DO FIXED COSTS APPLY TO PORTAL CASES ALLOCATED TO THE MULTI TRACK? A COUNTY COURT DECISION – THAT SAYS THAT THEY DO

In Quader -v- Esure Services Limited (Birmingham County Court 15th October 2015) His Honour Judge David Grant considered the issue of whether fixed costs applied to a portal case that was transferred to the Multi Track.

THE CASE

The judge considered a case where the value of a road traffic claim was limited to £15,000.  The defendant alleged that the accident was deliberately induced by the claimants.  The action was allocated to the Multi Track and the parties ordered to file costs budgets.

THE ORDER THAT FIXED COSTS APPLIED

When the matter came before the District Judge it was held that

“CPR 45.29A fixed costs will apply to the claimant’s costs. Costs management does not apply to this case.”

THE APPEAL

The claimants appealed to the Circuit Judge. That appeal was dismissed.

KEY POINTS OF THE JUDGMENT ON APPEAL

  • The judge dismissed the claimants’ appeal against an order that Fast Track fixed costs applied to a personal injury case that was allocated to the Multi Track.
  • The judge held that “The text of CPR rule 45.29A is quite clear: it states that Section IIIA of Part 45 will apply when a claim is started under the RTA Protocol, but no longer continues under that Protocol or the stage 3 procedure set out in Practice Direction 8B.”
  • The judge rejected an argument that the rules had to be interpreted so as to implement the Jackson reforms. There were cases where parts of the proposals were not accepted by the Rules Committee. (For instance the wording of CPR 3.9 is materially different to the proposals from Jackson LJ).
  • There was no ambiguity or lack of clarity in the wording of the rules which requires a judge to construe or interpret them in a purposive manner. ” Instead the task is simply to apply the plain meaning of those words and expressions.”
  • The District Judge’s construction of the rules did not breach or cause affront to  the overriding objective.
  • The application of fixed costs in these circumstances did not breach article 6 and deny the claimants the right to a fair trial. CPR 45.29J potentially alleviated any harm to the claimants.

THE CIRCUIT JUDGE’S CONSIDERATION OF THE RELEVANT RULES

The relevant rules 4 CPR rule 45.29A is to be found in Section IIIA of Part 45, which is entitled “Claims which no longer continue under the RTA or EL/PL Pre-Action Protocols – Fixed Recoverable Costs”. Paragraph (1) provides as follows:
“Subject to paragraph (3), this section applies where a claim is started under (a) the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (“the RTA Protocol”); or
(b) …. the EL/PL Protocol but no longer continues under the relevant Protocol or the Stage 3 Procedure in Practice Direction 8B.” It is not necessary for present purposes to consider paragraphs (2) and (3) of that rule.
7. The editors’ notes to the RTA Protocol begin at paragraph C13A-001 (page 2865) of the current 2015 edition of ‘Civil Procedure’. In the second paragraph they consider the 2013 edition and the previous 2010 edition of the protocol, and continue:
“A notable difference between the two is that, whereas the original protocol applied to claims of not more than £10,000, the revised protocol applies to claims of no more than £25,000.”
8. The notes continue to give a summary of both the stage 1 and stage 2 processes, and then of the stage 3 procedure. As they observe: “Stage 1 begins when a claimant … completes and sends to the insurer of the defendant … a claim notification form….Within 15 days the defendant must complete and send to the claimant the ‘Insurer Response’ section of the CNF. Amongst other things that section invites the defendant to state whether liability is admitted or not.”. Stage 1 therefore deals with issues of liability. As regards stage 2, the editors’ note continues:
“Stage 2 proceeds on the assumption that the objective is to enable the parties to settle issues of quantum by negotiation. It is a highly prescriptive process.”
Stage 2 therefore deals with issues of quantum.
 9. Where liability has been admitted, but the parties cannot agree quantum, the stage 3 procedure may then be invoked. As the editors state: “Where parties … are unable to agree the amount of damages payable at the end of the stage 2 process, a claim may be made using the court procedure (“the stage 3 procedure”) … set out under CPR Part 8 (alternative procedure for claims) in accordance with Practice Direction 8B ….”. As the editors note (at page 2867) “a claim under Practice Direction 8B must be started in a county court, and will normally be heard by a District Judge”. However, it is open to a claimant instead to exit the ‘portal’ 1 and commence proceedings by issuing a Part 7 claim form. In the present case the claimants have issued a Part 7 claim form.
10. CPR rule 3.12 is to be found in Section II of Part 3, which is entitled “Costs management”. Paragraph (1) provides as follows:
This section and Practice Direction 3E applies to all Part 7 multi track cases, except (a) where … the amount of money claimed … is £10 million or more; or (b) …; or (c) where the proceedings are the subject of fixed costs or scale costs or where the court otherwise orders.”
It is not necessary to consider subparagraph (b) for present purposes. Nor is it necessary to consider whether the phrase “or where the court otherwise orders” at the end of subparagraph (c) is to be read as a matter falling wholly or only within the terms or ambit of that subparagraph, or is to be read as a separate matter, in effect as a subparagraph (d).
11. CPR rule 45.29C is entitled “Amount of fixed costs – RTA Protocol”. Paragraph (1) provides:
“ … the amount of fixed costs is set out in Table 6B.” 1
Table 6B2 is entitled “Fixed costs where a claim no longer continues under the RTA Protocol.” Section B of table 6B sets out the fixed costs “If proceedings are issued under Part 7, but the case settles before trial”. Three stages at which the claim might settle are then provided for: on or after the date of issue but prior to the date of allocation under Part 26; on or after the date of allocation under Part 26, but prior to the date of listing; and finally on or after the date of listing but prior to the date of trial. The fixed costs are respectively £1,160 and 20% of the damages; £1, 880 and 20% of the damages; and £2,655 and 20% of the damages.
12. Section C of table 6B sets out the fixed costs “If the claim is disposed of at trial”. They are the total of (a) £2,665 and (b) 20% of the damages agreed or awarded; and (c) the relevant trial advocacy fee.” Section D of table 6B sets out the trial advocacy fees. If damages, either agreed or awarded, are not more than £3,000, the trial advocacy fee is £500; if damages are more than £3,000 but not more than £10,000, the trial advocacy fee is £710; if the damages are more than £10,000 but not more than £15,000, the trial advocacy fee is £1,070; and finally if the damages are more than £15,000, the trial advocacy fee is £1,705.
13. CPR rule 45.38 (1), which is in the separate Section VI of Part 45 entitled “Fast Track Trial Costs”, provides: “Table 93 shows the amount of fast track trial costs which the court may award …” If the value of the claim is no more than £3,000, the amount of fast track trial costs which the court may award is £485; if the value of the claim is more than £3,000 but not more than £10,000 then the amount of fast track trial costs which the court may award is £690; if the value of the claim is more than £10,000 but not more than £15,000, then the amount of fast track trial costs which the court may award is 2 Civil Procedure 2015 at pages 1504-5 3 Civil Procedure 2015 at page 1522 7 £1,035; and for proceedings which were issued on or after 6 April 2009 if the value of the claim is more than £15,000, then the amount of fast track trial costs which the court may award is at £1,650. It is thus to be noted that the figures in table 9 are in each case slightly lower than those in section D of table 6B.

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