Settling outside the Claims Portal: do fixed costs still apply?
Where a claim which is inappropriately started outside the relevant portal is settled before issuing proceedings, its costs may be limited to those recoverable under the relevant portal.
The claim was for noise induced hearing loss and the Claimant had identified two potential Defendants. Relying on the fact that it was a disease claim against more than one Defendant, the Claimant did not begin the claim in the relevant portal (in accordance with the EL/PL Protocol). Letters before claim were sent in early 2014, however by November 2014 the Claimant had determined that no viable claim existed against the second potential Defendant. On 15 December 2014 the Defendant made a Part 36 offer which was accepted 8 days later.
The issue in the case was whether the Claimant’s costs should be restricted to fixed portal costs or not.
At first instance it was held that the Claimant’s decision not to begin the claim in the portal was incorrect. It was also held that the Claimant was only entitled to fixed costs and disbursements under the El/PL Protocol per CPR 45.24. The Claimant argued on appeal that CPR 45.24 could not apply since it had never issued proceedings and the preconditions of that rule were:
(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.
At its first appeal it was found that 45.24 didn’t apply and a provisional assessment of costs was ordered.
Court of Appeal decision
The issue came before the Court of Appeal who determined the starting point was that under Part 36 the Claimant was entitled to costs assessed in accordance with the usual rules and not under fixed costs; CPR 45.24 did not apply. Whether the Claimant was correct not to pursue the matter in the portal in the first instance wasn’t an issue for the court.
However, the Court of Appeal also found that in a situation where the Claimant had unreasonably begun the claim without utilising the portal, a court would have to consider the conduct of the Claimant in its powers under CPR Part 44. A judge considering the assessment of costs in such a situation had ‘…ample scope…to allow only the fixed costs set out in the EL/PL Protocol.’ The court underlined the point that the unreasonable failure of the Claimant to follow the EL/PL Protocol would trigger the conduct provisions in CPR Part 44.
By way of guidance to Defendants faced with such an issue, the Court of Appeal highlighted they should raise the point as soon as possible in Part 8 proceedings.
Unsurprisingly, the Court of Appeal found a failure to follow the EL/PL Protocol may result in adverse costs consequences and confirmed the route by which such consequences should be determined. Interestingly the question of whether the Claimant was correct not to pursue the matter in the portal in the first instance wasn’t however addressed in the decision.
Article by: Kieran Coleman