QADER 2: REMAINING PROBLEMS AND ISSUES: THE CONTINUING DEBATE

The post yesterday on the Qader decision has led to a large number of comments.  These are easy to overlook.  I have placed the comments here since these outline the issues that remain unresolved. I have added some sub-headings, but this is a reflection of the comment section on the blog.

WHAT IF THE CASE IS WITHIN THE PORTAL SYSTEM, SETTLES FOR MORE THAN £25,000 BUT IS NEVER ALLOCATED TO THE MULTI TRACK?

So if a matter is not issued and so not ‘allocated’ to Multi Track, eg a case settled for in excess of £25k pre-issue, then fixed costs still apply?

gexall ·

  1. How could they? If it settled for more than £25,000 it was never going to enter the portal and would never be subject to the fixed costs regime? The Protocol upper limit is £25,000. Why do you say fixed costs would apply to a case of more than £25,000?

     

    Perhaps if the true extent of a claim was not known at the outset and it started out in the Portal?

    I see what you mean now. This is unresolved. A claimant would be best advised to get the matter allocated to the Multi Track before settling a case for more than £25,000. However given they way the issue has been dealt with to date. Remember in the case of Jamadar the court imposed a duty on a claimant to lodge a costs budget even though the case was not (technically) allocated to the multi track on the grounds that it was obvious that it was a multi track case. Similar principles could apply here.

     

    COURT OF APPEAL RE-WRITING LEGISLATION

    Since when has the Court of Appeal had the right to rewrite legislation?

    I really think they’ve grossly overstepped their powers of interpretation here, and it’s an extremely dangerous precedent.

    I sincerely hope there’s an appeal to the Supreme Court that will put them back in their box.

    JON LORD’S CAREFUL DELIBERATIONS

    1. I do have a problem with the anomaly described at para 39. The judge seems to agree with Roger Mallalieu that there is a consistent message in 45.29A, B & C that the fixed costs regime applies to cases started correctly within the protocol but settle outside it, even for an amount over £25,000. They all seem to agree that the reference in part A of Table 8B (sic)(6B?) to an upper limit of £25k is an anomaly. He ducked the issue at para 58 by saying he didn’t have to decide it and wants the rule committee to clarify it but I don’t see how that interpretation can be right.

      There may well be a consistent message in 45.29A, B & C but nowhere that I can see has the court considered whether that sits consistently with the rest of Part 45 and the scope of the protocol itself. Take Tables 6 & 6A in 45.18 for cases that settle within the portal. Both tables have upper limits of £25,000. 45.16 says that whole section applies to cases which “have been or should have been started under Part 8” – in other words cases from the protocols. The protocols have a stated “upper limit” of £25,000. A limit is a limit! The protocol ceases to apply to cases where it is revalued at over £25,000. It shouldn’t matter what track it may have been allocated to. The Court seems to have considered 45.29 in isolation rather than looking at the timeline of a case and the rules and protocols leading up to it ending up at 45.29.

      I’m struggling to see how it’s right that if a case drops out of the portal and concludes for over £25,000 that the costs are fixed in accordance with 45.29 Table 6B.

      If part A of Table 6B needs amending to remove the upper limit then surely the upper limit also needs removing from Tables 6 & 6A. I had a client query a couple of weeks ago where they settled an EL case still in the portal for over the protocol limit. Table 6A can’t apply because of the upper limit and there is nowhere else for it to go other than standard basis costs. It wasn’t taken out so can’t go into table 6B. Surely that has to be the case for all cases that start in the portal but conclude for more than £25,000….

      Having re-read it I see where I’m partly wrong and it goes back to the root of the problem described in para 20 of the ruling. 45.29A-C appears to catch ALL cases which start in the portal but drop out, regardless of track allocation or value. The anomaly is therefore the financial limit contained in part A to Table 6B which doesn’t sit with the reading of the rest of that section.

      The CA has had to interpret by refererence to original intentions that cases actually allocated to the Multi Track are not caught by the tables but in other respects has kicked it back to the CPRC to tell us what should be caught by the tables and what shouldn’t, particularly cases that drop out but settle pre-proceedings for more than £25,000 which 45.29A&B says ARE caught but part A to Table 6B suggests are not.

      Now that’s cleared up it still doesn’t sit right with me that a case over £25k which the rest of the rules, PDs and protocols say are unsuitable for the procedure and accompanying costs regime should be caught by 45.29. There is a consistent theme that if your case is over £25k, you’re out of the regime.

       

    2. Jon, in that situation you still have the 45.29J “exceptional circs” escape route from FRC.

      Thanks Jasmine.

      The trouble with that is that if the rule is to be read in a way that 45.29 isn’t intended to incorporate an upper limit of £25,000, the value of the claim as of itself doesn’t necessarily make it exceptional and will lead to satellite litigation over arguments as to when value is exceptional.

      Looks like an interesting one to be involved in!

      A QUESTION FROM TRAINEE COSTS LAWYER

      How does this judgment sit with CPR 3.12(1)(d) which states that costs management and costs budgeting does not apply where the proceeding are the subject of fixed costs (unless the Court orders otherwise). Surely this shows that fixed costs can apply to multi-track cases

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