Section II Costs apply where case starts on Portal but the Claimant dies
Posted on 8th July 2021 at 14:03
By Sean Linley, Costs Draftsman
The Court of Appeal have upheld decision that costs in Section II of CPR 45 apply to fixed costs cases where a case started in the Portal but left because the Claimant had died. The Court of Appeal upheld the earlier decision of HHJ Wood QC.
The Defendant had argued that costs under SIIIA applied, which is a lesser amount of fixed costs than under SII. The Court of Appeal rejected this argument.
In West v Burton  EWCA Civ 1005 (08 July 2021), LJ Singh stated that "for the purposes of the Protocol, the claimant throughout is regarded as the person who was involved in the road traffic accident. Furthermore, r.45.29A and r.45.29B are in terms confined to claims started under the Protocol. I consider, accepting the submissions of Mr Williams, that in this case the claim that was settled was that of Mr West. But Mr West was not himself the person who started the claim, within the meaning of the Protocol. Indeed, as executor he never could have started such a claim, given the provisions of paragraph 4.5(3) of the Protocol. Consequently, this was not a claim, for the purposes of assessing costs, within the ambit of CPR r.45.29A or r. 45.29B. Accordingly, costs fall to be assessed by reference to Section II."
He also made an interesting side comment about the costs of obtaining a Grant of Probate stating that " the only reason in some cases (the present case may or may not be one, it is not altogether, on the evidence, clear) for obtaining a Grant of Representation may be to pursue a personal injury claim. If that is so, then the costs of doing so potentially may, in the event of a successful outcome, be requested as part of the costs of and incidental to the claim."
Tagged as: fixed costs
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