Kerry Underwood

IS A £1 MILLION EX-PORTAL CLAIM SUBJECT TO FIXED COSTS?

with 27 comments


Before any claim is placed on any portal a senior lawyer should review it. Here are some reasons why. Non personal injury lawyers need to start getting to grips with portal and fixed costs concepts, which are not always straightforward.

A claim is placed on the portal and it subsequently becomes apparent that damages on a full liability basis exceed £25,000.00 but contributory negligence is almost bound to reduce it below that sum. Let us assume that it becomes apparent that the claim is £48,000.00 on a full liability basis but there is likely to be a finding of 50% contributory negligence.

By paragraph 1.2 (1) (a) of the RTA Portal, £25,000.00 is the “Protocol Upper Limit” if the accident occurred on or after 31 July 2013 and that is on a full liability basis, including pecuniary loss but excluding interest. Vehicle damage does not come within that limit but I will park that issue J. In the EL/PL Portal, 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 the solicitor notifies 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). Paragraph 6.13 (1) is the relevant part of the EL/PL portal..

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 a claim exiting the Portal and settling for £24,000.00 does indeed result in fixed costs under the Table.

A case being allocated to the Multi-Track does not dis-apply Fixed Recoverable Costs. That is clear from the rules and was upheld by Birmingham County Court in Qader & Ors v Esure Services Ltd [2015] EWHC B18 (TCC) (15 October 2015).

Please note that this decision has been appealed to the Court of Appeal and is currently awaiting a hearing date in that court.

Below is the relevant section of the judgment of His Honour Judge David Grant in that case which sets out the law succinctly and accurately.  This begs the question of whether CPR 45.29A means that whenever a claim is started under the RTA Protocol it will forever be subject to Fixed Recoverable Costs as set out in Section IIIA of Part 45, although that part itself does give the power to the court to allow an escape from fixed costs.

Supposing a claim is started in the portal but it becomes clear that it is worth £1 million. It exits the portal and is allocated to the Multi-Track and is ultimately listed for a 10 day hearing. Does that remain subject to fixed costs? The answer appears to be yes, although again one would expect the court to operate the escape clause.

At paragraph 2 of his judgment in the Qader case His Honour Judge David Grant said:-

“The key issue raised in the appeal is whether, on a proper construction of the relevant provisions of the CPR, a fixed recoverable costs regime now applies to low value personal injury claims arising out of a road traffic accident, which start under the RTA Protocol but no longer continue under that Protocol or the Stage 3 Procedure, and instead proceed on the multi track.” (My italics)

There is reference there to “low value” but that is not how the rest of the judgment reads.

Indeed, does it not make sense that an ex-portal claim where liability, but not quantum, is admitted or where the argument is between say £40,000.00 and £50,000.00 should be subject to Fixed Recoverable Costs in a way that a fully contested £25,000.00 matter would be?

Given the escape clause why should not any ex-portal matter be subject to Fixed Recoverable Costs?

What happens if lawyers judge the claim to be worth well in excess of the portal maximum and so proceedings are issued without going through the portal procedure but the matter is subsequently settled for £25,000.00 or less, or the court orders that sum.

Is the court then free to restrict the claimant’s costs to Fixed Recoverable Costs?

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.

Where a solicitor chose to put the matter in the Portal 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. Otherwise everyone could issue in the portal but if the matter does not settle exit on the basis of over £25,000 and then in fact settle for£15,000 or whatever and claim open costs.

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, in the Portal but the settled value, which clearly does include taking into account contributory negligence, which forms the basis of quantum for Fixed Recoverable Costs.

What Fixed Recoverable Costs?

If the case is subject to Fixed Recoverable Costs, because it was once in a portal, but it settles for £50,000.00, what costs are payable?

Table 6 is not entirely clear. In relation to pre-issue work for both portals it has three value bands, £1,000.00 to £5,000.00, £5,001.00 to £10,000.00 and £10,001.00 to £25,000.00. That suggests that Fixed Recoverable Costs cannot apply to a pre-issue settlement of over £25,000.00.

However there is no such limit in relation to the next three categories, that is:-

  • issued – post-issue pre-allocation
  • issued – post-allocation pre-listing
  • issued – post-listing pre-trial

For the difficulties with these categories please see my blog DISPOSAL HEARINGS: WHICH FIXED COSTS ARE PAYABLE?

Neither is there any such limit in relation to the final column of Table 6,  that is trial advocacy fees.

If a road traffic accident matter settles post-issue then the structure of Fixed Recoverable Costs is that there is a fixed fee that increases through the stages, that is it is £1,160.00 for the first stage rising to £1,880.00 for the second stage and £2,655.00 for the third stage.

In addition, whatever stage has been reached, there are additional recoverable costs of 20% of damages. Thus the Fixed Recoverable Costs on a £50,000.00 matter settled just after issue would be £11,160.00 plus VAT and court fees etc.

Might we have the irony of a claimant lawyer arguing that Fixed Recoverable Costs apply and a defendant lawyer seeking to invoke the escape clause?

Sub-Contractors

 

A claim is submitted in the Public Liability Portal but the defendant denies liability and blames its sub-contractors. What happens?

 

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.

By virtue of EL/PL 5.11 claims which no longer continue under the Protocol cannot re-enter it.

Consequently 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.

What costs regime then applies – Fixed Recoverable Costs or open costs? On balance my view is Fixed Recoverable Costs as the matter, albeit now with additional parties, is ex-portal.

However if the claimant decides not to proceed against the original defendant, but rather only against the sub-contractor, then that goes into the portal as that particular matter would never have gone into the portal, and obviously could never have dropped out.

Supposing the claimant issues against both and then discontinues, or even does not serve the original defendant. That is then a claim against the sub-contractors only which could not have been issued in the portal and is now not ex-portal in relation to the remaining parties. Do open costs apply?

I say above that on balance I think Fixed Recoverable Costs apply. Supposing the court allocates the matter to the Multi-Track because of a multiplicity of the defendants, then the matter against the sub-contractors will never have been in the portal and will be in the Multi-Track. The court might decide that Fixed Recoverable Costs do not apply.

In either of these scenarios that would leave, in costs terms, the claimant who had made a mistake by failing to issue against the sub-contractors initially, in a better position than the solicitor who had got it right and issued the whole claim in the portal and thus bound her or himself forever to Fixed Recoverable Costs.

Meanwhile you can visit my related blogs –

FIXED COSTS, ALL THE PORTALS AND FIXED RECOVERABLE COSTS

DISPOSAL HEARINGS: WHICH FIXED COSTS ARE PAYABLE?

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Written by kerryunderwood

November 4, 2015 at 8:00 am

Posted in Uncategorized

27 Responses

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  1. Kerry,

    If a million ex portal claim was subject to fixed costs – what would the costs be? An EL at trial, profit costs would be £304,280! Not bad!

    Regards

    Richard Meggitt
    Solicitor / Director
    Accident Solicitors Direct Ltd
    asdonline.co.uk

    Tel: 0114 2672470 Fax: 0114 2662180

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    Richard Meggitt

    November 4, 2015 at 8:24 am

    • Richard

      Indeed. Lawyers who know their stuff have nothing to worry about in relation to the concept of fixed costs, providing that they are at an acceptable level, which is a big if, but the current system is OK.

      Kerry

      kerryunderwood

      November 4, 2015 at 8:40 am

  2. Re your blog comment on valuation of claims and fixed costs under the RTA Protocol if I may say so this looks correct on the interpretation of the rules and the case law, such as it is/case law easily traced.

    That is, it is the claimant’s valuation of the PI elements on a full liability basis which determines whether the RTA Protocol applies at all (claimant sols will need to be able to justify that the calc has been reasonably reached) (RTA Protocol paras 1, 4 and 5). The burden of getting this correct and consequences of this therefore lie with claimants sols. which is obviously troublesome if the claimant’s injury/prognosis markedly changes for the worse (not embark too hastily on the RTA process until medical position clear, perhaps?).

    But that for fixed costs purposes under r.45.29A it is the amount of agreed/awarded damages which govern the calc of costs (fixed) ie net sum and thus net of any contrib. That said those drafting table 6B did not appear to recognise the possibility of damages coming in at more than 25K pre trial settlement. As things stand this feature would not appear to justify any enhancement of fixed costs.

    Interesting times in which we continue to live?

    Maggie Hemsworth

    November 4, 2015 at 10:46 am

    • Yes. When I was a boy we had a person called the Parliamentary Draughtsman who was paid a fortune and was next to God. That is why there are virtually no problems of interpretation of old statutes. Now we have the Rules Committee.

      The idea that a committee can draft rules is absurd.

      Kerry

      kerryunderwood

      November 4, 2015 at 11:03 am

  3. Kerry, great insightful article.
    On a matter submitted via portal, then exiting due to liability dispute. Defs issue Part 7 against CL insurers. CL issues against defs ins. Matter listed by courts for CMC. Claims subsequently consolidated, allocated to FT & directions given. FRC apply for both parties. What costs apply for my barrister whom I instructed to attend the CMC?

    Justin Jones

    November 4, 2015 at 5:34 pm

    • Justin

      Many thanks for your kind remarks.

      Counsel’s fees as such are not recoverable in Fixed Recoverable Costs cases – it is assumed that the solicitor will deal with all matters in such cases. You are free to instruct counsel but you do not get a separate fee as it is part of the legal spend. If it were otherwise you could take the fixed costs and get counsel to do everything and charge all of counsel’s fees as a disbursement.

      Advocacy fees, for trial, are recoverable as per the Tables and the fee is the same whoever the advocate is, barrister or solicitor, and irrespective of seniority or expertise.

      No advocacy fee is recoverable if the matter settles before trial. Clearly the solicitor gets the benefit of a higher fee the further the matter progresses through the Fixed Costs Matrix. Counsel does not.

      The CPR specifically deal with other work by counsel.

      CPR 45.23B reads:-

      “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.”

      Type C fixed costs are £150.00 plus VAT.

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

      CPR 45.29I reads:-

      “(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 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.”

      CPR 45.29I (1) (h) allows the recovery of “any other disbursement reasonably incurred due to a particular feature of the dispute.”

      I know that some courts have allowed counsel’s fees in those circumstances. My view is that that is wrong given that this same rule specifically sets out the circumstances in which counsel’s fees may be claimed, but I appreciate that there is another view in relation to that.

      CPR 45.29H (1) deals with interim applications and reads:-

      “(1) 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.”

      CPR 45.29H (3) reads:-

      “(3) If an order for costs is made pursuant to this rule, the party in whose favour the order is made is entitled to disbursements in accordance with rule 45.29I.”

      Thus even if a costs order is made, one is thrown back on the CPR 45.29I definition.

      It would be rare on a Case Management Conference for the court to order one party to pay the costs, absent particularly bad conduct by the paying party.

      The relevant Type A & B costs are £250.00 and therefore a sum equivalent to one half of those costs is £125.00.

      My starting point is that you receive nothing as this is just part of running the case.

      Please look at my blog: INTERIM APPLICATIONS, ADVOCACY FEES, 12.5% UPLIFT: MORE FIXED COSTS ISSUES which deals with all of these matters in rather more detail.

      I will discussing all of this, and much more, in my spring tour on the Fixed Recoverable Costs and the Portals dates. The link to those courses is here.

      Kerry

      kerryunderwood

      November 9, 2015 at 9:44 am

  4. I settled a case last year for £5m. I am now cursing myself for not having mistakenly put it in the portal!

  5. […] IS A £1 MILLION EX-PORTAL CLAIM SUBJECT TO FIXED COSTS? […]

  6. […] Kerry Underwood aks Is a £1 million ex-portal claim subject to fixed costs? […]

  7. Kerry, could you clarify something for me please. RTA case, into Portal 17.9.14. Exited Portal 30.9.14 as Defendant did not admit liability. After exit liability admitted but not causation. Issued as limitation issues. Originally valued at up to £5000 now client presents with potential massive loss of earnings claim and significant psychological symptoms. Defence filed limited to quantum and causation issues. We are seeking allocation to Multi Track. I am asked to prepare a costs budget to lodge with N181 Directions Questionnaire. I have read your blog on this subject. I understand that a case being allocated to the multi track does not disapply fixed recoverable costs rules but ….if this settles now that it is post issue or goes to trial (disposal hearing) are we limited to fixed costs as set out in Table B CPR 45.29 as the matter was issued? If so is there any need to do a budget? Or do I do a budget on basis that we will be invoking the escape clause (and hopefully succeeding) and open costs could be awarded? If the latter then presumably I just prepare a budget in the usual way ie: cost everything at hourly rate including the anticipated final hearing?
    Your assistance would be appreciated as I am still getting to grips with these issues.
    Thank you.
    Sue

    Sue King

    November 26, 2015 at 12:06 pm

    • Sue

      Budget assuming you will succeed in invoking escape clause, and budget in the usual way.

      Kerry

      kerryunderwood

      November 26, 2015 at 12:08 pm

  8. Kerry
    Thank you for that. I had just read CPR 3.12 (c) which provides that no budget is necessary where fixed costs apply. That being the case am I correct in assuming (for future reference) that in the scenario I described ie: out of portal, going to quantum trial on multi track, the assumption is that fixed costs will apply?

    My concern in this case is that the circumstances are not exceptional to be honest, the case has just gone up in value apparently,and any such application is not really likely to succeed.

    However I will press on a do a budget just in case!!

    Many thanks again
    Sue

    Sue King

    November 26, 2015 at 12:43 pm

    • Sue
      Point is that if you escape, then fixed costs will not apply. Always best to prepare budget and serve it on a voluntary basis and say that you intend to seek escape. That avoids defendant saying that they had no idea of how much the costs would be and would have settled etc.

      Kerry

      kerryunderwood

      November 27, 2015 at 4:19 pm

  9. Reblogged this on Kerry Underwood.

    kerryunderwood

    July 21, 2016 at 1:11 pm

  10. There is another issue.

    Infant case that drops off the portal before Stage 1. Subsequently settles and Part 8 commenced for approval. What costs are paid? Rules suggest £500 only. This is despite portal cases allowing Stage 1, 2 and 3 costs.

    Ok we’ll tag on Counsel’s fee as a reasonable disbursement, but what about representation at the hearing. We could go, and charge the client the £500 for our time (travel, waiting and advocacy etc) or we can send junior Counsel and seek recovery of the fee as a “reasonable” disbursement (the “necessary” test no longer applying).

    Then there is a question of the report fee. Do fixed cost medical report fees apply? I say not as they only apply if you get to Stage 2. Detailed assessment here we come!

    And why is it that the little cases cause the greatest headaches?

    H

    Hxyay

    July 21, 2016 at 2:33 pm

    • I presume that you mean that the case dropped off during stage 1 and obviously stage 2 and stage 3 costs are not payable as the claim never reached those stages.

      There is a well-recognised lacuna in the rules whereby an infant case settling out of the portal, but pre-issue, attracts a lower fee than a matter resolved in the portal.

      This is all dealt with at pages 173 – 175 of my Spring 2016 Tour notes.

      CPR 45.29C provides for a fee in those circumstances of £550.00, not £500.00.

      You do not get counsel’s fee as a reasonable disbursement in my view, although I realize that there are different views on that.

      My view is that as counsel’s fees are specifically provided for in the rules then you cannot get counsel’s fee, as compared with other disbursements not so dealt with in the rules, under the provisions of CPR 45.29I(h).

      Having said that, I am aware of some courts who have awarded counsel’s fees under that provision.

      Fixed cost medical report fees apply in any soft tissue injury claim which has, or which should have gone on the portal. There is no requirement to reach stage 2.

      If the matter is not a soft tissue claim then fixed medical report fees simply do not apply.

      That is why I always advise issuing proceedings on the day that the matter leaves the portal and not placing the matter on the portal until one knows that one is in a position to issue Part 7 proceedings on the day that the matter exits the portal.

      Apart from the problem with infants, the fee between portal and Part 7 proceedings is only a very small amount above the portal fee whereas it jumps sharply on the issue of proceedings.

      Many solicitors make the mistake of issuing a matter on the portal far too quickly before considering the case. This is one of the reasons for the large number of claims which go on the portal and then exit because they turn out to be worth more than the upper limit.

      It is not always possible to issue proceedings on the day that a matter exits the portal as it is still necessary to comply with the general personal injury pre-action protocol – that is the one that covers all non-portal work and which also covers matters which have exited the portal.

      Nevertheless solicitors should always plan in advance to ensure that, wherever possible, they can either resolve the matter in the portal or issue Part 7 proceedings straightaway.

      I have no doubt whatsoever that the worst outcome for a claimant solicitor is to settle out of the portal but before Part 7 proceedings are issued.

      Kerry

      kerryunderwood

      July 28, 2016 at 11:16 am

  11. Kerry, Hope you can straighten this one out for me. RTA 21.5.13. Valued at no more than £25k. Put on portal in October/November 13 (not clear). That was the value stated. First thoughts is that it should not have gone into the portal as accident not after 31.7.13 and was worth up to £25,000. Am I correct?
    In any event matter has now come out of the portal (MIB uninsured case – liability denied) and is issued and is now worth up to £50,000. Directions Questionnaires to be filed shortly with Budgets. The fact that it was once in the portal (albeit I think wrongly) – is this going to mean the matter attracts fixed costs only? Or there is a danger that the other side will argue this is the case? Previously you have advised to do a budget anyway where a case has increased in value after dropping out of the portal, serve it and tell the other side that an application to disapply fixed costs is going to be made in due course. I was proposing to do that here – would you agree?
    Many thanks,
    Sue

    Sue

    October 17, 2016 at 2:25 pm

    • Sue
      As you say it should not have gone on the portal to start with as the limit in RTA matters where the cause of action was pre 31 July 2013 was £10,000.

      There is a risk that the defendant will succeed in an argument that fixed costs only apply especially as this was not just a case of incorrect assessment of damages but negligence in not knowing the law relating to portals. On the face of it the defendant could apply for a wasted costs order against the solicitor involved.

      The counter-argument is that the denial of liability would always have caused the matter to exit the portal, so there should be no costs penalty in the sense of the claimant being ordered to pay costs. In any event QOCS applies, although that is subject to many exceptions.

      My advice is to file a budget. You will not be criticised for doing so, whereas you maybe fir not doing so. It also puts the defendant on notice that you are seeking open costs in the event of success. If they fail to take the point at budget stage, then it is less likely to be upheld later.

      However the main thing that you need to do is make a Part 36 offer. If it is accepted there will no doubt be an argument as to the basis of costs, but you will have that anyway and so will be no worse off. If they fail to accept it and you eat it then you get indemnity costs and fixed costs go out of the window.

      There is still doubt as to whether you are entitled to indemnity costs on late acceptance as compared with judgment. See my blogs on that point.

      Kerry

      kerryunderwood

      October 22, 2016 at 12:20 pm

  12. Dear Kerry,

    I wondered if you could possibly assist.

    A PL claim was valued by the TP solicitors as above £25,000 and hence never submitted through the Portal. If the claim is subsequently settled below £25,000, am I correct in thinking that it will be subject to Fixed Recoverable Costs alone?

    Thanks,

    Peter

    Peter

    November 14, 2016 at 11:29 am

    • Peter

      I do not understand how that could have occurred. It is always for a claimant to value a claim, when deciding whether or not to put it on the portal, when drafting the Particulars of Claim, when choosing the court fee and when making the claimant’s Part 36 offer and of course in the portal process it is compulsory to make such an offer.
      Paragraph 4.1(3) specifically refers to the protocol applying where:-

      “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”)…”
      If a matter settles for below £25,000.00 in circumstances where it was never put on the portal, then it is likely that only portal costs, and not even Fixed Recoverable Costs will be awarded.

      CPR 45.24(1)(ii) provides that the court may order the defendant to pay no more than the fixed costs in Rule 45.18 – that is portal costs – if the claimant, by valuing the claim at more than £25,000.00, so that the claimant did not need to comply with the relevant protocol.

      Portal costs and Fixed Recoverable Costs are automatic and the indemnity principle does not apply – see Nizami v Butt.

      However a claim settled pre-issue, which has not been in the portal, is subject to the indemnity principle and on the face of it there is no entitlement to any costs, absent contractual agreement with the defendant.

      Having said that if the defendant had made an unequivocal statement along the line of:-

      “This matter is unsuitable for the portal as it is clearly worth in excess of £25,000.00”, then in my view the Doctrine of Equitable Estoppel will apply.

      I would need to know far more about the case and in particular how it came to pass that there was any involvement by the defendant in valuing the claim before the claimant had valued it.

      Kerry

      kerryunderwood

      November 15, 2016 at 7:41 am

  13. HI Kerry,

    i wonder if I could have your thoughts on this case I have been asked about please.

    It’s an EL claim, orginally valued at £40k so not put into the Portal. Claim settled by acceptance of a Part 36 offer pre allocation stage for £25k. Could the Defendant successfully argue that they now only pay the fixed recoverable costs?

    Liability was disputed and contributory negligence alleged, so I believe it would have come out of the Portal in any event. Accident date is 26/8/13.

    As it never started life in the Portal I think that the fixed recoverable costs would not apply but I am concerned with regard to CPR 45.24 2bii ” by valuing the claim at more than £25k, so that the Claimant did not need to comply with the relevant protocol…….. the Court may order the Defendant do pay no more than the fixed costs in rule 45.18 together with the disbursements allowed.”

    I would be grateful for any thoughts you have on this.

    Kind regards

    Nikki Brigg

    April 10, 2017 at 11:41 am

    • Nikki

      You are correct in saying that in relation to a case that was never on the portal, the starting point is that Fixed Recoverable Costs do not apply.

      You are also correct in stating that the Civil Procedure Rules allow the court to limit costs to portal costs if the claimant valued the claim at more than £25,000.00 in order to avoid the portal process.

      It is a matter for discretion in each case, but as the matter was settled for £25,000.00, that is right on the cusp of the maximum portal limit, rather than £10,000.00 or whatever, you should be okay in recovering costs on the standard basis in my view.

      You make the good point that as liability was disputed and contributory negligence alleged, the matter would have exited the portal in any event.

      That does not wholly deal with the point, as a matter initiated in the portal, but then exiting due to liability being disputed and/or contributory negligence being alleged, would still then be subject to Fixed Recoverable Costs.

      You should also check carefully that the costs that you are likely to recover on the standard basis would be more than Fixed Recoverable Costs. On an EL matter settling post issue and pre allocation for £25,000.00, the Fixed Recoverable Costs fee is £7,630.00 plus VAT.

      Kerry

      kerryunderwood

      April 11, 2017 at 2:23 pm

      • Many thanks Kerry

        ________________________________

        Nicola Brigg

        April 11, 2017 at 2:31 pm

      • Pleasure

        kerryunderwood

        April 11, 2017 at 2:35 pm


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