so concludes that it was not reasonable to take the case out of the alternative regime and hence not unreasonable to incur the extra costs that flow from that unreasonable decision, he will have remained within his proper discretion.  If he does not do so, but simply concludes that the case ought really to have been (say) a small claim and therefore that the regime automatically and comprehensively applies, regardless of reasonableness one way or the other, he will have stepped outside of his discretion and in effect re-written the costs order he is supposed to be applying”.

The Costs Master here said “…..it is important that I form a view on the issue of proportionality”.  That view was that the costs were disproportionate.

Furthermore the claimants’ failure to comply with the RTA protocol led to disproportionate costs being unreasonably and unnecessarily incurred.

Having found disproportionality the Costs Master said that it was open to him to go through the bill on an item by item basis but that, following Smith v Wyatt, he was not obliged to do so.

Had the claimants acted reasonably by re-serving the CNF on the correct insurer they would only have been able to recover RTA protocol costs.  It would be unjust to allow them to recover more and thus benefit from their unreasonable conduct.

Thus although the consent order required the court to carry out a detailed assessment the court was entitled, in that detailed assessment, to limit costs to RTA protocol costs and that was the order of the Costs Master.

In Uppal v Daudia LTLPI 9 July 2012

the defendant successfully argued that the claimant had unreasonably removed the case from the portal.

This resulted in the claimant failing to recover over £20,000 in costs claimed and being ordered to pay the defendant’s costs on an indemnity basis.

The claimant had argued that it was entitled to remove the claim from the portal because the defendant had not made an offer in response to the claimant’s counter-offer within the total consideration period.

The Judge held that there was no such requirement and that the defendant was only required to respond to the claimant’s first offer within the initial consideration period.

The defendant was awarded indemnity costs for having to defend unnecessarily Part 7 proceedings and the claimant was denied its claimed costs of over £20,000.

In Jaykishan Patel v Fortis Insurance Ltd LTL 11 January 2012 (2011)

the defendant successfully argued that technical non-compliance with the portal was not a ground for a claimant to remove a case from the portal and recover Part 7 costs.

Here the defendant had used the A2A system to access the portal, which was unable to send acknowledgements of Claim Notification Forms, contrary to paragraph 6.10 of the portal protocol.

However within 48 hours the defendant had responded with the Full Insurer Response, accepting the claim and admitting responsibility.  On the same day the claimant removed the matter from the portal.

The court held that this was not a ground for removal and that the claimant’s conduct was unreasonable.  Parties should not lightly remove claims from the portal and should never do it on technical grounds.

Once a party had communicated its decision not to continue with the portal process then that process was at an end and the parties were not at liberty to resume it, even if Part 7 proceedings had not been commenced and even if the case was still physically in the portal.

Here the claimant was restricted to CPR 45.36 portal costs, compared with a Part 7 costs schedule claiming over £16,000.  The defendant was awarded some of its costs of defending the claim, reflecting costs that would not have been incurred had the matter remained in the portal.

What is a disease?

The new EL and PL protocol, in the definition section at 1.1(12) states that “disease claim” means a claim within sub-paragraph (14)(b), that is:-

“a disease that the claimant is alleged to have contracted as a consequence of the employer’s breach of statutory or common law duties of care in the course of the employee’s employment, other than a physical or psychological injury caused by an accident or other single event;”

As disease claims go straight from the portal to open, standard costs, rather than entering the Fixed Recoverable Costs scheme, the definition is important.

There have already been a number of relevant cases as the question is also important in relation to the old fixed success fee scheme, which lives on in relation to conditional fee agreements entered in to on or before 31 March 2013.

In Patterson v Ministry of Defence [2012] EWHC 2767 (QB) [2012 All ER (D) 127 (Oct)

the Queen’s Bench Division of the High Court held that symptoms arising from exposure to cold weather did not constitute a disease, but rather an ordinary employers’ liability claim.

Mr Justice Males states that to use the dictionary definitions of “disease”:

“would be to expand the concept so far that the exception (“disease” within Section V of CPR 45) would leave far too little scope for the basic rule in Section IV to operate. That cannot be right.” (Paragraph 33).

Mr Justice Males goes on to state that the definition of “disease” in paragraph 2.2 of the Pre-Action Protocol for Personal Injury Claims does not apply as this definition was there for the draftsman of CPR Part 45 to use but they did not.

Such injuries are known as non-freezing cold injuries. The court’s reasoning was that as such injuries were not caused by any virus, bacteria, noxious agent or parasite they were not a disease.

In Fountain v Volker Rail Limited, 24 August 2012, Central London County Court

His Honour Judge Mitchell, sitting with Master Hurst of the Senior Courts’ Costs Office, held that exacerbation of a pre-existing condition was an injury and not a disease.

This was an appeal from the first instance decision of Master Haworth of the Senior Courts’ Costs Office.

Modern medical opinion means that Noise-Induced Hearing Loss, traditionally treated by the law as a disease, may in fact be an injury.

The same is true in relation to Hand/Arm Vibration Syndrome.

For an interesting article on this issue see Andrew Hogan’s blog NIHL and HAVS: Not diseases after all?

 

Children

CPR 45.21(2) provides that where the court approves the settlement at a settlement hearing the defendant shall pay Type C costs (£150 plus VAT) as well as other costs and disbursements.

A settlement hearing is essential in all cases involving children, whatever the value and whatever the procedure.

From the reports that I am getting judges are refusing to allow deductions from children’s damages to fund the success fee/solicitor and own client costs. This raises the issue of whether anyone will act for children in portal/Fixed Recoverable Costs cases where the recoverable fees are unprofitable.

Note also that while the portal and the Fixed Recoverable Costs Scheme allow for an additional fee in relation to a matter involving a child there appears to be no provision for such an additional fee if the matter is settled after exiting the portal but before proceedings are issued.

There appears to be nothing to stop a claimant issuing proceedings while the matter is still in one of the portals, provided that the appropriate time has expired since lodging the Claim Notification Form, which stands as the Letter of Claim.

Claimants may wish to do this in children cases to avoid the lacuna whereby no additional fee is payable in a child case where the matter has exited the portal but not yet been issued.

NEW PROTOCOLS AND PART 36

 CPR 36.21 envisages three scenarios in relation to costs consequences following a Stage 3 hearing:

  • where the claimant fails to beat the defendant’s protocol offer then the claimant must pay the defendant’s Stage 3 costs as well as not recovering its own Stage 3 costs;
  • where the claimant beats the defendant’s offer but does not match its own offer the defendant pays the claimant’s Stage 3 costs;
  • where the claimant beats the defendant’s offer and matches or beats its own offer the defendant pays:
  • the claimant’s Stage 3 costs;
  • interest on those Stage 3 costs at a rate not exceeding 10% above base rate;
  • 10% additional damages;
  • interest on all damages at a rate not exceeding 10% above base rate running from the first business day after the court proceedings pack (part A and part B) was sent to the defendant.

FIXED RECOVERABLE COSTS AND PART 36

 Section 1 of Part 36 remains in force for non-protocol cases and also applies to cases which exit either of the protocols.

A new CPR 36.10A provides that where a claimant accepts a Part 36 offer within the relevant period the defendant will pay the claimant’s costs up to the stage reached when the offer is accepted.

This is clearly open to abuse.   A defendant makes an offer which the claimant intends to accept but during the 21 day acceptance period another stage is due to be passed.  The claimant delays acceptance thus triggering an additional fee as the next stage is passed.

Where a defendant’s Part 36 offer is accepted after the relevant period the claimant gets the appropriate fixed costs applicable at the date of expiry of the relevant period, and the claimant pays the defendant’s costs from expiry to acceptance.

It appears, although the rules are far from clear, that the defendant’s costs, from expiry of the Part 36 to the date of acceptance, are capped by reference to fixed recoverable costs. The defendant’s fixed recoverable costs are dealt with by CPR 45.29F which states that if a Part 36 offer is accepted out of time then costs are determined under CPR 36.10A.

CPR 45.29F(2) states:-

If, in any case to which this Section applies, the court makes an order for costs in favour of the defendant—

(a)    the court will have regard to; and

(b)   the amount of costs order to be paid shall not exceed,

the amount which would have been payable by the defendant if an order for costs had been made in favour of the claimant at the same stage of the proceedings.

In addition CPR 36.10A(10)(b) states that where a court orders costs to be paid to the defendant those costs must not exceed the level of the relevant fixed recoverable costs.

Where a claimant accepts the defendant’s protocol offer after the claim has exited the portal the claimant gets Stage 1 and 2 costs but pays the defendant’s costs from expiry to acceptance.

Judgment

 A new CPR 36.14A deals with the position on judgment, rather than acceptance of an offer, but the principles are exactly the same, save that the claimant who matches his or her own offer at trial gets indemnity costs, not fixed recoverable costs, from the date of expiry of the period for accepting the offer.

Defendants’ costs are capped, not fixed, by reference to the level of the claimants’ fixed recoverable costs.

Website

A useful website in relation to portal claims is that of barrister Sarah Robson at

http://www.sarahrobsonbarrister.co.uk/Reported-Cases.html

Advertisements

Written by kerryunderwood

July 31, 2013 at 3:36 pm

Posted in Uncategorized

543 Responses

Subscribe to comments with RSS.

  1. What a fantastic information for practitioners. Thank you mr. Underwood. This is excellent.

    abdul hafeziA a hafezi

    August 1, 2013 at 12:28 am

  2. […] I am grateful to Dave Toulson of Hill Dickinson LLP for pointing out to me the practical significance of the case of Ullah –v- Jon a case decided by District Judge Parker in the Croydon County Court on the 20th March 2013.    This blog does not usually cover developments in the Portal. The Portals are covered comprehensively by Kerry Underwood, see https://kerryunderwood.wordpress.com/2013/07/31/new-portals-and-fixed-recoverable-costs-now-in/ […]

  3. Hi Kerry

    I have a problem with the portal.I have a dog bite case against individual defendants and so under 4.3 of the Pre Action Protocol for Low Value Personal Injury Claims(Employers Liability and Public Liability~)Claims this case is excluded from the portal.
    That being the case does the old personal injury protocol apply re how cliam is communicated to the defendant etc and also which costs regime applies-non portal fixed fees or open costs?

    Any help would be greatfully recieved

    Regards

    Phillip Watters

    Phillip Watters

    November 18, 2013 at 2:58 pm

    • Hi Phillip

      Yes, the old pre-action protocol applies and open costs apply. Portals and Fixed Recoverable Costs cover exactly the same territory with one exception; that exception is that industrial disease claims that exit the portal go straight in to open costs. In all other cases a claim exiting the portal goes in to FRC. A case that never enters the portal can never go to FRC.

      A word of warning: failure to enter the portal when you should have done, or unreasonably exiting the portal. will lead to recovery of portal costs only.

      Hope this helps.

      Kerry

      kerryunderwood

      November 19, 2013 at 4:21 pm

      • Hi Kerry
        Thank you for your deep understanding of the rules.I spent half the morning trying to find that answer.Greatly appreciated.
        Regards
        Phillip Watters

        Phillip Watters

        November 19, 2013 at 5:51 pm

  4. Pleasure 🙂

    kerryunderwood

    November 21, 2013 at 4:00 pm

  5. Afternoon Kerry,

    I am trying to clarify an issue re- counter claim costs as rule 45.29 states

    CPR 45.29G states:-
    “(1) If in any case to which this Section applies—
    (a) the defendant brings a counterclaim which includes a claim for personal injuries to which the RTA Protocol applies;

    Does that mean that if a Claimant lodged his CNF before 31.07.13 and D doesn’t bother but then when C later issues proceedings and D files a defence AND counterclaim, what costs will a successful D be entitled to recover-pre or post 31 July 2013 costs?

    Many thanks for your thoughts in advance.

    Gregory Taylor

    January 17, 2014 at 3:56 pm

    • .

      Gregory Taylor

      January 17, 2014 at 3:56 pm

    • Gregory

      The date on which the Claim Notification Form was submitted is irrelevant in this scenario as the fixed costs will be determined under Rule 45.29C of Part 45 of the CPR.

      The full wording of the rule you have referred to, rule 45.29G, is as follows

      (1) If in any case to which this Section applies—

      (a) the defendant brings a counterclaim which includes a claim for personal injuries to which the RTA Protocol applies;

      (b) the counterclaim succeeds; and

      (c) the court makes an order for the costs of the counterclaim,

      rules 45.29B, 45.29C, 45.29I, 45.29J, 45.29K and 45.29L shall apply.

      Therefore rule 45.29C will apply and this sets out the fixed costs in Table 6B. Rule 45.29C(4) clarifies Table 6B as follows

      (4) In Table 6B—

      (a) in Part B, ‘on or after’ means the period beginning on the date on which the court respectively—
      (i) issues the claim;

      (ii) allocates the claim under Part 26; or

      (iii) lists the claim for trial; and

      (b) unless stated otherwise, a reference to ‘damages’ means agreed damages; and

      (c) a reference to ‘trial’ is a reference to the final contested hearing.

      Therefore the date referred to in Table 6B is the date on which the court issues the claim, not the date of the Claim Notification Form.

      If the Defendant has been successful in his counterclaim and the matter has gone to trial then the fixed costs the Defendant will be entitled to as set out in Table 6B are

      The total of—

      (a) £2,655; and

      (b) 20% of the damages agreed or awarded; and

      (c) the relevant trial advocacy fee.

      The relevant trial advocacy fee will be dependent on the damages awarded to the Defendant as follows

      Not more than £3,000 £500

      More than £3,000, but not more than £10,000 £710

      More than £10,000, but not more than £15,000 £1,070

      More than £15,000 £1,705

      In addition the 12.5% uplift continues to apply where the Defendant lives or works in certain areas of London.

      Kerry

      kerryunderwood

      July 23, 2014 at 3:36 pm

  6. Can I ask where I can find fixed recoverable costs Pre-April 2013 where proceedings have been issued, default judgement entered into and settlement before disposal hearing. I am having difficulty finding a costs matrix for Pre-April 2013 costs and the current Civil Procedure Rules are not clarifying costs for the old regime.

    rably

    February 19, 2014 at 11:38 am

    • Fixed Recoverable Costs in issued proceedings did not exist pre-April 2013, except in relation to the advocacy fee, which is why you cannot find them.

      Kerry

      kerryunderwood

      February 19, 2014 at 1:12 pm

  7. I am slightly confused. I have a client RTA accident date 27.12.12 – CFA signed Feb 2014. Damages valued at in excess of £10,000 but less than £25,000. No formal letter of claim or CNF to TPI.

    Does it enter portal or not???

    Jason Harris

    March 5, 2014 at 11:07 am

    • Please read the blog – under the heading Road Traffic – it could not be clearer.

      kerryunderwood

      March 7, 2014 at 5:48 pm

  8. Thank you for a very useful overview of the portal process.

    May I ask: if at stage 3 oral hearing is requested by the claimant solicitor on the claim form, and the defendant solicitor requested for a stage 3 paper hearing, how does the court determine what type of hearing will take place or does one of the requests take precedent?

    Many thanks for your time and consideration.

    Anonymous

    March 19, 2014 at 9:54 am

    • The application to the court for a Stage 3 hearing must be started by a claim form under Part 8 and this is set out in Practice Direction 8B.

      Paragraph 5.2 states the following

      5.2 The claim form must state –

      (3) whether the claimant wants the claim to be determined by the court on the papers (except where a party is a child) or at a Stage 3 hearing

      If the Claimant has requested an oral hearing for the Stage 3 hearing on the Claim Form then the court will order an oral hearing. This is made clear in paragraph 11.1 of Practice Direction 8B, which states

      11.1 The court will order that damages are to be assessed –

      (1) on the papers; or

      (2) at a Stage 3 hearing where –

      (a) the claimant so requests on the claim form;

      (b) the defendant so requests in the acknowledgment of service (Form N210B); or

      (c) the court so orders,

      and on a date determined by the court.

      You will see that paragraph 11.1(2)(a) states that a Stage 3 hearing will be ordered where the Claimant has requested this on the Claim Form.

      It is evident from paragraph 11.1 that if either of the parties to the claim request an oral hearing, whether in the Claim Form or in the Acknowledgement of Service, the court will order an oral hearing.

      Kerry

      kerryunderwood

      July 23, 2014 at 3:34 pm

  9. Kerry can you advise if claimants need to nominate medical experts under the new El/PL portal and protocl ofr low vlaue EL/PL claims? it does not refer to it in the new el/pl protocol as far as i can see it states that “7.1 The claimant should obtain a medical report, if one has not already been obtained” or is it the case that the old personal injury pre-action protocol still applies and we must nominate medical experts? it seems odd if you need to nominate for el/pl claims but not RTA?

    Many thanks

    Paul.

    Paul Mc Nally

    May 1, 2014 at 12:44 pm

    • Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims

      Medical reports
      7.1 The claimant should obtain a medical report, if one has not already been obtained.
      7.2 It is expected that most claimants will obtain a medical report from one expert but additional medical reports may be obtained from other experts where the injuries require reports from more than one medical discipline.
      7.3 The claimant must check the factual accuracy of any medical report before it is sent to the defendant. There will be no further opportunity for the claimant to challenge the factual accuracy of a medical report after it has been sent to the defendant.

      There is no reference to nominating medical experts in the Employers’ liability and public liability.

      However the case of Charman v John Reilly (Civil Engineering) Ltd (2013), which dealt with the reasonableness of medical report fees in portal claims, held that a reasonable fee for a medical report is no more than £240.00, broken down as:-
      – £50.00 plus VAT for the agency element of the fee;
      – £150.00 plus VAT for the expert’s fee.

      kerryunderwood

      June 4, 2014 at 4:26 pm

  10. Fantastic information as ever, invaluable -thank you.
    My question is: a straight housing disrepair claim (not private landlord) – portal or non portal?
    A p.i. claim where specific accident/illness linked to housing disrepair (again not private landlord) – presume portal? We have a major difference of opinion in the office.

    Sue

    July 2, 2014 at 2:06 pm

    • Thank you! Straight housing disrepair definitely non-portal. PI linked to housing disrepair is not road traffic, not employer’s liability, so will depend on whether public liability, which I cannot see it ever being. Therefore non-portal IMHO. Worth remembering that it is the nature of the liability, not the injury, which determines whether it is portal or not.

      Kerry

      kerryunderwood

      July 2, 2014 at 2:15 pm

      • Thank you Kerry. I am still unsure about the public liability element of housing disrepair though. For example s4 Defective Premises Act type claims where the Landlord’s duty is owed to other than the actual tenant. It has given us food for thought !

        Sue

        July 2, 2014 at 3:12 pm

    • Sue

      Paragraph 1.1 of the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims defines public liability claims as follows:-

      “(18) ‘public liability claim’—

      (a) means a claim for damages for personal injuries arising out of a breach of a statutory or common law duty of care made against—

      (i) a person other than the claimant’s employer; or

      (ii) the claimant’s employer in respect of matters arising other than in the course the claimant’s employment; but

      (b) does not include a claim for damages arising from a disease that the claimant is alleged to have contracted as a consequence of breach of statutory or common law duties of care, other than a physical or psychological injury caused by an accident or other single event”

      Section 4 of the Defective Premises Act places a statutory duty on a landlord to take such care as is reasonable in all the circumstances to see that visitors are reasonably safe from personal injury

      “(1)Where premises are let under a tenancy which puts on the landlord an obligation to the tenant for the maintenance or repair of the premises, the landlord owes to all persons who might reasonably be expected to be affected by defects in the state of the premises a duty to take such care as is reasonable in all the circumstances to see that they are reasonably safe from personal injury or from damage to their property caused by a relevant defect.”

      Therefore I believe that the scenario you have described, that is where a visitor to a landlord’s premises is injured, would be a public liability portal claim.

      Kerry

      kerryunderwood

      July 24, 2014 at 1:41 pm

  11. Hi

    I had a query and was wondering if you could possibly assist. A claim was taken on a CFA basis. The claim was submitted a couple of months ago (post april 2013). The third party insurance company admitted liability but failed to pay the stage 1 costs on time. The claim was taken out the portal as a result of the third party insurance companies failure to pay the stage 1 costs.

    The clients damages have been agreed outside the portal and an invoice was sent to the third party insurance company for the solicitors costs. The costs were worked out according to the CPR Rules i.e. £800.00 base fee, 20% and then 12.5% etc. However, the third party insurance company have stated that we have worked our costs incorrectly. Could you please assist as to whether this is the correct procedure in working our costs outside the portal or is there any other way?

    Any assistance will be appreciated.

    Tom

    Tom

    July 16, 2014 at 4:21 pm

    • Tom

      I note that the claim was submitted this year, that is 2014, and that the matter fell out of the portal as the insurance company failed to pay stage 1 costs.

      Once the claim drops out of the portal it goes into Fixed Recoverable Costs and this has been the case since 30 April 2013 in relation to road traffic accident claims up to £10,000.00.

      Since 31 July 2013 that applies to all road traffic accident matters up to £25,000.00 that have been in the portal and all employer’s liability and public liability matters up to £25,000 which exit the portal also go straight into Fixed Recoverable Costs, with the single exception of Industrial Disease claims, which upon exiting the portal go straight to open costs.

      The CPR Rules providing for an £800.00 base fee and then 20% of damages up to £5,000.00 and 15% of damages between £5,000.00 and £10,000.00 have long since been repealed and replaced by the Fixed Recoverable Costs Scheme as set out above. Fixed recoverable costs apply to all cases exiting the portal, whether or not they are subsequently issued and whether or not they are defended. It is an entirely different system to the one that you refer to, which as I have stated has been repealed.

      Thus the insurance company are entirely correct in stating that you have worked out your costs incorrectly.

      I presume that the reference to 12.5% is a reference to the success fee. In road traffic matters whether or not the matter goes into the portal, and therefore exits to fixed recoverable costs, depends upon the date the Claim Notification Form was sent, and not the date of the cause of action.

      However in relation to the recoverable success fee, the key date is the date of entering into the Conditional Fee Agreement. If the Conditional Fee Agreement was entered into on or before 31 March 2013 then the success fee is recoverable from the other side at the fixed rate of 12.5% in relation to a settled road traffic accident matter. 12.5% is of course on base costs and therefore is on the fixed recoverable costs.

      However I suspect, from the brief facts set out in your comment, that this is a post 31 March 2013 Conditional Fee Agreement. If that is the case then no success fee is recoverable.

      All of the details of Fixed Recoverable Costs are set out in the very blog that you have commenting on, under the sub-heading “From Portal to Fixed Recoverable Costs”.

      Generally these are significantly lower than the old, repealed, scheme which you refer to.

      I hope that this helps.

      Kerry

      kerryunderwood

      July 21, 2014 at 2:11 pm

      • Hi Kerry

        thank you for your swift and very helpful response. Much appreciated.

        Kindest Regards

        Tom

        Tom

        July 31, 2014 at 10:59 am

  12. […]  I do not deal with the Road Traffic Portal or the Employers’ Liability and Public Liability Portal, both of which are covered in my piece Fixed Costs, all the Portals and Fixed Recoverable Costs. […]

  13. If we draft the CNF in a PL case and then request the insurance details from the Defendant, but the Defendant fails to provide the insurance details per the CPR time limit (although we give an additional 3 chaser letters giving them additional time to respond). Can we then state that due to breaching the CPR and failing to respond the matter will continue under the standard pre-action protocol? Would this case class as coming under the fixed costs, or would it be open costs as it never technically went into the online portal system?

    Thank you kindly.

    Campbell

    August 1, 2014 at 10:34 am

    • The Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims states the following

      “6.1 (1) The claimant must complete and send—

      (a) the CNF to the defendant’s insurer, if known; and

      (b) the Defendant Only Claim Notification Form (“Defendant Only CNF”) to the defendant,

      but the requirement to send the form to the defendant may be ignored in a disease claim where the CNF has been sent to the insurer and the defendant has been dissolved, is insolvent or has ceased to trade.

      (2) If—

      (a) the insurer’s identity is not known; or

      (b) the defendant is known not to hold insurance cover,

      the CNF must be sent to the defendant’s registered office or principal place of business and no Defendant Only CNF is required.”

      Therefore if you do not know the insurer’s identity then you must send the CNF to the Defendant’s registered office as if it were a Letter of Claim.

      “6.10 If the claimant has sent the CNF to the defendant in accordance with paragraph 6.1(2)—

      (a) the defendant must send to the claimant an electronic acknowledgment the next day after receipt of the CNF and send the CNF to the insurer at the same time and advise the claimant that they have done so;

      (b) the insurer must send to the claimant an electronic acknowledgment the next day after its receipt by the insurer;
      and

      (c) the claimant must then submit the CNF to the insurer via the Portal as soon as possible and, in any event, within 30 days of the day upon which the claimant first sent it to the defendant.

      The Defendant must therefore send you an electronic acknowledgment the next day after receipt of the CNF and send the CNF to the insurer. You will then be able to submit the CNF to the insurer via the Portal.

      Table 6A in CPR 45.18 sets out “fixed costs in relation to the EL/PL Protocol.” As the claim will continue under the EL/PL Protocol fixed costs will continue to apply.

      Kerry

      kerryunderwood

      August 5, 2014 at 5:29 pm

  14. You note that the OLD CPR 45.31 continues to apply to fix the uplift where one is recoverable. However the amendment to the CPR which removed this has no transitional provision. I agree it seems right that the old fixed uplift should apply but justifying why is more difficult…

    Richard

    August 5, 2014 at 6:17 pm

    • Richard

      While it is true that the amendment removing the old CPR 45.31 has no transitional provision, it continues to apply to pre-April 1 2013 cases as stated in Paragraph 7.44 of RTA portal and 7.41 EL and PL portal:-

      “7.44 Any offer to settle made at any stage by either party will automatically include, and cannot exclude—

      (4) where applicable, any success fee in accordance with rule 45.31(1) (as it was in force immediately before 1 April 2013).”

      Kerry

      kerryunderwood

      August 7, 2014 at 1:30 pm

      • Thanks! It has also been pointed out to me that there is a transitional provision in part 48.1 which has the same effect.

        Richard

        August 7, 2014 at 1:38 pm

      • Richard

        Yes, you are correct, there is the following transitional provision in part 48.1

        “48.1
        (1) The provisions of CPR Parts 43 to 48 relating to funding arrangements, and the attendant provisions of the Costs Practice Direction, will apply in relation to a pre-commencement funding arrangement as they were in force immediately before 1 April 2013, with such modifications (if any) as may be made by a practice direction on or after that date.
        (2) A reference in rule 48.2 to a rule is to that rule as it was in force immediately before 1 April 2013.”

        Kerry

        kerryunderwood

        August 13, 2014 at 5:20 pm

  15. Am I correct in thinking where the insurer doesn’t respond to the CNF you simply issue proceedings without the need for a letter of claim?

    Thanks

    Mel

    August 18, 2014 at 2:20 pm

    • A CNF stands as a letter of claim under the protocols. Please read the full blog for a full explanation. See also the blog in relation to pre-action protocols.

      Kerry

      kerryunderwood

      August 18, 2014 at 2:27 pm

  16. I am seeking some clarification on the position regarding multiple Claimants. I have a rta claim by husband and wife which arose in October 2011. Instructing solicitors considered that use of the portal was not appropriate as both claims were inextricably linked (care, loss of earnings etc) and although there was a possibility of one claim being less than £10k the overall total was bound to exceed the portal limit. A letter of claim was prepared and liability was duly admitted. D insurers argued at the time that the claims should be entered into the portal. We obtained Counsel’s Advice which was inconclusive as quantum was borderline. Medical evidence was obtained following which P36 offers were put forward by both sides and the matter eventually settled pre-issue for £8k for husband and £12.5k for wife. D is now only offering portal costs in respect of husband’s claim even though there is one Bill of Costs for both Claimants to be assessed pursuant to an anticipated Order within Part 8 proceedings. Is it appropriate to consider the claims together (as would be the case if proceedings were issued) or must they remain separate for the purpose of determining portal entry? Any guidance here would be greatly appreciated.

    Dave

    September 1, 2014 at 11:50 am

    • Dave

      The scope of the pre-July 2013 RTA Protocol is defined as follows

      “4.1
      This Protocol applies where –
      (1) a claim for damages arises from a road traffic accident occurring on or after 30th April 2010;
      (2) the claim includes damages in respect of personal injury;
      (3) the claimant values the claim at not more than £10,000 on a full liability basis including pecuniary losses but excluding interest (‘the upper limit’); and
      (4) if proceedings were started the small claims track would not be the normal track for that claim.”

      If, at the start of the claim, you believed the value of the husband’s claim to be not more than £10,000 then I believe that the husband’s claim should have proceeded through the RTA portal while the wife’s claim proceeded as a separate non-portal claim.

      The mere fact that both claimants were involved in the same road traffic accident does not mean the claim should proceed as one claim. What if a husband and wife were involved in a road traffic accident in which the wife suffered severe injuries such as brain damage and paralysis while the husband escaped with a few weeks of mild whiplash symptoms? The claims would clearly be separate claims.

      I believe that claims involving multiple claimants must remain separate for the purpose of determining portal entry. I would, however, include the details of the other claimant(s) in section I of the portal, Other Party Details, as a co-claimant, to make it clear that the claims are related.

      Kerry

      kerryunderwood

      September 19, 2014 at 5:22 pm

  17. If we reasonably believe a claim is to be worth over £25000 is it worth putting them through the portal in the first instance? If we did put it in the portal and liability is admitted and then we realise the claim is worth more than £25000, if we then pull it out of the portal will we only be entitled to stage 1 fixed costs? Also we have had a number of tram claims recently where by the claimant has been injured in the tram doors, is it RTA or PL/OL portal? Or neither? Many thanks

    Charlotte Barker

    September 1, 2014 at 3:48 pm

    • Charlotte

      Why would you ever want to put a claim that you believe to be over £25,000 in the portal? You will then get £800 costs rather than open costs as such a claim would not be covered by fixed recoverable costs.

      The portal is designed for low value claims. The very first question you are asked when submitting a new portal claim is what the likely value of the claim is. The final section of the CNF is a statement of truth. If you believe a claim is worth more than £25,000 yet you have stated in the CNF that you believe that the claim is worth only up to £25,000 then you cannot then sign a statement of truth stating that you believe that the facts stated in the claim form are true.

      If you reasonably believe that a claim is worth over £25,000 then it should not go into the portal.

      Section 5.9 provides

      “5.9 Where the claimant reasonably believes that the claim is valued at between £1,000 and £25,000 but it subsequently becomes apparent that the value of the claim is less than £1,000, the claimant is entitled to the Stage 1 and (where relevant) the Stage 2 fixed costs.”

      Understandably the rules do not even envisage a case where the claimant reasonably believes that the claim is over £25,000 but puts it through the portal.

      If you exited the portal in such circumstances then I believe that there is a real risk of you being ordered to pay all of the costs of the defendant, even if you are successful.

      Section 7.76 provides

      “7.76 Where the claimant gives notice to the defendant that the claim is unsuitable for this Protocol (for example, because there are complex issues of fact or law) then the claim will no longer continue under this Protocol. However, where the court considers that the claimant acted unreasonably in giving such notice it will award no more than the fixed costs in rule 45.18.”

      In my view giving notice to exit the portal on the basis of information known to you when you entered the portal is bound to be unreasonable.

      The court must award “no more” than CPR 45.18 fixed costs, but is free to aware less, or none, and indeed to order you to pay costs.

      Note that that may well be by way of a wasted costs order. Clause 53 of the Criminal Justice and Courts Bill, currently before Parliament, requires you to be reported to the Solicitors Regulation Authority is a wasted costs order is made.

      If your motivation for putting a claim through the portal is to try to obtain a quick admission of liability then why not make a Part 36 offer in relation to liability instead? There is no reason why this cannot be made on the day a client walks into your office.

      In relation to tram claims, clearly an accident which is a road traffic accident could also be an employer’s liability case, for example where the injured person is an employee, or a public liability case.

      However section 4.3 (11) of the Employers’ Liability and Public Liability protocol provides that that portal does not apply to a claim

      “for damages arising out of a road traffic accident (as defined in paragraph 1.1(16) of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents).”

      The scope of the RTA Protocol is defined as follows

      “4.1 This Protocol applies where—
      (1) a claim for damages arises from a road traffic accident where the CNF is submitted on or after 31st July 2013”

      The key question is whether an accident involving a tram is a RTA. The definitions under the Protocol read as follows

      “1.1 In this Protocol—
      (13) ‘motor vehicle’ means a mechanically propelled vehicle intended for use on roads…

      (15) ‘road’ means any highway and any other road to which the public has access and includes bridges over which a road passes;
      (16) ‘road traffic accident’ means an accident resulting in bodily injury to any person caused by, or arising out of, the use of a motor vehicle on a road or other public place in England and Wales unless the injury was caused wholly or in part by a breach by the defendant of one or more of the relevant statutory provisions as defined by section 53 of the Health and Safety at Work etc Act 1974”

      An RTA is therefore an accident resulting in bodily injury to any person caused by, or arising out of, the use of a motor vehicle on a road or other public place in England and Wales.

      Is a tram a motor vehicle? The definition of motor vehicle under the Protocol is limited but the Road Traffic Act 1988 provides a further explanation on the definitions of ‘motor vehicle’ and ‘tram car’. Section 185 defines a motor vehicle as

      ““motor car” means a mechanically propelled vehicle, not being a motor cycle or an invalid carriage, which is constructed itself to carry a load or passengers and the weight of which unladen—
      (a)if it is constructed solely for the carriage of passengers and their effects, is adapted to carry not more than seven passengers exclusive of the driver and is fitted with tyres of such type as may be specified in regulations made by the Secretary of State, does not exceed 3050 kilograms,
      (b)if it is constructed or adapted for use for the conveyance of goods or burden of any description, does not exceed 3050 kilograms, or 3500 kilograms if the vehicle carries a container or containers for holding for the purposes of its propulsion any fuel which is wholly gaseous at 17.5 degrees Celsius under a pressure of 1.013 bar or plant and materials for producing such fuel,
      (c)does not exceed 2540 kilograms in a case not falling within sub-paragraph (a) or (b) above”

      The definition of a tramcar is dealt with in section 192

      “tramcar” includes any carriage used on any road by virtue of an order under the Light Railways Act 1896, and
      “trolley vehicle” means a mechanically propelled vehicle adapted for use on roads without rails under power transmitted to it from some external source.”

      Given the separate definitions for ‘motor vehicle’ and ‘tramcar’ under the 1988 act I do not believe that a tram would fall under the RTA Protocol definition of a motor vehicle. Furthermore the RTA portal Claim Notification Form does not lend itself to a claim involving a tram; what would you put as the vehicle registration?

      Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims defines a public liability claim as

      “(18) ‘public liability claim’—
      (a) means a claim for damages for personal injuries arising out of a breach of a statutory or common law duty of care made against—
      (i) a person other than the claimant’s employer…”

      A claim involving a tramcar would fall under this broad definition.

      Kerry

      kerryunderwood

      September 19, 2014 at 5:01 pm

  18. […] For details of the regime in relation to medical report fees in whiplash cases – effective 1 October 2014 please see Fixed Costs, all the Portals and Fixed Recoverable Costs. […]

  19. Hello
    There seems to be a conflict between r.36.14 indemnity costs provision for claimant meeting or better his own offer and r.45.29B exiting RTA Protocol claims. The latter limits costs to those fixed under table 6B whereas r.36.14 envisages the possibility of indemnity costs. The rules are tolerably clear for claims dealt with at stage 3 ie it is fixed costs, but less so for those exiting.
    If I read your view correctly I think you consider the claimant’s costs to be at large but am not sure this is safe conclusion.
    I would welcome your further thoughts.
    Many thanks
    Maggie

    Maggie Hemsworth

    September 12, 2014 at 12:10 pm

    • Maggie

      I agree. Different commentators take different views and the matter has yet to be resolved by a court as far as I am aware. My view – but it could be wrong – is that CPR 45.29B should be interpreted as the rule when costs on the standard basis apply and that the indemnity award under CPR 36.14 is just that.

      We shall see.

      Kerry

      kerryunderwood

      September 25, 2014 at 3:20 pm

      • Many thanks, I would be interested to hear if there is a case on this. All made the more complex (messy?) by the fact that the indemnity principle has impact here ie what are firms putting in their agreements with clients as to payable costs in these circs? If only the fixed costs then even if r.36.14 were to ‘trump’ the new fixed costs rules the def could say that the client’s liability for costs has been limited so costs on indemnity basis no more than the fixed costs in any event.
        Or perhaps I have finally gone mad….
        m

        Maggie Hemsworth

        October 23, 2014 at 2:20 pm

      • No case on it yet as far as I am aware. Firms vary in what they put in their agreements, but there has been a long-standing problem of firms putting in Guideline Hourly Rates and thus rendering indemnity costs, and therefore claimants’ Part 36 offers, meaningless. You are correct that if claimant limits costs to Fixed Recoverable Costs then that is all the defendant ever has to pay, even on an indemnity basis.

        Many firms are now inserting a full hourly rate – £400 is common – which avoids this problem and also means that the charge to the client on top of recovered costs, generally voluntarily capped at 25%, is by way of unrecovered solicitor and own client costs, rather than by way of a success fee, which is double capped at 100% of costs and 25% of the Allowed Damages Pool and is not voluntary.

        These are matters of considerable complexity.

        Kerry

        kerryunderwood

        November 21, 2014 at 3:23 pm

  20. hi

    please can you advise what costs would be awarded for minor claim, non portal which will require infant approval settlement by the court? its not stage 3 as its not on the portal, therefore which fixed costs apply?

    aa

    September 25, 2014 at 5:25 pm

    • Fixed recoverable costs do not apply to any matter which has not been in the portal. It is exclusively a regime for cases that have exited the portal. All cases which start in either of the portals exit to fixed recoverable costs except for industrial disease claims which exit to open costs. In relation to infant approval settlements there is provision within the portals for payment of an additional fee and for issued cases within the fixed recoverable costs scheme, but there is a lacuna in relation to unissued cases which settle after leaving the portal. This is presumably a drafting oversight.

      Type C fixed costs are for the cost of the advice on the amount of damages where the claimant is a child and the sum is £150.

      All of this is set out in the text of the blog.

      Kerry

      kerryunderwood

      September 30, 2014 at 2:43 pm

      • Hi Kerry,
        I have an infant case, accident date March 2014, which dropped out of the portal. We have subsequently reached an agreement on quantum without resorting to proceedings. I now need to issue Part 8 for approval of the settlement. Am I right that a lacuna applies in this situation and I get no additional payment for costs of drafting the Part 8 proceedings or attending the hearing? Do I even get £150 for the advice on quantum?

        Thanks

        Iain

        July 2, 2015 at 4:38 pm

      • Iain

        Yes, you are right. No, you do not even get the £150.00.

        Kerry

        kerryunderwood

        March 4, 2016 at 9:37 am

      • How is this possible as I would have thought there is no final agreement until the court approves the figure. What about the case where the defendant has dropped it out of the portal for no good reason eg liability admitted on day one by the driver is there a conduct argument in this scenario?

        Paul Carroll

        March 4, 2016 at 9:55 am

      • Paul

        CPR 45.21(2) provides that where the court approves a settlement at a Settlement Hearing the Defendant shall pay Type C costs (£150.00 plus VAT) as well as other costs and disbursements. A Settlement Hearing is essential in all cases involving children, whatever the value and whatever the procedure.

        The Portal Scheme and the Fixed Recoverable Costs Scheme once the matter has been issued both allow for an additional fee in relation to a matter involving a child but there appears to be no provision for such an additional fee if the matter is settled after exiting the Portal but before proceedings are issued and I have certainly had a number of solicitors making this point.

        There appears to be nothing to stop a claimant issuing proceedings while the matter is still in one of the Portals, provided that the appropriate time has expired since lodging the Claim Notification Form, which stands as the Letter of Claim.

        That avoids the lacuna whereby no additional fee appears to be payable in a child case where the matter has exited the Portal but has not yet been issued.

        As far as I am aware no distinction is drawn at any stage between a solicitor and a barrister and the additional fee is for the Settlement Hearing rather than advising on quantum. I appreciate that appearing as an advocate at the Settlement Hearing, or making written submissions, involves an assessment of quantum but that is a separate issue from the additional fee for advising on quantum, which applies whether or not it is a case involving a child.

        I will return to that.

        These are the figures for a claim settling for say £1,001.00:-

        EXAMPLE

        If a child’s claim settled for damages £1,000.00 the following costs would be applicable at each stage:-

        – Settles within the portal

        CPR 45.22 applies to cases where settlement at Stage 3 where the claimant is a child:-

        Stage 1 fee – £ 200.00

        Stage 2 fee – £ 300.00

        Stage 3 fee –

        o Type A costs £ 250.00 Type A fixed costs’ means the legal representative’s
        costs

        o Type B costs £ 250.00 Type B fixed costs’ means the advocate’s costs

        o Type C costs £ 150.00 Type C fixed costs’ means the costs for the advice on
        the amount of damages where the claimant is a child

        TOTAL £1,150.00

        – Settles outside the Portal but pre-issue

        CPR 45.29C Table B deals with the amount of Fixed costs in claims that no longer continue in the portal

        “TABLE 6B

        Fixed costs where a claim no longer continues under the RTA Protocol
        A. If Parties reach a settlement prior to the claimant issuing proceedings under Part 7

        Agreed damages At least £1,000, but not more than £5,000
        Fixed costs The greater of—
        (a) £550; or
        (b) the total of—
        (i) £100; and
        (ii) 20% of the damages”

        TOTAL £ 550.00

        – Settles post issue

        CPR 45.29C Table B deals with the amount of Fixed costs in claims that no longer continue in the portal

        “TABLE 6B

        B. If proceedings are issued under Part 7, but the case settles before trial

        Stage at which case is settled On or after the date of issue, but prior to the date of allocation under Part 26
        Fixed costs The total of—
        (a) £1,160; and
        (b) 20% of the damages”

        Thus this will be:-
        £1,160.00
        £ 200.00

        TOTAL £1,360.00

        I now return to the issue of advice on quantum.

        RTA Portal paragraph 7.10 reads: –

        “In most cases under this Protocol, it is expected that the claimant’s legal representative will be able to value the claim. In some cases with a value of more than £10,000 (excluding vehicle related damages), an additional advice from a specialist solicitor or from counsel may be justified where it is reasonably required to value the claim.”

        EL/PL 7.8 is in similar terms.

        That this applies only to an advice on quantum is confirmed by RTA 7.47(4) and EL/PL 7.44 (4) which read: –

        “…where an additional advice on quantum of damages is justified under paragraph 7.10 [7.8 in EL/PL], a sum equal to the Type C fixed costs to cover the cost of that advice.”

        Type C costs are £150.00 plus VAT.

        It is unclear as to whether the firm can instruct a specialist solicitor in their own firm and get the extra fee.

        Thus if it is a case involving a child then an additional fee is payable in relation to the Settlement Hearing but no separate fee is payable in relation to an advice on quantum unless RTA 7.10 or EL/PL 7.8 is satisfied and if that is satisfied it applies equally to adults as well as to children.

        It is not a disbursement; it is additional legal costs.

        Thus in relation to advocacy then no, you could not object to the fact that it was a solicitor; the whole of the Portal process, including the matters I have quoted, make it clear that it is the solicitor and not counsel who is expected to deal with the whole of any personal injury claim valued at £25,000.00 or less.

        In relation to the advice on quantum where the matter is over £10,000.00 and justified the law is unclear, but I think that it is worth a paying party objecting if the specialist solicitor is indeed an in-house solicitor at the same firm as the legal representative.

        Kerry

        kerryunderwood

        March 7, 2016 at 3:21 pm

      • HI Kerry

        I have an RTA unissued case where accident happened this year 2016 that settled for £25,000. It did not enter the portal as we deemed it to be worth over £25,000. It settled exactly at £25,0000. Does this means it isn’t fixed recoverable costs as it did not enter and therefore did not exit the RTA portal and is subject to open costs or is it subject to fixed recoverable scheme?thanks

        Bernadette

        November 8, 2016 at 12:43 pm

      • Bernadette

        On what basis do you think that you are entitled to any costs? Starting point is no costs pre-issue in the absence of contractual agreement. The portals are an exception and are specifically adopted by the Civil Procedure Rules, themselves approved by Parliament by way of Statutory Instrument. What is the agreement with the other side in relation to damages and costs?

        Kerry

        kerryunderwood

        November 10, 2016 at 2:54 pm

  21. Dear Kerry

    Dont know if you have come upon this situation before and what the answer is.I startted an EL case in the portal and at that time I thought the damages would be £10000 or under.I got ortho report and made request for interim payment to cover physio but ortho also recommended a psych report.Defendants made interim of £1000.Upon receipt of psych report it is clear our client has more significant pyschological injury than i anticipated and i think case now worth more than £10000 but less than £25000.The claimant needs CBT at cost of £1500 but defendants refuse a further interim on basis that they have made one already and we certified at outset that case worth less than £10000.If i EXIT PORTAL AND ISSUE A INTERIM PAYMENT APPLICATION I AM CONFIDENT THE COURT WILL GRANT IT BUT AM I LIKELY TO BE STUCK WITH PORTAL COSTS?Would it be a reason to remove it from portal?

    Any help you can provide would be appreciated.

    Regards

    Phillip Watters

    phillip watters

    October 1, 2014 at 3:06 pm

    • If you exit the portal to make an interim application then the Court will no doubt entertain your application costs. Unfortunately, as far as I am aware, there is no binding precedent on what costs regime becomes applicable.

      I would say though; act in your client’s best interests (which is of course obtaining the interim) and then worry about costs later.

      In my opinion; the likelihood is the defendant’s unreasonable conduct in declining a further justified interim justifies departure from the protocol and therefore the fixed costs regime.

      Ryan

      October 8, 2014 at 10:16 am

      • Ryan

        It is crystal clear which costs regime applies when an employer’s liability matter exits the portal – it is the Fixed Recoverable Costs Scheme.

        The whole point about fixed recoverable costs is just that. There is an escape procedure as follows but this will virtually never be utilised successfully.

        The claimant must succeed in recovering a further 20% or more; if they fail to do so they will be liable for all of the defendant’s costs of dealing with that application. This is the same test as in relation to the existing fixed costs scheme and for all intents and purposes I expect that there will never be such an application. Remember also that even if the case is outside the portal, or is removed from the portal, and does not fall within the fixed fast track costs system any bill of costs of £75,000 or under will be subject to paper assessment and not detailed oral assessment.

        If the claimant fails to achieve a further 20% then the claimant receives the lower of the sum as assessed or Fixed Recoverable Costs. (CPR 45.29K)

        The whole idea of the portals and fixed recoverable costs is that for lawyers they work on a swings and round-a-bouts basis. It is all very well for lawyers to say that in a particular case fixed recoverable costs are insufficient; I have yet to hear of a claimant lawyers saying:-

        “Actually I settled this matter very speedily with very little work and I regard the fixed recoverable costs as too high and so I am donating half of them back to the Defendant’s insurance company.”

        Kerry

        kerryunderwood

        October 23, 2014 at 2:45 pm

    • Phillip

      The Employer’s Liability Portal came in at £25,000.00 and therefore the matter remains a portal claim even though you previously thought it was worth under £10,000.00. The reason for the difference is that the portal costs are higher on cases over £10,000.00.

      Once the matter exits the portal then it goes to fixed recoverable costs. It cannot go elsewhere.

      If you have acted reasonably then you will not be stuck with portal costs, but you will be stuck with fixed recoverable costs unless you can satisfy the escape clause, which essentially means that you have to recover more than 20% above fixed recoverable costs.

      That is extremely unlikely.

      As I set out above, in relation to escaping fixed fast track costs, the claimant must succeed in recovering a further 20% or more; if they fail to do so they will be liable for all of the defendant’s costs of dealing with that application. This is the same test as in relation to the existing fixed costs scheme and for all intents and purposes I expect that there will never be such an application. Remember also that even if the case is outside the portal, or is removed from the portal, and does not fall within the fixed fast track costs system any bill of costs of £75,000 or under will be subject to paper assessment and not detailed oral assessment.

      Kerry

      kerryunderwood

      October 23, 2014 at 2:45 pm

  22. Kerry

    I have a £19000 claim consisting of credit hire and vehicle damage. Damages have been agreed pre-issue without us sending a CNF. Accident occurred 18.1.14. The at fault insurers are refusing to pay costs. As its property damage only, does this claim still fall in the RTA process despite no injury? Should we have sent a CNF? Which part of the CPR is relevant to me recovering costs?

    Your assistance would be gratefully received.

    Thanks

    Andrew

    Andrew Clark - TPC Solicitors

    October 7, 2014 at 5:00 pm

    • Andrew

      A road traffic accident claim where there is no claim for personal injury would not fall within the scope of the RTA Protocol, as set out in paragraph 4.1:-

      “4.1 This Protocol applies where—

      (1) a claim for damages arises from a road traffic accident where the CNF is submitted on or after 31st July 2013;
      (2) the claim includes damages in respect of personal injury;
      (3) the claimant values the claim at no more than the Protocol upper limit; and
      (4) if proceedings were started the small claims track would not be the normal track for that claim.”

      Therefore you should not have sent a CNF in this claim.

      As the appropriate track for this claim would be fast-track there are no fixed costs and therefore the claim is in open costs and you will need to send a Schedule of Costs to the Defendant in order to negotiate costs.

      If the Defendant is refusing to accept that they are liable for costs then you could consider issuing Part 8 costs-only proceedings, as the claim was settled before issue, and attaching a draft order that the Defendant should pay your costs on the standard basis.

      However note that there is no inherent right to costs unless a case is issued; that is why any pre-issue agreement must contain wording along the lines of

      “The defendant to pay the claimant’s reasonable costs to be assessed if not agreed.”

      Likewise a potential claimant can never be liable in costs until proceedings are issued. If you have settled the matter without such or similar wording then there is no entitlement to costs.

      Kerry

      kerryunderwood

      October 22, 2014 at 9:11 am

      • Kerry

        Thank you very much for getting back to me.

        Its very helpful.

        Thanks

        Andrew

        Andrew Clarke
        Case Handler

        Mob: 07590444728
        Email: Andrew@tpclaw.co.uk
        Web: http://www.tpclaw.co.uk

        [cid:image16d080.JPG@d29d06af.40a6d200]

        Market Square Building
        85 High Street
        Manchester M4 1BD
        Tel: 0161 832 8867 Fax: 0161 832 8070

        [cid:image9216d0.GIF@0c3bfa8e.43a464a0] Please consider the environment before printing this email message.

        Partners: Elizabeth Gilmour Richard Hart

        THIS FIRM IS AUTHORISED AND REGULATED BY THE SOLICITORS REGULATION AUTHORITY (SRA No. 00418422)

        Information in this message is confidential and may be legally privileged. It is intended solely for comment+r3oby7-alpdo0en2wegr_9m-pvq-yt94jlzaulampdn@comment.wordpress.com. If you are not the intended recipient, please notify the sender and delete the message from your system immediately

        Andrew Clark

        October 22, 2014 at 9:40 am

  23. Kerry

    I have an rta from 2011 with cnf sent feb 2013 with liability admitted. The Def insurer made a pre settlement pack offer (despite knowing that a medical report was awaited) of £15,000 in a claim which had previously been valued as up to £6,000.00. Obviously, the offer was accepted! They now refuse to pay for the medical report and records despite requesting for a note of our costs & paying the other disbs. My question: does this matter fall out of the portal because of the offer in excess of £10,000?

    Any help greatly appreciated.

    kate

    October 23, 2014 at 4:12 pm

    • Kate

      Was the offer made under Part 36 of the Civil Procedure Rules?

      The RTA Protocol states the following:-
      “1.2 (1) The ‘Protocol upper limit’ is—

      (b) £10,000 where the accident occurred on or after 30 April 2010 and before 31July 2013.”

      Therefore a pre-July 2013 RTA portal claim will exit the portal.

      However the Defendant should pay for the medical report disbursement.
      “7.47 Except where the claimant is a child or paragraphs 7.49 and 7.50 apply, the defendant must pay—

      (5) the relevant disbursements allowed in accordance with rule 45.19 including any disbursements fixed under rule 45.19(2A)…”

      Although rule 45.19(2A) refers to the latest disbursement fees recoverable, it includes the cost of obtaining a medical report.

      However if you settled the case prior to incurring liability for the medical report then obviously it would be unreasonable to expect the defendant to pay for what is then an unnecessary report. It would be different if you delayed settlement until receipt of the report, but that does not appear to be the case.

      How did it come about that you valued the claim at only £6,000 with the defendant valuing it at £15,000?

      When was the claim settled and when was the disbursement of the medical report incurred?

      Kerry

      kerryunderwood

      November 3, 2014 at 10:58 am

  24. Kerry, do you think that the purpose of capping def costs at the level of damages envisaged offsetting said damages from costs where a situation arose that the clt was liable for def costs?

    marie colleran

    November 14, 2014 at 5:14 pm

    • Marie

      Don’t fully understand the question. Defendants’ costs are not capped at the level of damages. In Fixed Recoverable Costs(FRC) cases they are capped at level of FRC – that is capped not fixed – but even that may give way to open costs on claimant’s failure to beat defendant’s Part 36 offer – the CPR are unclear. In Qualified One Way Costs Shifting cases the full order is still made in favour of a successful defendant, either successful on liability or on Part 36, but the order is only enforceable up to the level of damages without leave of the court.

      However my view is that a defendant can set off any unpaid balance against any pre Part 36 costs due to the claimant -and of course costs belong to the client and not the solicitor. See also the CPR on set off, which appears immediately before CPR on Qualified One Way Costs Shifting. Setting off is not enforcing and therefore does not require leave of the court.

      This is all dealt with in my blog on Qualified One Way Costs Shifting.

      If in fact you mean something else then please let me know.

      Kerry

      kerryunderwood

      November 21, 2014 at 3:03 pm

  25. Hi Kerry,

    Are you aware of any case law on cases exiting the portal due to complexity?

    I have a couple of ongoing matters where the insurer instructed a forensic accountant to negotiate relatively nominal lost earnings claims (less than 5k) separate to other damages claimed in the stage 2 pack. The forensic accountant are not subscribers to the MOJ Portal and my client exited the claims from the portal as they did not feel they were on an even footing and the Portal does not seem to provide for a defendant to obtain their own expert evidence or instruct an external agent to negotiate specific heads of claim. Any guidance would assist in advising my client.

    Thanks,

    Steve

    Steve

    November 18, 2014 at 10:48 pm

    • Steve

      I think that you have answered your own question. There is no entitlement in the portal process to obtain a forensic accountant’s report and therefore that report would not have been admitted in the portal process and thus would not have influenced any award.

      What I do not understand is why your client exited the portal rather than simply continuing in the portal where the forensic accountant’s evidence would not have been admitted.

      Once outside the portal the claim will go to fixed recoverable costs and be heard in the fast track and it is very unlikely that the court would allow a forensic accountant’s report in the fast track in relation to “relatively nominal lost earnings.”

      The problem is that you now run the risk of only being awarded portal costs if you are held to have unreasonably exited the portal and indeed you are at risk of being ordered to pay the Defendant’s costs, win or lose, for the additional work occasioned by the matter exiting the portal.

      However given that it was the defendant that commissioned the forensic accountant’s report I suspect that the court will exercise its discretion and find that you did not unreasonably exit the portal.

      The starting point is that all cases within the specified jurisdictions, road traffic, employer’s liability, and public liability where the damages are under £25,000.00 and where there is no defence and no allegation of contributory negligence, are suitable for the portal as the only issues will be those of quantum and in low value claims this should not be particularly complex.

      Even where there is an allegation of contributory negligence in failing to wear a seatbelt the matter stays within the portal if that allegation is admitted.

      The modern emphasis is undoubtedly on matters remaining in the portal, not exiting it.

      I hope that this helps.

      Kerry

      kerryunderwood

      December 2, 2014 at 9:04 am

      • Kerry

        I hope that you are well.

        Part 28 of CPR relates to the fast track and only mentions trials as the final hearing. Is it now impossible for an out of process Part 7 issued claim to be listed for a ‘disposal’ hearing? Is this outside of the rules? Do you know if every claim has to be listed for trial for the Claimant to attend?

        I look forward to hearing from you further

        Thanks

        Andrew

        Andrew Clark

        December 2, 2014 at 12:47 pm

      • Andrew

        Disposal hearings can be listed in Part 7 matters, and often are: see for example Fisher v Liverpool Victoria Bolton County Court 28 January 2015 Claim No. A33YM603 and Taylor v Bunter, Birkenhead County Court 18 September 2014 Case No. A74YJ432.

        I mention those two as that contain the conflicting views as to what the appropriate fee is: pre-allocation or post listing.

        I will be blogging on this subject soon.

        Kerry

        kerryunderwood

        October 26, 2015 at 1:31 pm

  26. correct email for me is andrew@tpclaw.co.uk. Thanks

    Andrew Clark

    December 2, 2014 at 12:48 pm

  27. Kerry

    I hope that you are well. My previous request didn’t reach your blog. CPR Part 28 details final hearings to be listed for trial. Are Courts definitely not allowed to hear out of portal, Part 7 issued claims by way of ‘disposal’ hearing? Is it now the situation that each claim is listed for Trial to have the Claimant attend the hearing to give evidence?

    Andrew Clark

    December 2, 2014 at 2:07 pm

  28. […] For details of the regime in relation to medical report fees in whiplash cases – effective 1 October 2014 please see Fixed Costs, all the Portals and Fixed Recoverable Costs. […]

  29. Hi Kerry, simple question to which I think I know the answer ….I want to settle a RTA that falls out of portal post 31.7.13 so falls within fixed recoverable costs CPR 45.29C (no proceedings issued so table A) as I have received a good offer from the paying party. I still need an agreement in writing to actually pay my client’s costs as well as the damages don’t I? At the moment the offer simply refers to the damages and not any costs. If I just accept that offer there is no obligation on them to pay costs, fixed or otherwise? Am I correct.

    Many thanks,
    Sue

    Sue King

    January 7, 2015 at 3:04 pm

  30. Can I assume that if the settlement monies and costs are not paid by the insurance company within 10 days that I can exit the claim from the Portal and issue as normal, simply to obtain judgment and costs?

    Tracy

    Tracy Talbot

    January 13, 2015 at 2:55 pm

    • Tracy

      I have now had another look at your question and in my view, based on previous decisions and the courts’ reluctance to see claims fall out of the portal it is likely that Part 8 proceedings are the correct proceedings as a claim can only be issued under Part 7 where settlement is not reached within the portal, in accordance with paragraph 7.75 of the Pre-Action Protocol.

      In your situation the claim has settled it is merely the non-payment of damages and costs that is the issue and thus this could be dealt with under CPR 8 as you seek “the court’s decision on a question which is unlikely to involve a substantial dispute of fact” in accordance with CPR 8.1(2)(a).

      Kerry

      kerryunderwood

      January 14, 2015 at 8:40 am

  31. Kerry
    Where a post July 31 2013 case started out under the Portal then dropped out after Stage 1 costs were paid and subsequently was issued under Part 7, does credit have to be given for the Stage 1 costs when recovering the fixed fees under CPR45.29A? I am aware of CPR45.28 but there is no reference under CPR45.29A to any deduction to be made from the fixed recoverable costs. Thank you.

    Lisa E

    January 15, 2015 at 1:06 pm

    • Lisa

      I think you have answered your own question!

      CPR45.28 states that “where a claim no longer continues under the relevant Protocol the court will, when making any order as to costs including an order for fixed recoverable costs under Section II or Section IIIA of this Part, take into account the Stage 1 and Stage 2 fixed costs that have been paid by the defendant.”

      Section IIIA deals with claims that no longer continue under the Protocol. Although this section does not specifically refer to situations where Stage 1 or Stage 2 costs have already been paid, it is clear from CPR45.28 that any fixed costs already paid will be taken into consideration under Section IIIA.

      Kerry

      kerryunderwood

      January 22, 2015 at 9:04 am

  32. Kerry or any others – can you offer any guidance on the applicability of CPR
    45.29H and pre-action disclosure applications for claims that have exited the el/pl portal, do fixed costs apply? such that the order would be for a sum equivalent to one half of the applicable Type A and Type B costs in Table 6 or 6A.

    My own thinking is they do not as such an application is not an interim application

    P McNally

    January 20, 2015 at 11:36 pm

    • Paul

      I think that it is potentially arguable either way.

      However a pre-action disclosure application is an interim application within the proceedings and, although pre-action disclosure applications are not specifically referred to in Part 45, it would undermine the whole fixed costs regime if fixed costs did not apply to such an application where a claim has exited the portal.

      If a PAD is an interim application then CPR45.29H must apply and the Claimant should receive the sum equivalent to one half of the applicable Type A and Type B costs in Table 6 or 6A, as you have stated, that is the sum of £250.

      Kerry

      kerryunderwood

      January 29, 2015 at 8:46 am

      • Many thanks Kerry

        P McNally

        January 29, 2015 at 7:08 pm

  33. Kerry
    If the value of a PI case comfortably exceeds £25k but the majority of damages are vehicle-related, such that the remaining damages will be under £25k, it will be commenced in the Portal. However, if it falls out for say liability reasons, when litigated it will be a multi-track. Which costs regime then applies to it?
    Cheers

    Damian

    February 4, 2015 at 11:03 am

    • Damian

      Why do you say it will commence in the portal if damages comfortably exceed £25,000 ? It won’t. It is simple; with the exception of industrial disease cases anything exiting the portal goes in to Fixed Recoverable Costs but nothing can go into FRC unless it has started in the portal.

      Kerry

      kerryunderwood

      March 12, 2015 at 6:32 pm

      • Kerry

        As per para 4.4 of the Protocol:

        A claim may include vehicle related damages but these are excluded for the purposes of valuing the claim under paragraph 4.1.

        My claim for Portal purposes may only be worth £3-4k but for litigation £30k.

        Cheers

        Damian

        Damian

        March 13, 2015 at 9:53 am

      • Damian

        Thank you for clarifying this and you are absolutely correct that vehicle related damages, including a credit hire claim, are excluded for the purposes of valuing the claim for the RTA Portal and thus there is indeed no limit on the value of an RTA claim and that can go into the portal in those circumstances.

        Once the matter is issued the court is free to allocate it to whichever track it thinks fit, including the Multi-track.

        In my view a Multi-track claim can be subject to the Fixed Recoverable Costs Scheme. I have spent some time considering this and I must admit that it is not entirely clear to me, but on balance my view is that any matter which has exited the RTA Portal is subject to Fixed Recoverable Costs.

        The relevant rules are CPR 45.29A to 45.29L and CPR 45.29B states that subject to rules 45.29F, 45.29G, 45.29H and 45.29J, “if, in a claim started under the RTA Protocol, the Claim Notification Form is submitted on or after 31st July 2013, the only costs allowed are—

        (a) the fixed costs in rule 45.29C;

        (b) disbursements in accordance with rule 45.29I.”

        That being the case only the exceptions as set out above come into play. CPR 45.29F deals with defendant’s costs, 45.29G deals with costs on a counterclaim and 45.29H deals with the costs of interim applications and thus none of those apply here. The key rule is 45.29J which is claims for an amount exceeding Fixed Recoverable Costs.

        That part deals with additional costs, over and above Fixed Recoverable Costs, when there are exceptional circumstances.

        I do not believe that the fact that the value of the litigation is above £25,000.00 constitutes exceptional circumstances; it is clearly the will of Parliament that such matters can be dealt with in the even lower cost and more rough and ready regime that is the RTA Portal.

        Consequently my view is that such a case is caught by Fixed Recoverable Costs and anyone seeking to escape from them would need to make an application under CPR 45.29.

        Under CPR 45.29J(1) the court will, if it considers that there are exceptional circumstances making it appropriate to do so, consider a claim for an amount of costs (excluding disbursements) which is greater than the Fixed Recoverable Costs referred to in rules 45.29B to 45.29H.

        The rule continues:-

        “(2) If the court considers such a claim to be appropriate, it may—

        (a) summarily assess the costs; or

        (b) make an order for the costs to be subject to detailed assessment.

        (3) If the court does not consider the claim to be appropriate, it will make an order—

        (a) if the claim is made by the claimant, for the fixed recoverable costs; or

        (b) if the claim is made by the defendant, for a sum which has regard to, but which does not exceed the fixed recoverable costs,

        and any permitted disbursements only.”

        Thus if the court declines to make an order then CPR 45.29J(3) deals with the matter.

        If the court does make an order then CPR 45.29K applies and that rule reads:-

        “(1) This rule applies where—

        (a) costs are assessed in accordance with rule 45.29J(2); and

        (b) the court assesses the costs (excluding any VAT) as being an amount which is in a sum less than 20% greater than the amount of the fixed recoverable costs.

        (2) The court will make an order for the party who made the claim to be paid the lesser of—

        (a) the fixed recoverable costs; and

        (c) the assessed costs.”

        Thus if the court assesses the matter at less than Fixed Recoverable Costs you get that lower sum and if it assesses them at less than 120% of Fixed Recoverable Costs then you get Fixed Recoverable Costs.

        CPR 45.29L deals with the costs of those proceedings.

        That rule reads:-

        “(1) Where—

        (a) the court makes an order for costs in accordance with rule 45.29J(3); or

        (b) rule 45.29K applies,

        the court may—

        (i) decide not to award the party making the claim the costs of the costs only proceedings or detailed assessment; and

        (ii) make orders in relation to costs that may include an order that the party making the claim pay the costs of the party defending those proceedings or that assessment.”

        Thus the court can order the claimant to pay the defendant’s costs, or the other way round, if the court finds under CPR 45.29J(3) that it is not appropriate to make an order to consider costs greater than Fixed Recoverable Costs or if it does make that order under CPR 45.29J(2) and proceeds under 45.29K but then decides not to make an order of at least 120% of Fixed Recoverable Costs.

        This is exceptionally complicated but to summarise it as best as I can:-

        1. Any claim which exits the RTA Portal, whatever its value, is subject to Fixed Recoverable Costs unless the court orders otherwise on application and if you fail to get at least 120% of Fixed Recoverable Costs then you risk being ordered to pay the costs of the application and any assessment of those costs.

        Having said all of that the bands at the top of Table 6 B, 6 C and 6 D in CPR 45.29C are as follows:-

        “At least £1,000, but not more than £5,000”

        “More than £5,000, but not more than £10,000”

        “More than £10,000, but not more than £25,000”

        Thus those tables of fixed costs do not appear to envisage a claim of more than £25,000.00 being subject to Fixed Recoverable Costs.

        Under CPR 45.29F(4), for the purposes of assessing the costs payable to the defendant by reference to the fixed costs in those tables the value of the claim excludes any claim for vehicle related damages.

        However I cannot see any such exclusion in relation to the calculation of the value for the purposes of the claimant’s costs.

        Kerry

        kerryunderwood

        April 23, 2015 at 4:09 pm

  34. Kerry
    Could you help please. EL matter settled for £6050, out of the portal but not issued. I believe therefore that fixed costs as per table 6D to CPR 45.29E apply ie: “the total of (a) £1855 and (b) 10% of damages OVER £5000.” Given that the wording is “damages OVER £5000” in contrast to the lower bracket which states “17.5% of THE damages” does that mean I claim 10% of the damages over £5000 which in this case is £1050? Or do I claim the fixed sum of £1855 plus 10% of the whole £6050?
    I am new to this regime so apologies if this is a rather simple question!!
    Many thanks,
    Sue

    Sue King

    February 6, 2015 at 1:00 pm

    • Sue

      Although there is one portal covering Employer’s Liability and Public Liability claims, and one set of fees covering both types of claim within the portal, the fees differ once the claims are out of the portal.
      As this is an EL claim and not a PL claim, the fixed costs will be as per Table 6C, as stated in CPR 45.29(1)(a), rather than Table 6D as you have stated. Table 6D applies to PL claims.

      While the fixed costs of £1,855 where a claim is settled before issue for between £5,000 and £10,000 remains the same regardless of whether the claim is a public liability claim or an employer’s liability claim, the percentage of the damages OVER £5,000 that you receive is higher in EL claims than it is in PL claims.

      Therefore in your case the costs should be £1,855 plus 12.5%, not 10%, of the damages OVER £5,000, that is the sum of £1085 as you have stated, 12.5% which is £131.25. This is a total of £1,986.25.

      You do NOT claim 12.5% of the whole damages, hence the wording “damages over £5,000.” It is just the SURPLUS over £5,000 that the percentage is claimed on.

      That is why the fixed costs for claims settled between £5,000 and £10,000 are £1,855, as opposed to just £950 for claims settled between £1,000 and £5,000, that is that the fixed costs factor in the percentage up to £10,000.

      I hope that this is clear! To make life easier for everyone I have just posted a new blog: Guideline Hourly Rates, Portal Fees and Fixed Recoverable Costs: The Figures, which does what it says on the tin!

      Kerry

      kerryunderwood

      February 12, 2015 at 11:54 am

      • Thank you very much Kerry. Invaluable as ever. Apologies for silly mistake over the correct table ! Sue

        Sue

        February 13, 2015 at 6:01 pm

      • Pleasure Sue. Easily done re tables!

        kerryunderwood

        February 13, 2015 at 6:04 pm

  35. Good morning Kerry.

    I have a case I have sent I have the stage 2 pack claiming for personal injury and credit hire. We have an offer for the injury and an offer of ‘0’ for the hire. There are no queries. The insurer say that they have outsourced the hire to ‘validus’ to settle our clients claim. Rules 7.41 of the pre-action protocol says
    7.41 When making a counter-offer the defendant must propose an amount for each head of damage and may, in addition, make an offer that is higher than the total of the amounts proposed for all heads of damage. The defendant must also explain in the counter-offer why a particular head of damage has been reduced. The explanation will assist the claimant when negotiating a settlement and will allow both parties to focus on those areas of the claim that remain in dispute. We are looking to pull this case out of process but are aware of arguments that we may have to face when the issue of costs comes about. All we want is our clients claim to settle. In our view ‘0’ is not an offer because we cannot take instructions on a ‘0’ offer. Do you know of any case law in respect of costs on this particular issue? Do you consider our conduct to be unreasonable considering the Defendants insurers have not complied with the pre-action protocol?

    Id be extremely grateful to hear back from you on this issue.

    Thank you

    Andrew

    Andrew Clark

    February 9, 2015 at 11:33 am

    • Andrew

      I do not believe that your conduct would be unreasonable were you to remove this claim from the portal based on what you have said. However please note the case of Dickinson which I deal with below.

      It is not the offer of zero that is a breach of the pre-action protocol, but rather the Defendant’s failure to provide an explanation for the offer of zero in accordance with rule 7.41, as you have rightly pointed out. Rule 7.41 states as follows:

      “The defendant must also explain in the counter-offer why a particular head of damage has been reduced. The explanation will assist the claimant when negotiating a settlement and will allow both parties to focus on those areas of the claim that remain in dispute.”

      If the Defendant has not provided you with an explanation as to why they have reduced this head of damage to zero then you cannot negotiate a settlement with them in relation to this head of damage.

      However the only case I am aware of which deals with zero offers within the portal is the unreported case of Dickinson v Langford, Birkenhead CC 14 February 2013, in which it was argued that an offer of zero for care and assistance did not justify the matter coming out of the portal, as the judge held that this head of damage could be evidenced by a witness statement and schedule of loss.

      In Dickinson v Langford, Birkenhead County Court, 14 February 2013, the defendant successfully argued that offering zero for care and raising a full legal defence to the care claim did not justify the matter coming out of the portal. The judge held that witness statements could be filed, as was held in Lamb v Gregory 2011 (unreported) and with the detailed schedule filed the judge had everything they needed in the portal to be able to assess the care claim. The claimant was restricted to portal costs and the defendant was awarded their costs.

      Therefore provided you have provided evidence to support this head of damage then you could remove the claim from the portal on this basis, but there is the Dickinson risk of costs consequences.

      I advise putting the other side on notice that you believe them to have breached the pre-action protocol based on the above point and that you intend to remove this claim from the portal as a result, as it is evident that you will be unable to negotiate the head of damage for the credit hire element of the claim due to the fact that you do not know why they are disputing this.

      Give them, say, 7 days to comply with Rule 7.41.

      That should protect you on costs.

      Kerry

      kerryunderwood

      February 20, 2015 at 12:16 pm

      • Thank you so very much.

        Andrew

        Andrew Clark

        February 20, 2015 at 12:23 pm

      • Pleasure Andrew. Please let me know how you get on.

        Kerry

        kerryunderwood

        February 20, 2015 at 12:26 pm

      • Hi
        I hope you won’t mind my butting in…. I have also been looking at this problem.
        If I understand your case correctly, there are vehicle related losses which the insurer has said are being dealt with by another but they are making offers re the PI element. On my reading of the Protocol to include para 7.41 as you say you would be at risk if you pull out of the Protocol. This seems likely to me because vehicle costs although they may be settled in the course of complying with the Protocol they are generally kept distinct from it ie play no part in valuation and the offers referred to in para 7.41 are implicitly those re the PI.

        So, I wonder if the best course is to say that your client’s rights re the vehicle are fully reserved and that you will take instructions about issuing Part 7 proceedings as may be necessary. For the avoidance of doubt any settlement reached on the PI does not include the claim for vehicle losses and you do not accept the zero figure put in the insurer’s response as appropriate because potentially ambiguous as to their intentions (rejected offer or indicating this will be dealt with separately).

        m

        Maggie Hemsworth

        March 15, 2015 at 12:51 pm

      • Hi Maggie

        I attach my reply to Paul Carroll’s blog comment of 13 July 2015 which deals with this subject.

        Anything agreed in the portal should be dealt with there with only the disputed element being the subject of Part 7 proceedings – see Bewicke-Copley v Ibeh Oxford County Court 4 June 2014 case 029YJ613.

        As the disputed special damages are over £10,000.00 it will still be cost bearing; the potential problem is if agreement on certain issues reduces the balance to a sum which is not cost bearing, that is under £10,000.00 in the case of special damages.

        It is not clear what sanction, if any, applies when a defendant fails to pay settlement monies, including stage 2 costs, within 10 days of settlement as required by the rules.

        My remedy would be to impose an immediate 10% uplift on all damages with a further 1% for each day the default continues.

        Paragraph 7.59 reads:-

        “7.59. Paragraph 7.60 applies where –

        (1) the original damages are agreed; but

        (2) the additional damages are not agreed.”

        “7.60. Where paragraph 7.59 applies –

        (1) the defendant must, in relation to the original damages, pay the claimant in accordance with paragraph 7.62; and

        (2) the claimant may start proceedings under Part 7 of the CPR in relation to the additional damages.”

        Paragraph 7.62 then sets out what must be paid but does not deal with enforcement.

        It appears here that “original damages” have been agreed but that vehicle related damages, defined in certain circumstances in paragraph 7.51 as “the additional damages” have not.

        “Original damages” include all elements of the claim in the existing stage 2 Settlement Pack. It is not clear to me whether the hire element was included in the stage 2 Settlement Pack. If so, then the matter should proceed to stage 3.

        Paragraph 6.4 reads:-

        “6.4. A claim for vehicle related damages will ordinarily be dealt with outside the provisions of this Protocol under industry agreements between relevant organisations and insurers. Where there is a claim for vehicle related damages the claimant must: –

        (1) state in the CNF that the claim is being dealt with by a third party; or

        (2)

        (a) explain in the CNF that the legal representative is dealing with the recovery of these additional costs; and

        (b) attach any relevant invoices and receipts to the CNF or explain when they are likely to be sent to the defendant.”

        Was this done?

        If in fact they were not and are additional damages then you may start proceedings under Part 7 as per paragraph 7.60.

        On what basis do you say that stage 3 is for a dispute on general damages only? That is not the case.

        Practice Direction 8B deals with the stage 3 procedure and, for example, paragraph 6.1(4) requires the filing of evidence of special damages.

        If you withdraw a claim from the portal unreasonably then the court can restrict your costs to portal costs, whatever stage Part 7 proceedings reach. (Paragraph 7.76).

        Kerry

        kerryunderwood

        October 26, 2015 at 12:14 pm

  36. […] Fixed Costs, All the Portals and Fixed Recoverable Costs […]

  37. Hi Kerry – great read, thankyou.

    Quick question – what’s the position with multi-claimant matters? Is it simply one set of costs? Or do you get ‘double’ the fee?

    Many thanks

    Paul

    February 12, 2015 at 11:39 am

  38. Does this apply in relation to fixed recoverable costs as well as portal?
    Thanks

    James

    February 12, 2015 at 11:58 am

    • Yes.

      kerryunderwood

      February 12, 2015 at 12:00 pm

      • Hi Kerry – this exact question has come up at my firm, thanks for answering it so emphatically! I have a follow-up which is, say you have three Claimants issued on the same claim form or consolidated, and they all go to a final contested hearing – do they get a separate fixed advocate’s fee each, or is there one advocate’s fee based on the total value of all three claims as assessed?

        Many thanks

        David van der Burg

        March 31, 2015 at 1:04 pm

      • David

        Assuming that you are talking about fast track trial costs then there is only one advocate’s fee and not a separate fixed advocate’s fee for each of the three claimants.

        The relevant rule is CPR 45.40 which states:-

        “45.40

        (1) Where the same advocate is acting for more than one party –

        (a) the court may make only one award in respect of fast track trial costs payable to that advocate; and

        (b) the parties for whom the advocate is acting are jointly entitled to any fast track trial costs awarded by the court.”

        The fee is indeed based on the total value of all three claims and that is dealt with by CPR 45.40(2) which reads:-

        “(2) Where –

        (a) the same advocate is acting for more than one claimant; and

        (b) each claimant has a separate claim against the defendant,

        the value of the claim, for the purpose of quantifying the award in respect of fast track trial costs is to be ascertained in accordance with paragraph (3).

        (3) The value of the claim in the circumstances mentioned in paragraph (2) or (5) is –

        (a) where the only claim of each claimant is for the payment of money –

        (i) if the award of fast track trial costs is in favour of the claimants, the total amount of the judgment made in favour of all the claimants jointly represented; or

        (ii) if the award is in favour of the defendant, the total amount claimed by the claimants,

        and in either case, quantified in accordance with rule 45.38(3).”

        Although the rule does not specifically say so it is clear that where there is more than one advocate each advocate gets the separate fixed advocate’s fee.

        Kerry

        kerryunderwood

        April 20, 2015 at 1:00 pm

  39. Hi Kerry,

    I have a case where a client had previously made a claim direct to the insurers. We were subsequently instructed in Aug 13. There is currently a disagreement with the insurers on the fixed costs that can be recovered. We consider that fixed costs would apply under CPR 45.9 because although the claim was started by the client, it would have gone through the portal had we been instructed from the outset. However, it would have dropped out on value and therefore the old fixed recvoerable costs will apply because the date of the accident is before the new fixed recoverable costs came in on or after 31st July 13. Is this correct?

    Liam

    February 13, 2015 at 11:40 am

    • Liam

      I am assuming that this is a road traffic accident matter and that the appropriate portal is the RTA Portal and that the claim is £10,000.00 or less and that it is still pre-issue and that damages have been agreed.

      If the accident occurred on or after 31 July 2013 then the portal limit is £25,000. If it occurred before then it was £10,000.It is the date of cause of action which is key.

      In those circumstances it is true that the old Fixed Recoverable Costs will apply and they apply whether or not the matter went into the portal and therefore the fact that your client made the claim direct and did not go in the portal is not relevant to that issue.

      Thus the costs fall in what was often known as the Predictable, or Predictive Costs Regime. Please note that this has no application if the matter is issued.

      This is set out in Part II of CPR 45 and CPR 45.9(2) defines that part as applying where:-

      “(a) the dispute arises from a road traffic accident occurring on or after 6 October 2003;

      (b) the agreed damages include damages in respect of personal injury, damage to property, or both;

      (c) the total value of the agreed damages does not exceed £10,000; and

      (d) if a claim had been issued for the amount of the agreed damages, the small claims track would not have been the normal track for that claim.”

      CPR 45.11 sets out the amount of those fixed costs as follows:-

      “45.11

      (1) Subject to paragraphs (2) and (3), the amount of fixed recoverable costs is the total of –

      (a) £800;

      (b) 20% of the damages agreed up to £5,000; and

      (c) 15% of the damages agreed between £5,000 and £10,000.

      (2) Where the claimant –

      (a) lives or works in an area set out in Practice Direction 45; and

      (b) instructs a legal representative who practises in that area,
      the fixed recoverable costs will include, in addition to the costs specified in paragraph (1), an amount equal to 12.5% of the costs allowable under that paragraph.

      (3) Where appropriate, VAT may be recovered in addition to the amount of fixed recoverable costs and any reference in this Section to fixed recoverable costs is a reference to those costs net of any such VAT.”

      Kerry

      kerryunderwood

      April 14, 2015 at 5:25 pm

  40. Hi Kerry. A junior has a genuine dispute on quantum in a new RTA Portal matter. She has not submitted useful caselaw at Stage 2. Unfortunately she has panicked and exited Portal. I was going to try persuading insurer to treat as if still within Portal and to go to Stage 3, but if I can is there anyway to get new caselaw/comment in that was not referred to in Stage 2? If Part7 is ultimately required, is there any way of protecting our costs position (eg via an offer now to accept £X in damages and only Stage 1&2 costs if settles now)?

    Andy Burnett

    February 23, 2015 at 11:53 pm

    • Andy

      Practice Direction 8B – Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents and Low Value Personal Injury (Employers’ Liability and Public Liability) Claims Stage 3 Procedure states:-

      “Evidence – general

      7.1. The parties may not rely upon evidence unless –

      (1) it has been served in accordance with paragraph 6.4;

      (2) it has been filed in accordance with paragraph 8.2 and 11.3: or

      (3) (where the court considers that it cannot properly determine the claim without it), the court orders otherwise and gives directions.

      7.2. Where the court considers that –

      (1) further evidence must be provided by any party; and

      (2) the claim is not suitable to continue under the Stage 3 Procedure,

      the court will order that the claim will continue under Part 7, allocate the claim to a track and give directions.

      7.3. Where paragraph 7.2 applies the court will not allow the Stage 3 fixed costs.”

      That of course deals with evidence and not case law but it seems to me that if the court has the discretion to allow new evidence in where it considers that it cannot properly determine the claim without it, then the same must apply to case law.

      There is nothing to stop you from making a Part 36 offer and the starting point would be that you would get fixed costs for a case out of the portal that has not yet been issued.

      It may be that if the Part 36 offer is well pitched the defendants will simply accept it and you will get those costs.

      I do not know whether they have yet taken the point that you have unreasonably exited the portal. If they do, and you are prepared to accept stage 1 and 2 costs, which is what you would get if the court held that you had unreasonably exited the portal, then there should be no problem.

      The court must also take into account any offer that is not made in accordance with Part 36 and thus if the first strategy fails you could make an offer in precisely the terms that you set out, that is to accept a certain sum in damages on the basis that the defendant pays only portal stage 1 and 2 costs.

      There can be no guarantees as to the order in costs made by the court, which is of course within the court’s discretion and clearly it is your colleague’s error that has led to the current situation.

      However the above strategy gives you the best opportunity of avoiding a problem with costs. The potential danger is that if the matter proceeds through the court system, with Part 7 proceedings being issued, then you will be ordered to pay the other side’s costs occasioned by the fact that the matter unreasonably exited the portal; the court can make this order even if you win.

      Kerry

      kerryunderwood

      April 22, 2015 at 10:56 am

  41. Hi Kerry

    I have an rta claim from 17th July 2013 which was rejected from the portal a few days later. Part 7 proceedings have been issued but i am inclear what costs would apply given that the claim exited in the transitional period. Would it still be standard cost?

    Thanks

    Alex

    March 5, 2015 at 12:25 am

    • Alex

      Fixed Recoverable Costs only came in on 31 July 2013 and the scheme applies to any claim exiting the portal after that date. There is an exception in relation to industrial disease cases which go straight to open costs if they exit the portal.

      There is some uncertainty as to claims where the total exceeds £25,000.00. As vehicle damage and credit hire costs are excluded from the value for the portal purposes a claim of say £100,000.00 could go into the portal if the personal injury element is £25,000.00 or below. It is not clear what happens when that claim exits the portal. My view is that it does indeed go to Fixed Recoverable Costs but the Costs Schedules in Fixed Recoverable Costs – table 6B to 6D – do not appear to cater for that possibility.

      In an RTA Portal case where the Claim Notification Form was issued before 31 July 2013 the matter cannot go into the Fixed Recoverable Costs Scheme. You refer to having “an RTA claim from 17 July 2013 which was rejected from the portal a few days later”.

      Thus I presume that the CNF was dated 17 July 2013 and therefore it was a pre-31 July matter.

      Such a claim would initially go into the old Fixed Costs Regime as set out in Part II of CPR 45 and CPR 45.9(2) defines that part as applying where:-

      “(a) the dispute arises from a road traffic accident occurring on or after 6 October 2003;

      (b) the agreed damages include damages in respect of personal injury, damage to property, or both;

      (c) the total value of the agreed damages does not exceed £10,000; and

      (d) if a claim had been issued for the amount of the agreed damages, the small claims track would not have been the normal track for that claim.”

      CPR 45.11 sets out the amount of those fixed costs.

      However as proceedings have in fact been issued the old Fixed Costs Scheme does not apply as that only applied to matters pre-issue.

      Thus the matter is governed by ordinary costs and not Fixed Recoverable Costs and nor the old Fixed Costs Scheme, often wrongly known as the predictive or predictable costs regime.

      Kerry

      kerryunderwood

      April 20, 2015 at 12:59 pm

    • Alex
      No, it will go into Fixed Recoverable Costs as does every claim which exits the road traffic accident portal, provided that it is worth less than the maximum portal/FRC limit, now £25,000 but prior to 31 July 2013 £10,000.

      I do not understand the reference to ” the transitional period.”

      Kerry

      kerryunderwood

      October 14, 2015 at 8:36 pm

  42. Hi I recently completed an N1 claim form for an RTA case and in years gone by I would simply put ‘to be assessed’ in the box where it asks for solicitors costs. It no longer lets you type that in so I just put a fairly conservative figure down based on fixed recoverable costs. The form was returned back to me saying they can’t issue the claim because my costs are too high. I don’t understand this at all. Even under fixed recoverable costs there is a table and the costs recoverable depend on what stage you get to and is also linked to the settlement amount. The figure I put down was comfortably below the maximum costs recoverable, so in summary what figure am I supposed to put in that box?

    Thanks

    Richard

    March 18, 2015 at 10:15 pm

    • Richard

      The legal representative costs box is only applicable to cases where Section I of Part 45 applies, that is fixed costs, and the wording of the N1 guidance notes reinforces this – “Legal representative’s costs. These fixed sums may only be claimed where a legal representative has been instructed to make the claim on your behalf.”

      In relation to Fixed RECOVERABLE Costs, it will be impossible to provide a figure until the case has been settled as the final amount of costs will depend on the value of the damages.

      In fact what we do at my firm when issuing Part 7 personal injury claims is simply handwrite in the figures for the amount claimed and the court fee and write ‘TBC/TBA’ in the legal representative fees. For example, when issuing a personal injury claim which is over £25,000, that is the current portal limit, or an EL/PL claim which occurred prior to 31 July 2013, it is impossible to be able to complete the legal representative’s costs. These cannot be assessed until the conclusion of the claim.

      We have never had a problem having a Part 7 claim issued by the CCMCC by putting ‘TBC’ in the legal representative costs box.

      Kerry

      kerryunderwood

      March 24, 2015 at 4:41 pm

  43. Hi. If the defendant insurers fail to pay the medical fee with the stage 1 costs on a soft tissue matter accident date December 2014 can I drop the claim out of the portal?

    Paul Carroll

    March 24, 2015 at 10:38 am

    • Paul

      The claim MAY exit the portal if the Defendant insurers fail to pay the stage 1 costs under 6.19, although the Claimant can still elect to continue with the portal process even if the Defendant does not pay the stage 1 costs within the specified time limit.

      Paragraph 6.18 of the portal states clearly that “except where the claimant is a child, the defendant must pay the Stage 1 fixed costs in rule 45.18 and, in a soft tissue injury claim, the cost of obtaining the fixed cost medical report and any cost for obtaining medical records in rule 45.19(2A) (collectively the “Stage 1 fixed recoverable costs”).”

      If the Defendant has failed to pay the medical report fee then you are able to exit the portal under 6.19, provided that you send written notice to the defendant within 10 days after the expiry of the period in paragraph 6.18, provided you have included invoices for the cost of obtaining the medical report in the Stage 2 Settlement Pack.

      The expiry period is 10 days after receiving the Stage 2 Settlement Pack, provided that invoices for the cost of obtaining the medical report and any medical records in a soft tissue injury claim have been included in the Stage 2 Settlement Pack.

      Kerry

      kerryunderwood

      March 24, 2015 at 4:46 pm

  44. Hi Kerry
    Quick question – PL/EL matter exiting the portal. Value under £10k – would the cost of obtaining counsel’s opinion on liability be likely to be recoverable? My understanding is that an advice would be recoverable if matter worth over £10k and you needed an advice to value the claim – nothing else.
    Thank you
    Sue

    Sue King

    March 24, 2015 at 11:45 am

    • Sue

      You are correct in that the cost of obtaining counsel’s opinion on quantum (and not liability) is only recoverable where the claim is valued at more than £10,000 and this advice is reasonably required to value the claim, as stated in 45.23B, which is as follows:-

      “Where—

      (a) the value of the claim for damages is more than £10,000;

      (b) an additional advice has been obtained from a specialist solicitor or from counsel;

      (c) that advice is reasonably required to value the claim,

      the fixed costs may include an additional amount equivalent to the Stage 3 Type C fixed costs.”

      This is reinforced by the following rule:-

      “45.29I

      (1) Subject to paragraphs (2A) to (2E), the court—

      (a) may allow a claim for a disbursement of a type mentioned in paragraphs (2) or (3); but

      (b) will not allow a claim for any other type of disbursement.

      (2) In a claim started under either the RTA Protocol or the EL/PL Protocol, the disbursements referred to in paragraph (1) are—

      (c) the cost of any advice from a specialist solicitor or counsel as provided for in the relevant Protocol;”

      The EL/PL Protocol makes clear that an advice from counsel MAY be justified where reasonably required to value the claim:-

      “7.8 In most cases under this Protocol, it is expected that the claimant’s legal representative will be able to value the claim. In some cases with a value of more than £10,000, an additional advice from a specialist solicitor or from counsel may be justified where it is reasonably required to value the claim.”

      It is important to note that even if you satisfy the court that the advice of counsel is reasonably required to value the claim, the fee is limited to the Type C costs are set out in Table 6, that is £150, as made clear in CPR 45.23B.

      Kerry

      kerryunderwood

      April 15, 2015 at 10:22 am

      • Kerry
        Thank you so much for your reply to my query. In this particular case however the fee earner was looking to get an advice on liability as there are some tricky issues involved. Would the above also apply where the advice was one on liability as opposed to purely on the value?

        I am looking forward to your “roadshow” in Birmingham on 9th June !

        Sue

        Sue King

        April 15, 2015 at 11:00 am

      • Sue

        The test is whether “that advice is reasonably required to value the claim.” It could be argued that you need to know the position on liability in order to value the claim in two senses; one that a losing claim has a value of nil and secondly to discount the claim if there are real liability issues.

        However the wording could easily have made it clear that an advice on liability is covered, but it does not do so and my view is that you will not recover counsel’s fee in relation to an advice on liability.

        Note that in any event only £150 would be recovered.

        Look forward to seeing you in Birmingham on 9 June 🙂

        Kerry

        kerryunderwood

        April 17, 2015 at 7:36 pm

  45. Hi Kerry,

    I have a road traffic accident that happened in 2007 involving a minor. Would that still go on the portal?

    Thank you.

    Anna

    Anna

    March 25, 2015 at 1:30 pm

    • Anna

      The key date in RTA claims is the date the CNF is submitted, not the date of the accident.

      “4.1 This Protocol applies where—

      (1) a claim for damages arises from a road traffic accident where the CNF is submitted on or after 31st July 2013”

      Therefore this claim would go into the portal.

      Kerry

      kerryunderwood

      March 27, 2015 at 8:33 am

    • and have a look at para 1.2 ie upper limits by date of accident?
      m

      Maggie Hemsworth

      March 27, 2015 at 8:41 am

  46. Dear Kerry and Maggie,

    Thank you very much for your help.

    Anna

    Anna

    April 7, 2015 at 11:28 am

    • Pleasure 🙂

      kerryunderwood

      April 7, 2015 at 1:55 pm

    • Hi
      Interesting one (not that it helps you as a practitioner!) but am not sure the draftsman really grappled with claims by minors on the change over from the 2010 version to the 2013 version. The former protocol clearly would not apply to accidents prior to the start date; and the new version suggests (but I accept does not make it clear) that this also applies because there is no method of valuing a claim where the accident began prior to 30th April 2010.

      I guess the ‘safest course’ is to follow the Protocol as Kerry suggests unless you fancy being a test case!
      m

      Maggie Hemsworth

      April 7, 2015 at 5:27 pm

  47. Hi Kerry,

    I currently have a claim which was submitted into the RTA Portal 28 March 2013. The claim has fallen out of the portal. I have been offered £10,000 to settle the claim. Could you please confirm what the cost position is if the claim has fallen out of the portal? Do predictive costs apply or the ordinary rules for recovery of base costs?

    Thank you,

    Natalie

    Natalie Jones

    April 9, 2015 at 9:53 am

    • Natalie

      As the CNF was submitted on 28 March 2013, this RTA claim falls under the old fixed costs regime for road traffic accidents. Pre-April 2013 RTAs fall within Part II of CPR 45, where 45.9(2) defines the part as applying where:-

      “(a) the dispute arises from a road traffic accident occurring on or after 6 October 2003;

      (b) the agreed damages include damages in respect of personal injury, damage to property, or both;

      (c) the total value of the agreed damages does not exceed £10,000; and

      (d) if a claim had been issued for the amount of the agreed damages, the small claims track would not have been the normal track for that claim.”

      The fixed costs are set out in CPR 45.11 as follows:-

      “Amount of fixed recoverable costs

      45.11

      (1) Subject to paragraphs (2) and (3), the amount of fixed recoverable costs is the total of –

      (a) £800;

      (b) 20% of the damages agreed up to £5,000; and

      (c) 15% of the damages agreed between £5,000 and £10,000.

      (2) Where the claimant –

      (a) lives or works in an area set out in Practice Direction 45; and

      (b) instructs a legal representative who practises in that area,

      the fixed recoverable costs will include, in addition to the costs specified in paragraph (1), an amount equal to 12.5% of the costs allowable under that paragraph.

      (3) Where appropriate, VAT may be recovered in addition to the amount of fixed recoverable costs and any reference in this Section to fixed recoverable costs is a reference to those costs net of any such VAT.”

      This would mean your costs are £2,550, that is £800, 20% of £5,000 and 15% of the additional £5,000. VAT is chargeable on top of this sum, as made clear in 45.11(3), and I presume that there is also a pre-April 2013 Conditional Fee Agreement which will provide for a success fee which is payable by the Defendant.

      Kerry

      kerryunderwood

      April 13, 2015 at 1:21 pm

      • Thank you Kerry

        Natalie Jones

        April 14, 2015 at 9:11 am

      • Does the above costs regime apply if it’s an RTA post July 2013 which does not enter the portal at all? The claim involves a defendant vehicle which is foreign registered. Matter has settled pre-issue for under 10k?

        Alison Evans

        October 18, 2017 at 12:16 pm

      • Alison

        As I set out in my email to you last week.

        As far as I can see from my records, you have not been on any of the 89 courses that I have delivered on this subject since the beginning of 2013, and nor have you purchased a copy of my book Personal Injury Small Claims, Portals and Fixed Costs, where I deal with this specific issue in detail.

        If I am wrong, then please let me know which course you attended, or when you ordered my book, and I will answer the question for you.

        If you wish to order the book from Amazon here, or from me here, and confirm that you have done so, then I will happily deal with your enquiry.

        Kerry

        kerryunderwood

        October 18, 2017 at 12:30 pm

  48. Hi Kerry,

    We have a case in which the client was not given a trial date but was placed in a trial window or warned list. Can we still claim as Section B of the Table 6B CPR 45 fixed costs at the stage ” On or after the date of listing but prior to date of trial” ?

    The definitions CPR 45.29C (4) are set out as follows:

    (4) In Table 6B—
    (a) in Part B, ‘on or after’ means the period beginning on the date on which the court respectively—
    (i) issues the claim;
    (ii) allocates the claim under Part 26; or
    (iii) lists the claim for trial; and
    (b) unless stated otherwise, a reference to ‘damages’ means agreed damages; and
    (c) a reference to ‘trial’ is a reference to the final contested hearing.

    It is then effectively listed and action was needed following a trial window notification?

    Thanks

    Clare Baker

    April 9, 2015 at 1:34 pm

    • Clare

      You have answered your own question.

      In my view there does not have to be a specific date for a matter to be “listed”; a warned “list” is still a list.

      Consequently the matter has been listed for trial and therefore table 6B section B costs apply.

      Please advise me of the outcome in due course.

      Kerry

      kerryunderwood

      April 13, 2015 at 4:04 pm

    • Clare, how did get on with this? Same issue here.

      Naomi Wilson

      May 27, 2015 at 2:53 pm

  49. Hi Kerry,

    Fantastic guidance!

    Quick question…

    – RTA PI claim
    – Accident in 2012
    – CNF submitted 2012
    – Withdrawn from portal in 2012, as valued over £10K
    – Proceedings issued January 2015

    Am I right in thinking that the key dates here are the date of the accident and the date when the CNF was submitted? Therefore because proceedings have been issued, fixed costs will not apply, or is there more to it because proceedings were issued after the rule change?

    From the point of the paying party, the only arguments would be;
    1.) Was it reasonable to remove the matter from the portal; and
    2.) pre-mature issue of proceedings.

    Your comments are greatly appreciated.

    esa1988

    April 23, 2015 at 1:11 pm

    • ESA1988

      Thank you!

      Both the accident and the CNF predate the RTA Portal extension from £10,000.00 to £25,000.00 which came in on 31 July 2013.

      Thus the new Fixed Recoverable Costs Scheme cannot apply. As the matter is over £10,000.00, and as proceedings had been issued, neither can the old Pre-Issue Fixed Costs Regime, often known as the Predictable or Predictive Costs Regime.

      Consequently the starting point is that open costs apply. Given that you are running up against the limitation period it is hard to see how there could be any argument as to premature issue of proceedings and as the claim is valued above the portal limit as it existed at the time, I cannot see how it could be argued that it was unreasonable to remove the matter from the portal.

      That simply leaves the potential issue as to why you wrongly issued in the portal in the first case. Of course if the case settles for less than £10,000.00, or the court orders less than £10,000.00, then the defendant may have a legitimate argument in relation to costs, that is that the matter should have remained in old £10,000.00 portal.

      Kerry

      kerryunderwood

      April 23, 2015 at 4:16 pm

      • Thank you very much for your swift response.

        Just had another quick question, but in relation to filing estimates of costs in fast track matters.

        If I have an older file, that is not subject to fixed costs and proceedings progress to the point of filing directions questionnaires, will I need to file an estimate of costs at that stage, even if the court has not ordered the same?

        Finally, I am interested in attending your course on fixed costs in Southampton on the 5th June and I wondered if there are any places available for that morning session?

        Thank you.

        esa1988

        April 24, 2015 at 10:11 am

      • Dear esa1988

        Thank you for your comment in relation to costs estimates in the Fast Track.

        The Practice Direction to CPR 28 – The Fast Track is silent on costs estimates in relation to Directions upon allocation. However, the Practice Direction to CPR 28 does state at paragraph 6.1 that:-

        “Attention is drawn to the Costs Practice Direction, Section 6, which requires a costs estimate to be filed and served at the same time as the pre-trial check list is filed.”

        Thus no costs estimate is required upon filing of the Directions Questionnaire.

        For completeness; the Old Costs Practice Direction to CPR 43-48 – http://webarchive.nationalarchives.gov.uk/20110218200720/http://justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_parts43-48.htm – was amended at paragraph 6.4(1)(a) to remove the requirement to file an estimate of costs with an allocation questionnaire in fast track matters from 6 April 2010.

        Kerry

        kerryunderwood

        May 13, 2015 at 2:55 pm

  50. General question re fixed costs under CPR 45.29C –

    If these can’t be agreed and proceedings HAVE been issued (please resist asking the blindingly obvious question as to why they can’t be agreed), what is the best way to resolve matters: A) an Application for the issue to be heard; B) serve bill of costs containing the applicable fixed fee; or C) other?

    Thanks

    Arran

    April 27, 2015 at 11:52 am

    • Kerry – any comment on the above would be gratefully received. Thanks.

      Arran

      May 22, 2015 at 9:38 am

    • Dear Arran

      Thank you for your comment in relation to fixed costs where proceedings have been issued.

      I presume that you have issued Part 7 proceedings and as you quite rightly state there is nothing in CPR 45 that gives guidance as to what should be done where the fixed costs are not agreed.

      In such circumstances a decision is required by the court and the most suitable way of dealing with this, due to the lack of guidance, would be by way of an Application under CPR 23 and in accordance with CPR 23.6 you must include, within that application:-

      “23.6 An application notice must state –

      (a) what order the applicant is seeking; and

      (b) briefly, why the applicant is seeking the order.”

      In my view it would be unnecessarily time consuming to commence Detailed Assessments proceedings as this would involve a considerable amount of work, court time and the expense of court fees for an issue that could be dealt with by way of an Application and short Hearing.

      You should also apply for a wasted costs order under section 51 Senior Courts Act 1981 and costs should be on the indemnity basis. Under section 67 Criminal Justice and Courts Act 2015 a judge making a wasted costs order must report the lawyer against who it is made to the relevant regulatory body, typically the SRA or Bar Standards Board.

      Kerry

      kerryunderwood

      May 22, 2015 at 10:54 am

  51. Hi Kerry
    I have a RTA portal matter. It has settled but the opposing insurance company have not paid the agreed damages nor agreed the level of the stage 2 costs. As I couldn’t find anything in particular to deal with enforcement in the RTA Protocol I checked your blog with regard to what to do next and found the reply you had already given to Tracy some time ago ie: to exit the portal and issue the claim as normal. I have now given the other side notice and am about to issue. However I cannot understand why the proceedings must be under Part 7? Given that we have agreement can I not sue on that agreement under Part 8 ie: no major dispute as to fact/liability ? Help !
    Sue

    Sue King

    May 8, 2015 at 3:38 pm

    • Dear Sue

      Thank you for your comment.

      I have now revisited my response to Tracy and in my view, based on previous decisions and the courts’ reluctance to see claims fall out of the portal it is likely that Part 8 proceedings are the correct proceedings as a claim can only be issued under Part 7 where settlement is not reached within the portal, in accordance with paragraph 7.75 of the Pre-Action Protocol.

      In your situation the claim has settled it is merely the non-payment of damages and costs that is the issue and thus this could be dealt with under CPR 8 as you seek “the court’s decision on a question which is unlikely to involve a substantial dispute of fact” in accordance with CPR 8.1(2)(a).

      Kerry

      kerryunderwood

      May 15, 2015 at 9:56 am

      • Hi Kerry – Got a variation here. General damages were agreed at stage 2 but no cheques have been received four weeks later. Special damages (hire) in excess of £10k are still outstanding. The defendants believe we should go to stage 3 however I feel as generals are agreed the matter should fall out and Part 7 should apply as stage 3 is for a dispute in generals only. The only problem with this is how do I enforce the agreed generals?

        Paul Carroll

        July 13, 2015 at 12:09 pm

      • Paul

        Anything agreed in the portal should be dealt with there with only the disputed element being the subject of Part 7 proceedings – see Bewicke-Copley v Ibeh Oxford County Court 4 June 2014 case 029YJ613.

        As the disputed special damages are over £10,000.00 it will still be cost bearing; the potential problem is if agreement on certain issues reduces the balance to a sum which is not cost bearing, that is under £10,000.00 in the case of special damages.

        It is not clear what sanction, if any, applies when a defendant fails to pay settlement monies, including stage 2 costs, within 10 days of settlement as required by the rules.

        My remedy would be to impose an immediate 10% uplift on all damages with a further 1% for each day the default continues.

        Paragraph 7.59 reads:-

        “7.59. Paragraph 7.60 applies where –

        (1) the original damages are agreed; but

        (2) the additional damages are not agreed.”

        “7.60. Where paragraph 7.59 applies –

        (1) the defendant must, in relation to the original damages, pay the claimant in accordance with paragraph 7.62; and

        (2) the claimant may start proceedings under Part 7 of the CPR in relation to the additional damages.”

        Paragraph 7.62 then sets out what must be paid but does not deal with enforcement.

        It appears here that “original damages” have been agreed but that vehicle related damages, defined in certain circumstances in paragraph 7.51 as “the additional damages” have not.

        “Original damages” include all elements of the claim in the existing stage 2 Settlement Pack. It is not clear to me whether the hire element was included in the stage 2 Settlement Pack. If so, then the matter should proceed to stage 3.

        Paragraph 6.4 reads:-

        “6.4. A claim for vehicle related damages will ordinarily be dealt with outside the provisions of this Protocol under industry agreements between relevant organisations and insurers. Where there is a claim for vehicle related damages the claimant must: –

        (1) state in the CNF that the claim is being dealt with by a third party; or

        (2)

        (a) explain in the CNF that the legal representative is dealing with the recovery of these additional costs; and

        (b) attach any relevant invoices and receipts to the CNF or explain when they are likely to be sent to the defendant.”

        Was this done?

        If in fact they were not and are additional damages then you may start proceedings under Part 7 as per paragraph 7.60.

        On what basis do you say that stage 3 is for a dispute on general damages only? That is not the case.

        Practice Direction 8B deals with the stage 3 procedure and, for example, paragraph 6.1(4) requires the filing of evidence of special damages.

        If you withdraw a claim from the portal unreasonably then the court can restrict your costs to portal costs, whatever stage Part 7 proceedings reach. (Paragraph 7.76).

        Enforcement

        I will get back to you in relation to this.

        Kerry

        kerryunderwood

        October 21, 2015 at 11:34 am

  52. Hi Kery,

    I have an PL claim which fell out of the portal and trial listed for August, have now agreed 50/50 settlement. When calculating costs do i take into account the gross amount of damages or the net? Any CPR that i can refer to would be helpful.

    Thanks in advance

    Emily Lister

    May 12, 2015 at 11:59 am

    • CPR 45.29C Table 6D. It is always the amount of damages paid/agreed awarded, NOT the amount claimed, so here it is £3,790 plus 27.5% of agreed damages.

      Kerry

      kerryunderwood

      May 13, 2015 at 3:55 pm

  53. Hi Kerry,
    In a situation where a claimant is awarded damages in excess of their RTA Protocol offer at a Stage 3 hearing and is awarded interest under CPR 36.17(3) should the interest be calculated on all costs (inc Stage 1 and 2) or just the Stage 3 costs. Stage 1 and 2 costs will have been paid so does that preclude interest being recoverable on those elements or does fact that CPR 36.17 is effectively a penalty render interest recoverable on the whole costs. CPR 36.17(3) does not specify either way but in your article you state interest being calculated on Stage 3 costs only, is that due to Stage 1 and 2 being discharged pre-issue?
    Many thanks, Phill

    Phill

    May 20, 2015 at 2:29 pm

    • Phill

      I am unsure as to why interest would have been awarded under CPR 36.17(3). CPR 36.17(3) applies where a claimant fails to obtain a judgment more advantageous than a defendant’s Part 36 offer, as set out in CPR 36.17(1)(a) and provides that “the court must, unless it considers it unjust to do so, order that the defendant is entitled to—

      (a) costs (including any recoverable pre-action costs) from the date on which the relevant period expired; and

      (b) interest on those costs.”

      If a Claimant beats their own offer then 36.17(4) should apply, as “judgment against the defendant is at least as advantageous to the claimant as the proposals contained in a claimant’s Part 36 offer.” (CPR 36.17(1)(b)).

      As I have stated in the blog, where the claimant matches or beats its own offer the defendant pays:

      – the claimant’s Stage 3 costs;

      – interest on those Stage 3 costs at a rate not exceeding 10% above base rate;

      – 10% additional damages;

      – interest on all damages at a rate not exceeding 10% above base rate running from the first business day after the court proceedings pack (part A and part B) was sent to the defendant.

      Interest is not payable on Stage 1 and stage 2 costs, as these would have already been paid.

      This was confirmed very recently in Cashman v Mid Essex Hospital Services NHS Trust [2015] EWHC 1312 (QB).

      Kerry

      kerryunderwood

      June 1, 2015 at 8:32 am

  54. Hi Kerry,
    I have a case whereby I represent a client who ran a case through the RTA Portal against the MIB under the uninsured agreement and liability was admitted within the protocol period, limitation approached and further medical evidence was required, as such protective proceedings were issued but not served. Proceedings were later served around the expiry of the service deadline however, further medical evidence was still required. Once proceedings were served, the Defendant filed their Defence (no arguments for Fixed Costs raised in the same or any allegations over conduct of the case), the Parties filed Directions Questionnaires, directions provided by the Court, List of Documents exchanged and Witness statements exchanged. Unfortunately during the litigation process, the Claimant was diagnosed with Cancer and instructed my client to settle their claim on the best possible terms due to the extent of the treatment they would need to undertake. In light of this, the Defendant was invited to open settlement negotiations based on the medical evidence to date, they had to be chased for their response to the invitation and some 2 months or so later the Defendant provided an offer to settle in the sum of £20,000.00 (by way of Part 36) for the Claimant’s personal damages. Within the Claimant’s claim they sought to recover their insurers outlay which was agreed to be dealt with by subrogating the claim and an order was provided in this regards. The difficulty I have is that the case never formally exited the Portal and upon receipt of the Defendant’s £20k offer, damages was agreed within 3 days of receipt of the offer. Thereafter, the Claimant Insurers outlay was agreed around £2,500.00. I feel that ultimately if my client was to put the Defendant on notice of their intention to remove the case from the Portal upon receipt of this offer the Defendant may not have received their formal letter within the 3 days it took to settle the claim. The Defendant has proposed a low standard basis offer but argue that should they file their Points of Dispute they will argue the matter never exited the Portal therefore only Fixed Costs are recoverable. Do you have any thoughts on the prospects of recovery of full standard basis costs or have you come across a situation such as this before? Any guidance would be appreciated.

    I thank you in advance for your assistance and I look forward to hearing from you.

    Best Regards,
    Andrew

    Andrew McGrath

    May 29, 2015 at 8:20 am

  55. Hi Kerry,
    I have a case whereby I represent a client who ran a case through the RTA Portal against the MIB under the uninsured agreement and liability was admitted within the protocol period, limitation approached and further medical evidence was required, as such protective Part 7 proceedings were issued but not served. Proceedings were later served around the expiry of the service deadline however, further medical evidence was still required. Once proceedings were served, the Defendant filed their Defence (no arguments for Fixed Costs raised in the same or any allegations over conduct of the case), the Parties filed Directions Questionnaires, directions provided by the Court, List of Documents exchanged and Witness statements exchanged. Unfortunately during the litigation process, the Claimant was diagnosed with Cancer and instructed my client to settle their claim on the best possible terms due to the extent of the treatment they would need to undertake. In light of this, the Defendant was invited to open settlement negotiations based on the medical evidence to date, they had to be chased for their response to the invitation and some 2 months or so later the Defendant provided an offer to settle in the sum of £20,000.00 (by way of Part 36) for the Claimant’s personal damages. Within the Claimant’s claim they sought to recover their insurers outlay which was agreed to be dealt with by subrogating the claim and an order was provided in this regards. The difficulty I have is that the case never formally exited the Portal and upon receipt of the Defendant’s £20k offer, damages was agreed within 3 days of receipt of the offer. Thereafter, the Claimant Insurers outlay was agreed around £2,500.00. I feel that ultimately if my client was to put the Defendant on notice of their intention to remove the case from the Portal upon receipt of this offer the Defendant may not have received their formal letter within the 3 days it took to settle the claim. The Defendant has proposed a low standard basis offer but argue that should they file their Points of Dispute they will argue the matter never exited the Portal therefore only Fixed Costs are recoverable. Do you have any thoughts on the prospects of recovery of full standard basis costs or have you come across a situation such as this before? Any guidance would be appreciated.
    I thank you in advance for your assistance and I look forward to hearing from you.
    Best Regards,
    Andrew

    Andrew Clark

    May 29, 2015 at 8:59 am

  56. Hi Kerry,

    I have an infant approval PI claim, it was never submitted to the portal and a letter of claim was sent in June 2013 and the CFA was signed at the same time. Settlement has been agreed with the defendants, but can you advise if costs are fixed fee or if we would need to serve a statement.

    Best regards,

    Clare

    Clare

    June 1, 2015 at 4:05 pm

    • In a case which has neither been in the portal nor issued there is no entitlement to costs at all. However settlement should always be on the basis that the defendant pay the claimant’s cost to be assessed if not agreed. If you do not have the relevant wording in the exchange of emails etc then there is no entitlement to costs. In the absence of the matter going through the portal it will not be fixed costs and so you need to proceed with what I presume will be provisional assessment, but I do not have enough information to know that.

      Depending on the circumstances the defendant may be able to argue that you should only get portal costs. If the matter should have been portalled then they are likely to succeed in that argument.

      Kerry

      kerryunderwood

      June 3, 2015 at 1:33 pm

  57. Very informative!
    What happens when claimant solicitors issue Stage 3 proceedings whilst the case is still with the Stage 2 negotiation period?

    Mohammed Basharat

    June 3, 2015 at 3:51 pm

    • Matter should not be within the jurisdiction of the court – see Practice Direction 8B. Wasted costs order on indemnity basis against claimant solicitor would be my starting point.

      Kerry

      kerryunderwood

      June 4, 2015 at 12:13 pm

  58. Kerry

    I have a few cases which have just fallen out of the portal due to a liability dispute or the Defendants insurers not responding in time. They were put on the portal after 6.4.15. I am now to instruct a GP medical expert ‘for the first report’. I have looked at the rules and there is nothing that says I have to go through MedCo to instruct them. Can I instruct any medical expert to provide a report? Do I have to instruct a MedCo approved expert even if I don’t instruct them through MedCo? I believe in any event that the experts fee would be fixed at £180.00 plus VAT.

    Thanks in advance.

    Andrew

    Andrew

    June 4, 2015 at 2:32 pm

    • Andrew

      Er – what about CPR 45.19(2A), CPR 45.19(2E) and PD 8B 6.1A, PD 16 4.3A and CPR 35 PD 35 2.6(1) and CPR 35 PD 35 2.6(3) ?

      Kerry

      kerryunderwood

      June 4, 2015 at 4:04 pm

      • Kerry. Thank you very much. Most are still in the low value process but PD 16 4.3A confirms that any issuing, the report has to be from a medco expert. Thank you for your time in looking into this.

        Andrew

        Andrew

        June 4, 2015 at 4:29 pm

      • Pleasure

        kerryunderwood

        June 4, 2015 at 4:31 pm

  59. Kerry,

    A question if you don’t mind.

    A case exits the portal (assume reasonably for now) and is then allocated to the small claims track.

    Which costs provision apply at the conclusion of the small claims trial? Is it 45.29A or 27.14?

    Neither appears to reference the other, and part 27 does not disapply part 45.

    Thanks,

    Joseph

    Joseph

    June 5, 2015 at 8:53 am

    • Joseph

      CPR 27. RTA portal 4.1 (4) and EL/PL portal 4.1(4) apply. CPR 45.29C Tables 6B, 6C and 6D specifically refer to costs only being payable if agreed damages are “At least £1,000”

      Kerry

      kerryunderwood

      June 6, 2015 at 10:56 am

  60. Kerry what are your thoughts on ‘Injury to Feelings’ claims under the Equality Act 2010 in respect of civil discrimination – to portal or not to portal the claim?

    I would argue that if the basis of the claim is solely injury to feelings as a consequence of a discriminatory act/acts (excluding claims in the ET) then the claim is not suitable for the portal on the basis that there is no ‘injury’ (either physical or psychological) and the award for ‘hurt’ feelings under the Vento guidelines is not an injury intended by the protocol – your thoughts?

    richardcoulthard

    June 5, 2015 at 11:22 am

    • Richard
      Richard

      This is complicated and is dealt with in detail at my courses. Safest option in my view is to portal it. Generally you would want it in the portal on the basis that it will then go to FRC, which generally are of course much more profitable than open costs AND you get QOCS, which obviously you do not get if you treat it as a non-injury claim. However the downside of that is that it brings section 57 in to play. As I say it is complicated, with conflicting case law. Hope to blog on it soon.

      Kerry

      Kerry

      kerryunderwood

      June 6, 2015 at 11:13 am

  61. Hi Kerry,

    I have a question regarding costs and Disposal Hearings.

    We entered Judgement because the Defendants failed to file a defence and they literally have done nothing since to defend the claim at all since we issued. They didn’t even make an application to cross examine the claimant or set aside Judgement. It’s unclear if they are even going to attend the hearing. Their conduct has been terrible.

    I’m currently preparing the Costs Schedule and I’m a little bit confused.,,,

    I can’t find anything in CPR relating to fixed costs for Disposals and the case law I’m looking at swings both ways between getting post allocation costs and pre allocation costs. I know there’s a case being heard in Birkenhead by the Court of Appeal on this issue but I’m not sure if it’s been decided yet(Birkenhead County Court (Terrance Bird v Acorn Group Limited))

    My question is which Fixed-Costs apply? Could I get away with claiming Trial costs considering their conduct?

    Many thanks,

    Anne-Marie

    Anne-Marie

    June 5, 2015 at 3:36 pm

    • Hi Anne-Marie

      Anne-Marie

      All dealt with in detail at my courses. Court of Appeal will determine the matter soon. Some courts are saying post issue but pre-allocation and some are saying post listing. Both are logical. There is a gap in the rules. Go for the higher figure. Will almost certainly be stayed pending Court of Appeal decision. Cases that best set out competing viewpoints are Taylor v Bunter – Birkenhead County Court – 18 September 2014 , and Fisher v Liverpool Victoria Bolton County Court 28 January 2015. Will blog on this once Kerry On Tour finishes.

      Kerry

      kerryunderwood

      June 6, 2015 at 11:04 am

      • Hi Anne-Marie / Kerry – I hope that you don’t mind me intruding on your conversation. I have a case which, although similar, is not identical with the current situation. Kerry – you may recall me asking about what, in your opinion, was the best way forward when dealing with the situation where an RTA case has escaped the portal and the matter listed for trial, but the parties cannot agree on which fixed costs apply.

        Here, the PP is saying that the lower fixed fee applies because the “work done” does not justify the higher fixed fee. However, the issue in contention in Bird is that RP are treating a disposal hearing as a “trial” for the purposes of the CPR 45.29C and thus viewing the Table B columns individually as opposed sequentially (I have the Order for HHJ Wood sending this one for appeal).

        But this is different from my situation where the matter was actually listed for a trial and not a disposal hearing and I cannot, therefore, see any reason for staying the matter: as far as I’m concerned, where the matter has been listed for trial, there is no ambiguity whatsoever. The Application has been drafted and lodged and I am currently awaiting to see whether the Court agrees to refuse the PP’s request for a stay.

        But what I can’t understand re the disposal hearing point is why there is an issue at all when CPR 45.29C(4)(c) states that “a reference to ‘trial’ is a reference to the final contested hearing”, which is what a disposal hearing actually is.

        Any thoughts on either point?

        Arran

        June 8, 2015 at 9:16 am

  62. […] FIXED COSTS, ALL THE PORTALS AND FIXED RECOVERABLE COSTS […]

  63. Hi Kerry,
    I submitted an EL case on the portal as it was uncertain whether the damages would exceed £25,000.00.
    At the time it was uncertain as to whether the Claimant was to receive company sick pay.
    The Claimant is in receipt of SSP and his loss of earnings claim may now be substantial and I believe may possibly take the value of the claim over £25,000.00 (although this is never certain when you consider at an early stage).
    I am tolerably concerned that the Defendant may alleged contributory negligence and we will be left with Table 6C fixed costs.
    My concern is what if the case is valued at £48,000.00 less 50% contributory negligence.
    Table 6C refers to damages received and 50% of £48,000.00 is £24,000.00.
    Would I be left with Table 6C fixed costs even if case is valued at £48,000.00 on a full liability basis?
    Tactically, should I now give notice to the Defendant that the case should no longer proceed on the portal due to value (likely to exceed £25,000) advising that the loss of earnings claim is now likely to be substantial.

    Simon

    July 6, 2015 at 3:38 pm

    • Simon

      By paragraph 1.2 (1) (a) of the RTA Portal, £25,000.00 is the “Protocol Upper Limit” if the accident occured on or after 31 July 2013 and that is on a full liability basis, including pecuniary loss but excluding interest.

      In the EL/PL Portal, which is relevant to your case, the relevant provision is paragraph 4.1(3).

      By paragraph 4.3 of the RTA Portal “This Protocol ceases to apply where, at any stage, the claimant notifies the defendant that the claim has now been revalued at more than the Protocol Upper Limit.”

      Paragraph 4.2 of the EL/PL Portal is in identical terms.

      Thus if you notify the defendant accordingly the matter exits the Portal.

      Under paragraph 6.15(1) of the RTA Portal the claim will no longer continue in the Portal if the defendant makes an admission of liability but alleges contributory negligence (other than in relation to the claimant’s admitted failure to wear a seatbelt).

      Under paragraph 6.13 (1) of the EL/PL Portal the claim will no longer continue in the Portal if the defendant makes an admission of liability but alleges contributory negligence.

      Assuming the matter exits the Portal the issue is which cost regime applies, Fixed Recoverable Costs or open costs?

      The figures in the Tables under the CPR refer to the amount that the case settles for, not the amount claimed, so on the face of it a claim exiting the Portal and settling for £24,000.00 does indeed result in fixed costs under the Table.

      However if a claim for £48,000.00 never enters the Portal, as indeed it should not, and settles for £24,000.00, it is not within the Fixed Recoverable Costs Scheme.

      At CPR 45.29E (4)(b) in relation to table 6C – which is the relevant one for EL/PL Fixed Recoverable Costs – states that “unless stated otherwise, a reference to “damages” means agreed damages”, that is in your case £24,000.00.

      In Lisbie v SKS Scaffolding Ltd [2011] EWHC 90203,

      the court specifically dealt with fixed costs. That was an RTA claim for £1,475.00 at full value but with 50% contributory negligence meaning that the actual agreed damages were £737.50 and thus below the minimum cost bearing limit of £1,000.00. At paragraph 27 the judge considered the term “agreed damages”;

      “The term “agreed damages”, used in CPR 45.7(2)(d), is not defined in the rules. In the absence of particular definition, words should be given their usual meanings. It seems to me that the usual meaning of “agreed damages” is the amount of compensation which the parties have agreed should be paid. It is not the value of the claim before any deduction for contributory negligence. That would be an artificial meaning.”

      Consequently it was held that the claim fell outside the Fixed Recoverable Costs scheme, as the damages were under £1,000.00 and therefore it was not cost bearing at all.

      Given you chose to put your matter in the Portal I believe the court would be entitled to award Fixed Recoverable Costs on the basis of £24,000.00, which is within the Fixed Recoverable Costs Scheme Upper Limit.

      Whether a court could properly exercise its discretion in costs so to do if the matter had never been in the Portal, because it is nearly double the Portal limit, is an interesting question.

      There does seem to be a dichotomy between the fact that it is the full value, without taking into account contributory negligence, which is taken into account in the Portal but the settled value, which clearly does include taking into account contributory negligence, which forms the basis of Quantum Fixed Recoverable Costs.

      Kerry

      kerryunderwood

      October 21, 2015 at 11:12 am

  64. Kerry, Before I embark on a part 8 application to get an order for detailed assessment against some very stroppy insurers can I just run something past you. Two RTA passenger claims, both clients’ signed up to CFA 19th July 2012 and took out ATE policy same date. Accident on 13th July 2012. Went into Portal with driver as Defendant (their mother) on 30th August 2012. Further investigation reveals that a third party is correct defendant. So goes into Portal again on 6th March 2015. Matters have settled in portal against third party. Fixed stage 1 and stage 2 costs have been received together with relevant disbursements but the third party insurers are refusing to pay any success fee and the ATE premium. I am sure that it is the date of the CFA which is the trigger for the recovery of the additional liabilities and not the date of when the CNF was entered. I think you will agree – I hope so anyway! However does the fact that we named the wrong defendant in the first CNF affect anything? CFA refers to “your claim against negligent driver or any other defendant – accident 19th July 2012”. ATE policy again when applied for quoted opposition as “negligent driver full” as we were not sure at the time who was the correct person. Thank you, Sue

    Sue King

    July 13, 2015 at 4:53 pm

    • Sue

      See blog: Never name the Defendant. It is all set out there and you should have no problem in recovering these additional liabilities.

      Kerry

      kerryunderwood

      July 14, 2015 at 3:06 am

      • Thanks Kerry. The insurers are refusing to pay the additional liabilities because cases went into portal after 1.4.13 even though I have told them that cfa s are dated July 12. They are just wrong are nt they? Thanks for quick reply and enjoyed your seminar in Solihull. Sue

        Sue

        July 14, 2015 at 10:39 am

      • Sue

        Yes, they are just wrong.

        Kerry

        kerryunderwood

        July 14, 2015 at 1:41 pm

  65. CNF submitted on the 18/03/2014 and subsequently exited the portal.

    Interim payment made on the 24/04/2014 for vehicle damage.

    Claim proceeds and Part 7 proceedings issued – matter then settles shortly after with a part 36 offer not inclusive of the interim payment.

    In calculation costs in accordance with CPR 45:

    We are entitled to 20% damages.

    My argument is that the interim payment made previously should be included as part of the 20% damages however the defendant has argued that it should not and rely upon:

    CPR 36.20 (10) Fixed costs shall be calculated by reference to the amount of the offer which is accepted.

    Do I have an argument that we should not be deprived of the 20% damages from the earlier interim payment as this in whole forms the damages in total.

    I have not come across any case law at present with regards to the same.

    Many thanks for any response in advance.

    Atif

    July 15, 2015 at 3:20 pm

    • Atif

      If the interim payment was made during the portal process then that is the end of that matter which will not then be taken into account in any subsequent Part 7 proceedings.

      In Bewicke-Copley v Ibeh, Oxford County Court, 1 May 2014 the claim was submitted onto the portal and two heads of loss were agreed within the portal with the remainder being contested.

      The claimant exited the portal and issued Part 7 proceedings expecting to recover costs that follow from a matter allocated to the fast track. The defendant asked the court to award the claimant judgment on the sums it stated had been agreed within stage 2 of the portal process, together with fixed costs that would have followed from that agreement, and to limit any further costs recoverable under the Part 7 procedure to those in the small claims track as the balance of the claim was below the fast track limit.

      The judge held that the heads of loss which were accepted in the portal were binding agreements and the remaining heads of loss should continue in the small claims track.

      The judge said:-

      “It defies logic and the aims and intentions of the protocol if at such point, all items that had previously been agreed were regarded as un-agreed. If that were the case, I would expect the protocol to state this clearly. It does not.”

      Thus the stage 2 portal costs were awarded in relation to the heads of loss that had been agreed and the remainder of the claim was allocated to the small claims track.

      Is this what has happened here, that is that the vehicle damage was agreed within the portal and portal fixed costs paid? If so it seems to me that although the case set out above was dealing with track allocation the same point must apply, that is that the relevant amount is the outstanding amount and you get the table 6 sum based on that amount.

      If however the payment for vehicle damage was made after the matter had exited the portal then my view is that that must form part of the sum on which costs are calculated and you would thus get 20% of the whole sum. Otherwise a defendant could pay virtually all of the damages and then make a final payment of say £100.00 and pay only £20.00 costs plus the fixed sum.

      That does leave open the question of exactly what sum and costs should be paid if, say, £5,000.00 is paid before proceedings are issued and a further £5,000.00 afterwards as the bases of calculating the costs are different pre and post issue and pre issue are different depending upon whether the amount is £1,000.00 to £5,000.00, or £5,001.00 to £10,000.00 or £10,001.00 to £25,000.00. However the heading in each case is “Case settles before issue” and if only part of the case has been resolved then I do not think that it can be argued that the case has settled before issue and therefore the whole of the damages form the pool for fixed costs plus 20%.

      Kerry

      kerryunderwood

      November 16, 2015 at 1:24 pm

  66. Hi 🙂

    Just a quick question please. I am new to EL/PL costing!

    I have an E/L claim and the accident was 16/05/2012 the CNF was submitted on 05/11/2015.

    Am I right in thinking that we can only recover Stage 1 and 2 costs – £900+ Vat?

    From what I can gather on a case where the accident is pre 31st July 2013 this should fall out of the protocol and proceeds under the Pre Action Protocol For PI and costs are assessed on a hourly basis.

    If this is the case the claim should not have been submitted via the portal is that right?

    But as it HAS been submitted we can only recover the £900+ VAT?

    If this claim hadn’t been submitted via the portal from how I am understanding this I can recover £1855 as this settled over £5000 (£5280) and then 12.5% of the damages over the £5000 which is £280 = £35.

    So the total costs if not submitted would be £1890 + Disbursements?

    Really trying to get my head around this!!

    Jess

    Jessica

    July 21, 2015 at 12:04 pm

    • Jessica

      There was no jurisdiction for this matter ever to go on the EL/PL portal which only applies where the cause of action, or in the case of industrial disease the letter of claim, occurred/was sent on or after 31 July 2013- see Paragraph 4.1. As the case is not subject to the jurisdiction of the portal it cannot go in to Fixed Recoverable Costs.

      Thus, on the face of it open costs apply. However the defendant will have a strong argument for a Wasted Costs Order against the solicitor who wrongly put the matter in the portal. The court may indeed restrict costs to Stage 1 and 2, or disallow them completely for what is about as basic an error as it is possible to make.

      Kerry

      kerryunderwood

      August 3, 2015 at 3:28 pm

      • Yes thats what I thought. It should never have gone in the portal! I have taken this file over and was costing it, when i came across this problem!

        Thank You for your help.

        Jessica

        Jessica

        August 3, 2015 at 3:37 pm

      • Pleasure. In practice just try and settle for whatever you can on costs.

        Kerry

        kerryunderwood

        August 3, 2015 at 3:50 pm

  67. Good Afternoon

    Hi Just need some advice on how to proceed on the claims portal as its a new venture for myself and recently set up a PI department.Need advice to the following when a case has been Admitted and it states to exit and don’t know how to proceed there after your advice would be appreciated

    Adam Khan

    July 23, 2015 at 12:38 pm

    • Adam

      Well that is covered in the 6 years that it takes to qualify as a lawyer! You are really asking for a complete guide to civil litigation. My full day course on Portals and Fixed Recoverable Costs will help you start, or you could have me in on a consultancy basis – 01442 430900, kerry.underwood@lawabroad.co.uk

      Kerry

      kerryunderwood

      August 3, 2015 at 3:48 pm

  68. Hi Kerry, I wonder if you could help me. I have a claim (date of accident feb 2013) which was submitted through the portal March 2013, the otherside argued that they never received it so a letter of claim was sent. They then stated that that the wrong reference number was used so we were asked to re-submit the claim through the portal. This was re-submitted on 27th November 2013 but should never have been submitted through the portal because we believe the value of the case is between £10,000-£15,000. Medical evidence was obtained (fixed fee reports did not apply at this point) and negotiations were entered into at stage 2. The otherside have made an offer of £6000 outside of the portal which we do not agree with so we need to issue proceedings. Does the stage 3 process under PD 8B apply in this case?

    Lauren

    July 24, 2015 at 10:18 am

  69. First of all thanks for this very helpful guide.

    I have been instructed in relation to RTAs in France, Guernsey and the Isle of Man and am trying to establish whether these claims are subject to the RTA Portal. Can you assist please ?

    Donna Makin

    July 26, 2015 at 4:17 pm

    • Presumably not – having regard to paragraph 1.1 (16) of the Protocol ?

      Donna Makin

      July 26, 2015 at 4:21 pm

    • No. Portals only apply to accidents in England and Wales, and even then there are exceptions.
      Kerry

      kerryunderwood

      July 27, 2015 at 8:30 am

  70. Hi Kerry .. I thought I would re-post this comment, as I am not sure if you received the previous one. I wonder if you could help me. I have a claim (date of accident feb 2013) which was submitted through the portal March 2013, the otherside argued that they never received it so a letter of claim was sent. They then stated that that the wrong reference number was used so we were asked to re-submit the claim through the portal. This was re-submitted on 27th November 2013 but should never have been submitted through the portal because we believe the value of the case is between £10,000-£15,000. Medical evidence was obtained (fixed fee reports did not apply at this point) and negotiations were entered into at stage 2. The otherside have made an offer of £6000 outside of the portal which we do not agree with so we need to issue proceedings. Does the stage 3 process under PD 8B apply in this case?

    Lauren

    July 29, 2015 at 8:16 am

    • Lauren

      If a matter is in the portal it is not possible to make an offer outside the portal; the status is determined by where the case is. You clearly value the claim at more than the upper limit and so it does not continue within the portal – see paragraph 4.3.Once you have give notification the matter comes out of the portal and you are then free to issue proceedings; stage 3 is of no relevance.

      Clearly you are likely to be hit in costs for wrongly bringing the matter in the portal in circumstances when you knew it was above the portal upper limit; the court has virtually unfettered discretion in relation to costs in such circumstances. If I was hearing it I would be tempted to allow only portal costs even if the matter goes to trial.

      Kerry

      kerryunderwood

      August 3, 2015 at 3:45 pm

  71. Hi Kerry

    Lots of great information on here, thank you.

    Could you clarify a costs point please. EL claim DOA 20.5.12, LBA 13.11.13, can you please clarify what cost liabilities there are for Defendant costs should this matter not succeed at trial. They have recently made an offer to discontinue and the Claimant will obviously be informed of the same.

    Thank you very much.

    Peter

    mrpeterjthomas

    July 29, 2015 at 9:21 am

    • Peter

      Far more complicated than that. QOCS is fully retrospective in personal injury cases but there are significant exception to QOCS, one of the key ones being where there is a recoverable additional liability, so method of funding and date of CFA and ATE are critical. Clearly given the date of the accident this could be a pre LASPO CFA/ATE. Discontinuance under QOCS does not of itself now disqualify a Claimant from QOCS; in other words a QOCS covered claimant is not automatically liable for costs on discontinuance, which is of course the normal rule. However in any case the court will make the normal costs order – the restriction is on enforceability. I do not understand the reference to the Claimant being informed of an offer to discontinue. Only a claimant can discontinue; no other party can, so there can be no question of a claimant being so informed; it must always be the claimant’s decision.

      You may find it useful to look at my blogs on Qualified One Way Costs Shifting and to attend my course on QOCS.

      Kerry

      kerryunderwood

      July 29, 2015 at 11:47 am

      • Thanks Kerry, the cfa date is november 13 and there is no additional liabilty recoverable from the defendant. The QOCS retrospective nature will therefore cover this case.
        The discontinuance point is the defendant inviting my client to do so. I see no reason why they should. Fundamental dishonesty has neither been raised or pleaded, though the client has been advised on a finding of this by the Court.
        I do read your blogs, they are very thorough, and I have enjoyed a good number of your courses.
        Thank you for taking the time to help, it is much appreciated when time is such a finite and valuable commodity.

        Peter

        mrpeterjthomas

        July 29, 2015 at 12:04 pm

      • Thank Peter – I thought you had! Starting point therefore is no liability for costs in the event of defeat. In my view your sole consideration should be your client’s prospects of success; clearly it is in neither your nor your client’s interest to proceed and lose as time and effort will have been wasted even where there is no risk of paying the other side’s costs. There is also the question of own disbursements. Have the other side given any indication of why you should discontinue?

        Do you think that they are preying on your client’s fear of a potential costs order?

        Kerry

        kerryunderwood

        July 29, 2015 at 12:17 pm

  72. Thanks for this really useful blog, Kerry.

    My situation is that I submitted a PL claim through the portal, but the defendant has blamed their sub-contractors. Do I therefore need to re-submit a new claim against the sub-contractors through the portal, or does the denial of liability (and the possibility that there may be more than one defendant) mean that the claim is automatically exited from the portal?

    Michael Loveridge

    August 14, 2015 at 10:25 am

  73. I took over an existing RTA file from a previous solicitor – they had submitted the CNF and it had fallen out.

    I then took over the case and preserved a lien over their costs.

    I settled the case however the defendants argue that I should have submitted a new CNF to them as I was a new solicitor. Therefore they will pay only MOJ Costs.

    I am under the impression that they is incorrect, I simply took over the file of papers and carried on from where the previous solicitor left of – I have not come across anywhere in the CPR where it states each new solicitor must submit a CNF. What do you think? Thanks for your response in advance.

    A Ullah

    August 18, 2015 at 3:26 pm

    • They are wrong. The logic of that would extend to all proceedings! I am not sure what lien you are preserving in a Fixed Recoverable Costs case. When you refer to “MOJ” costs do you mean portal costs? Had you issued? Any which way it is covered by some form of fixed costs – sounds as though it settled out of the portal but pre-issue and therefore those would be the appropriate costs.

      Kerry

      kerryunderwood

      September 18, 2015 at 5:35 pm

  74. Kerry,

    Unless I’m missing something (which is entirely possible!) there seems to be a gap in the old PAP and relevant provisions under CPR 45 (and, I assume, the new portal) in relation to what happens where a claimant, unjustifiably, does not enter the portal but the matter settles before Part 7 proceedings are issued.

    Because C has not entered the portal then old CPR 45.27 would not apply because a) the stage 3 process cannot be followed where the protocol has not been followed; and b) 45.36 cannot apply because part 7 proceedings have not been issued. Equally, I can see no further applicable sanction either in CPR 45 or the PAP for the scenario where the claimant doesn’t enter the portal and nor does he issue proceedings. Thus there is nothing to limit the defaulting party to fixed costs under 45.29.

    As such (and assuming I am correct in the above – and wholly acknowledge that I may have missed something here!), I can only think that section II fixed costs apply. However, these would be greater than staged costs under the portal and that, to the extent that a non-compliant claimant would profit from his wrongdoing, would seem perverse.

    Please could you clarify the position for me?

    Thanks again,

    Arran

    Arran

    August 26, 2015 at 10:57 am

    • Arran

      My view is that there is no entitlement to costs at all in that situation. That is the starting point where proceedings have not been issued. Hence the need outside the fixed costs regime to have a contractual entitlement to recover costs where the case is settled pre-issue. The portals are an exception, but one approved by Parliament. It is not a question of being limited to CPR 45.29 costs – I do not think there is an entitlement even to those.

      I am sure a court would faced with legal proceedings for the costs would award nothing and may order the claiming party to pay costs.

      Otherwise who would ever use the portals?

      Kerry

      kerryunderwood

      September 18, 2015 at 5:41 pm

  75. My query isn’t related to costs but I have two claims that are approaching limitation that are in the realms of the portal. I know that I need to issue Part 8 claims forms and seek a stay of proceedings while we comply with the Protocol. Does anyone have any guidance on what is required on the claim form and whether you need to provide a draft order to the court please? There is very little guidance on this point.

    Mel

    September 4, 2015 at 10:18 am

    • Mel

      Re query re staying proceedings. The relevant part of Practice Direction 8B is 16. It is all set out there. Need to draft claim form as usual with all usual information on but also state that a stay of proceedings is sought in order to comply with the relevant Protocol (16.2(b). The court will make the order which must then be sent to the defendant (16.3). There is no need for the claimant to draft the order.

      Kerry

      kerryunderwood

      April 4, 2016 at 10:28 am

  76. Hi Kerry

    I attended one of your seminars in May this year. I thoroughly enjoyed it and I have made good use of your hand out bundle so many thanks for that!

    I just have a quick question regarding ‘reasonable’ exit from the portal and therefore which costs would apply in a situation where the Defendant made no offers following the settlement pack. Am I right in thinking that, as per 7.37, if the Defendant does not respond within the consideration period I can issue under Part 7 without cost consequences to myself? I’m always wary of what constitutes ‘reasonable’ exit but I cant see how criticism could be raised if it specifically states that the claim will not continue under the protocol and the Claimant may start proceedings. It is just the use of the work ‘may’ which throws me.

    Thanks in advance.

    CM

    October 15, 2015 at 6:06 pm

    • Many thanks. Paragraph 7.37 of the El/PL portal is mandatory: ” the claim will no longer continue under this Protocol” so it exits automatically; there is no longer any portal jurisdiction.

      Consequently you are free to issue Part 7 proceedings.True it is that “may” is permissory and not mandatory but that is appropriate and gives you the necessary protection. Obviously it is not compulsory for you to issue proceedings; the matter could still settle.

      The only way I could see any risk of any allegation of unreasonable behaviour is if, for example, immediately after the consideration period, that is after portal exit but before issue, the defendant made an offer so good that it must be accepted. Unlikely.

      Key is always to issue as soon as you can once the matter has exited the portal.

      Kerry

      kerryunderwood

      October 16, 2015 at 10:39 am

  77. Hi Kerry .. I thought I would re-post this comment, as I am not sure if you received the previous one. My situation is that I submitted a PL claim through the portal, but the defendant has blamed their sub-contractors. Do I therefore need to re-submit a new claim against the sub-contractors through the portal, or does the denial of liability (and the possibility that there may be more than one defendant) mean that the claim is automatically exited from the portal?

    Michael Loveridge

    October 21, 2015 at 1:31 pm

    • Michael

      I did get it, so the system works! It was e that did not.😄The possibility of more than one defendant does not of itself cause the matter to drop out of the portal; that only applies in industrial disease cases- see EL/PL 4.3 (6).

      If there has been a denial of liability then the matter no longer continues in the portal- see EL/PL 6.13. (3) which provides that if the defendant does not admit liability within 40 days in a PL matter (6.11 (b)) then it no longer continues under the portal. I presume that that has happened here in which case the matter cannot continue in the portal.

      By virtue of EL/PL 5.11 claims which no longer continue under the Protocol cannot re-enter it.

      Consequently it appears that the matter is out of the portal and cannot go back in and must proceed in the usual way with a letter of claim against the sub-contractors and proceedings issued if appropriate.

      It is an interesting point as to what costs regime then applies- Fixed Recoverable Costs or open. My view, on balance is FRC.

      If you decide not to proceed against the original defendant, but rather only the sub-contractor, then that seems to be a matter which should go into the portal as that particular matter would never have gone in or dropped out.

      Kerry

      kerryunderwood

      October 25, 2015 at 4:50 pm

  78. Hi Kerry,
    Call me stupid but…….In an RTA case with only a quantum dispute I am struggling to see how to complete the Court Proceedings Pack for Stage 3.

    7.64(2)(a) suggests Part A should contain the ‘final’ schedule of C’s losses and D’s responses. To me this suggests just attaching the last Stage 2 settlement pack – which will contain the last offers made by each side in Stage 2. If that is the case, does it mean that in Part B both C and D get the opportunity to make a further offer each as their ‘final offers’? (Otherwise what would the point be of keeping Part B from the judge until after he has assessed damages, when he will have seen the last offers in Part A?).

    But the above approach seems to be contradicted by 7.64(2)(b), which suggests that Part B should contain the final offers from Stage 2 (ie not a new offer), and 7.66 which says the CPP should contain nothing not included at Stage 2. Does this mean that in fact Part A should contain the original offers at the beginning of Stage 2 (doesn’t seem right according to 7.64(2)(a)), and Part B the offers made at the end of Stage 2?

    My confusion suggests to me that I am missing something glaringly obvious!

    Also, am I correct to assume that with Part A we can also include emails between the parties which discussed quantum during Stage 2? Would we get away with also including emails exchanged after Stage 2, despite 7.66?

    Finally, should we wish to include a witness statement from the C which was not included at Stage 2, will we definitely require permission of the Court under PD8B 7.1(3), or would consent from the insurer suffice?

    Andy

    October 22, 2015 at 2:31 pm

    • Andy

      Please see the case of Mulholland v Hughes and Conjoined Appeals, No. AP20/15, Newcastle-upon-Tyne County Court, 18 September 2015 and my write-up.

      They deal with most of your queries.

      Part A should indeed contain the final schedule of the claimant’s losses and the defendant’s responses.

      You will see at paragraph 19 of that judgment the judge says:-

      “It is important to understand the difference between Part A of the Court Proceedings Pack and Part B. Whereas the former is essentially a final schedule and counter-schedule with comments from both parties supporting their positions, the latter is confined to the claimant’s final offer and the defendant’s final offer expressed in global terms (the ‘Protocol offer’). It is specifically recorded on the Part B Form that the offer inserted in Part B may differ from the total of the separate heads of claims listed in Part A. There would therefore appear to be three options: for each party to make a final offer which is the sum of the heads of damage set out on the Part B Form, to make a final offer which is less than the aggregate of the heads of damage on the Part A Form or which is more than the aggregate of the amount of the heads of damage on the Part A Form. On the face of it, it would be surprising if the defendant’s final offer was less than the aggregate of the heads of damage on the Part A Form and, equally, surprising if the claimant’s final offer was more than the aggregate of the heads of damage on the Part A Form. The requirement of the Part B Form is that it should be submitted to the court in a sealed envelope, only to be opened at the conclusion of the hearing when the Court considers costs (CPR 36.28).”

      So, yes, in my view that does mean that in Part B both the claimant and the defendant get the opportunity to make a further offer each as their “final offers”.

      As to the final point yes, you definitely require permission of the court to include a witness statement from the claimant which was not included at stage 2 – Practice Direction 8B 7.1(3) is clear:-

      “The parties may not rely upon evidence unless –

      (3) (where the court considers that it cannot properly determine the claim without it), the court orders otherwise and gives directions.”

      At paragraph 22 of the Mulholland judgment the judge said:-

      “Paragraph 7.1 of PD8 stipulates that no additional documents or evidence may be submitted without the permission of the court. Unless a further order of the court is made, the claim is therefore determined, whether on paper or at a hearing, based upon the documents submitted with the claim form and the acknowledgement of service.”

      As to including emails exchanged after stage 2, my view is that you cannot. Paragraph 7.66 is clear:-

      “7.66. Comments in the Court Proceedings Pack (Part A) Form must not raise anything that has not been raised in the Stage 2 Settlement Pack Form.”

      So the answer to that is no.

      My view is that you can include within Part A any emails that are relevant to Part A as governed by paragraph 7.64(2)(a) which provides that the form must contain:-

      “(a) in Part A, the final schedule of the claimant’s losses and the defendant’s responses comprising only the figures specified in subparagraphs (1) and (2) above, together with supporting comments and evidence from both parties on any disputed heads of damage;”

      Thus emails that are comments or evidence on quantum can be included.

      I agree that paragraph 7.64(2)(b) and 7.66 are somewhat confusing but I am satisfied that both parties do indeed get the opportunity to make further offers as their final offers and as you say those final offers are kept from the judge whereas the Part A offers are not.

      kerryunderwood

      April 4, 2016 at 11:52 am

  79. Many thanks Kerry, much appreciated.

    Michael Loveridge

    October 25, 2015 at 7:27 pm

  80. hi Kerry,

    can you tell me what costs apply to MIB uninsured cases outside the MOJ Portal

    sangeeta

    October 27, 2015 at 9:26 am

  81. Hi Kerry,

    can you please let me know what costs apply to MIB Uninsured cases which have exited the MOJ Portal,

    sangeeta

    October 27, 2015 at 9:27 am

    • Uninsured MIB claims are covered by the portal and so the costs regime is exactly the same as for any other RTA claim. It is only untraced driver cases that are excluded from the portal and the Fixed Recoverable Costs Scheme. This is by RTA Portal 4.5(2) which excludes claims ” made to the MIB pursuant to the Untraced Drivers’ Agreement 2003 or any subsequent Untraced Drivers’ Agreements;”

      Kerry

      kerryunderwood

      October 27, 2015 at 9:34 am

    • Fixed Recoverable Costs.

      kerryunderwood

      October 27, 2015 at 9:35 am

  82. Hello Kerry,

    Would you be kind enough to advise on the following –

    1. RTA on new Portal
    2. Medical report on soft tissue injury
    3. Stage 2 Settlement pack submitted with offer; counter offer made
    4. Claimant then gets an MRI scan for unrelated complaint but bulging disc discovered which expert believes to be related to the accident
    5. Insurer refuses to pay for further medical report
    6. We can’t accept offer because of obvious negligence issues

    Strangely, there does not appear to be any express provision made in the Portal for this type of situation, i.e. for adducing further medical evidence after submitting the Stage 2 Settlement Pack which contains the report(s) obtained at Stage 1 in the event that it transpires that the injuries are different in nature and/or more severe than expressed in the first report.

    The “feel” of the Protocol is that the paragraphs run concurrently with the litigation process through the Stages. And so although paras. 7.8 and 7.8B state that further medical evidence can be obtained, para. 7.31(2) states that –

    (2) Therefore, where the claimant obtains more than one expert report or obtains an advice from a specialist solicitor or counsel—
    (a) the claimant should explain in the Stage 2 Settlement Pack why they obtained a further report or such advice; and
    (b) if relevant, the defendant should in the Stage 2 Settlement Pack identify the report or reports or advice for which they will not pay and explain why they will not pay for that report or reports or advice.

    But of course by this time we’ve already submitted the Stage 2 Settlement Pack, which would surely imply that further medical reports can be sought under the aforesaid paragraphs ONLY before the Stage 2 Settlement Pack is submitted.

    As such, I think that the only thing to do would be to rely on PAP 7.46 and withdraw our offer and issue Part 7 and then look to recover the cost of the additional expert evidence as a “disbursement reasonably incurred due to a particular feature of the dispute” under CPR 45.29I(2)(h).

    Would you agree? Or perhaps exit justified under para. 7.76?

    Urgent comment really appreciated.

    Arran

    October 28, 2015 at 12:55 pm

    • Further –

      The Protocol refers to “soft tissue injury”. Although this may be academic further to your answer to my previous question, if the newly discovered injury is not soft-tissue related, then is the claim still a STI claim for the purposes of the Portal as this is how the claim began, in effect, or does it then become a non-STI claim in light of the further injury?

      Thanks again.

      Arran

      October 28, 2015 at 1:03 pm

      • Hi Kerry – any idea on the above. Sorry to push! Thanks in advance.

        Arran

        November 3, 2015 at 1:42 pm

      • Arran

        In the RTA protocol paragraph 1.1. (16A) – part of the definition section- states:
        ” “soft tissue injury claim” means a claim brought by an occupant of a motor vehicle where the significant physical injury caused is a soft tissue injury and includes claims where there is a minor psychological injury secondary in significance to the physical injury.”

        Thus the soft tissue injury must be the most serious injury; otherwise it is not a soft tissue injury claim.It is not enough that the soft tissue injury is “a” significant physical injury: it must be “the” significant injury. It could be better worded, eg : ” the most significant physical injury”.

        It seems to me that if as a matter of fact the significant physical injury is not a soft tissue injury, even if not appreciated at the start of the process, then the claim is not, and never has been, a “soft tissue injury claim” within the meaning of paragraph 1.1 (16A) and therefore the rules specific to such cases do not apply.

        Kerry

        kerryunderwood

        November 15, 2015 at 6:00 pm

    • Arran

      My view is that the portal does not provide for the submission of further medical evidence after submission of the Stage 2 Settlement Pack. For example paragraph 7.33 of the portal states:-

      “The claimant should send the Stage 2 Settlement Pack to the defendant within 15 days of the claimant approving —

      (1) the final medical report and agreeing to rely on the prognosis in that report; or

      (2) any non-medical expert report,

      whichever is later.” (My italics)

      I realise that that is in the context of a second or subsequent report from the same expert, for the reasons set out in paragraph 7.8, but the use of the word “final” in paragraph 7.33 strongly suggests to me that you cannot submit further medical evidence once the Stage 2 Settlement Pack has been sent to the defendant.

      I am reinforced in that by paragraph 7.66 which provides:-

      “Comments in the Court Proceedings Pack (Part A) Form must not raise anything that has not been raised in the Stage 2 Settlement Pack Form.”

      One can see the logic of having a cut-off point and in the circumstances that you set out it could have happened that the medical evidence was obtained after the case had been to court, or had been settled by acceptance of a Part 36 offer or whatever. In those circumstances you would not have been able to reopen the case.

      The refusal to pay for a further medical report seems to me to be a red herring and is governed by different considerations.

      If the report is relevant and admissible then it should be paid for. If it is not admissible then the defendant does not have to pay for it.

      I am presuming that the additional injury does not take the claim above the portal limit of £25,000.00. If it does there is no problem as that is a reason for exiting t6he portal.

      7.76 gives the claimant an unfettered right to exit the portal. The problem is that “where the court considers that the claimant acted unreasonably in giving such notice it will award no more than the fixed costs in rule 45.18.”

      It seems to me that the key point is to how the first expert missed the bulging disc as if it is the expert’s fault then the defendant has got a point. However if it was no one’s fault and it was only discoverable by an MRI scan and it was not expected that such a scan would be necessary and if the defendant fails to consider the new medical evidence then exiting the portal would not be unreasonable.

      I suggest that you write to the defendant setting out exactly what you propose to do and ask them to reconsider and to take into account the new medical evidence. If they do not agree then you should exit the portal.

      Whether or not the cost of the report is recoverable is another matter but there is no prohibition on obtaining a second medical report and you would not need to show that it was a disbursement reasonably incurred due to a particular feature of the dispute under CPR 45.29I (2) (h).

      Even in a soft tissue injury claim paragraph 7.8B makes provision for a further medical report in certain circumstances. For the reasons given in my reply to your other comment I do not believe the soft tissue injury rules apply as this is not a soft tissue injury claim within the meaning of the portal.

      Paragraph 7.2 of the portal states:-

      “It is expected that most claimants will obtain a medical report from one expert, but additional medical reports may be obtained from other experts where the injuries require reports from more than one medical discipline.”

      That appears to be the situation here.

      The limitation in paragraph 7.8 is in relation to a subsequent medical report from an expert who has already reported and does not deal with obtaining a medical report from a second or subsequent expert.

      Paragraph 7.12 under the heading “Stay of Process” provides:-

      “7.12. Where the claimant needs to obtain a subsequent expert medical report or a non-medical report, the parties should agree to stay the process in this Protocol for a suitable period. The claimant may then request an interim payment in accordance with paragraphs 7.13 to 7.16.”

      Although that does not specify the stage of the proceedings reached where there can be a stay for this reason it does refer to interim payment and that is of course a pre-stage 2 issue and paragraph 7.12 appears amongst other pre-stage 2 matters.

      If further medical evidence could be provided after the Stage 2 Settlement Pack has been sent, one would expect that to appear in paragraphs 7.32 onwards dealing with the Stage 2 Settlement Pack and subsequent events.

      Kerry

      kerryunderwood

      November 16, 2015 at 1:24 pm

      • Kerry, thank you as always. See you in Manchester 2016!

        Best wishes

        Arran

        November 16, 2015 at 1:49 pm

      • Pleasure Arran – you ask me some tough questions 🙂
        Kerry

        kerryunderwood

        November 16, 2015 at 3:10 pm

  83. […] Meanwhile you can visit my blog – FIXED COSTS, ALL THE PORTALS AND FIXED RECOVERABLE COSTS […]

  84. […] FIXED COSTS, ALL THE PORTALS AND FIXED RECOVERABLE COSTS […]

  85. […] The Fixed Recoverable Costs Scheme is dealt with in table 6 – see my blog FIXED COSTS, ALL THE PORTALS & FIXED RECOVERABLE COSTS. […]

  86. Please help me with this ludicrous situation: post 31.7.13 EL claim initially considered to be less than £10k and entered onto Portal. Subsequently leaves Portal, Part 7 proceedings issued, allocated to Multi Track and settled at £70k. CPR 45.29A obviously applies and fixed costs are payable but the Defendant’s costs muppets say not so and demand a bill for PA! What is the procedure to compel the fixed costs?

    Ian Foster

    Ian Foster

    November 19, 2015 at 11:35 am

    • Sue, but make Part 36 offer first.

      kerryunderwood

      November 19, 2015 at 1:30 pm

      • Certainly but should I use a standard form of application to the case DJ within the [concluded] proceedings? We are now in the assessment phase but I can’t see a particular procedure for this problem. Many thanks.

        Ian Foster

        November 19, 2015 at 4:31 pm

      • Yes – apply to judge. Judge has power to allow escape from fixed costs and to order detailed assessment.

        kerryunderwood

        November 19, 2015 at 4:35 pm

  87. Kerry, quick question. PL matter, out of portal, issued, need to make an application for an “unless order”. CPR 45.29H provides for costs of such application to be paid and to be for a sum equivalent to one half of the applicable Type A and B costs in Table 6A. Type A fixed costs are £250, Type B are £250 total £500. Does that mean the Court can award the sum of £250 ie: one half of the total of Type A and B costs?
    Thanks
    Sue

    Sue King

    December 1, 2015 at 1:32 pm

    • CPR 45.29H does indeed provide that “where the court makes an order for costs of an interim application to be paid by one party in a case to which this Section applies, the order shall be for a sum equivalent to one half of the applicable Type A and Type B costs in Table 6 or 6A.”

      Type A and Type B costs are defined in CPR 45.18 as follows: –

      “(2) In Tables 6 and 6A –

      ‘Type A fixed costs’ means the legal representative’s costs;

      ‘Type B fixed costs’ means the advocate’s costs;”

      Thus the fees that can be claimed for an interim application are:-

      Type A – £250.00 ½ £125.00
      Type B – £250.00 ½ £125.00

      The point is that the fee of £250.00 is the legal representative’s costs for preparing the matter and there is then a further £250.00 advocacy fees and so the total that you can claim is indeed half of £500.00, that is £250.00.

      It could be better expressed!

      Please also note that the escape clauses applies to interim hearings and the court can make an order there and then awarding additional costs over and above the sum of £250.00 and on an application for an “unless order” the court is likely to do so for obvious reasons.

      This is dealt with in detail elsewhere in my replies to other comments on this blog.

      kerryunderwood

      December 3, 2015 at 7:26 am

      • Kerry

        Your assistance is invaluable. Many thanks.

        Sue

        Sue King

        December 3, 2015 at 10:14 am

      • Pleasure 😄

        kerryunderwood

        December 3, 2015 at 4:03 pm

  88. Kerry, I have a case and act for the claimant. The dispute is regarding unreasonable exit from the RTA portal. Accident 7/8/13, enters portal 14/8/13 and exits 24/10/13, damages of £6k agreed April 2015. Client suffered injury including whiplash, vertigo and headaches. Headaches, nausea and vertigo worsened, off sick from work and he was looking at losing his job, the stress caused a stroke so was removed from the portal as he was in hospital, so causation issues, potential high LOE claim, they argue should be portal costs and should stayed in we say fixed recoverable, what are your thoughts please, listed for hearing 23/12, thanks

    paul fulcher

    December 10, 2015 at 12:25 pm

    • Why did you exit? £6,000 is under a quarter of the portal maximum. You refer to causation issues. Was liability denied? What Part 36 offers were made and when? Did you offer to mediate? If so, when?

      These matters are inevitably complicated and fact-sensitive but on the very little information that you have given me I think that you are in difficulties.

      Kerry

      kerryunderwood

      December 10, 2015 at 1:53 pm

      • Thanks for the email. We relied on the PAP para 7.76 and gave notice to the defendant that the claim is unsuitable for this protocol because there are complex issues of fact or law and should no longer continue under this Protocol. We have to consider if the court considers that the claimant acted unreasonably in giving such notice.

        paul fulcher

        December 10, 2015 at 2:19 pm

      • Well, as I said above these matters are fact sensitive, but looks like a very straightforward low value claim that should have been dealt with in the portal.

        kerryunderwood

        December 10, 2015 at 2:25 pm

      • great as I thought, thanks as ever

        paul fulcher

        December 10, 2015 at 3:33 pm

      • Pleasure

        kerryunderwood

        December 10, 2015 at 6:24 pm

  89. Is there any decision or guidance as to whether the case has actually to be opened on the trial date in order for an advocate’s trial fee to be recoverable?

    Gordon Bellis

    December 19, 2015 at 12:28 am

    • Gordon

      The advocacy fee covers just that – the preparation is covered by fixed costs, so no advocacy = no fee. In the context of the variable recoverable success fee – 100% if the matter went to trial but less if it did not(except in stress and RSI where always 100%) the High court held that a final contested hearing had to start – James v Ireland [2015] EWHC 1259 (QB).

      The principle applies to advocacy costs. Remember the assumption in fixed costs cases is that counsel will not be used.

      Kerry

      kerryunderwood

      January 22, 2016 at 3:54 pm

  90. Hi Kerry

    In relation to Fast Track FRC settlement, how long do the third party have to make payment for our costs and if they are not received within that time scale then what sanctions apply?

    Thank you

    Khan

    January 8, 2016 at 12:08 pm

    • As far as I can see there is no specific time period for paying fixed recoverable costs arising out of settlement in the fast track.

      In the portals there are fixed time scales and sanctions. If a court order is made then, absent any other order by the court, the period for payment is 14 days and you can then enforce the order if it is not paid within that time.

      If the matter is settled then the issue of costs is a matter of contract between the parties. What fixed recoverable costs do is to quantify those costs, and indeed fix them and it has been held that the indemnity principle does not apply either in relation to portal fixed costs or fast track fixed costs. However you do need to agree, as part of the terms of the settlement, that costs are payable and you should provide a timetable and clearly 14 days is a reasonable time as that would be the period if a court order was made.

      If you are having problems with defendants paying then I suggest that you put them on notice that unless payment is made within 14 days you will make an application to a court for an order for costs and will seek indemnity costs in relation to that application.

      Kerry

      kerryunderwood

      January 25, 2016 at 10:22 am

  91. Hi Kerry

    What happens in the instance that you do not include the hire and storage head of claim in the Stage 2 settlement pack?

    Khan

    January 8, 2016 at 3:31 pm

    • I think that you have had it. Please see my detailed reply to Arran of 1.24 pm 16 November 2015, which deals with a slightly different point, but I believe that the principle is the same. You could exit the portal, but then you face a costs risk for unreasonably exiting the portal.
      Obviously there does have to be a cut-off point and my view is that it is the Stage 2 Settlement Pack.
      Kerry

      kerryunderwood

      January 21, 2016 at 8:08 pm

      • Hi Kerry

        Thank you for your helpful reply,

        Khan

        January 29, 2016 at 4:39 pm

  92. […] FIXED COSTS, ALL THE PORTALS AND FIXED RECOVERABLE COSTS […]

  93. Hi Kerry

    I was wondering if you could assist with this vehicle related issue, the client’s vehicle was deemed a total loss Cat D, the engineer has commented in the report:

    Prior Damage. PREVIOUS CAT D In our opinion the vehicle was not roadworthy at the time of our inspection as a result of the damage
    sustained.

    The pre-accident value minus the salvage totalled: £2082

    However, the third party have made a payment of £976.00 which represents the Engineers Value Trade as mentioned in the report?

    Upon enquiring with the third party they advised that the pre-accident value was not paid as the vehicle was a previous total loss CAT D and therefore the engineers trade value is what is payable?

    Please advise if this is general practice as I have personally never come across this situation?

    Thanks in advance Kerry

    Khan

    January 29, 2016 at 4:44 pm

  94. Hi Kerry,

    Could you please advise on the following; I have submitted a medical report and a stage 2 settlement pack with offer, however my client has now mentioned symptoms which have not been addressed in the original medical report and she wishes to obtain further medical evidence. What is the procedure considering I have made a stage 2 offer already?

    Many thanks

    Sara

    February 16, 2016 at 11:20 am

    • Sara

      My view is that the portal does not provide for the submission of further medical evidence after submission of the Stage 2 Settlement Pack. For example paragraph 7.33 of the portal states:-

      “The claimant should send the Stage 2 Settlement Pack to the defendant within 15 days of the claimant approving —

      (1) the final medical report and agreeing to rely on the prognosis in that report; or

      (2) any non-medical expert report,

      whichever is later.”

      I realise that that is in the context of a second or subsequent report from the same expert, for the reasons set out in paragraph 7.8, but the use of the word “final” in paragraph 7.33 strongly suggests to me that you cannot submit further medical evidence once the Stage 2 Settlement Pack has been sent to the defendant.

      I am reinforced in that by paragraph 7.66 which provides:-

      “Comments in the Court Proceedings Pack (Part A) Form must not raise anything that has not been raised in the Stage 2 Settlement Pack Form.”

      One can see the logic of having a cut-off point and in the circumstances that you set out it could have happened that the medical evidence was obtained after the case had been to court, or had been settled by acceptance of a Part 36 offer or whatever. In those circumstances you would not have been able to reopen the case.

      I am presuming that the additional injury does not take the claim above the portal limit of £25,000.00. If it does there is no problem as that is a reason for exiting the portal.

      7.76 gives the claimant an unfettered right to exit the portal. The problem is that “where the court considers that the claimant acted unreasonably in giving such notice it will award no more than the fixed costs in rule 45.18.”

      It seems to me that the key point is to how the first expert missed the symptoms as if it is the expert’s fault then the defendant will have an argument that it is unreasonable to exit the portal. However if it was no one’s fault and if the defendant fails to consider the new medical evidence, and take it into account, then in my view exiting the portal would not be unreasonable.

      I suggest that you write to the defendant setting out exactly what you propose to do and ask them to reconsider and to take into account the new medical evidence. If they do not agree then you should exit the portal.

      Whether or not the cost of the report is recoverable is another matter but there is no prohibition on obtaining a second medical report and you would not need to show that it was a disbursement reasonably incurred due to a particular feature of the dispute under CPR 45.29I (2) (h).

      Even in a soft tissue injury claim paragraph 7.8B makes provision for a further medical report in certain circumstances.

      Paragraph 7.2 of the portal states:-

      “It is expected that most claimants will obtain a medical report from one expert, but additional medical reports may be obtained from other experts where the injuries require reports from more than one medical discipline.”

      That appears to be the situation here.

      The limitation in paragraph 7.8 is in relation to a subsequent medical report from an expert who has already reported and does not deal with obtaining a medical report from a second or subsequent expert.

      Paragraph 7.12 under the heading “Stay of Process” provides:-

      “7.12. Where the claimant needs to obtain a subsequent expert medical report or a non-medical report, the parties should agree to stay the process in this Protocol for a suitable period. The claimant may then request an interim payment in accordance with paragraphs 7.13 to 7.16.”

      Although that does not specify the stage of the proceedings reached where there can be a stay for this reason it does refer to interim payment and that is of course a pre-stage 2 issue and paragraph 7.12 appears amongst other pre-stage 2 matters.

      If further medical evidence could be provided after the Stage 2 Settlement Pack has been sent, one would expect that to appear in paragraphs 7.32 onwards dealing with the Stage 2 Settlement Pack and subsequent events.

      Kerry

      kerryunderwood

      February 23, 2016 at 5:14 pm

    • Hi Sara – I hope you don’t mind me intruding upon your question but, as you will see above, I had pretty much the same query. I follow Kerry’s blog with great interest. I actually wrote a letter to the other side on very issue and further to which they conceded the point and agreed in principle to our client obtaining additional medical evidence. I would be happy to send you a redacted copy of that letter if you wish. If so, email me at christopher.mcclure@johnmhayes.co.uk.

      Arran

      February 23, 2016 at 5:27 pm

      • Arran

        Just replied at length to Sara – see above. Please let me know how you both get on and thank you for your kind remarks. Hope you are ordering the book and booking the course!! 🙂

        Kerry

        kerryunderwood

        February 23, 2016 at 5:33 pm

  95. Absolutely superb article and I agree with previous comments that this is an excellent resource. It breaks down Part 45 in to more manageable chunks.

    I have one query, which you may be able to assist with, if you would be so kind. I am dealing with a litigated matter in which a claim for damages for personal injury and inconvenience for disrepair are pleaded in the claimant’s particulars of claim. I represent the defendant.

    The claim is for injury caused by a ceiling in the claimant’s property falling on a claimant’s head and we act for the defendant. The claim originally came through the portal, which seems fair considering the accident occurred on 28 August 2014 after the 31 July 2013 cut-off point (the ceiling of the interior of the claimant’s property fell on the claimant’s head).

    However, as it is now litigated and inconvenience for disrepair is being pleaded also, what costs structure will apply? Will fixed recoverable costs now apply for the injury element, with 2 separate offers having to be made (one for PSLA for personal injury and one for the disrepair) or as damages for inconvenience caused by the disrepair are claimed also, will standard costs apply overall as it is one litigated matter? My gut feeling is that I will have to separate the offers as fixed recoverable costs will apply for the personal injury (with costs being calculated based on a percentage of the damages awarded) and then on the standard basis for the disrepair.

    Usually, it would be easier to make one global offer, but I presume this would not be possible considering costs for injury being calculated on the PSLA damages awarded. I would welcome your views.

    James

    February 24, 2016 at 10:29 am

    • James

      Thank you for your kind comment.

      Paragraph 4.1 of the Pre-Action Protocol for Low Value Personal Injury (Employer’s Liability and Public Liability) Claims provides:-

      “4.1. This Protocol applies where—

      (2) the claim includes damages in respect of personal injury;”

      Assuming it is genuinely an employer’s liability or public liability claim, and I have no information from you on that, then the matter correctly goes into the portal.

      Any matter exiting the portal goes to fixed costs – see my blog and see the case of In Qader & Ors v Esure Services Ltd [2015] EWHC B18 (TCC) (15 October 2015). which is dealt with in my blog – Is a £1 Million Pound Ex Portal Claim Subject to Fixed Costs?

      There will virtually always be a special damages claim attached to a personal injury claim and these are unquestionably within the Fixed Costs Regime and therefore your case is a fixed costs case.

      Qualified One-Way Costs Shifting also applies to any claim which includes a claim for personal injury – see CPR 44.13(1) (a).

      The unanswered question is whether Section 57 of the Criminal Justice and Courts Act 2015 applies as Section 57(1) refers to “proceedings on a claim for damages in respect of personal injury” whereas the portals and CPR in relation to fixed costs and the CPR in relation to QOCS use the word “includes”, as a defendant, hit with QOCS but potentially unable to use Section 57.

      I am doing a series of courses on just these points and you can book here and I have just published a book on Qualified One-Way Costs Shifting, Section 57 and Set-Off and I am about to publish another one on Fixed Costs, Small Claims including the Portals and you can buy them by clicking here or visiting Amazon.

      kerryunderwood

      February 29, 2016 at 10:33 am

  96. Hi Kerry. As a firm we are fairly new to RTA Portal work. I have first two cases where we cannot agree at Stage 2 and I need to complete the Court Proceedings Pack. Could I check please – the Claimant’s final offer and Defendant’s final offer in Part B of this Pack is taken from the Stage 2 negotiations? In other words it is not an opportunity for either party to put a new reduced (or possibly increased) figure forward to obtain Part 36 advantages?
    Secondly, when a matter is in one of the Portals am I correct in thinking that it is not possible to make Part 36 offers in any other way other than within the Portal?
    I appreciate that this may seem fairly basic to more experiences practitioners but we all have to start somewhere!
    Thank you.
    Sue

    Sue

    February 29, 2016 at 1:55 pm

  97. Sue

    I deal with all of this in my Fixed Costs and Portal courses – details here – and in my book on the same subject, which those attending the course receive as part of the package, but which can be ordered here or visiting Amazon.

    Kind regards
    Kerry

    kerryunderwood

    February 29, 2016 at 7:46 pm

  98. hi Kerry I was just wondering whether you can help me.
    The clients accident date is 5th August 2013, the accident was submitted via the PL portal on 21st July 2014 and liability was admitted.
    I obtained advice on quantum which confirmed that the value of the case was above £25,000. I wrote to the defendant insurers advising them that the matter exited the MOJ Portal. I have no agreed a global figure of £42,000 pre-issue. Can you please advise me the costs which are applicable.

    Thank you,
    Sangeeta

    sangeeta

    March 1, 2016 at 10:44 am

  99. See my blog Is a £million ex portal claim subject to fixed costs? Yes, IMO, so fixed costs apply here.

    kerryunderwood

    March 1, 2016 at 10:56 am

  100. Hi Kerry,
    Have a costs dispute in hands that I’m having trouble finding any case law at all.
    This is an RTA that came out of portal to which FRC under 45.29C applies. This claim was issued and the dispute revolves around the date of issuing.
    -Judge considered and allocated the claim to fast track on the 12/02/2016
    -Defendant’s Solicitors made a Part 36 offer on the 19/02/2016
    -Claimant’s Solicitors accepted the offer on the 22/02/2016
    -Court processed the order on the 25/02/2016
    What truly constitutes the date of a court order? The date where the judge considers the Allocation and Directions? Or the date when the court processes the order?

    Filipe

    March 9, 2016 at 11:01 am

    • I deal with all of these issues on my course – see Kerry’s 60th Birthday Tour to book and in my book on the subject – again that can be ordered by visiting my blog, or from Amazon. If you order a book or book on a course I will happily deal with the query.

      Kerry

      kerryunderwood

      March 16, 2016 at 3:55 pm

  101. Hi Kerry

    I received inter partes costs on a Part 7 infant claim prior to the listed infant settlement hearing. Unfortunately, I lost contact with the Litigation Friend and had to make an application to cease acting as the child’s legal representative. I also terminated the CFA gaining a right to pursue the Litigation Friend for costs. The application to cease acting was granted and eventually the claim was struck out. The defendant’s solicitor wants the costs back. My argument is that the costs belong to the infant but I hold a lien over them which the court will protect. Therefore, the defendant’s quarrel is with the Litigaiton Friend.

    Do you think this is reasonable?

    Thanks

    Jonathan

    March 19, 2016 at 5:13 pm

    • I agree that costs belong to the client, but that begs the question as to whether the client here has any entitlement to costs. On what basis were they paid? Clearly there is no entitlement to costs by a claimant whose Liam is struck out, so on the face of it the defendant is indeed entitled to the costs back. I cannot see how you can have a lien on something that the claimant is not entitled to. I am most surprised that the defendant paid costs before the matter had been concluded. Depending on the wording of the costs agreement there may be an estoppel argument.

      Presumably the defendant will now seek payment of its own costs, and on those facts the case is likely to come within one of the many exceptions to QOCS.

      Kerry

      kerryunderwood

      April 5, 2016 at 8:04 am

  102. Here is a situation I have seen quite a few times which doesn’t seem to have been foreseen in the rule changes (unless I’m mistaken?)

    C issues proceedings against D on 01 Jan 2016.
    C’s Funding is on a CFA signed on 01 Jan 2015 – i.e. post Jackson
    C claims personal injury damages exceeding £1000 but limited to £10,000 – i.e low value RTA

    D makes a Part 20 counterclaim against C for repair costs in the sum of £500 only.

    The matter is allocated to the Fast Track given the PI element being over £1k.

    If C wins damages he gets FIXED costs as per Part 45

    But if D wins damages he gets costs assessed on the STANDARD basis.

    Is this correct?

    Hossein

    March 23, 2016 at 11:44 am

    • The date of funding is irrelevant.

      For costs see CPR 45.29G(2)(a) – counterclaim that does not include a personal injury matter results in fixed costs of half of Type A and Type B Table 6 costs, so nothing as it is a small claim and not costs-bearing.

      kerryunderwood

      March 24, 2016 at 4:57 pm

  103. Hi kerry,

    I have a costs issue that has arisen and I am unsure how to move forward. RTA claim which has dropped out of the portal. We obtained a psych report (as well as other medical reports) which defendant was on notice we were obtaining. We disclosed psych report along with an ortho report. Letter disclosing report did not specifically refer to which reports were enclosed – simply said here is our medical evidence and Part 36 offer. Claim has settled. Defendant is disputing the cost of the psych report on the basis that they have never received it. They settled the claim without taking the psych report into consideration. We have now sent them the report however they still refuse to pay it. What is our position in terms of arguing the point? It is not clear how to deal with disputes in these fixed cost cases. Thanks Sara

    Sara

    April 4, 2016 at 4:52 pm

  104. Very useful blog on this topic, to which I am fairly new. I wanted to ask a question in relation to stage 3 disposal hearings for minors where the Court gives Judgment in relation to Quantum as the parties have failed to settle. The answer to my question may be very obvious so excuse me if this is a stupid question but I would like to know if CPR 36.17 still applies to minors’ stage 3 disposals in relation to the costs consequences for failing to beat the Defendant’s offer or in relation to beating the Claimant’s own offer? I am assuming that even if the Claimant fails to beat the Defendant’s protocol offer that the Claimant can still recover the Court Fee from the Defendant, given that a hearing would be necessary for the Court to approve settlement in any event for minors? Thanks

    Cheryl

    April 13, 2016 at 10:35 pm

    • Cheryl

      RTA Protocol and EL/PL Protocol offers to settle are dealt with by CPR 36.24 to 36.30 and where a case has exited the portal that is dealt with by CPR 36.21 which provides that CPR 36.17 applies but with a whole string of modifications set out in CPR 36.21.

      As I understand it in your scenario you are dealing only with matters resolved within the portal and the instances of where a minor claimant fails to beat the defendant’s offer and where a minor claimant matches or beats its own offer.

      This is dealt with in CPR 36.29 which reads as follows:-

      “Costs consequences following judgment

      36.29

      (1) This rule applies where, on any determination by the court, the claimant obtains judgment against the defendant for an amount of damages that is—

      (a) less than or equal to the amount of the defendant’s Protocol offer;

      (b) more than the defendant’s Protocol offer but less than the claimant’s Protocol offer; or

      (c) equal to or more than the claimant’s Protocol offer.

      (2) Where paragraph (1)(a) applies, the court must order the claimant to pay—

      (a) the fixed costs in rule 45.26; and

      (b) interest on those fixed costs from the first business day after the deemed date of the Protocol offer under rule 36.26.

      (3) Where paragraph (1)(b) applies, the court must order the defendant to pay the fixed costs in rule 45.20.

      (4) Where paragraph (1)(c) applies, the court must order the defendant to pay—

      (a) interest on the whole of the damages awarded at a rate not exceeding 10% above base rate for some or all of the period starting with the date specified in rule 36.26;

      (b) the fixed costs in rule 45.20;

      (c) interest on those fixed costs at a rate not exceeding 10% above base rate; and

      (d) an additional amount calculated in accordance with rule 36.17(4)(d).”

      Thus where the claimant matches or beats its own offer CPR 36.29(4) comes into play and the court must order the defendant to pay interest on the damages, fixed costs, interest on those fixed costs and 10% extra damages.

      Where a minor claimant fails to beat a defendant’s Part 36 offer then CPR 36.29(2) comes into play and the court must order the claimant to pay:-

      • the fixed costs in CPR 45.26 and interest on those costs.

      CPR 45.26 provides for the claimant to pay stage 3 type A fixed costs if it is a paper hearing and stage 3 type A and B fixed costs if it is an oral hearing, which a case involving a minor always will be.

      CPR 45.26 provides for the claimant to pay any stage 3 disbursements allowed in accordance with CPR 45.19 and that specifically provides that CPR 45.19(2)(d) for court fees in respect of the stage 3 procedure to be paid.

      However CPR 45.22 deals with settlement at stage 3 where the claimant is a child and reads:-

      “Settlement at Stage 3 where the claimant is a child

      45.22

      (1) This rule applies where –

      (a) the claimant is a child;

      (b) there is a settlement after proceedings are started under the Stage 3 Procedure;

      (c) the settlement is more than the defendant’s relevant Protocol offer; and

      (d) an application is made to the court to approve the settlement.

      (2) Where the court approves the settlement at the settlement hearing it will order the defendant to pay –

      (a) the Stage 1 and 2 fixed costs;

      (b) the Stage 3 Type A, B and C fixed costs; and

      (c) disbursements allowed in accordance with rule 45.19.

      (3) Where the court does not approve the settlement at the settlement hearing it will order the defendant to pay the Stage 1 and 2 fixed costs.

      (4) Paragraphs (5) and (6) apply where the court does not approve the settlement at the first settlement hearing but does approve the settlement at the Stage 3 hearing.

      (5) At the Stage 3 hearing the court will order the defendant to pay –

      (a) the Stage 3 Type A and C fixed costs for the settlement hearing;

      (b) disbursements allowed in accordance with rule 45.19; and

      (c) the Stage 3 Type B fixed costs for one of the hearings.

      (6) The court in its discretion may also order –

      (a) he defendant to pay an additional amount of either or both the Stage 3 –

      (i) Type A fixed costs;

      (ii) Type B fixed costs; or

      (b) the claimant to pay an amount equivalent to either or both of the Stage 3 –

      (i) Type A fixed costs;

      (ii) Type B fixed costs.

      (7) Where the settlement is not approved at the Stage 3 hearing the court will order the defendant to pay the Stage 3 Type A fixed costs.”

      It will be seen at CPR 45.22(6)(b) a discretion to order the claimant to pay an amount equivalent to either or both of the stage 3 type A fixed costs and/or type B fixed costs.

      The rule is not at all clear but I presume that that is intended to apply in the situation which you envisage, but where a minor claimant settles late by accepting a defendant’s offer rather than where the minor claimant fails to beat a defendant’s Part 36 offer.

      You will note that there is indeed no provision for the claimant to be ordered to pay disbursements and thus cannot be ordered to pay the stage 3 court fee.

      However please note that CPR 45.22 only applies where there is a settlement after proceedings have started under the stage 3 procedure and the settlement is more than the defendant’s relevant protocol offer and an application is made to the court to approve the settlement.

      Thus it does not deal with the situation where the matter goes to a stage 3 hearing on quantum, rather than simply to approve the settlement.

      Given that limitation I am not sure in what circumstances the court would be able to exercise its discretion to order the claimant to pay costs, unless it is on late acceptance as set out above.

      As you will see the rules are immensely complex and my view is that a minor who at a stage 3 hearing fails to beat a defendant’s Part 36 offer, is indeed liable for a stage 3 court fee as well as stage 3 costs.

      It is true that a fee would have been payable anyway for an infant approval hearing, but that is a very different type of hearing and of course if the judge decides damages then there is no approval hearing as obviously the judge him or herself has approved the figure by determining it himself or herself.

      I am doing a series of courses where I go through all of these matters in great detail and the course price includes my new book on the subject and to book please click here.

      kerryunderwood

      April 19, 2016 at 11:56 am

      • Thank you very much for the response. It does appear to be more complex when a minor is involved as the rules are not very clear and I am glad and appreciate you taking the time to respond to my question.

        Cheryl

        April 28, 2016 at 10:15 pm

      • Pleasure

        kerryunderwood

        April 29, 2016 at 7:00 am

  105. Here is a scenario for you.

    C is a passenger in D1’s car.

    There is an RTA with D2.

    I submit a CNF to both D’s and both are rejected.

    I issue Pt 7 proceedings against both D1 and D2.

    D’s talk to each other and agree to settle 50/50 but don’t tell me.

    D1 and D2 then simultaneously make a Pt 36 offer to settle C’s claim against them for £1500 – making total settlement £3000 which is the fair value of the total claim. So, to be clear D 1 says “I will pay £1500 as per Pt 36 to damages” and D 2 says “I will pay £1500 as per Pt 36 to damages”.

    I now seek to argue C is entitled to fixed recoverable costs against each D.

    The defendant’s are both refusing to pay as they argue one claim = one set of fixed fees. I say that is wrong as this is in fact TWO claims – one against each Deft – arising from one RTA.

    Is it worth me running this argument or am I wasting my time?

    Richard

    April 26, 2016 at 11:33 am

    • Richard

      One claim – one set of fees in my view. If there are two CLAIMANTS, then two claims, two sets of fees, but one claim against more than one defendant is still one claim.

      Kerry

      kerryunderwood

      May 1, 2016 at 12:57 pm

  106. Hi Kerry

    I had the pleasure of attending one of your courses yesterday in Manchester. You stated that where liability is denied and the matter exits the RTA portal, a maximum of 3 months and 21 days should be given to the Defendant, after which proceedings can be issued without serving medical evidence. Can you point me to the relevant rules in the protocols.

    Ifra Kauser

    May 20, 2016 at 10:18 am

    • Ifra

      The general personal injury pre-action protocol applies to all personal injury matters which do not enter either of the portals and all matters exiting the portals – themselves in fact protocols. In an RTA matter the defendant has 21 calendar days from the date of posting of the letter of claim – and a CNF is deemed to be the letter of claim – to identify the insurer and identify specifically any significant omissions from the letter of claim. and the insurer has a further three months from the date of that acknowledgment to investigate.

      Hence the 21 days plus three months. For an accident out of the jurisdiction these periods are 42 days and six months respectively. They are maxima.

      I did not state that the defendant has any time after liability has been denied; on the contrary I said that a claimant should always try and issue on the day that the matter exits the portal. The issue can arise if, for example, the matter drops out due to complexity. Until liability id admitted or denied the full protocol period must be allowed to run.

      Kerry

      kerryunderwood

      June 3, 2016 at 7:03 pm

  107. Hi Kerry

    Could you please advise on an issue I’ve come across. On an RTA file, we were advised by the police that a particular insurer was the correct defendant insurer, and we then submitted the CNF on the old Portal on 10 December 2012. However, that insurer responded to advise that their policyholder had actually returned the vehicle in question to a vehicle leasing company some months before the accident and so they did not have an interest in the matter.

    We then submitted the claim to the MIB on the Portal on 30 April 2013, the clam fell out of the Portal and then after investigating they said they would deal with the claim. The claim eventually settled with the MIB paying the client’s damages which were less than £10,000. However, whereas we have billed costs on the standard basis, the MIB’s solicitor argue that the costs should be based on the MOJ Portal fixed costs. Are they correct? Thanks for your help.

    Amwar

    June 15, 2016 at 6:38 pm

    • Anwar

      Fixed Recoverable Costs only apply to matter exiting the new portals which all came in on 31 July 2013.

      However a road traffic matter settled pre-issue for less than £10,000.00 is subject to the so-called predictive costs regime.

      This is all dealt with at pages 81 – 87 of my course material: Personal Injury Small Claims, Portals and Fixed Costs and it will also be dealt with in my book – Kerry on… Personal Injury Small Claims, Portals and Fixed Costs. To order one click here .

      Kerry

      kerryunderwood

      June 20, 2016 at 3:17 pm

  108. […] Please also see my other blogs:-  Fixed Costs where Listed for Trial at Allocation, Disposal Hearings: Which Fixed Costs are Payable?,  Advocacy Fees in Fixed Costs Cases & Fixed Costs, All the Portals and Fixed Recoverable Costs. […]

  109. […] Please also see my blogs – Disposal Hearings: Which Fixed Costs are Payable? & Advocacy Fees in Fixed Costs Cases & Fixed Costs, All the Portals and Fixed Recoverable Costs. […]

  110. Hi Kerry

    I have a costs issue that has arisen and I am unsure how to move forward. I have negotiated settlement for a infant/minor case, where the CNF was submitted in January 2012. The insurer’s admitted liability, I have a medical report and agreed quantum and I have also obtained counsel’s advice. The third party solicitors have agreed and paid our costs in full including the costs of the hearing. I was due to issue Part 8 court proceedings but unfortunately I have lost contact with the child’s parents and understand that they have moved abroad.

    The case cannot proceed as I have lost contact with my client. Now 2 years later the third party solicitors are requesting repayment of the entire costs. I have already paid several disbursements including the medical report fee and counsel. I have proposed to the third party solicitors that we will pay back the costs of the attendance at the hearing but not the remaining costs as we have already done the work. However, they argue that the money is for client’s costs and the offer made subject to court approval of our clients settlement and as our client has not recovered damages, no costs are payable.

    Could you please advise if all the costs are indeed repayable, many thanks.

    Naseer

    June 23, 2016 at 5:06 pm

    • Impossible to advise on those limited facts, but at first glance looks like a case where the doctrine of equitable estoppel applies. Also limitation does not begin to run until the client attains his or her majority, so the case is in theory continuing. Happy to give you a quote for advising in detail but that is the best that I can do on those limited facts.

      Kerry

      kerryunderwood

      June 23, 2016 at 5:11 pm

  111. Hi Kerry,

    When does the Pre-Action 3 months investigation period start for the third party? I submitted the CNF’s to the defendant on 22/12/2015 and court proceedings were issued on 12/04/2016. Now when it has come to costs the third party are offering pre-issue FRC’s as we apparently issued prematurely?

    Thank you

    Ali

    June 30, 2016 at 2:48 pm

    • Ali

      Paragraph 2.10A of the Pre-Action Protocol on Personal Injury provides that the CNF can be used as the letter of claim except where the claim no longer continues under the Protocol because the CNF contained inadequate information. Assuming that the matter fell out under 6.15 – but I do not have the information to know whether it did or not – then 6.17 deals with the Pre-Action Protocol on Personal Injury and 2.10A will apply.

      Kerry

      kerryunderwood

      June 30, 2016 at 3:13 pm

      • Kerry,

        The matter fell out of the portal as the third party sent an Insurers Response stating that liability is not admitted. So with the CNF being submitted on 22nd December 2015, am I eligible for FRC’s if I settle this matter at this stage?

        Based on the date of the CNF and this essentially being a letter of claim, according to this the third party have had 3 months to investigate the claim and therefore I have not issued early?

        Is this correct?

        Thank you

        Ali

        June 30, 2016 at 3:23 pm

  112. Yes

    kerryunderwood

    June 30, 2016 at 3:27 pm

  113. Hi Kerry

    There is a RTA claim accident date Sept 2013, uploaded to the Portal November 2013 (CNF values the claim up to £10,000.00). Defendant admitted liability via the portal. An interim payment request was made September 2014 and the payment was not received within the timescale under Paragraph 7.18, so written notice of the claim’s exit from the Portal was given to the Defendant in October 2014. At this juncture, I would expect predictive fixed recoverable costs to apply.

    The interim payment was later received (out of time). Medical evidence was gathered, along with evidence of a great deal of loss of earnings and specials, and it became apparent the claim was valued higher than initially thought.

    Part 7 Proceedings were sent to the Court due to limitation in March 2016 (the claim form stated “claim does not exceed £20,000.00”). The claim was issued and acknowledged in April 2016.

    Following further evidence being gathered, it became obvious the value of the claim would exceed £25,000.00.

    The claim settled post-issue, pre-allocation following the Claimant accepting an offer made by the Defendant for £36,000.00 (the Defendant valued the injury at £20K – £23K).

    Would predictive fixed costs still apply as all matters that exit the Portal (save industrial disease) must go into predictive fixed recoverable costs?

    Or would the value being above £25,000.00 allow for open costs?

    If settlement was by way of Part 36, would standard basis costs apply?

    Thanks in advance.

    Paul

    July 1, 2016 at 1:06 pm

    • Paul

      I presume that the matter did not reach the end of stage 2 in the portal process.

      The relevance of that is that in Mulholland v Hughes and Conjoined Appeals, No. AP20/15, Newcastle-upon-Tyne County Court, 18 September 2015 the court held that no new evidence could be produced after the stage 2 Settlement Pack Form and that is, in my view, a correct statement of the law.

      What is not yet known is whether once Part 7 proceedings are issued the courts will refuse to allow fresh evidence in.

      You refer to “predictive fixed recoverable costs”. That is a little confusing as what are generally known as “predictive costs” or “predictable costs” is the old scheme, still in place for older claims, which provided for fixed costs for road traffic matters settling for £10,000.00 or less before proceedings were issued.

      So I will refer to Fixed Recoverable Costs.

      The fact that a matter is settled by way of Part 36 does not of itself affect the basis of costs and thus Fixed Recoverable Costs will apply. That will in fact virtually always be the case where a claimant accepts a defendant’s Part 36 offer, but where a claimant accepts a defendant’s Part 36 offer late then the claimant must pay the defendant’s costs from the date of expiry of the relevant period – generally 21 days after the offer is made – until acceptance, but capped at the level of fixed costs. So for defendants in fixed costs cases, costs are generally capped not fixed and are capped at the level of fixed costs.

      A claimant in a fixed costs matter who matches or beats her or his own offer gets indemnity costs and those indemnity costs are not limited to fixed costs – see Broadhurst v Tan and Taylor v Smith [2016] EWCA Civ 94 (23 February 2016) and my blog Claimant’s Part 36 Offer Overrides Fixed Costs.

      In Sutherland v Khan, Kingston-Upon-Hull County Court, Case number A81YM424 the court held that a defendant who accepts a claimant’s Part 36 offer late is liable for costs on the indemnity basis from the expiry of the relevant period up to settlement. See my post Claimants’ Part 36 Offers: Five New Key Decisions.

      In Lowin v W Portsmouth and Co Ltd, 20 June 2016 the court followed the logic of that decision in relation to provisional assessment and said that the cap of £1,500.00 plus VAT and court fees did not apply in relation to Part 36 offers in those proceedings – see my post Claimants’ Part 36 Offers: Five New Key Decisions.

      However as I understand it here the claimant accepted, in time, the defendant’s Part 36 offer and so none of these points arise and therefore, for example, if the matter has settled for £25,000.00 you would definitely get fixed costs and not standard costs.

      As you indicate the starting point is that any ex-portal matter goes to fixed costs – see the case of Qader & Others v Esure Services Ltd [2015] EWHC B18 (TCC) (15 October 2015), but please also note that that matter is going to the Court of Appeal.

      For a general examination of this topic see my post – Is a £1 Million Ex-Portal Claim Subject to Fixed Costs?

      Thus it could go either way, but my view is that you should get Fixed Recoverable Costs.

      I suggest that you calculate carefully which would be most advantageous to you.

      Remember that it is not simply a question of comparing your bill on an open basis with fixed costs as it is inevitable that your bill on an open basis will be reduced whereas fixed costs are just that – fixed.

      Kerry

      kerryunderwood

      July 1, 2016 at 4:09 pm

      • Hi Kerry

        Thank you for your detailed reply, it is much appreciated, as always.

        Does the fact that this matter settled for £36,000.00 not have any effect on whether FRC should apply?

        If the matter had exited the Portal due to the valuation becoming greater than £25K (i.e. as opposed to the late payment of the interim by the Defendant as is the case here) – would FRC still apply in those circumstances?

        Also, what if a term of the agreed settlement was that costs were to be agreed on the standard basis? Would such a term ‘override’ FRC so to speak? Or will FRC always apply to ex-Portal claims no matter the settlement amount or agreed settlement terms?

        Paul

        July 1, 2016 at 4:54 pm

      • Paul

        Pleasure.

        It is not clear whether the fact that the matter settled for over £25,000.00 affects whether Fixed Recoverable Costs apply. Please see my post – Is a £1 Million Ex-Portal Claim Subject to Fixed Costs? where I consider this very issue.

        Vehicle damage expenses are specifically excluded from the £25,000.00 limit in the Road Traffic Portal and thus a claim where general damages and other special damages are say, £20,000.00 but there is say, £50,000.00 credit hire charges, it definitely goes into the portal and exits to Fixed Recoverable Costs if, for example, liability is disputed.

        Thus it is definitely envisaged that Fixed Recoverable Costs can cover claims over £25,000.00. The only relevant decision we have so far is Qader & Others v Esure Services Ltd [2015] EWHC B18 (TCC) (15 October 2015).

        That is a decision of Birmingham County Court and is now going to the Court of Appeal where it is hoped we will get a definitive ruling.

        At present it remains unclear as to whether the reason a matter exited the portal affects whether it is covered by Fixed Recoverable Costs. Clearly it would be possible and logical for a court to say that if the very reason for exiting is that the matter is above the portal maximum limit then it should not go to Fixed Recoverable Costs.

        My view is the costs on the standard basis in a fixed costs case result in fixed costs. That view is supported by the decision of the Court of Appeal in Broadhurst v Tan and Taylor v Smith [2016] EWCA Civ 94 (23 February 2016) where it was held that indemnity costs freed the claimant up from fixed costs as that was a different basis from standard costs. The defendant’s argument there was that even an order on the indemnity basis still resulted in Fixed Recoverable Costs.

        The Court of Appeal rejected that argument but I am satisfied that an order for costs on the standard basis in a Fixed Recoverable Costs case results in Fixed Recoverable Costs and not open costs.

        Kerry

        kerryunderwood

        July 4, 2016 at 9:34 am

      • Thank you so much for your help and assistance, Kerry. Greatly appreciated.

        Paul

        July 4, 2016 at 4:45 pm

      • Pleasure

        kerryunderwood

        July 4, 2016 at 6:10 pm

  114. Hi Kerry

    We have an EL case, accident date 2015. It was not submitted to the MOJ portal as the claim was valued at over £25,000.00 at the outset. The matter was not litigated and eventually settled for only £9,500.00.

    Could we be penalised for not putting the case through the portal even though we ‘reasonably’ believed the claim to be valued at over £25,000.00 at the outset?

    If we were to be penalised, would fixed costs apply here even if the claim has never been in the Portal?

    Paul

    July 5, 2016 at 11:39 am

    • Paul

      I must admit to confusion as to the facts. If the matter was not litigated then it could at any time have been put on the portal so as to follow the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) claims.

      This is a different situation from a case where Part 7 proceedings are issue in the absence of the matter having ever been on the portal and it subsequently settles for a sum within the portal amount as then the matter could not go back through the portal.

      You use the term “outset”. That is not the term used in the rules.

      Paragraph 2.1 of the El/PL Portal states:-

      “2.1 This Protocol describes the behaviour the court expects of the parties prior to the start of proceedings where a claimant claims damages valued at no more than £25,000 in an employers’ liability claim or in a public liability claim. The Civil Procedure Rules 1998 enable the court to impose costs sanctions where this Protocol is not followed.”

      Most firms are putting matters on the portal far too early.

      In my view, the maximum that you should receive is protocol costs. Otherwise everyone could avoid putting matters on the portal and then settle the matter and seek open costs or fixed costs covering the stage between exiting the protocol and issuing proceedings.

      In fact here the court would be well within their rights to order you to pay the defendant’s costs insofar as they have occasioned additional costs by the matter not being put through the portal.

      There have been several cases on these points and they are all dealt with within the blog.

      Note also that in

      Davies & Others v Greenway, Senior Courts Costs Office, 30 October 2013, case no. JMS1205590

      the SCCO held that an order for assessment on the standard basis prevented the court from simply restricting the claimant’s costs to protocol amounts.

      However the court was entitled to decide that those protocol amounts were the proportionate and reasonable sums without conducting a line by line assessment.

      Here the claims were settled for less than £10,000.00, as in your case, and would have been subject to portal fixed costs, but the claimants solicitors sent the claims to the wrong insurer and failed to resubmit them to the correct insurer who had admitted liability.

      The Civil Procedure Rules specifically provide that the court can limit costs to protocol amounts.

      CPR 45.24 reads:-

      “45.24

      (1) This rule applies where the claimant –

      (a) does not comply with the process set out in the relevant Protocol; or

      (b) elects not to continue with that process,

      and starts proceedings under Part 7.

      (2) Subject to paragraph (2A), where a judgment is given in favour of the claimant but –

      (a) the court determines that the defendant did not proceed with the process set out in the relevant Protocol because the claimant provided insufficient information on the Claim Notification Form;

      (b) the court considers that the claimant acted unreasonably –

      (i) by discontinuing the process set out in the relevant Protocol and starting proceedings under Part 7;

      (ii) by valuing the claim at more than £25,000, so that the claimant did not need to comply with the relevant Protocol; or

      (iii) except for paragraph (2)(a), in any other way that caused the process in the relevant Protocol to be discontinued; or

      (c) the claimant did not comply with the relevant Protocol at all despite the claim falling within the scope of the relevant Protocol,

      the court may order the defendant to pay no more than the fixed costs in rule 45.18 together with the disbursements allowed in accordance with rule 45.19.

      (2A) Where a judgment is given in favour of the claimant but the claimant did not comply with the process in paragraph 6.3A(2) of the RTA Protocol, the court may not order the defendant to pay the claimant’s costs and disbursements save in exceptional circumstances.

      (3) Where the claimant starts proceedings under paragraph 7.28 of the RTA Protocol or paragraph 7.26 of the EL/PL Protocol and the court orders the defendant to make an interim payment of no more than the interim payment made under paragraph 7.14(2) or (3) of the RTA Protocol or paragraph 7.17(2) or (3) of the EL/PL Protocol the court will, on the final determination of the proceedings, order the defendant to pay no more than –

      (a) the Stage 1 and 2 fixed costs; and

      (b) the disbursements allowed in accordance with rule 45.19.”

      Kerry

      kerryunderwood

      July 6, 2016 at 9:43 am

      • As always, Kerry. Thanks so much for your helpful response and detailed advice. Very much appreciated.

        Paul

        July 6, 2016 at 10:00 am

  115. Hi Kerry

    We have an EL case, accident date 2015. It was not submitted to the MOJ portal as the claim was valued at over £25,000.00 at the outset. The matter was not litigated and eventually settled for only £9,500.00.

    Could we be penalised for not putting the case through the portal even though we ‘reasonably’ believed the claim to be valued at over £25,000.00 at the outset?

    If we were to be penalised, would fixed costs apply here even if the claim has never been in the Portal?

    Paul

    July 6, 2016 at 9:27 am

  116. Pleasure

    kerryunderwood

    July 6, 2016 at 10:30 am

  117. Hi Kerry,

    I have a case where the accident (RTA) occurred in late 2011. A claim was submitted on the portal post 31 July 2013 with a valuation of up to £10,000. It subsequently became clear that the true value of the claim was higher and Court proceedings were subsequently issued stating a valuation in excess of £25,000. The matter was allocated to the multi-track and subsequently settled for an amount in excess of £10,000 but less than £25,000.

    I think it is clear that had the claim never been placed on the portal that hourly rate costs would apply. GIven that the claim exited the protocol due to the fact it exceeded the protocol upper limit relevant to the date of the accident do we have an argument for hourly rate costs or do you think fixed recoverable costs will apply?

    Many thanks

    Anonymous

    July 20, 2016 at 12:39 pm

    • Anonymous

      In relation to road traffic accidents the key date is the date of the Claim Notification Form and not the cause of action.

      With effect from 31 July 2013 the pre-action protocol for low value personal injury claims in road traffic accidents was extended to include all claims up to £25,000.00, whereas previously it had only covered claims up to £10,000.00.

      However that new, upper limit of £25,000.00 only applied where the accident occurred on or after 31 July 2013.

      The relevant part of the protocol is paragraph 1.2 which reads:-

      “1.2

      (1) The ‘Protocol upper limit’ is—

      (a) £25,000 where the accident occurred on or after 31 July 2013; or

      (b) £10,000 where the accident occurred on or after 30 April 2010 and before 31 July 2013,

      on a full liability basis including pecuniary losses but excluding interest.”

      In your case the accident occurred in the timescale in (b) that is on or after 30 April 2010 and before 31 July 2013 and thus is potentially captured by the portal process.

      Had you always valued it at over £10,000.00 then it would not have gone on the portal and would have proceeded in the normal way and indeed you would have received standard costs, that is on the hourly rate basis.

      However you did put it on the portal on the basis that it was valued at less than £10,000.00.

      The starting point is that once a matter had been on the portal, but then exits the portal it will always be covered by Fixed Recoverable Costs.

      Please see my post Is a £1 Million Pound Ex Portal Claim Subject to Fixed Costs? , where I deal with this in considerable detail and with links to the cases.

      Thus, as the law stands, no I do not think that you have an argument with hourly rate costs as compared with fixed costs, but please note that the case on this point – Qader & Others v Esure Services Ltd [2015] EWHC B18 (TCC) (15 October 2015) is being appealed to the Court of Appeal.

      In my view the decision of the court in Qader is correct.

      There can be a problem in ascertaining fixed costs in a case worth, say, £100,000.00 as the pre-issue costs only go up to £25,000.00.

      However in your case, it is easy to use the table to fix the costs for whatever the case settled for – you don’t tell me – as although it is true that the portal only covered pre-31 July 2013 road traffic accidents up to £10,000.00, the table deals with claims up to £25,000.00.

      In any event if the matter is issued, as yours was, then it is simply a question of applying the core fee and the fixed percentage of damages.

      You might care to submit an hourly rate bill to the other side, but if they take the point, my view is that fixed costs apply.

      Kerry

      kerryunderwood

      July 26, 2016 at 9:51 am

  118. Hi Kerry,

    We seem to have a number of cases at the minute whereby the matter settles for less than £25,000.00 Net but gross of spit liability the case would settle for over £25,000.00 and thus entitle us to reasonable costs.

    The Defendant’s as you’d imagine maintain that the agreed damages should be the figure used to assess costs and not the gross damages. This is an issue that is also cropping up in fixed costs cases and how the amount due is calculated.

    I am aware of the decision in Lisbie v SKS Scaffolding but feel there are merits in counter arguing with the COA decision in Script International Ltd v Ashraf Alghfar which suggests costs can only be limited when the Claim would never reasonably have a value above appropriate thresholds. I think we could also advance arguments in accordance with CPR 44.2(4) “In deciding what order (if any) to make about costs, the court will have regard to all the circumstances”.

    Just wondering if you feel there are merits in taking this approach and proceeding to assessment or whether there is any other adverse case law in relation to this of which I am not aware?

    Thanks,

    Daniel

    Daniel Murray

    July 21, 2016 at 11:39 am

    • Daniel

      There is no doubt that for the purposes of assessing value for the portals the relevant figure is that on a full liability basis and thus, for example, a claim worth £40,000.00 on a full liability basis which is settled on a 50/50 basis resulting in payment of £20,000.00, should never have been on the portal and is subject to open, standard costs and not Fixed Recoverable Costs.

      The relevant part of the protocol is paragraph 1.2 which reads:-

      “1.2

      (1) The ‘Protocol upper limit’ is—

      (a) £25,000 where the accident occurred on or after 31 July 2013; or

      (b) £10,000 where the accident occurred on or after 30 April 2010 and before 31 July 2013,

      on a full liability basis including pecuniary losses but excluding interest.”

      In relation to the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) claims, the relevant provision is paragraph 4.1 which provides:-

      “Scope

      4.1. This Protocol applies where—

      (1) either –

      (a) the claim arises from an accident occurring on or after 31 July 2013; or

      (b) in a disease claim, no Letter of Claim has been sent to the defendant before 31 July 2013;

      (2) the claim includes damages in respect of personal injury;

      (3) the claimant values the claim at not more than £25,000.00 on a full liability basis including pecuniary losses but excluding interest (“the upper limit”); and

      (4) if proceedings were started the small claims track would not be the normal track for that claim.

      (Rule 26.6 provides that the small claims track is not the normal track where the value of any claim for damages for personal injuries (defined as compensation for pain, suffering and loss of amenity) is more than £1,000.)”

      Thus there should be no problem. The law is clear.

      Having said that, matters are not quite that simple.

      If in fact the matter was put on either of the portals and then exits for whatever reason, including that the full liability value is above the upper limit, then fixed recoverable costs do indeed apply.

      I refer you to my blog – Is a £1 Million Pound Ex Portal Claim Subject to Fixed Costs? where I deal with this in considerable detail and with links to the cases.

      Thus, as the law stands, no I do not think that you have an argument with hourly rate costs as compared with fixed costs, but please note that the case on this point – Qader & Others v Esure Services Ltd [2015] EWHC B18 (TCC) (15 October 2015) is being appealed to the Court of Appeal.

      In my view the decision of the court in Qader is correct.

      Note that under fixed recoverable costs the calculation of costs is based on the amount actually ordered by the court, or settled for, and not the amount on a full liability basis.

      Let us take a claim which, at full liability, is worth £20,000.00 and which correctly goes on the portal but then exits because contributory negligence is alleged and then settles for £10,000.00. The basis for assessing fixed recoverable costs is £10,000.00 and not £20,000.00.

      However if the case, on a full liability basis, is valued at above the protocol upper limit and is never put on the portal, then it never becomes subject to fixed recoverable costs.

      Thus a claim is genuinely worth £30,000.00 on a full liability basis and so does not go on the portal. It settles for £15,000.00, which is within the portal and fixed recoverable costs limit. However it is not subject to fixed recoverable costs as it quite rightly never went on the portal.

      Another problem can arise concerning why the matter settles for a lower sum. In the example that I have just given there is no problem if it is genuinely agreed that the matter was worth £30,000.00 on a full liability basis but settles for half due to a 50/50 split on liability.

      However let us say that the matter settles for £15,000.00 but without any stated split on liability and the defendant then argues that the matter was never worth more than £25,000.00, even on a full liability basis.

      If the defendant is successful then you are likely to be restricted to portal costs only, whether or not the matter ever went on the portal. See for example Ilahi v Usman, Manchester County Court, 29 November 2012 which involved unreasonably exiting the portal.

      Although this is only a County Court decision by a Circuit Judge, leave to appeal to the Court of Appeal was refused by Lord Justice Jackson and thus it is not a Court of Appeal decision but it is one with which Lord Justice Jackson has specifically agreed.

      Lisbie v SKS Scaffolding Ltd [2011] EWHC 90203

      concerns a different point, which in my view is of no direct relevance here. What the court did there, correctly in my view, is to look at the actual agreed damages and find that they were within the small claims limit. The portal process does not apply to small claims and therefore no costs will be awarded.

      That throws up an interesting point. The upper limit for the portals is governed by the value of a claim on a full liability basis but the lower limit appears to be the actual value, and not the value on a full liability basis.

      Lisbie cannot properly be used to argue that the claim genuinely for £40,000.00 on a full liability basis but settles for say £20,000.00 on a 50/50 basis is therefore retrospectively captured by the portal/fixed recoverable costs scheme. The rules, as set out above, are clear in that regard.

      If, as a matter of law, fixed costs do apply then in my view CPR 44.2(4) has no application as fixed costs are covered by CPR 45 and the wording of CPR 45 is mandatory, although I accept that CPR 44 does not specifically exclude fixed costs cases from its remit.

      I am reinforced in that view by CPR 45.13 which lays down a specific regime for allowing a claim in excess of fixed recoverable costs, but only if there are “exceptional circumstances making it appropriate to do so”.

      Another factor which may come into play is proportionality – see my blog – Proportionality: The Emperor’s New Clothes

      The whole concept of proportionality is fraught with difficulty.

      Proportionality does not apply to fixed costs claims, for obvious reasons. However if the matter is not a fixed costs claim then it does apply and costs are proportionate if they bear a reasonable relationship to “the sums in issue in the proceedings”.

      That leaves open the issue of whether a claim for £40,000.00, settled for £20,000.00 on a 50/50 liability split involves a sum in issue of £40,000.00, or a sum in issue of £20,000.00.

      It seems to me that that may depend upon the circumstances of the case. For example if it was agreed from the beginning what the liability split should be – and in a seatbelt case for example that may well be the case – then it is the lower sum which is truly in issue and will be the basis on which proportionality applies.

      Please also see my posts – Proportionality: Court Halves Costs & Proportionality Again: Court Chops Reasonable Costs by 60%
      Each case will depend upon its merits and this whole area is one of extreme complexity.

      My book on the whole subject should be out in September and can be ordered via Amazon or direct from me here.

      Kerry

      kerryunderwood

      July 26, 2016 at 9:50 am

  119. Hi Kerry,

    I have an RTA claim involving a vehicle which is foreign registered, It does not enter the portal due to it being exempt however settles before issue. According to your blog, as this is not suitable for any portal it would go into standard basis costs. However would the old predictive rules apply?

    Thanks

    Paul

    July 29, 2016 at 2:03 pm

    • Paul

      Paragraph 4.5(6) does indeed provide that the Road Traffic Accident Portal does not apply to a claim where the defendant’s vehicle is registered outside the United Kingdom.

      As the case cannot enter a portal, it cannot be subject to Fixed Recoverable Costs, whether issued or not.

      You are right in saying that the so-called “predictive” costs regime did not contain that limitation and providing that the accident occurred in England and Wales then the fact that the vehicle is foreign registered makes no difference.

      Those cases are now covered by CPR 45.9, previously CPR 45.7, and CPR 45.9(2) provides:-

      “(2) This Section applies where –

      (a) the dispute arises from a road traffic accident occurring on or after 6 October 2003;

      (b) the agreed damages include damages in respect of personal injury, damage to property, or both;

      (c) the total value of the agreed damages does not exceed £10,000; and

      (d) if a claim had been issued for the amount of the agreed damages, the small claims track would not have been the normal track for that claim.”

      CPR 45.9(4) reads:-

      “(4) In this Section –

      ‘road traffic accident’ means an accident resulting in bodily injury to any person or damage to property caused by, or arising out of, the use of a motor vehicle on a road or other public place in England and Wales;

      ‘motor vehicle’ means a mechanically propelled vehicle intended for use on roads; and

      ‘road’ means any highway and any other road to which the public has access and includes bridges over which a road passes.”

      Subject to those conditions being satisfied the matter is indeed subject to the old so-called “predictive” costs regime.

      I believe that the reason foreign registered vehicle cases are excluded from the portals, but not the old predictive costs scheme, is due to involvement of the relevant insurance companies in the portal process.

      Kerry

      kerryunderwood

      August 4, 2016 at 11:17 am

  120. HI Kerry,

    Has there been any cases with regards to the EL/PL+ RTA exclusions?

    We have a very low value case (car crashed into a fallen highway tree, very minor whiplash injury), The claimants solicitors are stating the ‘loophole’ where as the incident is in a motor vehicle it doesn’t belong in the EL/PL protocol. But as the accident allegation comes under a separate breach of duty, that the claim doesn’t belong in RTA portal.

    The ‘loophole’ would appear to allow open costs, it doesn’t feel right for the value of the case! Was wondering if any case law has resolved this issue yet?

    Regards

    Mike

    Mike O'Connell

    August 8, 2016 at 3:28 pm

    • Mike

      No, there has been no definitive ruling by a superior court.

      I am satisfied that the matter does not go in the Employers’ Liability/Public Liability Portal as that portal excludes claims:-

      “for damages arising out of a road traffic accident (as defined in paragraph 1.1(16) of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents).”

      It is presumed that that exclusion from the EL/PL Portal was to stop road traffic matters being brought in that portal where fees are higher, but that begs the question as to whether there can be road traffic accidents which are therefore excluded from both portals.

      That could be determined either way. However the exclusion from the EL/PL Portal specifically refers to the definition of a road traffic accident in the Road Traffic Accident Portal and therefore if the matter is not a road traffic accident within the meaning of paragraph 1.1(16) of the Road Traffic Accident Portal then it appears not to be excluded from the EL/PL Portal.

      Paragraph 1.1(16) of the Road Traffic Portal reads:-

      “(16) ‘road traffic accident’ means an accident resulting in bodily injury to any person caused by, or arising out of, the use of a motor vehicle on a road or other public place in England and Wales unless the injury was caused wholly or in part by a breach by the defendant of one or more of the relevant statutory provisions as defined by section 53 of the Health and Safety at Work etc. Act 1974;”

      Clearly the accident you have described arose out of the use of a motor vehicle on a road and therefore satisfies that part of the definition but then appears to be excluded by the words:-

      “unless the injury was caused wholly or in part by a breach by the defendant of one or more of the relevant statutory provisions as defined by section 53 of the Health and Safety at Work etc. Act 1974;”

      Thus if the matter does not come within paragraph 1.1(16), for whatever reason, then my view is that it is not excluded from the EL/PL Protocol and on the facts as stated by you this would appear to be a public liability claim which is not caught by paragraph 1.1(16).

      I admit to having changed my mind on this one. The wording is very clumsy, but I agree with you that on public policy grounds, and on a purposive construction of the will of Parliament it would be absurd if such a claim was subject to open costs and the wording can certainly be interpreted in the way that I have set out above, that is that the only road traffic related exclusions from the EL/PL Portal are if the matter comes within the definition in the Road Traffic Accident Portal.

      Obviously if it does come within the RTA Portal definition then it goes into that portal, and if it does not go into that RTA Portal, then it is not excluded from the EL/PL Portal.

      I think I have probably managed triple or even quadruple the negatives in that explanation, but I hope nevertheless that it is clear!

      Be brave and take this one to court!

      Kerry

      kerryunderwood

      August 10, 2016 at 4:02 pm

      • Many thanks for your help. We shall see what happens.

        Mike O'Connell

        August 12, 2016 at 9:22 am

      • Pleasure

        kerryunderwood

        August 12, 2016 at 11:14 am

  121. Hi Kerry,

    When is the date of acknowledgement for a CNF? This is in relation to my earlier query, I’ll paste it below for your reference:

    “Hi Kerry,

    When does the Pre-Action 3 months investigation period start for the third party? I submitted the CNF’s to the defendant on 22/12/2015 and court proceedings were issued on 12/04/2016. Now when it has come to costs the third party are offering pre-issue FRC’s as we apparently issued prematurely?

    Thank you

    Ali

    June 30, 2016 at 2:48 pm

    Ali

    Paragraph 2.10A of the Pre-Action Protocol on Personal Injury provides that the CNF can be used as the letter of claim except where the claim no longer continues under the Protocol because the CNF contained inadequate information. Assuming that the matter fell out under 6.15 – but I do not have the information to know whether it did or not – then 6.17 deals with the Pre-Action Protocol on Personal Injury and 2.10A will apply.

    Kerry

    kerryunderwood

    June 30, 2016 at 3:13 pm

    Kerry,

    The matter fell out of the portal as the third party sent an Insurers Response stating that liability is not admitted. So with the CNF being submitted on 22nd December 2015, am I eligible for FRC’s if I settle this matter at this stage?

    Based on the date of the CNF and this essentially being a letter of claim, according to this the third party have had 3 months to investigate the claim and therefore I have not issued early?

    Is this correct?

    Thank you

    Ali

    June 30, 2016 at 3:23 pm

    Yes

    kerryunderwood

    June 30, 2016 at 3:27 pm

    Thank you Kerry much appreciated:)

    Ali

    June 30, 2016 at 3:31 pm

    Pleasure

    kerryunderwood

    June 30, 2016 at 3:41 pm”

    BLM are still arguing that I issued earlier than three months. They state that the CNF’s albeit dated in December, the three months do not start until the CNF’s are acknowledged and they were not acknowledged by their principals until 19th Jan 2016 and proceedings were issued on 12th April 2016. I submitted the CNF’s to the defendant insurers on 22nd December 2016, so when would the three months start?

    Your help would be greatly appreciated Kerry.

    Thank you

    Ali

    August 9, 2016 at 9:28 am

    • Ali

      The next day. See paragraph 6.10 of the protocol:

      “The defendant must send to the claimant an electronic acknowledgement the next day after receipt of the CNF.”

      Kerry

      kerryunderwood

      August 9, 2016 at 10:22 am

  122. Hi Kerry,

    In relation to fixed costs, I have two files that I have issued on and they have been allocated to the fast track.

    The First Claimant was the owner of the vehicle and was only a specials claim. He had no PI.

    The Second Claimant was PI only.

    When it comes to settlement, am I entitled to individual fixed costs for each of the Claimants as I has been argued that costs are not obtainable for specials files under £10,000?

    Thank you Kerry

    Ali

    August 12, 2016 at 10:03 am

    • Ali

      The small claims limit for non-personal injury and housing claims is £10,000.00 and therefore a claim for special damages only for under £10,000.00 does indeed mean that you are not entitled to any costs beyond very low fixed costs, around £50.00 or so, depending upon the amount of the claim.

      I realise that this is a case of shutting the stable door after the horse has bolted, but you should never bring a separate special damages claim when there is a personal injury claim to which it can be attached.

      Kerry

      kerryunderwood

      August 12, 2016 at 12:41 pm

      • Hi Kerry,

        Thank you for your prompt response once again. Your answer is indeed very helpful as always.

        Much appreciated

        Ali

        August 12, 2016 at 12:53 pm

      • Pleasure

        kerryunderwood

        August 15, 2016 at 2:08 pm

  123. Hi Kerry,

    If a claim has been issued on for PI and Loss of Earnings, how much of a problem is it that the initial CNF when sent to the insurers wrote that the Claimant had no time off from work?

    We have all documentation in relation to the LOE showing that he was absent and how much he lost out but it seems this information as to how many days he had off was not written in the CNF?

    Please advise.

    Much appreciated.

    Ali

    August 16, 2016 at 1:58 pm

    • Ali

      You do not say whether this matter was issued on the Road Traffic Accident Portal or the Employers’ Liability/Public Liability Portal, and that may well turn out to be the key issue here.

      If the matter was an EL/PL matter then if the defendant is the employer then obviously, as the employer, they would have known how many days off work the claimant had had and a court is likely to find that such a defendant has not been prejudiced in anyway by this information not being included in the Claim Notification Form.

      However if the matter is a Road Traffic Accident case then obviously the position is entirely different as there is no reason for a road traffic insurer to know that a claimant has had time off work.

      You refer to having all the documentation in relation to the loss of earnings showing that the claimant was absent and how much he lost out but you do not say whether or not that information and those documents were disclosed in stage 2, as required by the protocols, or not, or indeed which stage this matter reached before exiting the portal.

      You do not say why the matter exited the portal.

      Under paragraph 6.6 of the Road Traffic Accident Portal and 6.5 of the EL/PL portal the Statement of Truth in the CNF must be signed by either the claimant or the claimant’s legal representative. Who signed it – you or the client? Who checked it? How was this error made?

      There are various possible outcomes.

      In my view the court would be entitled to refuse permission for this evidence to be adduced, as very clearly it should have been included in the Claim Notification Form and the whole point of the portals is that matters can be resolved quickly and cheaply on the basis of accurate information provided.

      Having said that, my view is that if this is an EL claim then the court is likely to exercise its discretion to allow you to adduce such evidence on the basis that there is no possible prejudice to the defendant.

      The position may well be different if this is a road traffic accident claim.

      You do not say if Part 7 proceedings have been issued, but I presume that they have and I presume that the statement of claim fully pleads all of these matters. Have the defendants taken the point in their defence?

      A further point to note is that if the matter reached stage 2 then during that process all of the documentary evidence must be served and fresh evidence cannot be adduced in stage 3.

      As far as I am aware there is as yet no case law on the position in relation to evidence if the matter exits the portal and Part 7 proceedings are issued. In other words is a claimant potentially precluded from adducing evidence in Part 7 proceedings that was not disclosed in stage 2 of the portal?

      Some help may be gathered from the decision, albeit a first instance one, in

      Nicole Chapman v Tameside Hospital NHS Foundation Trust, Bolton County Court, 15 June 2016, Case number B74YM281

      where the defendant was ordered to pay the claimant’s costs where the claimant discontinued shortly before trial following disclosure by the defendant of documents which it should have disclosed during the portal process.

      Thus the suggestion there is that such evidence is admissible even though it was not disclosed during the portal process but it had severe consequences for the successful defendant who was ordered to pay the unsuccessful claimant’s costs.

      In fact what happened is that the defendant was ordered to pay all of the post- stage 2 costs on the basis that the matter would have reached that point anyway and the extra, effectively wasted costs, were those incurred thereafter.

      That may well be the situation here, that is that the court will allow such evidence in but may take the view that had it been disclosed during the portal process, or in the Claim Notification Form, then the matter would have resolved at stage 2 and therefore the solicitors should only get stage 1 and stage 2 portal costs and be ordered to pay all of the defendant’s costs from then on.

      I refer you to my blog – FIXED COSTS, PRE-ACTION CONDUCT: DEFENDANT ORDERED TO PAY DISCONTINUING CLAIMANT’S COSTS where I deal with this issue in detail and which has a link to the judgment in the Chapman case.

      In relation to the evidence to be adduced at Stage 2, and the consequences of failing to adduce it at stage 2 – please see generally Mulholland v Hughes and Conjoined Appeals, No. AP20/15, Newcastle-upon-Tyne County Court, 18 September 2015.

      The court has a wide discretion on costs in all matters but CPR 45.24(2)(a) specifically provides:-

      (2) Subject to paragraph (2A), where a judgment is given in favour of the claimant but –

      (a) the court determines that the defendant did not proceed with the process set out in the relevant Protocol because the claimant provided insufficient information on the Claim Notification Form;

      (b) the court considers that the claimant acted unreasonably –

      (i) by discontinuing the process set out in the relevant Protocol and starting proceedings under Part 7;

      (iii) except for paragraph (2)(a), in any other way that caused the process in the relevant Protocol to be discontinued; or

      the court may order the defendant to pay no more than the fixed costs in rule 45.18 together with the disbursements allowed in accordance with rule 45.19.”

      It does not follow automatically that if a claimant is limited to CPR 45.18 costs – that is portal costs – that they will be ordered to pay the defendant’s costs from there on. However that must be the likely outcome. If a court decides that the conduct of the claimant is such that they should be limited to portal costs then the court is effectively deciding that the matter should, or could, have been concluded in the portal process.

      It thus follows that any additional costs were unnecessarily incurred and that is why the successful claimant is not being awarded those costs.

      On that basis the starting point must be that the claimant is ordered to pay the defendant’s costs from thereon in.

      On the face of it Qualified One-Way Costs Shifting applies but the court is able to set-off the portal costs due to the claimant’s solicitors against any costs due to the defendant, which will nearly always be greater, resulting in the claimant’s solicitors receiving no costs and there being a shortfall as far as the defendant’s costs are concerned – see CPR 44.12 re Set-off and CPR 44.13 to 17 re QOCS.

      QOCS is of extreme complexity and is all dealt with in my book – Qualified One-Way Costs Shifting, Section 57 and Set-Off – and I presume that you have a copy – if not it can be ordered here.

      It seems to me that if there is a shortfall then the defendant is likely to succeed in these circumstances in a wasted costs order against the solicitors, depending upon the precise circumstances of the failure to include the information in the Claim Notification Form. Please see my blog WASTED COSTS AND NON-PARTY COSTS ORDERS: UNIFIED.

      Obviously the lay client has a potential negligence action against the solicitor.

      Regrettably, and I am not saying that it has happened here as I simply do not have sufficient information, issuing a Claim Notification Form is often done with little thought and consideration of the matter in hand and obviously this can lead to serious problems later on.

      The limitation period for issuing on the portals is the same as for issuing Part 7 proceedings – that is three years. It is not three days.

      Kerry

      kerryunderwood

      August 26, 2016 at 3:59 pm

      • Thank you very much for your detailed and prompt reply Kerry.

        Much appreciated.

        Ali

        August 31, 2016 at 10:01 am

      • Pleasure

        kerryunderwood

        August 31, 2016 at 10:03 am

      • Hi Kerry,

        Just in relation to the above:

        The matter exited the portal prior to Stage 2 as the Defendant’s failed to admit liability and responded saying they are doing their enquiries and the matter exited portal.

        Therefore, we issued Part 7 proceedings as the Defendant’s failed to make any offers.

        Once the matter exited portal we did send the Defendant’s a letter of claim via post and email which I know that this is not needed as the CNF provides as a letter of claim but at that time this is what I used to do.

        So in terms of the courts arguing that the matter could have been settled prior at Stage 2 does not hold merit as the issue was with liability not quantum and the matter exited portal anyway. And we sent them the loss of earnings documentation along with the medical evidence before we issued, they simply did not make any offers.

        The CNF was submitted 3 days after the accident therefore it seems due to giving it little consideration it was submitted but we submitted the information that was merely provided to us by the client and we have those original documents where we initially took the claim details on.

        I have made a Part 36 offer to the third party so hopefully they will accept.

        Thanks Kerry

        Ali

        September 13, 2016 at 9:38 am

      • Thanks!

        kerryunderwood

        September 23, 2016 at 1:29 pm

  124. Just a quick question here on costs if a case proceeds to stage 3 starting in the portal and the claim being subject to a CFA can the claimant claim 100% uplift on costs if the claim does not settle at stage 2 and subsequently proceeds to stage 3

    linda Squires

    August 22, 2016 at 1:29 pm

    • Linda

      The question may be quick, but the answer is not!

      First of all in personal injury proceedings a success fee can only be recovered from the other side if a Conditional Fee Agreement was in place by 31 March 2013, and unless the claimant here is a child then limitation must have expired no later than 30 March 2016.

      It is correct that in relation to a protected party limitation does not run but a protected party as defined in CPR 21.1(2) cannot be involved in portal proceedings, whereas a child can.

      Thus if in fact you are referring to recoverability of a 100% success fee from the other side then the fact that the matter proceeds to stage 3 does not of itself allow you to recover a 100% success fee, but rather only the fixed success fee of 12.5%.

      However if the matter proceeds to a Stage 3 hearing, then my view is that the fixed recoverable success fee is indeed 100%. if this is in fact a case within the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents.

      I assume that it is as if there is a recoverable success fee then, as stated above, there must have been a Conditional Fee Agreement in place by 31 March 2013 and therefore the cause of action must have arisen by that date and in any employers’’ liability and public liability matter, except an industrial disease case, if the cause of action was before 31 July 2013 then the matter does not enter the portal.

      In the case of an industrial disease if the Letter of Claim was before 31 July 2013 then the matter does not enter the portal and if the Letter of Claim was on or after 31 July 2013 then the matter does enter the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims.

      Thus it is possible to have an industrial disease claim where a Conditional Fee Agreement was entered into on or before 31 March 2013 but where no Letter of Claim was served until 31 July 2013 or later, where the matter would go into the new portal and still have a recoverable success fee.

      In those circumstances the recoverable success fee is a fixed success fee but its level depends upon the nature of the disease. The same point applies, that is that you would not be able to claim a 100% success fee merely because the matter got to stage 3 but rather only the appropriate fee on settlement, rather than the matter being disposed of a trial.

      However if the matter proceeded to an actual trial within Stage 3, then 100% is the appropriate recoverable success fee.

      In the case of repetitive strain injury and stress the fixed success fee even on settlement is 100%.

      However, I will assume that the matter is in fact a road traffic accident, although you do not say so, and that the Conditional Fee Agreement was entered into on or before 31 March 2013 and therefore the success fee is recoverable.

      The relevant wording of the CPR is as follows:-

      “…the percentage increase which is to be allowed in relation to solicitors’ fees is –

      (a) 100% where the claim concludes at trial; or

      (b) 12.5% where –

      (i) the claim concludes before a trial has commenced; or
      (ii) the dispute is settled before a claim is issued.”

      Clearly if the matter proceeds to stage 3 then Part 8 proceedings have been issued and therefore the dispute is not settled before a claim is issued.

      Thus the issue is whether a claim that proceeds to stage 3 “concludes at trial” or “concludes before a trial has commenced”.

      The CPR separately states:-

      “A reference to “trial” is a reference to the final contested hearing or to the contested hearing of any issue ordered to be tried separated” and

      “A reference to a claim concluding at trial is a reference to a claim concluding by settlement after the trial has commenced or by judgment;” (My italics).

      If a matter settles before a hearing in stage 3 then in my view the success of 12.5% applies.

      However if the matter proceeds to a stage 3 hearing then in my view that is a trial within the definition in the Civil Procedure Rules and you do indeed recover a 100% success fee.

      I am unaware of any case on this point.

      If in fact you are referring to post-31 March 2013 and your arrangement with your own client then the stage at which the matter is resolved is irrelevant and you can claim 100% uplift on costs, subject to not charging your client more than 25% of damages, including VAT, by way of a success fee.

      Kerry

      kerryunderwood

      August 24, 2016 at 9:40 am

  125. Hi Kerry,

    Please could you kindly confirm what documents need to be sent to the court for a Stage 3 oral hearing (infant approval). Damages have been agreed.

    I am unsure as to whether we still need to send a witness statement from the litigation friend advising that the minor has recovered and whether we need to sent the notice of funding still?

    As far as I know, do we send the following:

    – Part 8 Claim Form
    – Part A and B of the Court Proceedings Pack
    – Advice on Quantum for court purposes only
    – Medical report
    – Evidence of disbursements

    Your help will be greatly appreciated.

    Thank you Kerry.

    Ali

    August 31, 2016 at 10:37 am

  126. Hi Kerry, a very informative website & blog!

    I have pretty much read all of it, however I have come across a scenario which I haven’t come across on your blog and I wonder if you could assist?

    It is an Industrial Disease claim against two Defendants commencing Dec ’13. Therefore the claim does not enter the Portal.

    Recently, the claim settles against one Defendant only for £6,000.00 on a unilateral basis pre-issue and then the Claimant decides to no longer pursue the second Defendant due to causation arguments and only a small proportion of exposure. The claim concludes against the second Defendant on a drop hands basis.

    The Claimant prepares a Bill of Costs for the Defendant to consider as standard basis costs apply.
    The Defendant which the Claimant succeeds against argues fixed costs apply under CPR 45.24.

    The Claimant genuinely pursued two Defendant’s whom he believed exposed him to noise and was a reasonable step to make albeit only succeeds against one. Do you think the Court is likely to agree with the Defendant or if the Claimant can recover standard basis costs apply?

    Thanks in advance

    Adam

    September 20, 2016 at 11:33 am

    • Blog comment reply by Adam on Fixed Costs, All the Portals and FRC on 20 September at 11.33.

      Adam

      I have not come across that scenario.

      My view is that the starting point is indeed that standard basis costs apply as the matter did not go onto the Portal and nor could it have gone onto the portal as disease claims where there is more than one employer defendant are excluded by paragraph 4.3(6) of the Employers’ Liability and Public Liability Portal.

      However I can see the logic of the paying party’s argument and the court has a very wide discretion in relation to costs and one option open to the court would be to assess the bill on the standard basis but then make an award equivalent to the fixed costs sum had the matter gone onto the portal.

      That is what the courts have on occasion done when clearly a matter should have gone on to the portal, but did not.

      The counter-argument to the defendant’s contention is that you have acted sensibly and in accordance with the overriding objective in choosing not to pursue the claim against the second defendant for the reasons set out by you.

      The alternative is absurd, that is that you issue proceedings against the second defendant and immediately discontinue, with the only expense being your own client’s court fee as Qualified One-Way Costs Shifting would apply to the claim and therefore there would be no liability for the second defendant’s costs on discontinuance by you.

      That would then rule out any possibility of the matter having gone on the portal and thus would undermine the defendant’s argument in relation to fixed costs.

      I am not recommending this course of action; it merely shows the false logic of the defendant’s argument.

      My advice is to proceed to Detailed Assessment.

      Kerry

      kerryunderwood

      September 26, 2016 at 2:20 pm

  127. Hi Kerry
    I have a PL matter, out of Portal as liability denied, issued, listed for trial and settles. Fixed costs payable as set out in Table 6D (B) £3790 plus 27.5% of damages I believe. However I see that we used counsel at the allocation hearing. Is it correct that there is no provision for the recovery of counsel’s fees for this hearing as, being a Portal matter valued at less than £25k, we should be able to do everything ourselves? Or can I treat this as an interim application and, given that the order for costs of that hearing was “costs in the case” can I recover interim application costs under 45.29H?
    Thank you

    Sue

    September 20, 2016 at 4:17 pm

    • Sue

      Fixed costs are just that – you cannot get extra for counsel. If it were otherwise you could take the fixed costs and do no work and instruct counsel on everything and obtain counsel’s fee for all of that work.

      Same is likely to apply when fixed costs limit raised to £250,000 and covering all civil work.

      You are of course entitled to instruct counsel, but you pay the fees, just like any other overhead, such as a solicitor’s salary or whatever.

      Kerry

      kerryunderwood

      September 22, 2016 at 5:59 pm

  128. Hi Kerry, I have a case where the Defendant was notified by letter that the claim was exiting the portal on the basis that it had been revalued and was over the portal upper limit. The Defendant is arguing that they did not receive valid notification of the intention to exit the claim from the portal because the notification was not sent via the Portal but instead by way of email. They refer to Paragraph 5.1 of the PAP and Paragraph 7.76 of the PAP. I cannot find anything that states that notification of intention to exit the portal must be via the Portal. Is the Defendant correct?

    Many thanks

    Vicky

    Vicky

    September 23, 2016 at 11:12 am

  129. Hi Kerry

    Please can you clarify the costs we are entitled to for a Minor (child claim) RTA claim which has fallen out of the Portal and is settling via court approval.

    Many thanks

    Naseer

    September 27, 2016 at 3:27 pm

    • Naseer

      I presume that you have not issued proceedings and therefore have fallen into the lacuna of the matter being out of the portal but unissued, which results in a lower fee than if the matter had been settled in the portal or post issue.

      The costs in a case which settles outside the portal but pre-issue are governed by CPR 45.29C Table B.

      The precise amount depends upon the value of the settlement but if the agreed damages are at least £1,000.00 – and I assume that they are as otherwise it would be a small claim with no costs payable – but not more than £5,000.00 then the fixed costs are the greater of –

      (a) £550.00; or

      (b) the total of –

      (i) £100.00 and

      (ii) 20% of the damages.

      Thus the equilibrium point is £2,250.00 as 20% of that equals £450.00 plus the fixed court fee of £100.00 giving a total of £550.00.

      Thus whether damages are £2,250.00 or less then the costs are £550.00.

      Where they are more than £2,250.00 then they are £100.00 plus 20% of the damages.

      Between £5,001.00 and £10,000.00 the formula is £1,100.00 plus 15% of damages over £5,000.00.

      For settlements between £10,001.00 and £25,000.00 the formula is £1,930.00 plus 10% of damages over £10,000.00.

      This is all dealt with in great detail in my book Personal Injury Small Claims, Portals and Fixed Costs which can be order from Amazon here.

      Kerry

      kerryunderwood

      September 28, 2016 at 11:01 am

      • Thank you for your response. As the matter has fallen out of the portal and we have issued Part 8 proceedings, are we not entiled to advocates costs and legal representative costs?

        Naseer

        September 28, 2016 at 11:23 am

      • No. It is all at pages 173-175 of my 2016 course notes and in the book.
        Kerry

        kerryunderwood

        September 28, 2016 at 12:24 pm

  130. Hi Kerry

    I have a case which started in the RTA portal. Causation was disputed and the case dropped out. Because of the causation dispute I asked the medical expert to review medical records – these were reviewed prior to the examination, so the review was incorporated in the report, no separate addendum. It was a soft tissue injury and the expert was instructed via MedCo. The expert wishes to charge £230 plus VAT – the fixed report fee of £180 and the addendum for a review of records fee of £50. The Defendant refuses to pay this, saying that for the first report £180 is it, full stop, regardless of whether notes were reviewed.

    I can’t see anything in CPR 45.29I which contradicts the Defendant, but it does seem unfair that the expert only gets paid for reviewing records if he does so after the examination and produces an addendum. Are you aware of anything in the Rules, the Protocols or case law which might assist me in recovering the extra amount for the review of records?

    Many thanks

    David

    David

    September 27, 2016 at 3:41 pm

    • David

      The relevant rule is CPR 45.19 and not CPR 45.29 and my view is that the defendant is right. CPR 45.19(2A) reads as follows:-

      “(2A) In a soft tissue injury claim to which the RTA Protocol applies, the only sums (exclusive of VAT) that are recoverable in respect of the cost of obtaining a fixed cost medical report or medical records are as follows—

      (a) obtaining the first report from an accredited medical expert selected via the MedCo Portal: £180;”

      Thus your situation falls exactly within that definition.

      I presume that the logic is that considering the medical records when preparing the report involves little extra work and thus is incorporated within the fixed report fee of £180.00 and it is only if a separate report has to be prepared that a further £50.00 is payable and you will see that CPR 45.19(2A)(d) specifically refers to an “addendum” (my emphasis).

      The Shorter Oxford Dictionary defines “addendum” as follows:-

      “A thing to be added, especially because of omission; an appendix, an addition; additional matter at the end of a book.”

      Thus you could argue that an addendum to the report could be contained within the same document.

      Further support for your argument can be found in CPR 45.19(2A)(b)(i) which provides that the fee for a Consultant Orthopaedic Surgeon is £420.00 but that is specifically stated to be “inclusive of a review of medical records where applicable”.

      Thus you could argue that the fact that the cost of the first report from an accredited medical expert does not specifically include a review of medical records where applicable means that the additional £50.00 under CPR 45.19(2A)(d) is payable.

      However on balance my view is that the defendant is right.

      Kerry

      kerryunderwood

      September 28, 2016 at 11:02 am

      • Thought so, but always best to check! Thanks for your quick and informative reply. David.

        David

        September 28, 2016 at 12:17 pm

  131. Pleasure!

    kerryunderwood

    September 28, 2016 at 12:19 pm

  132. Dear Kerry

    Regarding low value PI (EL/PL) ….does an uninsured defendant still have to use the portal?

    Zia

    October 6, 2016 at 1:24 pm

    • Zia

      There are different provisions within the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims, depending on whether it is in fact an employers’ liability or public liability claim.

      It is always the claimant, not the defendant, who begins the portal process.

      Under paragraph 1.1(11) “defendant” includes, where the context indicates, the defendant’s insurer or legal representative.

      Under paragraph 4.3 the protocol does not apply to a claim –

      “(1) where the claimant or defendant acts as personal representative of a deceased person;

      (2) where the claimant or defendant is a protected party as defined in rule 21.1(2);

      (3) in the case of a public liability claim, where the defendant is an individual (‘individual’ does not include a defendant who is sued in their business capacity or in their capacity as an office holder);

      (5) where the defendant is insolvent and there is no identifiable insurer;.”

      Thus if the defendant is both insolvent and there is no identifiable insurer then the matter does not go in the protocol. However if the defendant is insolvent and there is an identifiable insurer, then it does go in the protocol and it also goes into the protocol if there is no identifiable insurer but the defendant is not insolvent.

      Paragraph 6.1(2) specifically deals with the situation where the insurer’s identity is not known. That of course is a slightly different situation as compared with there being an uninsured defendant, but nevertheless, as will be seen, it is relevant as the provision alludes to that scenario.

      Paragraph 6.1(2) reads:-

      “(2) If—

      (a) the insurer’s identity is not known; or

      (b) the defendant is known not to hold insurance cover,

      the CNF must be sent to the defendant’s registered office or principal place of business and no Defendant Only CNF is required.

      Under paragraph 6.1(3) where the insurer’s identity is not known, the claimant must make a reasonable attempt to identify the insurer and, in an employers’ liability claim only, the claimant must have carried out a database search through the Employers’ Liability Tracing Office.

      In a disease claim, the CNF should be sent to the insurer identified as the insurer last on risk for the employer for the material period of employment. (6.1(4)).

      If the CNF or Defendant Only CNF cannot be sent to the defendant via the prescribed portal address, it must be sent via first class post; and this must be done, in a case where the CNF is sent to the insurer, at the same time or as soon as practicable after the CNF is sent. (paragraph 6.2).

      This is all set out in the portal and this is contained in my course notes.

      It is also set out in my new book – Kerry on… Personal Injury Small Claims, Portals and Fixed Costs, which can be ordered from Amazon here.

      Kerry

      kerryunderwood

      October 7, 2016 at 4:16 pm

  133. Hi Kerry,

    Are we obliged to disclose witness statements to the third party before court proceedings?

    Ali

    October 19, 2016 at 12:00 pm

    • 7.32 (7) of RTA portal requires service of any witness statements as part of the Stage 2 Settlement Pack. Case law suggests that nothing new can be served at Stage 3. Statements are not required prior to Part 7 proceedings, but it is possible that a court would refuse to admit evidence not served as part of the Settlement Pack if the matter reached Stage 2. Court also has a wide discretion in costs.

      In any event what is the harm in serving a witness statement prior to proceedings?

      Kerry

      kerryunderwood

      October 19, 2016 at 1:40 pm

  134. Hi Kerry,
    Success fees and recoverability from losing party
    I have a case where we have been pursuing the MIB for an uninsured driver. We were acting for driver and 3 passengers. Date of loss 17/11/2012, CFA entered into on 05/12/2012, not pursued through portal, liability denied as the MIB were arguing that driver claimant would be at lease contributory negligent, issued on 14/10/2015 and allocated to multi track. In around August 2016 MIB finally agreed to deal with the claim on best possible terms ie they would deal with the driver and passengers claims on a 100% basis subject to quantum being agreed. The matter was listed for trial on 17/10/2016 and by 30/09/16 agreement had been reached in relation to all of the claims without trial.
    My question is what is the success fee that can be recovered. I have been told that this is capped at 12.5% but can not find the rules that apply.

    Shahzad Pathan

    October 24, 2016 at 5:51 pm

  135. Hi Kerry,
    recoverability of success fees
    I am acting for a driver and three passengers in an RTA. Date of loss 05/11/2012, CFA dated 05/12/12, liability not admitted issued on 14/10/2015 and allocated to MT, tp uninsured so MIB as 2nd def. The matter was listed for trial 17/10/2016. In August 2016 MIB finally decided it would deal with claims on best possible terms ie they will deal with our claims 100% subject to quantum. On 30/09/16 we finally managed to agree figures for the last claimant who was the driver and by CO vacated trial etc.
    My question is what is the success fee that can be recovered from the losing party, i know that there was no hearing so no automatic 100% and am lead to understand that, even though we had issued, the success fee recoverable will be 12.5% but cant help but think that is not right. Any help would be much appreciated!

    Shahzad Pathan

    October 25, 2016 at 3:28 pm

    • Shahzad

      I refer to your two comments, which appear to cover the same facts, although the dates are slightly different.

      As the Conditional Fee Agreement pre-dates 1 April 2013 then the success fee is recoverable and is governed by the old Fixed Recoverable Success Fee Scheme.

      The date of admission of liability or issue, or anything else is irrelevant. The only relevant date is the date of the Conditional Fee Agreement.

      The issue is simple in relation to fixed recoverable success fees. If the matter goes to trial then the fixed recoverable success fee in a road traffic accident matter is 100%.

      If it does not then it is fixed at 12.5%, whether it settles on day one or shortly before trial.

      There have been cases as to what constitutes the commencement of a trial, in relation to cases settling on the morning etc., but they do not appear to be relevant in your scenario.

      The scheme is very much a swings and roundabouts one to replace the court having in each and every case to assess the success fee.

      This is all dealt with on my courses and in my forthcoming book, Kerry on… Personal Injury Small Claims, Portals and Fixed Costs which will be out shortly available here.
      On a separate matter I am trekking the Sahara in March 2017 to raise money for the Lord’s Taverners’ charity for disadvantaged children and the EY Foundation to assist youngsters in getting into work and education through other routes.

      You may care to visit the My Donate page and make a small donation for this advice here. 

      Kerry

      kerryunderwood

      November 28, 2016 at 11:07 am

  136. Hi Kerry,

    Great site. I have a claim which is a NIHL claim and a CNF submitted in July 2015. Liability is denied, thereafter proceedings were issued. The claim gets allocated to the Fast Track and settles before it is listed for trial. Would CPR 45.29E Table 6C B apply and recover £3,350 plus 25% of damages or with it being a NIHL, is this standard basis costs?

    Neil

    October 26, 2016 at 4:35 pm

    • Neil

      Many thanks for your kind comment.

      Where an industrial disease claim exits the portal it does not go to Fixed Recoverable Costs but rather goes to standard costs.

      The authority for that statement is CPR 45.29A (2) which states:-

      “(2) This section does not apply to a disease claim which has started under the EL/PL Protocol.”

      CPR 45.29A is itself headed “Scope and Interpretation” and is the first part of Section IIIA claims which no longer continue under the RTA or EL/PL Pre-Action Protocols – Fixed Recoverable Costs.

      In other words Section IIIA deals with former portal claims and CPR 45.29A sets out the scope of the Fixed Recoverable Costs Scheme and CPR 45.29A (2) specifically excludes from the scope of Fixed Recoverable Costs a disease claim which had started under the EL/PL Protocol.

      As far as I am aware that is the only type of ex-portal claim that is not subject to Fixed Recoverable Costs.

      Kerry

      kerryunderwood

      November 4, 2016 at 2:06 pm

  137. Kerry, quick question. Claims for damages for false imprisonment/wrongful detention either against police or a business (client wrongfully detained in a shop) – public liability portal or not?
    What is your opinion please.
    Thank you.
    Sue

    Sue

    November 4, 2016 at 1:02 pm

  138. Sue

    What is the personal injury?

    Kerry

    kerryunderwood

    November 4, 2016 at 2:51 pm

    • Hi Kerry
      In this particular case it’s psychological injury. PTSD apparently.
      What about wrongful arrest/assault day by police causing physical injuries?
      Sue

      Sue

      November 5, 2016 at 3:49 pm

      • Sue

        Paragraph 1.1(18) defines a public liability claim in the following terms:-

        “(18) ‘public liability claim’ –
        (a) means a claim for damages for personal injuries arising out of a breach of a statutory or common law duty of care made against—
        (i) a person other than the claimant’s employer; or
        (ii) the claimant’s employer in respect of matters arising other than in the course [of] the claimant’s employment; but
        (b) does not include a claim for damages arising from a disease that the claimant is alleged to have contracted as a consequence of breach of statutory or common law duties of care, other than a physical or psychological injury caused by an accident or other single event;”
        The exclusions are contained in paragraph 4.3 of the protocol.
        Consequently my view is that if there are physical injuries arising from wrongful arrest/assault by the police then that is indeed a public liability claim which goes into the portal, subject to matters such as the value of the claim etc.
        Note that paragraph 4.3(8) of the portal excludes claims “for damages in relation to harm, abuse or neglect of or by children or vulnerable adults;”.
        Paragraph 1.1(20) of the portal defines a vulnerable adult as follows:-
        “(20) ‘vulnerable adult’ has the same meaning as in paragraph 3(5) of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012”
        By that provision “vulnerable adult” means a person aged 18 or over whose ability to protect himself or herself from abuse is significantly impaired through physical or mental disability or illness, through old age or otherwise.
        I am unaware of any case law on this point in relation to the portals but I could clearly see circumstances in which the “or otherwise” provision would mean that a person in custody falls within the definition of a vulnerable adult.
        Subject to that point, my view, as stated above, is that physical injuries in such circumstances do come within the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims.
        As to where there is only psychological injury, that is an interesting point.
        The Road Traffic Accident Portal specifically defines a road traffic accident as meaning “an accident resulting in bodily injury to any person…”
        I deal with this definition and this issue at length on my blog post.
        However there is no such restriction in the EL/PL Portal and indeed the wording quoted above from paragraph 1.1(18)(b) indicates that a psychological injury only does come within the portal. Note the reference to “a physical or psychological injury” (my bold).
        Thus my view is that even where there is only psychological injury, the matter does potentially come within the EL/PL Portal.
        Kerry

        kerryunderwood

        November 7, 2016 at 11:01 am

  139. Fantastic. Thank you so much.
    Sue

    Sue

    November 7, 2016 at 12:14 pm

  140. Pleasure.

    kerryunderwood

    November 7, 2016 at 12:24 pm

  141. Kerry,

    Thank you for your excellent blog which I have used as a reference point over the last couple of years.

    I don’t think this scenario is covered: I have an RTA case where the accident was in May 2013 (i.e. when the Portal upper limit was £10k). It was submitted in the portal in November 2013 but removed by the insurer who disputed liability. It subsequently settled post-issue of proceedings for £16.5k (the loss of earnings was much higher than was anticipated at the time of submitting the CNF).

    We have submitted a Bill of Costs on an hourly rate basis, on the basis that generally where the claim exceeds the portal limit, hourly rate costs apply. The Defendant is offering fixed recoverable costs only. Having considered CPR 45.29B and Table 6B I am concerned that the Defendant may be correct. Please tell me I am wrong!

    Many thanks
    Carl

    Carl

    November 15, 2016 at 8:54 am

    • Carl

      My view is that the defendant is correct as the only exceptions to CPR 45.29B are those contained in CPR 45.29F, G, H and J.

      F deals with defendant’s costs and is not relevant. G deals with counterclaims and is not relevant. H deals with interim applications and is not relevant.

      CPR 45.29J deals with claims for an amount of costs exceeding Fixed Recoverable Costs and is potentially relevant.

      However you would need to persuade the court under CPR 45.29J(1) that there are exceptional circumstances making it appropriate for the court to take the matter outside the Fixed Recoverable Costs Scheme.

      I think you will struggle in that and there are costs penalties if you apply to escape fixed costs and fail to get at least 20% more than the fixed costs figure.

      I have no doubt that you have seen today’s Court of Appeal judgment in Qader & Others v Esure Ltd & Khan v McGee [2016] EWCA Civ 1109, 16 November 2016 and here is the link to that judgment and here is the link to my blog FIXED COSTS DO NOT APPLY TO ALL EX-PORTAL CLAIMS: QADER OVERTURNED: PARLIAMENT IGNORED.

      What the Court of Appeal has said today is that any matter allocated to the multi-track automatically dis-applies Fixed Recoverable Costs.

      You will see from my blog and from the judgment that they left open the question of whether claims over £25,000.00 which have exited the portal are subject to Fixed Recoverable Costs or not.

      Your claim, as being one that was over the appropriate portal limit at the time, comes within that description.

      If I were you I would have a go and seek to argue that for the reasons referred to in the Court of Appeal’s decision ex-portal claims over the limit should not be subject to Fixed Recoverable Costs.

      I am sure the courts are much more likely to find in your favour now that the Court of Appeal have given this decision, even though it is not directly on point.

      Please let me know how you get on.

      Kerry

      kerryunderwood

      November 17, 2016 at 6:46 am

      • Kerry

        Thank you for your response.

        You raise an interesting point in your blog following Qader re the constitutional implications of the decision. And if the rules can be rewritten by the court in that case then why not in this case as well!

        I will let you know how it goes.

        Thanks
        Carl

        Carl

        November 18, 2016 at 9:52 am

      • Carl

        Indeed- or any case. Why don’t we all add in 14 words of our choosing to any law/rule that we do not like? No need to tell the Judge.

        Kerry

        kerryunderwood

        November 18, 2016 at 10:46 am

  142. Dear Kerry

    Thank you for your blog which has proven to be an invaluable reference point over the years. I posted a question earlier which has not appeared on the site. Apologies if this ultimately duplicates.

    I have an RTA accident predating July 2013 meaning that the portal upper limit was £10,000. The claim was submitted in November 2013 and removed from the portal by the insurer as liability was disputed. The claim ultimately settled for £16,500 after issue of proceedings. The claim genuinely appeared to be worth less than £10,000 when submitted. In any event we considered that as the settlement exceeded the portal upper limit, hourly rate costs would apply and a bill was drafted and submitted.

    The Defendant is offering fixed recoverable costs only. Unfortunately I think they may be correct pursuant to CPR 45.29B:

    Subject to rules 45.29F, 45.29G, 45.29H and 45.29J, if, in a claim started under the RTA Protocol, the Claim Notification Form is submitted on or after 31st July 2013, the only costs allowed are—
    (a) the fixed costs in rule 45.29C;
    (b) disbursements in accordance with rule 45.29I.

    Table 6B obviously includes claims up to £25,000. We could apply for an order under CPR 45.29J that there are exceptional circumstances making it appropriate to exceed the fixed recoverable costs. If correct do you think there are exceptional circumstances meaning we can escape FRC simply on the basis that the claim settled for more than the portal limit?

    Many thanks
    Carl

    Carl

    November 15, 2016 at 10:03 am

    • Carl

      Please see my reply to your earlier comment, where I deal with all of the points raised in your comment here.

      Kerry

      kerryunderwood

      November 17, 2016 at 6:47 am

  143. Hi Kerry, I have a claim where I am dealing with the vehicle damage aspect alone (Client is not claiming for anything else so specials only)- The vehicle damage costs comes to 30,400.00. Is there any legal precedent/CPR rules that would say that I am entitled to costs in this matter?

    Ash

    November 16, 2016 at 12:20 pm

    • Ash

      A claim for £30,400.00 is above any of the small claims limits and thus is, in principle, costs bearing.

      There is no entitlement in English law to costs if a matter is settled pre-issue, with the exception of the portals and the old so-called predictive costs regime.

      Thus in any pre-issue settlement you need to have a contractual provision that the defendant do pay the claimant’s costs to be assessed if not agreed. If those costs are not agreed, or are not paid, then the action is in contract, that is for breach of contract.

      Once proceedings are issued then the normal rule is that costs follow the event, although they are always in the discretion of the court. However the starting point is that you will get costs to be assessed if not agreed.

      If there is no injury of any kind, or no claim for any injury, then the matter cannot go into the RTA Portal.

      However if there is a claim for general damages for personal injury then the fact the vehicle related damages exceed the portal upper limit of £25,000.00 does not exclude the matter from the portal as vehicle related damages are not taken into account in considering whether the total is above the upper limit.

      This is all dealt with on my courses and in my forthcoming book, Kerry on… Personal Injury Small Claims, Portals and Fixed Costs which will be out shortly available here.
      On a separate matter I am trekking the Sahara in March 2017 to raise money for the Lord’s Taverners’ charity for disadvantaged children and the EY Foundation to assist youngsters in getting into work and education through other routes.

      You may care to visit the My Donate page and make a small donation for this advice here. 

      Kerry

      kerryunderwood

      November 28, 2016 at 11:05 am

  144. HI Kerry a two pronged query here.
    GP recommends Psychologist report agreed with defendants and after report client has CBT then has a final report by the rehabilitator.
    The reports are put on stage two but should it have fallen out of the portal as CPR 45.19 does not allow for a Psychological report? and if not should the defendants pay for all the reports when paying stage one costs and medical fees or just the £456.00?
    Kindest Regards
    Paul

    Paul Carroll

    November 22, 2016 at 10:30 am

    • Paul

      CPR 45.19(2C) does allow for a psychological report, albeit obliquely:

      ” The cost of obtaining a further report from an expert not listed in paragraph (2A)(b) is not fixed, but the use of that expert and the cost must be justified.”

      So, first you have to justify use of the report, which in the circumstances should not be a problem. Secondly, having justified the use, you must justify the cost, but obviously that has always been the case outside a fixed costs regime.

      Kerry

      kerryunderwood

      December 7, 2016 at 8:30 am

  145. Kerry-a query about a client who started off her claim by dealing with the insurer herself. Liability is admitted.
    After the insurer had obtained 2 medical reports, one from a GP and the other from an Orthopod, it decided that it did not want to deal direct anymore and told my client to see a solicitor.
    The Orthopod describes a shoulder injury which in his opinion is constitutional in origin. He did however state that an xray and ultrasound examination was needed for a final prognosis.
    My client denies any shoulder problem pre dating the accident and recently underwent surgery for the shoulder. She is presently unable to work and on SSP only. She needs an interim payment.
    The insurer states that we have to rely on its current medical evidence and that if we do not then it will not pay for any reports that we obtain. Causation is denied.
    As yet I have not put this in the Portal-I doubt that quantum will exceed £25k.
    Is there any allowance in the Portal system for Defendant insurers to upload and rely upon their own medical evidence? The Protocol does state that it is the Claimant that should obtain the medical evidence.
    Sadly I cannot think of any reason why we are entitled not to use the Portal on this occasion-can you?

    Julian Nicholls

    November 24, 2016 at 10:29 am

    • Julian

      This raises a number of points, which I will deal with in turn.

      Causation

      My view is that if causation is denied the matter exits the portal.

      You do not say which portal the claim would potentially go into but I am assuming that it is the RTA one – in any event the prinicples are the same.

      Paragraph 6.15 provides that the claim will no longer continue under the portal process if the defendant does not admit liablity (6.15(3)).

      Paragraph 1.1(1) reads:-

      “(1) ‘admission of liability’ means the defendant admits that—

      (a) the breach of duty occurred;

      (b) the defendant thereby caused some loss to the claimant, the nature and extent of which is not admitted; and

      (c) the defendant has no accrued defence to the claim under the Limitation Act 1980;”

      Thus admission of liability has a broader, and more common sense, meaning than in the law generally.

      Having said that, there have been a number of recent cases where the courts have said that denial of causation is denial of liability.

      Of course this does not exclude the claim going onto the portal in the first instance, and I believe that it should. However if there is then a denial of causation the matter exits the portal.

      Complexity

      Paragraph 7.76 reads:-

      “7.76 Where the claimant gives notice to the defendant that the claim is unsuitable for this Protocol (for example, because there are complex issues of fact or law) then the claim will no longer continue under this Protocol. However, where the court considers that the claimant acted unreasonably in giving such notice it will award no more than the fixed costs in rule 45.18.”

      Again this provision is not one that justifies failing to put the matter on the portal, but rather allows for exit at the claimant’s choice, but subject to costs penalties if the claimant acted unreasonably.

      It seems to me that the correct approach is to put the matter on the portal and then see what the defendant’s response is, but clearly if they are denying causation and wishing to produce their own medical evidence then paragraph 7.76 applies.

      Medical evidence

      It is a specific aim of the protocol to ensure that the use and cost of medical reports is controlled and that in most cases only one medical report is obtained – see paragraph 3.2.

      Paragraph 7 deals with medical reports.

      Paragraph 7.8A(2) provides:-

      “(2) where the defendant provides a different account under paragraph 6.19A, the claimant must provide this as part of the instructions to the medical expert for the sole purpose of asking the expert to comment on the impact, if any, on diagnosis and prognosis if—

      (a) the claimant’s account is found to be true; or

      (b) the defendant’s account is found to be true.”

      That is the process for soft tissue claims – I do not know whether this is a soft tissue claim or not.

      In any event there is no provision for the defendant to file its own medical evidence in the portal process.

      Value

      You state that you doubt that quantum will exceed £25,000.00.

      Paragraph 4.3 provides:-

      “4.3 This Protocol ceases to apply to a claim where, at any stage, the claimant notifies the defendant that the claim has now been revalued at more than the Protocol upper limit.”

      Summary

      I have no doubt whatsoever that you should put the matter on the appropriate portal and follow the process and see what course it takes.

      If the defendant maintains its position then the matter will exit the portal, but the defendant may take a different view.

      Your problem is that if you do not put it on the portal then you will almost certainly be restricted to portal costs only, or indeed no costs at all, on the basis that you never gave the defendant the chance to resolve the matter quickly and cheaply within the portal process.

      I am making these comments without knowing whether this is an RTA matter or any EL/PL matter and without knowing whether it is a soft tissue injury matter.

      I presume that you have made a Part 36 offer on liability. If not that should be done immediately.

      Other matters

      This is all dealt with on my courses and in my forthcoming book, Kerry on… Personal Injury Small Claims, Portals and Fixed Costs which will be out shortly available here.
      On a separate matter I am trekking the Sahara in March 2017 to raise money for the Lord’s Taverners’ charity for disadvantaged children and the EY Foundation to assist youngsters in getting into work and education through other routes.

      You may care to visit the My Donate page and make a small donation for this advice here. 

      kerryunderwood

      November 28, 2016 at 11:08 am

      • Many thanks Kerry-this is an RTA and will now be going on to the Portal.

        Julian Nicholls

        November 30, 2016 at 11:26 am

  146. Hi Kerry,

    I have a couple of questions which I hope you would be able to assist me with.

    PI settles on portal. C issues Part 7 for HSR and settles at £16.5k. C is seeking to recover column 3 FRC costs and 20% of the HSR damages.

    My view is standard hourly rate costs apply and arguably C could be criticised for not initially bringing the HSR claims within the portal process.

    Second issue that keeps cropping up is a similar situation however HSR following Part 7 (and originally claimed in excess of £10k) settles below the 10k threshold. D’s arguing small claim costs relying upon the agreed amount rather than the claimed amount. Matter allocated to FT.

    My view is costs bearing and small claims do not apply. D’s always had the option of asking the Court to re-allocate but never chose that option.

    Your thoughts would be much appreciated.

    Jamie

    November 29, 2016 at 11:43 am

    • What is HSR?

      kerryunderwood

      December 6, 2016 at 6:31 pm

      • Sorry Kerry that my post was not clear. HSR is the Hire, Storage and Recovery claims.

        Jamie

        December 7, 2016 at 11:05 am

      • Jamie

        Thanks – I thought it might be that but did not want to jump to conclusions!

        The technical term is vehicle related damages, which covers the pre-accident value of the vehicle, vehicle repair and vehicle hire.

        Were these matters claimed on the portal?

        If so, then Fixed Recoverable Costs apply as they apply to all ex-portal claims that have not been allocated to the multi-track, although the Court of Appeal in Qader & Others v Esure Ltd & Khan v McGee [2016] EWCA Civ 1109, 16 November 2016 left open the issue of whether a claim for over £25,000.00 which exits the portal is subject to Fixed Recoverable Costs.

        You do not say how much the personal injury general damages claim settled for and so I do not know if the total is over £25,000.00.

        Vehicle related damages are not included in the portal maximum. Thus if there was a claim for say £100,000.00 credit hire, then that is still a portal claim.

        However it appears from what you say that this aspect of the special damages claim was not brought within the portal. In which case why did you pay up? The principle in Henderson v Henderson [1843] 3 Hare 100, 67 ER 313 applies, that is the Doctrine of Issue Estoppel prevents the claim being brought as a Part 7 claim.

        However, you are where you are at and the general view is that only portal costs will be awarded – there is a variety of authority on this point.

        As to the second point, if the matter is allocated to the fast-track then it is costs bearing. There are issues if the matter is resolved prior to allocation, but if a matter worth £5.00 is allocated to the fast-track, then that is that and Fixed Recoverable Costs apply if it is, or should have been, an ex-portal matter.

        As you say the defendant can ask the court to reallocate and the general position is that the successful party gets costs for the track it was in at any given time. Thus if a matter is allocated to the fast track and then reallocated to the small claims track, the successful party should get fast-track costs for the period that it was in the fast-track.

        As set out above the issue of what costs are payable when a matter is resolved prior to allocation is of considerable complexity.

        This is all dealt with in my new book – Personal Injury Small Claims, Portals and Fixed Costs.

        Kerry

        kerryunderwood

        December 12, 2016 at 8:38 am

  147. Good afternoon Kerry,

    I currently have a Stage 2 on portal on-going regarding a minor, now the third party are requesting the counsel’s advise as they refuse to increase their current offer by £200.00 for it to be within the lower bracket of the counsel’s valuation despite me providing them with the bracket along with the case law relied upon.

    The third party however (Acromas) continue to argue that the counsel’s advice is NOT a privileged document and therefore I should have no issue in disclosing it.

    I am correct for thinking for the past three years of my career that counsels advice is privileged?

    Thank you in advance Kerry

    Ali

    November 30, 2016 at 3:42 pm

  148. Hi Kerry – Thank you for the terrific blog. Lots of crucial information and tips there.

    I have a PL claim where I am acting for the Defendant. Accident occurred in 2015 and would be captured by portal we say but they haven’t used it. Claimant has accepted our P36 offer of approx. £13,500.00 and sent schedule of costs. We say should have been a portal claim and they should be entitled to fixed costs only but they are likely to say they reasonably believed the injury was worth more than £25k. I appreciate this is a fact specific area and will depend on severity of the injury etc but in principal we would be right to say sorry fixed costs only right? It was settled pre-issue.

    Thank you for looking at this.
    Alex

    Alex

    November 30, 2016 at 9:15 pm

    • Alex

      Yes. In fact they should only get portal costs as they did not give the opportunity for the matter to be resolved within the portal. They will be hard pushed to show that a claim settled for £13,500 was thought to be worth over £25,000 unless there is a significant – like 50% – element of contributory negligence, as it is the gross figure that is taken into account for portal valuation purposes.

      In any event a claimant can always put the matter on the portal and exit if it becomes apparent that the claim sy be worth over £25,000.

      Kerry

      kerryunderwood

      December 6, 2016 at 6:38 pm

  149. Ali

    The starting point is that counsel’s advice is privileged. However privilege can be lost by using the finding or contents of a privileged document in open correspondence. For example if you wrote in open correspondence saying “We want £3,000 in accordance with counsel’s advice” you have probably lost privilege, although it is more complicated than that as it can depend upon the reason for, and purpose of, the reference to a privileged document.

    I suggest that you ask the other side why they take the view that counsel’s advice is not privileged.

    Kerry

    kerryunderwood

    December 6, 2016 at 4:40 pm

  150. Hi Kerry
    I have an interim application for hearing on Friday. RTA matter – out of Portal – 4 Claimants in one set of proceedings arising out of the same accident.. Application for an unless order. Defendant failed to deal with disclosure. I believe that the fixed costs for this application, if I am successful, would be £250 plus VAT plus Court fee in accordance with CPR 45.29H.
    My question – is this figure per claimant ie: £1000 plus VAT plus Court fee or just the £250 per application?
    I have read your blog and in particular your reference to Neary & Neary v Bedspace Resource ltd, Chester County Court. I also note that, at the time you prepared the information, you were suggesting “clarification by a Court which has considered CPR 45.40 in detail would be welcome”. !
    The Defendant has also made an application to be heard at the same time for a strike out! So preparing for this hearing has been quite time consuming. If I am not going to get four lots of £250 then I may well make an application to escape the fixed costs under CPR 45.29J – although I am not sure that there are “exceptional” circumstances, just a lot of prep needed.
    Any help would be greatly appreciated.
    Sue

    Sue

    December 7, 2016 at 11:18 am

  151. Hi Kerry, thanks for your blog, Lots of useful information particularly in relation to the MOJ Portal. I would be grateful if you could help me with a query. I have a claim whereby liability was admitted on the portal and upon submitting the Stage 2 settlement pack, the third party insurers raised issues as to vehicle damage “consistency”. The claim was then exited from the portal. The insurers then paid the vehicle damage as per our figures. They have subsequently made an offer in regard to the Claimant’s personal injury claim but maintain that portal costs should apply. Their argument is based on the notion that their enquiries were in relation to vehicle damage inconsistencies and not causation. Please could advise whether the third party insurers stance is correct. Many thanks.

    Paul Brennan

    December 8, 2016 at 2:55 pm

  152. Hi Kerry.

    We have a potential new instruction for a lady who was involved in an RTA in Guernsey. Insurers have admitted liability prior to our involvement and made a “pre-med” offer.

    Before we decide whether to take the case on, we want to be clear on the position of costs. Clearly we are looking at Rome II and understand that the applicable law is that of the country in which the accident occurs however the domestic court isn’t required to apply foreign rules in terms of procedure.

    If you are able to clarify what costs would be recoverable in this instance it would be much appreciated.

    Thank you!

    Melissa Dodds

    December 13, 2016 at 4:27 pm

  153. Hi
    The RTA Protocol excludes cases where the ‘def vehicle is registered outside the UK’ (para 4) so I would think that you need to look further into that point ie definition of UK for these purposes and def vehicle – there is no express ref to the Channel Islands so far as I can recall. Generally speaking the Channel Islands are not considered part of the UK for legal procedure purposes (Crown dependency) so in my view if the defendant’s vehicle is registered in Guernsey the RTA Protocol does not apply. Rome II would apply in the Channel Islands so there are exceptions which you might double check eg all parties resident in this jurisdiction, but the primary rule is the applicable law is that of the place of accident- the Protocol does not seek to alter those rules were it to apply. Rules of procedure are governed by the place in which the proceedings take place (made clear by Rome II itself). Service of proceedings issued in England but served in Channel Islands is service outside the jurisdiction so CPR Part 6 is relevant to ordinary proceedings but the RTA Protocol arguably is not proceedings in this sense. So if you are permitted to issue here and serve out it would be ordinary CPR but local law as to liability and quantum. These are the points I would research further if I were you.
    m

    Maggie

    December 13, 2016 at 7:26 pm

    • Thanks Maggie

      Not covered by old predictive costs regime – which is still in force – as that only applies to accidents in England and Wales.

      Kerry

      kerryunderwood

      December 22, 2016 at 4:48 pm

      • Many thanks- Happy Christmas. I am sure we all appreciate the good stuff you post through the year so keep going!
        m

        Maggie

        December 23, 2016 at 9:34 am

      • Thank you!

        kerryunderwood

        December 23, 2016 at 10:49 am

  154. Dear Kerry,

    I have settled a fast track matter 2 days before a trial. Having sent the costs schedule the third party are stating that the translators fees (used to translate the court documents and witness statements) are not recoverable disbursements under part 45.29i CPR and that they have no offer in respect of these items.

    I am aware that rules list certain disbursements but I thought that this was not exhaustive?

    Please advise.

    Thank you Kerry

    Ali

    January 5, 2017 at 9:37 am

    • Ali

      Please look at CPR 45.29I (b): ” will not allow a claim for any other type of disbursement” – so mandatory and exhaustive, but see (h): ” any other disbursement reasonably incurred due to a particular feature of the dispute.”

      Kerry

      kerryunderwood

      January 5, 2017 at 10:00 am

      • in the case of Madej v Maciszyn (2012) (SCCO) Master Campbell in the Senior Court Costs Office awarded the interpreters fee

        Andrew Clark
        Senior Litigation Executive

        DDI: 0161 828 5064
        Mob: 07590444728
        Email: Andrew@tpclaw.co.uk
        Web: http://www.tpclaw.co.uk

        [cid:imagec84341.JPG@50284d4f.44a9083b]

        Universal Square
        Devonshire Street North
        Manchester M12 6JH
        Tel: 0161 832 8867 Fax: 0161 832 8070

        [cid:image9dc359.GIF@31e367cc.478e26fd] Please consider the environment before printing this email message.

        Partners: Elizabeth Gilmour Shahida Mohamed

        THIS FIRM IS AUTHORISED AND REGULATED BY THE SOLICITORS REGULATION AUTHORITY (SRA No. 00418422)

        Information in this message is confidential and may be legally privileged. It is intended solely for comment+r3oby7-alpdo0ek07dsiq0uhmgf07r_cvh1z_o6vlvd@comment.wordpress.com. If you are not the intended recipient, please notify the sender and delete the message from your system immediately

        Andrew Clark

        January 5, 2017 at 10:01 am

      • Many thanks Andrew😄

        kerryunderwood

        January 5, 2017 at 10:04 am

      • Hi Kerry,

        Thank you for your help. Yes, I am sure that more or less anything could be argued under (h) given if the whole matter itself is in dispute.

        Thank you

        Ali

        January 5, 2017 at 10:11 am

      • Please see Andrew’s comment and case reference 😄

        Kerry

        kerryunderwood

        January 5, 2017 at 10:18 am

      • Thank you ever so much Andrew 🙂

        Ali

        January 5, 2017 at 10:21 am

  155. That is what this blog is all about😄😄

    kerryunderwood

    January 5, 2017 at 10:24 am

  156. Hi Kerry,

    I have today settled a small claims track matter in the amount of £7,800.00. This was for specials only so namely hire, storage and recovery. The trial was on Monday to come.

    I was under the impression that we can only recover £80.00 for SCT matters. Having tried to do some research I have not been able to find anything to corroborate this?

    Is this still the case?

    Ali

    January 6, 2017 at 3:22 pm

  157. Hi Kerry,

    Are Part 35 questions to a medical expert allowed under the MOJ portal?

    I have submitted the medical report within the Stage 2 pack and put forward a valuation in line with Counsel’s advice but the third party disputing the valuation and have put forward questions for the expert.

    Is this ground to exit the portal?

    Thank you in advance.

    Ali

    January 9, 2017 at 2:55 pm

    • Ali
      Good question. As far as I can see there is no provision within the portal process for Part 35 questions and it would tend to undermine the speed and nature of the process.

      However CPR 45.19, which deals only with costs in the portal, makes specific provision at CPR 45.19(2A)(e) for recovery of a fee for “answer to questions under Part 35: £80.”

      My view is that there is no provision in the portals for the defendant to ask Part 35 questions.

      This is not a ground for exiting the portal, but the defendant should be asked on what basis it thinks it has the right to raise Part 35 questions in the portal.

      Kerry

      kerryunderwood

      January 22, 2017 at 12:16 pm

      • Good afternoon Kerry,

        Thank you for your insight and assistance.

        Ali

        January 23, 2017 at 2:01 pm

      • Pleasure

        kerryunderwood

        January 23, 2017 at 2:10 pm

  158. Hi Kerry,

    I have submitted my Stage 2 offer which was accepted by TPI Insurers within the protocol period. Following confirmation on the Portal I received an e-mail stating that the acceptance was an error and they wished to run an LVI argument.

    Is the agreement for damages and costs at Stage 2 enforceable and if so I may seek to enforce under Part 8 or will I need to commence under Part 7 (and make reference to the admission and agreement within the Pleadings)

    I would really appreciate you expert opinion as every person I asks just looks as confused as I am.

    Many thanks.

    Anthony

    Anthony Scully

    January 10, 2017 at 12:01 pm

    • Anthony
      Straightforward. Sue in contract- Part 7- plead equitable estoppel. Note small claims limit is £10,000. If needs be argue CPR 27.14(2)(g).

      Kerry

      kerryunderwood

      January 10, 2017 at 1:11 pm

      • Thanks so much Kerry

        Anthony Scully

        January 10, 2017 at 1:21 pm

      • Pleasure- you need to send a letter before claim. Suggest Part 36 offer as well.
        Kerry

        kerryunderwood

        January 10, 2017 at 1:28 pm

      • Will do

        Thanks

        Anthony Scully

        January 10, 2017 at 1:34 pm

      • 😄

        kerryunderwood

        January 10, 2017 at 7:11 pm

  159. Hi Kerry. I have a RTA matter where CNF dated 31.1.13. Matter exited the Portal on 25.2.13 as valued at over £10k (max level at that time). Liability admitted. Quantum in dispute and a trial scheduled for next month. I thought this would be Predictable Costs (CPR 45.11) but this does not appear to apply to cases where damages are over £10k. I am expecting around £15k.
    Are you able to point me in the right direction please?
    Regards
    Sue

    Sue King

    January 26, 2017 at 11:16 am

    • Sue

      Cannot apply if proceedings have been issued and cannot apply if settlement over £10,000, so open costs, subject to argument that subject to fixed recoverable costs as wrongly placed on the portal. No authority in relation to such a case which has not been allocated to the multi-track.

      Kerry

      kerryunderwood

      January 29, 2017 at 2:20 pm

  160. Kerry, maybe slightly off topic but I cannot find an article that deal with this.

    If a Stage II Settlement Pack is submitted and then, as agreement cannot be reached, the prognosis period passes and the client has still not recovered, can I obtain updated medical evidence or am I stuck with the report that I have? Am I entitled to an interim at that stage?

    Thank you for any guidance.

    Darren Fletcher

    Darren Fletcher

    January 27, 2017 at 10:22 am

    • Darren

      No evidence can be adduced at Stage 3 which was not adduced at Stage 2- see Mulholland v Hughes No AP 20/15 Newcastle Upon Tyne County Court 18 September 2015.It is not clear if such new evidence can be adduced if Part 7 proceedings are issued. My view is that it can but the claimant risks punishment in costs for unreasonably causing the matter to exit the portal.

      Interim payments depend on what has happened. You should have sought a paragraph 7.12 stay ans sought an interim payment with the Interim Settlement Pack and initial medical report/s.

      Kerry

      kerryunderwood

      January 29, 2017 at 2:17 pm

      • Thanks Kerry,

        We’re not at Stage III yet, still at Stage II. The prognosis period was approaching so the client put settlement on hold until she knew whether she’d recover or not. She hasn’t and we therefore arranged an appointment, but the TPI are suggesting we can’t submit further evidence.

        I believe we can.

        Do you agree?

        Thanks

        Darren

        Darren Fletcher

        January 30, 2017 at 10:03 am

      • Darren

        If the matter is a non-soft tissue injury claim then it is governed by paragraph 7.8 of the portal which provides:-

        “7.8 A subsequent medical report from an expert who has already reported must be justified. A report may be justified where—

        (1) the first medical report recommends that further time is required before a prognosis of the claimant’s injuries can be determined; or
        (2) the claimant is receiving continuing treatment; or
        (3) the claimant has not recovered as expected in the original prognosis.”

        Consequently, provided that one of those conditions is satisfied, which appears to be the case, then you can submit further medical evidence.

        If it is a soft tissue claim then it is governed by paragraphs 7.8A and 7.8B, which I do not set out in full.

        Again it is envisaged that further medical evidence can be submitted, but the starting point in a soft tissue injury claim is that only one medical report will be required – paragraph 7.8B(1).

        Kerry

        kerryunderwood

        February 21, 2017 at 2:51 pm

  161. Hi Kerry

    We have a public liability child case which fell out of the Portal (due to liability dispute), so we are into the realms of Fixed Costs (claim is <£25k).

    Part 7 proceedings have been issued and we've now agreed a proposed settlement figure with the Defendant. We need to apply for an infant settlement approval hearing.

    My belief (and fear!) is that the recoverable costs of the application and hearing will be fixed at the application fee and £250 (plus VAT) for our fees (as a result of CPR 45.29H). Do you agree, or am I missing something here and we can get a greater sum for the application and hearing? It seems strange that the fixed costs of such an application are less when it is a Part 7 case to when it arises whilst the claim is still within the Portal.

    Many thanks!

    Geoff Jeffington

    February 7, 2017 at 12:45 pm

    • Geoff

      You are correct and this is a well-known lacuna in the rules.

      This is all dealt with in my new book – Personal Injury Small Claims, Portals and Fixed Costs which will be out in March. This is three volumes and over 1,300 pages. You can pre-order your copy at a discounted price of £68 including P&P (normal price £80 including P&P) by 6 March.

      To pre-order your copy, contact Kerry Underwood on 01442 430 900 or email kerry.underwood@lawabroad.co.uk.

      This is also all dealt with in my Personal Injury Reforms course this May, which can booked here.

      Kerry

      kerryunderwood

      February 16, 2017 at 3:00 pm

  162. Dear All,

    I am a defendant loss adjuster dealing with various EL/PL claims under the Portal.

    Under the Protocol, Claimant solicitors are required to carry out an ELTO search for EL claims to establish the correct Insurers, and hence we should not really ever be receiving EL2 forms direct to our Principal’s Insured’s premises. This frequently does happen, however, and searches are clearly not being carried out.

    Furthermore, once the EL/PL2 form is submitted and then acknowledged, the protocol states that the EL/PL1 must be submitted electronically within 30 days.

    Are there any practical consequences for the Claimant breaching their above protocol requirements at all? For the claim to no longer proceed under the Portal system is not a ‘punishment’ for the Claimant side.

    Thanks,

    Andrew

    Andrew Hiorns

    February 21, 2017 at 12:35 pm

    • Andrew
      There are many instances in the portals where there is no prescribed effect of default. I take your point that exiting the portal will generally not be a deterrent to a claimant. However in such a circumstance the court has a discretion to restrict the claimant to fixed CPR 45.18 costs and order the successful claimant to pay the defendant’s costs of defending the matter outside the portal process, so there is a potential very real punishment in costs.

      I give plenty of examples in my new book: Personal Injury Small Claims, Portal and Fixed Costs – currently at the printers.
      Kerry

      kerryunderwood

      March 13, 2017 at 5:14 pm

  163. Hi Kerry,

    I was wondering if you could help me with the following issue:

    I have a infant RTA matter on the MOJ portal. The accident was in 2010 and the file was transferred from another firm therefore the claim was not re-submitted on portal but is being dealt within the MOJ spirit and MOJ costs will also apply.

    My question is, given the date of the accident, would I forward the documents that are sent in relation to Part 8’s today or back in 2010?

    The documents sent today are:

    1. Part 8 Claim Form
    2. Court Proceedings Pack Part A and B
    3. Medical report
    4. Certificate of Suitability
    5. Statement from Litigation Friend
    6. Draft order
    7. Counsel’s opinion – for court purposes only
    8. Disbursement vouchers
    9. Court fee of £308.00

    So would it be these that I would send?

    Thank you

    Ali

    March 3, 2017 at 11:24 am

    • Ali

      it is not clear to me as to whether or not the matter has exited the portal. Any matter that exists the portal can never go back on – see paragraph 5.11 of the RTA portal and paragraph 5.11 of the EL/PL portal.

      Thus if the matter has exited the portal Part 7 proceedings must be issued.

      However if the matter has stayed within the portal process then Practice Direction 8B can apply in different circumstances if the claimant is a child.

      Under Practice Direction 8B 1.1(1) the Stage 3 procedure is appropriate if the Pre-Action protocol has been followed but the parties are unable to agree the amount of damages payable at the end of Stage 2 of the relevant protocol.

      Quite separately under Practice Direction 8B 1.1 (2) where:

      (a) the claimant is a child;

      (b) a settlement has been agreed by the parties at the end of Stage 2 of the relevant protocol;

      (c) the approval of the court is required in relation to the settlement in accordance with rule 21.10(2)

      then Stage 3 proceedings can be issued.

      The general rule is that nothing can be introduced at Stage 3, which was not introduced in Stage 2 – please see my various blogs on these points and on the case law, including the Mulholland case.

      If the documents were sent under Part 8 then paragraph 6.2 applies –

      “6.2 The filing of the Claim Form and documents set out in paragraph 6.1 represents the start of Stage 3 for the purposes of fixed costs.”

      Were Stage 3 proceedings commenced in 2010?

      Why has there been a seven year delay?

      What has changed in the meantime?

      It may be that you will need to exit the portal and serve Part 7 proceedings to introduce fresh evidence, but then you are likely to be hit in costs for causing unnecessary expense to the defendant.

      Without further information I cannot help further.

      Kerry

      kerryunderwood

      March 13, 2017 at 4:11 pm

      • Hi Kerry,

        Thank you for your reply.

        This matter was on portal and never exited the portal. However, when the files for the two minors were transferred to my firm, they were not resubmitted on the portal but merely agreed that they will be dealt within the spirit of the MOJ portal given that they were on the portal in the previous firm.

        It seems that Practice Direction 8B 1.1 (2) will apply as settlement has been agreed and due to the Claimant’s being minors we require the courts approval in accordance with rule 21.10(2)?

        When the files were transferred to us from the previous solicitors, we had to obtain further medical evidence and advice from Counsel.

        No further evidence needs to be submitted as everything has been disclosed to the other side already.

        So in this situation Stage 3 proceedings would apply?

        Thank you

        Ali

        March 14, 2017 at 9:09 am

      • As previously stated you can never resubmit anything onto either portal. Once the matter has exited that is that for all time.

        Thus the matters that you refer to remain on the portal and Practice Direction 8B and Stage 3 do indeed apply.

        Kerry

        kerryunderwood

        March 14, 2017 at 12:22 pm

      • Hi Kerry,

        Just a quick question, if we have two linked files for Stage 3 Infant Approval, do we issue the proceedings together for the Stage 3 on the same claim with one issue fee of £308.00 or would we need to have a separate claim form for each minor?

        Thank you in advance.

        Ali

        April 12, 2017 at 10:31 am

      • Ali

        This is all dealt with in my blog and the relevant case is Dilip v Paynes Dairies Ltd, case number A53YJ800, 2015, Leicester County Court, where the court held that it was appropriate for three claims arising out of a road traffic accident to be included on one claim form and to be allocated to the fast track even though only one claim form and to be allocated to the fast-track even though one claim was potentially a fast-track claim and the other two were small claims which settled for £550.00 each.

        The judge specifically stated that had the claimant used three separate forms she would have been open to an argument that there had been an unnecessary duplication of court issue fees.

        You are in the same position here.

        This is dealt with at page 159 onwards of my new three volume book – Personal Injury Small Claims, Portals and Fixed Costs, which is available from Amazon here.

        Kerry

        kerryunderwood

        April 12, 2017 at 3:23 pm

  164. Hi Kerry,

    I recently settled a PL case out of portal. I was under the impression that I was entitled to stage one and two costs, and standard basis costs from the date the case exited portal. The Defendant has said stage one and two costs do not apply on the basis damages exceeded £25k. Is this correct? If so, presumably I can claim all costs on a standard basis. Would predictive costs apply in this instance?

    Many thanks!

    David

    March 7, 2017 at 12:54 pm

    • David

      Predictive Costs only apply to RTA matters settled pre-issue for £10,000 or less which for whatever reason are not subject to Fixed Recoverable Costs. As this is a Public Liability claim for in excess of £25,000 it can have no application.
      You refer to the matter exiting the portal, so I assume it was on the portal. Any ex-portal claim is subject to Fixed Recoverable Costs unless allocated to the multi-track – see Qader and Rule 8 of the Civil Procedure (Amendment) Rules 2017.Thus Fixed Recoverable Costs apply but you must always give credit against FRC for Stage 1 and 2 costs, which should have been paid already.

      I deal with all of this in my Personal Injury Reforms course which I am presenting on 11 occasions in May and June. You can book by clicking on the link http://underwoods-solicitors.co.uk/personal-injury-reform-course.htm

      This is all also dealt with in my new book Personal Injury Small Claims, Portals and Fixed Costs will be out in March. This is three volumes and over 1,400 pages. Details are set out at this link http://www.underwoods-solicitors.co.uk/book-kerry-underwood.htm

      kerryunderwood

      March 13, 2017 at 1:31 pm

  165. Hi Kerry,

    I was wondering if you could assist with the following:

    For continuing loss of wages how is interest claimed from the date of the accident to the trial date?

    And how is interest claimed for a one-off loss?

    Various answers to this out there so would appreciate the clarification.

    Thank you

    Ali

    March 7, 2017 at 2:03 pm

    • Ali

      In exactly the same way as in a case outside the portal/fixed costs process. There are no special rules relating to interest on damages in the portal process.

      Kerry

      kerryunderwood

      March 13, 2017 at 5:16 pm

      • Thank you Kerry.

        Another query if you do not mind, for a fast track cost matter. If the matter was settled post-listing (pre-trial checklist sent to the court along with the hearing fee) but settled prior to trial, are the £2655 costs applicable?

        The third party are arguing this is not the case as no trail date was fixed?

        Thank you

        Ali

        March 20, 2017 at 1:53 pm

      • Ali

        I don’t really understand the question. The test in CPR 45.29C is whether the case was settled “on or after the date of listing but prior to the date of trial”. How can it be post-listing if there is no trial date, or at least a trial window? In those circumstances there has been no “listing”, whatever other directions are given.

        Date for filing pre-trial checklist cannot be more than 8 weeks before trial date or beginning of trial window (CPR 28.5(2)) – fast-track rule, so if you can let me know what has happened I can advise further.

        Kerry

        kerryunderwood

        March 21, 2017 at 5:03 pm

      • Hi Kerry,

        It’s my fault I actually over complicated the question when in fact it’s quite simple. It’s a fast track matter, the listing questionnaire was sent to the court, however, before they arranged a trial date, the claim was settled. So in accordance to the fixed recoverable costs, which costs would apply. Would they be the post allocation/pre listing or the post listing/pre trial costs?

        Thank you

        Ali

        March 22, 2017 at 8:59 am

  166. Kerry or anybody else, would you be able to direct me on the following, I have a PL portal case on which I forwarded the Court proceedings pack to the Defendant insurers and they have agreed the same, I am now ready to send off the Part 8 claim form to request the Stage 3 hearing – but my client has had a change of mind. But if we now accept the Defendant’s final offer from the 35 day consideration period does the Claimant have to pay the Defendant costs being an amount equivalent to the Stage 3 Type A fixed costs i.e. £250 plus Vat, I ask as CPR 45.23A only refers to costs the defendant has to pay and also only where the settlement is more than the Defendant protocol offer?

    Thank you.
    Peter

    Peter

    March 20, 2017 at 11:18 am

    • Peter

      I do not fully follow what has happened.

      If a claimant fails to beat a defendant’s Part 36 offer then the claimant does indeed have to pay the defendant’s stage 3 costs and the formula is (stage 1 + stage 2) – (stage 3).

      Later acceptance within the portal process does not trigger Part 36 penalties.

      In any event under paragraph 7.33 of the EL/PL portal the total consideration period can be extended by the parties agreeing to extend either the initial consideration period or the negotiation period or both.

      Thus you are free to agree with the defendant that the period be extended and then accepts within the period.

      As there is no penalty on you for accepting late, then the defendant should have no objection.

      This is the best way of proceeding as you do not have the right to accept after the end of the 35 day period.

      An alternative is to make a Part 36 offer equal to the sum of the defendant’s final offer as there is no penalty on a defendant within the portal process under Part 36 of the Civil Procedure Rules, whatever happens.

      Part 36 envisages three scenarios in relation to costs consequences following a stage 3 hearing:-
      – where the claimant fails to beat the defendant’s portal offer then the claimant must pay the defendant’s stage 3 costs as well as not recovering its own stage 3 costs; thus the claimant’s costs are stage 1 and 2 minus stage 3.

      – where the claimant beats the defendant’s offer but does not match its own offer then the defendant pays damages and stage 3 costs in the usual way;

      – where the claimant beats the defendant’s offer and matches or beats its own offer then the defendant pays:

       the claimant’s stage 3 costs;

       interest on those stage 3 costs at a rate not exceeding 10% above base rate;

       10% additional damages;

       interest on all damages at a rate not exceeding 10% above base rate running from the first business day after the court proceedings pack (Part A and Part B) was sent to the defendant.

      In each case the claimant’s damages are the damages awarded net of deductible state benefits.
      Although Broadhurst v Tan & Taylor v Smith [2016] EWCA Civ 94 established that a claimant matching or beating its own Part 36 offer in a fixed costs case is entitled to indemnity costs, there is no such provision in relation to stage 3 of the portal.

      Thus if a matter is concluded within stage 2 of the portal process there are no Part 36 consequences and if the matter is concluded within stage 3 of the portal process then there are limited Part 36 consequences as set out above.

      This is all dealt with extensively in my new three volume book – Personal Injury Small Claims, Portals and Fixed Costs which can be ordered direct from me at kerry.underwood@lawabroad.co.uk or from Amazon by clicking here.

      Kerry

      kerryunderwood

      April 7, 2017 at 3:16 pm

  167. Ali

    If it had not been listed, then it is pre-listing. If it had been listed – and it does not sound as though it had been – then post-listing, pre-trial.

    Kerry

    kerryunderwood

    March 22, 2017 at 2:06 pm

  168. Hi Kerry,

    Thanks for maintaining this site and it’s still as great as ever.

    I was wondering if you could clarify something for me. I have a minor RTA claim with the accident date being July 2015. The claim went onto the portal but left as the Defendant was investigating liability. Liability was later admitted. Medical evidence was arranged and the Defendant put forward an offer of settlement of £2,000. Counsel’s advice was sought and settlement was reached in the sum of £2,500. Part 8 proceedings were issued for the Infant Approval Hearing. The Court wouldn’t agree the damages at the IAH at £2,500 and valued the claim at £3,000. The parties then agreed damages at £3,000 which was then approved by a further IAH. Counsel attended both Infant Approval Hearings and I was of the opinion that according to CPR 45.21 Stage 3 type A, B and C would apply and would type B apply twice?

    The Defendant are refusing to pay for the Counsel fees attending to the IAH and refer to Dockerill v Tullett.

    Does it make any difference that the claim is no longer in the portal?

    I would appreciate your advice?

    Many thanks in advance.

    Kind regards

    Neil

    Neil

    March 24, 2017 at 3:31 pm

    • Hi Kerry,

      Sorry, but was wondering, if you have been able to consider the above.

      Many thanks

      Neil

      Neil

      April 7, 2017 at 10:01 am

    • Neil

      Thank you for your kind comment.

      I realise that the matter was not resolved within the portal but thought it would be helpful to set out the whole picture.

      Where settlement is approved at the first settlement hearing within stage 2 then the costs payable are:

      – stage 1 and stage 2 fixed costs;

      – stage 3, type A, B and C fixed costs;

      – disbursements as per CPR 45.19.

      If a settlement is not approved at the first settlement hearing then only stage 1 and stage 2 fixed costs are payable.

      If the settlement is approved at the second settlement hearing then one set of stage 3, type A, B and C fixed costs are payable and of course stage 1 and stage 2 fixed costs will have been ordered at the first settlement hearing.

      Thus where a matter is approved at a second settlement hearing the starting point is that the claimant gets no extra costs, but does not lose costs for failure to get the right figure at the first settlement hearing.

      However the court has the discretion to order:

      – the defendant to pay an extra set of type A and/or type B fixed costs; or

      – the claimant to pay type A and/or type B fixed costs.

      Type A costs are preparation for the hearing and type B costs are for the advocacy.

      Type C costs are costs of the advice.

      Thus only one set of advice costs is ever recoverable, even if there has been an additional advice.

      The court has no discretion to award more than one advice fee.

      I do not understand the reference to stage 3, as that is part of the portal process, albeit that it involves issuing Part 8 proceedings.

      If the matter left the portal then it cannot be subject to the stage 3 procedure and a matter that has left the portal cannot re-enter the portal.

      Being an ex-portal claim not allocated the multi-track, fixed recoverable costs apply and CPR 45.21(2) provides that where the court approves the settlement at a settlement hearing the defendant shall pay type C costs of £150.00 plus VAT as well as other costs and disbursements.

      As the matter settled outside the portal then CPR 45.29C table 6B applies.

      That provides that fixed costs shall be the greater of £550.00 or the total of £100.00 and 20% of the damages.

      By my calculations on a settlement of £3,000.00 the appropriate figure is £700.00 being £100.00 plus 20% of the damages (£600.00) giving a total of £700.00.

      In my view the defendant is correct in stating that it is not liable for the fees of counsel for attending the Infant Approval Hearing.

      The reference to Dockerill v Tullett is a reference to the fact that there the Court of Appeal recognised that the inability to charge a child costs out of its damages may well lead to solicitors not acting for children.

      The Fixed Costs Regime for a claim that settles post issue is dealt with in CPR 45.29C, Table 6B but that specifically refers to proceedings being issued under Part 7.

      Thus the issuing of proceedings under Part 8 for an Infant Approval Hearing does not trigger the higher fixed costs of £1,160.00 plus 20% of the damages.

      This is all dealt with extensively in my new three volume book – Personal Injury Small Claims, Portals and Fixed Costs which can be ordered direct from me at kerry.underwood@lawabroad.co.uk or from Amazon by clicking here.

      Kerry

      kerryunderwood

      April 7, 2017 at 4:05 pm

      • Sorry for the late response, but thank you very much for the detailed reply. Keep up the great work :-).

        Neil

        Neil

        May 2, 2017 at 12:55 pm

      • Pleasure – and thanks for your kind comment.
        Kerry

        kerryunderwood

        May 9, 2017 at 1:36 pm

  169. Hello,
    We have a case where the Defendant’s Solicitors have agreed to pay the fixed costs and agreed the non fixed disbursements.
    If I were looking to issue ‘enforcement’ proceedings would the named Defendant on the proceedings be the Defendant or would the Defendants Solicitors be named for what would be ‘breach of contract’

    Ian D.

    April 6, 2017 at 11:34 am

    • Welcome to the legal `profession’ 2017!

      Pro Bono

      April 6, 2017 at 12:00 pm

    • Ian

      The named defendant – otherwise you would need to get a Wasted Costs Order. Solicitors are just that – they are not parties.

      Kerry

      kerryunderwood

      April 6, 2017 at 4:23 pm

  170. Good afternoon Kerry,

    I really hope you are able to assist with this query. I received a transferred file of papers, the RTA matter was an admitted MOJ portal matter.

    Before the file being transferred to me, the previous solicitors did not submit the Stage 2 (upon which they would received the Stage 1 costs of £240.00)

    So the only thing they incurred were disbursements.

    Our firm preserved a lien for their costs; however, technically they did not incur any costs as the matter was subject to MOJ portal costs and they did not even submit the Stage 2 pack upon which the first payment would have been made?

    We have now settled the matter but the issue of costs remains at dispute with the previous solicitors who argue that they are entitled to Stage 1 costs of £240?

    I look forward to hearing from you.

    Ali

    April 27, 2017 at 1:30 pm

    • I have a similar case but the previous solicitors want more than the £240.

      Personally I consider getting the matter to an admission entitles them to at least the £240.

      Darren Fletcher

      April 27, 2017 at 2:10 pm

      • Hi Darren,

        Yes I do see where you are coming from.

        Thanks for your help.

        Ali

        April 27, 2017 at 2:19 pm

      • I agree. Thanks for commenting😄
        Kerry

        kerryunderwood

        April 28, 2017 at 12:00 am

    • Ali

      They are entitled to the Stage 1 costs.

      Kerry

      kerryunderwood

      April 27, 2017 at 11:59 pm

  171. Hi Kerry

    I have a matter where the Defendant averred that fixed costs applied, and not FRC, as the matter did not properly exit the Portal. The Claimant did not agree with the Defendant’s position, settlement of the Claimant’s costs could not be agreed and a Bill of Costs was thereafter prepared in relation to the claimed FRC.

    The matter eventually went to provisional assessment where the DJ found that the Claimant did in fact properly exit the Portal and the Defendant’s case was rejected in its entirety.

    The Claimant’s Bill of Costs was provisionally assessed, the Claimant’s FRC were allowed as claimed and amounts were also allowed for checking and preparing the Claimant’s Bill of Costs plus VAT. The parties were ordered to agree the assessed totals, inform the Court of the same within 21 days and advise as to who is to pay the costs of provisional assessment having regard to any offers made. The Receiving Party’s costs of the PA were assessed at £700.00 (plus VAT and disbursements).

    Both parties were in agreement as to the amount of the assessed Bill. It was clear that the Claimant’s Bill of Costs had been assessed at an amount which was higher than the Claimant’s Part 36 offer which had been made alongside the Replies.

    It would appear therefore that, on determination by the court, the Claimant has obtained judgment against the Defendant for an amount of damages that is equal to or more than the claimant’s Protocol offer.

    Despite the Court assessing the Receiving Party’s costs of the PA at £700.00 (plus VAT and disbursements), is the Court required by the CPR to order that the Claimant is entitled to interest on any sum of money awarded, costs on the indemnity basis, interest thereon and an additional amount at 10% of any sum awarded (as per Lowin -v- W Portsmouth Co and Broadhurst -v- Tan)?

    Does CPR 36.17 (1) (b) apply here and does the Court have to make an order pursuant to CPR 36.17 (4) (a) – (d)?

    Or is it CPR 36.29 (1) (c) which applies and the Court must make an order pursuant to CPR 36.29 (4)?

    Or does some other part of the CPR in fact apply here?

    I hope you can help out and provide some clarification.

    P

    May 9, 2017 at 10:15 am

    • P

      I presume that in the first paragraph you are stating that the defendant was maintaining that portal only costs should apply as obviously FRC stands for Fixed Recoverable Costs and clearly, on any account, the costs of the original claim were fixed, either by reference to the portal or to cases which have exited the portal.

      CPR 36.29 is within Part II of the rule and that part is headed “RTA Protocol and EL/PL offers to settle.”

      CPR 36.27(b) states that a protocol offer has the consequences set out in this Section only in relation to the fixed costs of the Stage 3 procedure as provided for in rule 35.18, and not in relation to the costs of any appeal from the final decision of those proceedings.

      Thus the costs of provisional assessment cannot be the subject of CPR 36.29.

      Thus CPR 36.17 does indeed apply but the claimant has not obtained judgment against the defendant for an amount of damages that is equal to or more than the claimant’s protocol offer.

      What the claimant has done here is to achieve a more favourable judgment in respect of costs, not damages.

      CPR 47.15(5) caps the costs of provisional assessment but CPR 47.20(4) imports the provisions of Part 36 into that rule with the appropriate change in terminology, for example CPR 47.20(4)(a) provides “Claimant” refers to “receiving party” and “Defendant” refers to “paying party”.

      As you say, in Lowin v W Portsmouth & Co Ltd [2016] EWHC 2301 (QB)

      the Queen’s Bench Division of the High Court held that where a receiving party matched or beat its own Part 36 offer in provisional assessment proceedings it was entitled to costs on the indemnity basis under CPR 36.17(4) which overrode the cap of £1,500.00 plus VAT in court fees contained in CPR 47.15(5).

      Thus you are entitled to indemnity costs and the other extra.

      This is all dealt with in detail in my new book – Personal Injury Small Claims, Portals and Fixed Costs – three volumes for a total of £80.00 and available from me by clicking here or from Amazon.

      I am also running a series of courses which includes a detailed account of Part 36 and all other portal and fixed costs related matters and those can be booked here.

      Kerry

      kerryunderwood

      May 11, 2017 at 10:32 am

  172. Dear Kerry

    I have a query regarding a matter which was proceeding through Stage 2.

    The Claimant had originally been dealing directly with the insurance company but then came to me to assess the value of the claim. I believed that the claim was worth more than they were offering and they therefore became a client and we submitted the medical report obtained through the Defendant’s insurers on the Portal with an offer.

    The Defendant’s insurers would not increase to a level which I considered reasonable and I therefore met with the client who only at that stage advised that they were not recovering in accordance with the prognosis.

    I therefore notified the Defendant’s insurers via email that we required an interim payment for further physiotherapy and that we would be obtaining a further report. At the end of the 10 working days, although in essence it was much longer than this as I gave them plenty of leeway, I advised them that I was exiting the Portal and did so.

    They are stating that I exited the Portal after the 35 day negotiation period, without having agreed an extension, and that therefore this matter should have remained in the Portal and that I should either accept their offer on the basis of the original GP report or proceed to Stage 3. They do not agree that the Orthopaedic report can be admitted as evidence.

    Was I correct in exiting the Portal and should I have obtained further medical evidence once Stage 2 had commenced?

    I would appreciate any assistance you can provide to me in this matter.

    Kind regards

    Darren

    Darren Fletcher

    May 11, 2017 at 5:14 pm

    • Darren – this is dealt with in detail in my current series of courses- which can be booked here and it is also dealt with in even more detail in my 1,300 three volume new book- Personal Injury Small Claims, Portals and Fixed Costs available from Amazon here at £80.

      I note that you have not booked on a course or ordered the book. Once you do so I will happily answer the query.

      Kerry

      kerryunderwood

      May 22, 2017 at 3:16 pm

      • Thanks Kerry. My colleague from this firm attended your course in Birmingham on Wednesday 10 May if that oils the wheels? :O)

        Darren Fletcher

        May 23, 2017 at 4:25 pm

      • Yes of course! 😄. I will reply in detail in due course.
        Kerry

        kerryunderwood

        May 24, 2017 at 11:17 am

      • Darren

        There is insufficient information for me to advise fully.

        Did you submit a Stage 2 Settlement Pack?

        Did you withdraw your offer?

        Paragraph 7.46 of the RTA Portal provides:

        “7.46 Where a party withdraws an offer made in the Stage 2 Settlement Pack form after the total consideration period or further consideration period, the claim will no longer continue under this Protocol and the claimant may start proceedings under Part 7 of the CPR.”

        It appears from your comment that you did indeed exit the portal after the total consideration period, without any extension having been agreed, and, provided that you withdrew your offer, then paragraph 7.46 allows you to exit the portal and you neither have to accept the defendant’s offer, nor proceed to Stage 3.

        However, it is not clear to me, whether you did in fact withdraw your offer.

        I presume that you have now issued Part 7 proceedings. On the face of it there is no restriction on medical evidence that may be adduced in Part 7 proceedings, and I am unaware of any authority on this point.

        Paragraph 7.33 provides:

        “7.33 The claimant should send the Stage 2 Settlement Pack to the defendant within 15 days of the claimant approving —

        (1) the final medical report and agreeing to rely on the prognosis in that report; or

        (2) any non-medical expert report,

        whichever is later.”

        I presume that a Stage 2 Settlement Pack was served, otherwise reference to the 35 day negotiation period is meaningless. In fact it is a total consideration period and the first 15 days are for consideration and the remainder is for negotiations.

        Obviously you must never serve the Stage 2 Settlement Pack unless the claimant has approved the final medical report.

        I am somewhat concerned at your statement:

        “The Defendant’s insurers would not increase to a level which I considered reasonable and I therefore met with the client who only at that stage advices that they were not recovering in accordance with the prognosis.”

        Had you met the client before? Had the client agreed the report that was submitted as part of the Stage 2 Settlement Pack? Had the client realised that that was meant to be the final medical report?

        The starting point is that no fresh evidence can be produced at Stage 3, but as stated above there is no authority on whether evidence which would have been prohibited in Stage 3 is allowed under Part 7.

        Having said that, on the assumption that you have now issued Part 7 proceedings, it is a matter for the court as to whether the orthopaedic report should be admitted as evidence, and the starting point is that it should.

        If you can supply me with more information then I will try and assist further.

        All of this is dealt with in great detail in my new three volume, 1,300 page book – Personal Injury Small Claims, Portals and Fixed Costs available from Amazon here.

        Kerry

        kerryunderwood

        June 1, 2017 at 12:15 pm

      • Morning Kerry,

        I did submit a Stage 2 Settlement pack, but I have not withdrawn the offer and nor have I issued yet.

        The client is the daughter of a friend so we have met, but at that stage she wanted to get on with it and settle so she could go on holiday, it only later when she wasn’t recovering in accordance with the prognosis period that we decided to get further medical evidence.

        I trust this clarifies.

        Kind regards

        Darren

        Fletcher, Darren

        July 10, 2017 at 11:59 am

      • Hi Kerry,

        To clarify, I did submit a Stage II Settlement Pack but I didn’t withdraw the offer.

        We have not issued Part 7 yet.

        I did meet the claimant, I know her in a personal capacity, and she came in and agreed the initial GP report but did not want to wait for the prognosis period to end.

        She wanted to settle and it was at a later meeting that she then said that she wasn’t recovered (we were then past the prognosis period) and we discussed obtaining updated evidence as recommended by the GP.

        The TPI’s offer was too low for the GP report in my view, so she agreed to getting an updated report and rather than withdraw the offer we left it on hold on our side of the Portal and obtained an Ortho report.

        I contacted the TPI at this stage and said that as the prognosis period was over and she had not recovered we were obtaining an updated report, I also asked for an interim of £1,000.

        It was well past the 10 day period for the interim payment when I gave notice that we were leaving the Portal.

        I hope that clarifies.

        Thanks for all your help.

        Darren

        Darren Fletcher

        June 12, 2017 at 4:05 pm

      • Hi Darren

        I apologise for the delay in getting back to you.

        As the matter is now out of the portal in any event, for whatever reason, I advise you to issue Part 7 proceedings and the Particulars of Claim can deal with all medical evidence and all medical reports can be served.

        If you have not already done so, then I advise that a Part 36 offer be made in relation to liability.

        If you are now in a position to value quantum, then I advise that a Part 36 offer be made to resolve the whole claim.

        I advise that, if you have not done so already, you offer to have the matter subject to judicial mediation and any other appropriate form of Alternate Dispute Resolution.

        All of these are good practice anyway, and in the particular circumstances of this case it will help to show that the reason for exiting the portal was that, for various reasons, your client’s claim could not be dealt with satisfactorily within the portal process and that that is the reason that you are exiting and not to seek the higher costs outside the portal process.

        The rules in relation to interim payments are somewhat complicated.

        Here, I refer to the relevant paragraphs of the RTA portal.

        Paragraph 7.13 provides that where the Claimant requests an interim payment of £1,000.00, the Defendant should make an interim payment to the Claimant in accordance with paragraph 7.18.

        As I understand it, you did request an interim payment of £1,000.00 and I presume that you complied with the requirements of paragraph 7.14 and 7.15 to send an Interim Settlement Pack including the initial medical reports and also sending evidence of pecuniary loss and disbursements.

        I am assuming that that is the case, and if so paragraph 7.18 provides that the Defendant must pay £1,000.00 within 10 days of receiving the Interim Settlement Pack.

        Paragraph 7.28 provides that where the Defendant does not comply with paragraphs 7.18 or 7.19, the Claimant may start proceedings under Part 7 of the Civil Procedure Rules and apply to the court for an interim payment in those proceedings.

        Thus if that is the case here, and although paragraph 7.28 refers to obtaining an interim payment in the Part 7 proceedings, it is clear that once Part 7 proceedings have been issued the matter is before the court in the conventional way.

        It is also clear that once a matter has exited the portal it cannot go back.

        Your potential problem arises from paragraph 7.30 which reads:

        “Where paragraph 7.28 or 7.29 applies the claimant must give notice to the defendant that the claim will no longer continue under this Protocol. Unless the claimant’s notice is sent to the defendant within 10 days after the expiry of the period in paragraphs 7.18, 7.19 or 7.25 as appropriate, the claim will continue under this Protocol.”

        Paragraph 7.28 applies here and I understand that you have given notice that the claim would no longer continue under the protocol.

        You do not say when you give that notice and you will see that the second sentence of paragraph 7.30 requires that unless you serve the notice on the Defendant within 10 days after the expiry of the period in 7.18 etc., the claim will continue under the Protocol.

        The reason for that is to prevent a Claimant being able to hold such an issue over the Defendant throughout the life of the matter in the portal.

        If you did indeed serve notice within 10 days after the interim payment was due, then you cannot be criticized for exiting the portal.

        However, if you did not serve the notice within that time period, then the claim should have continued under the protocol as per paragraph 7.30, and you risk receiving only portal costs and you also risk having to pay the Defendant’s costs of the Part 7 proceedings, or work outside the portal.

        All of this is dealt with in great detail in my book, which includes all of the relevant case law.

        Clearly you are entitled to issue Part 7 proceedings and the potential punishment is in costs, but I believe that a genuine offer to settle and mediate, as set out above, makes any such punishment less likely.

        Obviously if a Part 36 offer is accepted, then the matter is over and the issue of costs being paid to the Defendant will not arise; the only issue will be whether you should get portal costs or fixed costs to the stage that the matter settles.

        As I said in my original answer there is no authority on whether evidence which would have been prohibited in Stage 3 is allowed once Part 7 proceedings have been issued.

        In my view the court has a discretion and my feeling in a case such as this is that they would exercise that discretion to allow the additional medical evidence in.

        I hope that this helps, but they are matters of considerable complexity.

        Kerry

        kerryunderwood

        July 11, 2017 at 5:39 pm

      • Thank you Kerry, much appreciated.

        Darren

        Darren Fletcher

        July 18, 2017 at 11:02 am

  173. Hi Kerry,

    I was wondering if you could help with the following predicament.

    Admitted RTA on portal for minor. Settled at Stage 2 and the matter went ahead for Stage 3 infant approval. At the infant approval, when the judge asked the minor (about 14 years of age) if she has fully recovered, she decided to at that stage advise the judge that she is still scared to travel and sit in cars and prefers to walk. Even though, we spoke to the client and the litigation friend during settlement where they confirmed that she has recovered. Anyway, the GP ordered for the client to be assessed by a psychologist and the report to be sent to counsel to value again.

    We have got the client examined by a child psychologist and she is currently undergoing treatment.

    The issue is Kerry, at stage 2 we agreed one figure, however, now with the addition of her new psychological report her injuries will be valued higher by counsel. So the third party despite having a figure previously agreed will have to increase their offer to match the counsels valuation? Is this correct? And they will also be liable for the further disbursements?

    Thank you in advance Kerry.

    Ali

    June 5, 2017 at 2:51 pm

    • Hi Kerry,

      I would really appreciate your assistance on this matter.

      Thank you in advance.

      Ali

      June 16, 2017 at 3:58 pm

      • Ali

        Please confirm that you have purchased my new book – Personal Injury Small Claims, Portals and Fixed Costs – and I will point you to the relevant page numbers.

        Don’t think you attended any of the courses where I cover all of these matters – still three left in Manchester, Liverpool and Cardiff. Childrens’ matters are covered in some detail.

        Kerry

        kerryunderwood

        June 16, 2017 at 4:08 pm

      • Kerry,

        My colleague attended your course in Manchester on 17th May 2017. Unfortunately due to being abroad I could not attend and will not be able to attend the one on 28th June due to other extenuating circumstances.

        Does this warrant your assistance at all?

        Thank you

        Ali

        June 19, 2017 at 1:36 pm

      • Ali

        Yes it does 😄 I will reply shortly.

        Kerry

        kerryunderwood

        June 21, 2017 at 7:22 pm

      • Ali

        This is all dealt with in pages 811 to 829 of my book – Personal Injury Small Claims, Portals and Fixed Costs, available from Amazon for £80.00 here and from me for the same price here.

        As you will be aware parties are not free to agree damages in respect of a child – the matter must always go to court without any exceptions whatsoever.

        If settlement is not approved at a first settlement hearing under the Part 8 Stage 3 procedure, then only Stage 1 and Stage 2 fixed costs are payable.

        The third party is never under any duty to increase its offer and it is simply not the case that a third party has to pay whatever the Claimant’s barrister values the matter at.

        The third party will of course have to pay whatever the court orders.

        If in fact settlement can be agreed then on the second settlement hearing then one set of Stage 3 Type A, B and C fixed costs are payable.

        As you will see from the above Stage 1 and Stage 2 fixed costs will have been ordered at the first settlement hearing where settlement was not approved.

        Thus, where a matter is approved at a second settlement hearing, the starting point is that the claimant gets no extra costs, but does not lose costs for failure to get the figure right at the first settlement hearing.

        However the court has a discretion to order:

        – The Defendant to pay an extra set of Type A and/or Type B fixed costs;

        or

        – the Claimant to pay Type A and/or Type B fixed costs.

        Type A costs are preparation for the hearing and Type B costs of the advocacy.

        Type C costs are costs of the advice.

        Thus only one set of advice costs is ever recoverable, even if there has been an additional advice. The court has no discretion to award more than one advice fee.

        Thus the starting point is that you will get no extra costs for having two, rather than one, settlement hearings but also the starting point is that you will not be ordered to pay costs for getting it wrong at the first hearing.

        However, as set out above, the court has the discretion to order either party to pay additional costs.

        Disbursements are dealt with separately and, provided to the court agrees that they are reasonable, the Defendant will indeed be liable for them.

        I strongly advise you to buy a copy of my book.

        Kerry

        kerryunderwood

        June 30, 2017 at 7:35 am

  174. Hi Kerry,

    I trust all is well. Thanks again for a really good course in Manchester on May 17th. It was very informative and useful.

    I would be grateful if you could help with a quick query. I have case whereby our opponents are arguing that hire charges are not recoverable on the basis that the Claimant’s road tax for his own vehicle had expired and he was therefore driving without tax. The Claimant did however have insurance in place at the time of accident. Is there any requirement that has been breached which our opponents are likely to refer to?

    Many thanks,

    Paul.

    Paul Brennan

    June 14, 2017 at 10:17 am

  175. Paul

    Thanks- my pleasure. Not an expert on hire charges, but I cannot see the relevance of the defendant’s point. Your client has suffered a loss as a result of the defendant’s negligence. I cannot see that not having road tax taints the claim.

    I am unaware of any case on the point, but as stated above, I am not an expert in this field.

    Kerry

    kerryunderwood

    June 14, 2017 at 10:24 am

    • Many thanks for your help. I have also been unable to find cases on this point too. All the best. Paul

      Paul

      June 14, 2017 at 10:28 am

      • Please let me know if you find anything and please let me know the outcome.
        Many thanks-
        Kerry

        kerryunderwood

        June 14, 2017 at 10:30 am

  176. Butting in rudely! I guess their argument is a causation one ie that because your client was unable lawfully to drive his vehicle on the road regardless of the accident he would have been forced to make other arrangements such as hire and so that cost has not been caused by the accident- in other words the costs of not having his own vehicle were not caused by the accident. If he was unable to afford the road tax because of the losses he sustained in the accident that would I think be an answer to avoid their argument (impecuniosity no longer such a problem for claimants).
    m

    Maggie

    June 14, 2017 at 10:41 am

    • Maggie

      Butting ins always welcome! Surely the fact that the claimant could have cured the problem simply by paying the road tax defeats the defendant’s argument.

      The logic of any other view is that a catastrophically injured claimant would be denied future travelling costs on the same basis, ie that it was the lack of road tax, not the injuries, which led to the inability to drive.

      Kerry

      kerryunderwood

      June 14, 2017 at 10:45 am

      • Hi I think a court might ask ‘why was the road tax not paid?’. If the reason was unconnected to the accident eg the claimant had put his vehicle off the road prior to and or for reasons other than the accident then the def would try to argue that the costs of hiring were caused by reasons other than the accident or in other words that the claimant would have suffered those costs regardless of his accident. A catastrophically injured claimant is unable to drive any vehicle because of the accident/injuries caused so the argument won’t work in those circs. ie his taxi and other costs are directly the result of his injuries/the accident.
        There might be some case law but I think it would be around causation issue rather than hire/road tax.
        Just a view!
        m

        Maggie

        June 14, 2017 at 11:17 am

  177. That is a different issue- it would be the same if the claimant had chosen not to drive for any reason, whether or not the tax had been paid. As I understand it there are no unusual facts save that the road tax had not been paid.

    Kerry

    kerryunderwood

    June 14, 2017 at 5:00 pm

    • So, it seems the claimant intended to continue using his car on the road although not paying the road tax. The hire costs must always be shown to have been reasonable step to take in the particular circs of the claimant. The best response may be to say that the cost of hire (special damages) simply replicates damages claimed for loss of use (general damages); that the vehicle was being used albeit unlawfully and the claimant intended to continue thus so he is entitled to seek a reasonable cost of hire to equate to that loss of use ie along the lines of Lagden v O’Connor. The law on illegality has recently softened so less likely a good defence in my view. Easiest course might be to put the insurer on the spot to ask for the legal basis of their rejection of that head of claim of course.
      m

      Maggie

      June 14, 2017 at 8:53 pm

  178. HI Kerry

    If you have a portal claim but client dies during the claim and is then represented by their personal representative does this mean fixed costs still apply to all the costs? I note if the client had died and was represented by their personal representative from the start it would usually mean exclusion from the portal but what if this happens when already in portal and client dies half way through claim? Does fixed costs still apply ?
    many thanks

    Bee

    June 16, 2017 at 8:50 am

    • Bee

      Dealt with at page 444 onwards of the book. My view is that in such circumstances a case does exit the portal, although it is not entirely clear.
      An ex-portal claim unallocated to the multi-track, unless an industrial disease claim, remains subject to fixed costs – see Qader, and also page 1020 onwards of the book.
      Kerry

      kerryunderwood

      June 16, 2017 at 2:57 pm

  179. Hi Kerry,

    Sorry, me again, but a quick one.

    There is no remedy for a failure by the defendant to pay the settlement monies within 10 days of the agreed settlement, including Stage 2 fixed costs.

    I had a Stage 3 hearing that we won and I send the Judgment (handwritten incidentally as the Court wanted to save time and money) to the defs on 1/12/16.

    After some chasing the first payment was received on 11/1/17, approximately 24 working days later. I had by this time requested fixed costs due to the delay.

    Some 6 months later they finally sent the file to a local firm (to us) of costs assessors and I have been quoted Coggon v Irvine, they offer Portal costs only.

    The description in Coggon was that they were marginally late and that the Cl immediately issued Part 7 as if agreement had not been reached.

    Is there any mileage in taking this further or should I just take the Portal costs please?

    Thanks for any help.

    Darren

    Darren Fletcher

    July 18, 2017 at 11:01 am

    • Darren

      There is a remedy for failure by the Defendant to pay the settlement monies, including Stage 2 Fixed Costs, and that is to issue substantive proceedings in contract, that is to sue, and I would expect a court to award you indemnity costs in those circumstances.

      I do not fully understand the situation here.

      Did the matter exit the portal? It is hard to see how it could have if it went to a Stage 3 trial and you won. If so, there can be no further court process.

      You have issued proceedings and they have been concluded by a Judgment. The matter is Res Judicata, and you are in no different position as compared with any other judgment creditor, who has an unsatisfied judgment due from a judgment debtor.

      You refer to asking for Fixed Costs, but I do not understand what those Fixed Costs are.

      Unless the matter has exited the portal then the appropriate costs are those fixed by CPR 45.18, that is portal costs.

      CPR 45.29 allows an application to be made where all matters have been agreed except the amount of costs, but that does not appear to be the position here.

      The substantive part of the Fixed Costs Regime in relation to ex-portal matters starts at CPR 45.29A and that whole section is headed up:

      “Section IIIA: Claims which no longer continue under the RTA or EL/PL Pre-Action Protocols – Fixed Recoverable Costs.”

      CPR 45.29A(1) provides that this section applies where a claim is started under either of the protocols “but no longer continues under the relevant protocol or the Stage 3 Procedure in Practice Direction 8B.”

      CPR 45.29A(3) excepts from the provisions of CPR 45.29A a CPR 45.24 order, but such an order can only be made in favour of a Defendant, and not a Claimant.

      This is all dealt with in detail in my book. I cannot remember whether or not you got it – but you can order it here.

      Kerry

      kerryunderwood

      July 20, 2017 at 8:39 am

      • Hi Kerry,

        I probably complicated matters by mentioning Stage 2.

        This case went to a Stage 3 paper hearing and we won.

        The Judgment was received from the Court and emailed to the defendant’s sols the same day.

        After 10 working days we had not received any payment so I emailed to say that I was now claiming Fixed Costs instead of Portal costs.

        Most of the payment was received by the 24th day.

        I have been chasing for the remainder and was advised last week by the def’s costs assessors that they do not owe fixed recoverable costs for not paying within 10 working days. They quoted Coggon v Irvine.

        So my question is whether I have any chance of getting FRCs for not paying a Portal Judgment within 10 days.

        Thank you

        Darren

        Darren Fletcher

        July 24, 2017 at 2:08 pm

  180. Darren

    But what fixed costs? The portal costs ARE fixed costs under CPR 45.19, so you’re remedy is enforcement.

    You won at trial – you cannot re-litigate the matter.

    It is no different from any other judgment of the court.

    Kerry

    kerryunderwood

    July 24, 2017 at 2:20 pm

  181. Hi Kerry,

    I would be be very grateful if you could please clarify:

    With regards to low value RTA whiplash claims, I understand the position to be that claims are presented through the portal system and if liability is accepted then medical experts must be selected by doing a search on the MedCo system.

    What is the position where liability is not accepted and the matter exits the portal? Do we still need to select the first medical expert by conducting a search through Medco or can we instruct an expert and not utilise the service of Medco?

    I note that the Pre-action protocol for Low value Personal injury Claims in RTA brought in two important procedural changes:

    1. In respect of any CNF sent on or after 6 April 2015 the first report in a soft tissue injury claim must be a fixed cost medical report commissioned from a medical expert or MRO sourced via MedCo.
    2. With effect from 6 April 2016 medical experts must be accredited by MedCo in order to provide the initial fixed cost medical report in soft tissue injury claims.

    I note that from reviewing the CPR, it appears that, where the low value RTA claim falls out of the portal at stage 1 because liability is not admitted, the RTA protocol no longer applies; instead, the Pre-Action Protocol for Personal injury claims applies from paragraph 1.3 of that Protocol. Please see sections from the Pre-action protocol for low value claims: at Paragraph 6.15 (3) The Claim will not continue undet this Protocol where the Defendant, within the period in para 6.11 or 6.13 does not admit liability.

    Paragraph 6.17: Where paragraph 6.15 applies the claim will proceed under the Pre-Action protocol for Personal Injury Claims starting at paragraph 6.3 of that Protocol (which allows a maximum of three months for the Defendant to investigate the claim) except that where paragraphs 6.15 (4) (a) applies, the claim will proceed under paragraph 5.1 of that Protocol.

    The Protocol for personal injury claims at paragraph 1.2 claims which exit either of the low value pre-action protocols listed at para 1.1.1 (a) and (b) (“the low value protocols”) prior to stage 2 will proceed under this Protocol from the point specified in those protocols, and as set out in para 1.3.

    many thanks in advance

    Atif

    August 17, 2017 at 3:11 pm

    • Atif

      As far as I can see, you have not purchased a copy of my 1,300 page, 3 volume book – Personal Injury Small Claims, Portals and Fixed Costs- £80 inc p+p available from me here or Amazon.

      All of these matters are dealt with in that book.

      Nor have you, or anyone from your firm, as far as I can trace, been on my Personal Injury Reforms course, nor booked on to my Autumn Tour on Fixed Costs, which can be booked here.

      All of the answers are there.

      Kind regards

      Kerry

      kerryunderwood

      August 17, 2017 at 4:19 pm

      • Hi Kerry I have just purchased your book.

        In the interim I would be grateful if you could respond?

        many thanks

        Atif Ullah

        August 18, 2017 at 10:05 am

      • Thanks – will email you.

        Kerry

        kerryunderwood

        August 18, 2017 at 10:32 am

  182. Hi Kerry

    Very informative article.

    I have a slight issue with a Defendant Insurer disputing Stage 3 part A costs in a case where my client agreed an increased offer received in a Court Proceedings Pack Response.

    They are alleging that I proceeded to Stage 3 prematurely as I did not wait for the case to time out of the negotiation period on the portal before submitting the Court Proceedings Pack; and they are thus not liable to pay any Stage 3 costs. I made and received 2 offers at Stage 2 and then submitted the Court Proceeding Pack.

    Timeline is as below:

    Stage 2 pack submitted: 25/04/2017
    Stage 2 response received: 27/04/2017
    Stage 2 counter offer submitted: 27/04/2017
    Stage 2 counter offer received: 02/05/207

    Court proceedings pack submitted: 02/05/2017
    Court proceedings pack response received: 06/05/2017

    Is there any action I can take to recover outstanding costs? Or does their argument have any basis?

    Many Thanks

    Abrar

    August 17, 2017 at 3:27 pm

    • Abrar

      As far as I can see, you have not purchased a copy of my 1,300 page, 3 volume book – Personal Injury Small Claims, Portals and Fixed Costs- £80 inc p+p available from me here or Amazon.
      All of these matters are dealt with in that book.

      Nor have you, or anyone from your firm, as far as I can trace, been on my Personal Injury Reforms course, nor booked on to my Autumn Tour on Fixed Costs, which can be booked here.

      All of the answers are there.

      Kind regards

      Kerry

      kerryunderwood

      August 17, 2017 at 4:22 pm

      • Hi

        We’ve bought your book at Applebys Solicitors.

        Please can you direct me to the correct section to pursue Stage 3 Part A costs.

        Kind Regards
        Abrar

        Abrar

        August 21, 2017 at 2:12 pm

  183. Abrar

    This whole issue is dealt with at pages 509 to 759 of my book, and those pages are in Volume 2.

    I do not have anywhere near enough information to give a definitive answer.

    However the starting point is that there is a 35 day period for consideration of the Stage 2 Settlement Pack by the Defendant and this comprises a period of up to 15 days for the Defendant to consider the Stage 2 Settlement Pack and make an offer and the remainder of the total consideration period is for any further negotiations between the parties – see paragraph 7.35 of the RTA portal.

    The total consideration period of 35 days can be extended, but not shortened, by the parties agreeing to extend either the initial consideration period or the negotiation period or both – see paragraph 7.36.

    As you submitted the Stage 2 Settlement Pack on 25 April 2017, then the earliest day you have commenced Part 8 proceedings is 35 clear days later, that is, by my calculations, 31 May 2017.

    Thus on the face of it you have issued Stage 3 proceedings far too early and the Defendants are right.

    However, you do not explain why you issued so early, and nor whether the Defendant made a counteroffer, as they are obliged to do, and whether that counteroffer complied with paragraph 7.41 of the portal.

    As I understand it, but I am not clear from your comment, you made a 7.35 Settlement Pack offer on 25 April, which was acknowledged by the Defendant on 27 April, when they also made a counteroffer.

    I do not understand the reference to a counteroffer being received on 2 May when it was submitted on 27 April.

    I do not know who made the second counteroffer referred to in your comment.

    Furthermore you do not state whether the Defendant filed an Acknowledgement of Service under Practice Direction 8B paragraph 8.3, and if so, whether it disputed the court’s jurisdiction or objected to the use of the Stage 3 procedure under Practice Direction 8B 8.3(1 )(c) and/or (d).

    Where the Defendant opposes the claim because the claim has not followed the procedure set out in the relevant protocol, which appears to be the position here, then the court must dismiss the claim and you are free to start proceedings under Part 7.

    CPR 45.24 sets out the costs consequences of failing to comply with the relevant protocol and CPR 45 is set out at page 903 onwards in Volume 2 of my book.

    In fact the position here appears to be, but I am not sure from what you say, that there has been a settlement after the Court Proceedings Pack has been sent to the Defendant, but before proceedings have been issued under Stage 3 and that the settlement is more than the Defendant’s relevant protocol offer.

    If that is the case, then the fixed costs will include an additional amount equivalent to the Stage 3 type A fixed costs, that is Stage 3 costs for you as the legal representative, but no advocacy costs, there being no advocacy.

    That is governed by CPR 45.23A, as set out on page 930 of my book.

    If that is the case, then in my view you are indeed entitled to Stage 3 part A costs, and it appears from your comment that that may be the situation.

    These are matters of great complexity, but I hope that you will find all of the answers in the book and I thank you for ordering it.

    Kerry

    kerryunderwood

    August 22, 2017 at 2:09 pm

    • Hi Kerry

      Many thanks for your response.

      I’ll clarify a few points:

      -Part 8 proceedings were not commenced. My client accepted the offer made by the Defendant in their response to my Court Proceedings Pack.

      “I do not understand the reference to a counteroffer being received on 2 May when it was submitted on 27 April.”

      The following offers were made in the portal.

      Claimant Stage 2 pack submitted to Defendant: 25/04/2017
      Defendant’s response to Claimant Stage 2 pack received: 27/04/2017
      Claimant submitted 2nd Stage 2 offer to Defendant: 27/04/2017
      Defendant submits 2nd Stage 2 offer response to claimant: 02/05/207

      I then sent a Court Proceedings Pack form to the Defendant on 02/05/2017 to which they responded with an increased offer; An offer which my client accepted. Thus by increasing the offered amount, I believe I am entitled to Stage 3 Type A costs as per CPR 45.23A.

      However, the Defendant has failed to pay the sum and when I have questioned them about the same they state that their final offer (made in their Court Proceedings Pack response) was made within the time allowed for the Stage 2 negotiation period. They add that I have submitted the Court Proceedings Pack in haste and given that their offer was made within the 35 days allowed for Stage 2 negotiation, they will not be paying Stage 3 Type A Costs.

      Is there any action you would recommend taking further to the above information being provided?

      Much Appreciated.

      Abrar

      Abrar

      August 22, 2017 at 2:33 pm

      • Abrar

        Rely on CPR 45.23A, which appears to override the portal provision and, as read literally, clearly covers your case and entitles you to Stage 3 Part A costs.

        The defendant knew, or should have known, that the making of a higher offer by them post Court Proceedings Pack would lead to a liability for Stage 3 Part A costs if accepted, which it has been.

        Kerry

        kerryunderwood

        August 22, 2017 at 3:57 pm

  184. Hi Kerry,

    Hope you are well.

    Please can you assist me with the following issue:

    I have a file consisting of PI, hire and storage. Limitation is due to end 01/10/2017. However, the file is a admitted matter and is on the MOJ portal.

    I am currently awaiting for an amended report from the medical agency who seem to be taken their time delivering the same therefore I have not yet submitted the report.

    The issue is, even if I was to say submit the report this week, the third party insurers would still have their 21 working days to revert to me with offers which by that time would cross the limitation period.

    However, if I issue on this matter then given that liability is admitted there will be cost consequences in that they will not be recoverable.

    As far as I am aware, protected proceedings will need to be entered to allow us the extra four months in which time we can hope to settle the claim via MOJ portal?

    Is this correct?

    Many thanks in advance.

    Ali

    September 5, 2017 at 9:38 am

    • Issue an N208 in the Court local to the claimant, not CCMCC, and request a Stay.

      The file remains in the Portal and you get the chance to conclude.

      It is a very simple process.

      Darren Fletcher

      September 5, 2017 at 9:49 am

      • Thank you for your reply Darren, much appreciated.

        Based on what you have said I have located the below section of the Pre-Action Protocol.

        Limitation period

        5.7 Where compliance with this Protocol is not possible before the expiry of the limitation period the claimant may start proceedings and apply to the court for an order to stay (i.e. suspend) the proceedings while the parties take steps to follow this Protocol. Where proceedings are started in a case to which this paragraph applies the claimant should use the procedure set out under Part 8 in accordance with Practice Direction 8B (“the Stage 3 Procedure”).

        5.8 Where the parties are then unable to reach a settlement at the end of Stage 2 of this Protocol the claimant must, in order to proceed to Stage 3, apply to lift the stay and request directions in the existing proceedings.

        Darren, if you wouldn’t mind, what documents other than the Part 8 claim are required to be sent to the court?

        Another issue is that the hire and storage for this file is well in the excess of £30,000 so I highly doubt we will reach settlement within portal and subsequently would issue Part 7 proceedings.

        However, can I still do that once I have asked for a stay via Part 8?

        Thank you

        Ali

        September 5, 2017 at 9:58 am

      • Hi Ali,

        If you are simply issuing to preserve limitation then none, you just need to set out in the claim form why, see PD 8B.

        However, if this is realistically going to be worth over £25k you should be seriously considering exiting the Portal and issuing Part 7.

        As the current turnaround at the CCMCC is about 15 working days I wouldn’t hang around.

        Darren Fletcher

        September 5, 2017 at 2:07 pm

      • Darren thank you ever so much.

        When you say over £25,000, the injuries themselves are not valued over £25,000, merely the specials (hire and storage).

        My main issue is settling the PI before limitation so I believe for that I will have to issue for a stay and then once I have settled the PI I can then issue Part 7 for the specials since limitation is 6 years for them?

        Thanks

        Ali

        September 5, 2017 at 2:18 pm

      • I’m not so sure that hire and storage doesn’t fall foul of this:

        4.4 A claim may include vehicle related damages but these are excluded for the purposes of valuing the claim under paragraph 4.1.

        Darren Fletcher

        September 5, 2017 at 2:33 pm

      • Hi Ali and Darren

        I generally agree with everything, and it is correct that the value of vehicle related damages does not form part of the calculation of the valuation for portal purposes.

        Thus, to take an extreme example, a claim where the injuries are say £1,500.00 and the vehicle related damages are £100,000.00, is still a portal claim.

        The other point to note is that all claims must be brought together, and failure to do so is an abuse of process leading to the matter being struck out.

        Thus if you issued for general damages, and then sought to bring a special damages claim separately, then the claim will be struck out.

        This has been the law since at least as early as the decision in

        Henderson v Henderson (1843) 3 Hare 100, 67 ER 313.

        Kerry

        kerryunderwood

        September 13, 2017 at 4:38 pm

  185. Hi Kerry and all,

    I was wondering if you are able to shed some light on this matter.

    I issued Part 7 proceedings against a polish insurance company under the European Communities Regulations 2002. However, the third party solicitors have advised that there is no such claim against the third party insurance as the third party vehicle is not registered in the UK and therefore no direct action exists against them.

    Do I now need to amend the pleadings to substitute the Defendant from the insurance company to the driver of the third party vehicle (who is also based in Poland).

    It’s a tricky situation.

    Any help would be greatly appreciated.

    Thank you

    Ali

    September 8, 2017 at 4:09 pm

  186. Ali

    Not my field at all I am afraid.

    Kerry

    kerryunderwood

    September 8, 2017 at