Claimant who failed to use Portal restricted to fixed costs
Posted on 19th August 2021 at 12:20
By Sean Linley, Costs Draftsman
The SCCO have restricted costs to fixed costs where the Claimant did not use the Portal. In the case of Harford v Music Store Professional UK/DV247 Ltd  EWHC B17 (Costs) (18 August 2021), the Claimant had argued that the decision not to submit the claim via the Portal was reasonable because the claim "was felt to be worth above the portal upper limit". Costs Judge Haworth found that the Protocol "should have been used and its non-use was unreasonable" and consequently costs were limited to fixed costs in accordance with the Court's discretion on costs under CPR 44.11.
In Harford, the case concerned a personal injury claim for an accident at work. The Claimant had averred that the case was valued initially in excess of £25,000.00, though it ultimately settled for £11,200.00 and that it only became apparent the claim was worth less once all the evidence had been finalised and Counsel's advice obtained.
The Claimant argued that "the valuation of a claim is more of an art than a science and is a prediction of what a Court is likely to award and no more" and that "the Defendant must show that the Claimant’s assessment of the likely value of the claim was so unreasonable that the Court should drastically limit their costs entitlement to Portal costs."
It was also contended that the Court could not restrict costs with reference to CPR 45.24(2) as this was only engaged where judgment was given and the present case had concluded without judgment (a technical argument relating to the effects of late acceptance of a Part 36 offer).
The Defendant stated that fixed costs applied either by reference to CPR 45.24(2) or alternatively and as per Williams v Secretary of State for Business  EWCA Civ 852 4 WLR 147 there was sufficient scope under CPR 44.4 to allow only the fixed costs out in the Protocol.
CPR 45.24 states the following:
"45.24(2) Subject to paragraph (2A) where a judgment is given in favour of the Claimant, but
the Court determines that the Defendant did not proceed with the process set out in the relevant protocol because the Claimant provided the insufficient information on the claim notification form.
The Court considers that the Claimant acted unreasonably -
By discontinuing the process set out in the relevant protocol and starting proceedings under Part 7; or
By valuing the claim at more than £25,000 so that the Claimant did not need to comply with the relevant protocol; or
Except for paragraph (2A) in any other way that caused the process in the relevant protocol to be discontinued; or
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.”
Costs Judge Haworth determined that the Claimant's conduct in proceeding with the claim outside the Protocol was unreasonable. He stated that:
"I am satisfied that on reviewing the facts of this case, bearing in mind an accident in 2015, a letter of claim on 26 May 2017, coupled with the fact that the second medical evidence does not appear to have been obtained until 15 January 2018, less than three months before the expiry of limitation, to proceed with the claim outside the EL/PL Protocol was unreasonable. In my judgment, the reason for the issue of proceedings on 19 March 2018 was conditioned by the expiry of the limitation period without thought to the benefits of the Protocol and its undoubted relevance in these proceedings."
He also rejected the Claimant's argument that there was no judgment and that he was "satisfied that by virtue of the Claimant’s acceptance of the Part 36 offer, pursuant to CPR 36.13(5) in itself constitutes a “judgment” [my emphasis] for the purposes of 45.24(2)(ii) CPR which is thus engaged."
Costs were limited to the fixed costs set out in CPR 45.18 Table 6A in the sum of £4,205.00.
The case reaffirms the existing position as opposed to providing anything specifically new. The Court can and will if appropriate restrict costs to fixed costs. If a practitioner is unsure as to whether a case is suitable for the Portal then a contemparenous file note setting out the thought process as to the value of the claim is a must. Though, as identified in Harford consideration needs to be given to changes in the claim. The SCCO were clearly unimpressed by the timeline of events in the present case.
The issue of a case which is reasonably valued over the Portal limit and subsequently settles at a lower amount (for example, due to a change in prognosis) remains a live issue. What Harford does show is that the Court has a wide discretion on costs and the bar to proving omitting a claim from the Portal reasonably is a high one. The issue is likely to rear its head again in future.
Practically speaking an alternative route could be to look at the possible application of CPR 45.29J on the basis of exceptional circumstances. It is open to the Court to potentially allow an amount higher than fixed costs by way of this avenue. Exceptional circumstances will, however, be case specific and would need to be considered on this basis.
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Tagged as: Fixed Costs
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