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ESCAPING THE PORTAL ALTOGETHER It is attractive from a costs perspective to obtain evidence which realistically values a claim at over £25,000.00 at the outset to escape the portal altogether. Consideration should be given to subrogated claims for loss of earnings or medical treatment at or before the CNF stage as the inclusion of these may boost the value of the claim to over £25,000.00 and therefore out of the portal. It’s time to fight back However, if a Claimant reasonably (emphasis added) believes the claim to be worth more than £25,000.00, and pursues the claim outside the portal, but then subsequently settles the claim for less, is the Claimant still entitled to non-portal costs? It is clear that where a Claimant unreasonably removes a claim from the portal, only portal costs are recoverable. Paragraph 7.59 of the new EL/PL protocol provides that where a court considers that a Claimant acted unreasonably in serving notice that the claim was unsuitable for the portal it will award no more than portal costs. There is recent case law to support this. In Uppal v. Daudia LTLPI 09/07/12 the Claimant removed the claim from the portal because the Defendant failed to make an offer in response to the Claimants counter-offer within the total consideration period. The Judge held that there was no such requirement. The Defendant need only respond to the Claimants first offer within the initial consideration period. The Claimant was found to have unreasonably left the portal and was ordered to pay the Defendants costs on an indemnity basis. In Jaykishan Patel v. Fortis Insurance Ltd LTL 11/01/12(11) the Defendant was unable to send an acknowledgement to the CNF due to a technical fault with the software used. However, within 48 hours of the CNF the Defendant had responded with a full response admitting liability. On the same day, the Claimant removed the claim from the portal. The Claimant’s conduct was found to be unreasonable because technical non-compliance with the portal was not a ground for removing a claim from the portal. The Claimant was restricted to portal costs. These cases should be viewed as a clear warning to Claimant Solicitors not to unreasonably remove cases from the portal. You should therefore familiarise yourself with the new portal rules which can be found in The Civil Procedure (Amendment No.6) Rules 2013. Finally, it should be further noted that if there are exceptional circumstances the Court can consider a claim for an amount of costs greater than the FRC set out in the second table below and summarily assess the costs or make an order for the costs to be subject to detailed assessment. However, if costs are assessed at a sum less than 20% greater than the amount of FRC, then only FRC or the assessed costs (whichever is the lesser of the two) will be awarded. About The Author... Sarah Page-Croft is a Law Costs Draftsman with R Costings, specialising in the drafting of personal injury bills funded by way of CFA’s, CCFA’s and legal expenses insurance. She has represented both Claimants and Defendants in cost negotiations and has attended detailed assessment hearings. 6 Christopher McCauley Barrister, Guildford Chambers Chris specialises in costs and litigation funding and is Counsel at Guildford Chambers. Prior to becoming Costs Counsel, Chris worked as a Solicitor Advocate (Civil) in the advocacy department of a large national personal injury firm. He regularly conducts detailed assessments in the Senior Courts Costs Office and in County Courts. E: CMcCauley@guildfordchambers.com W ith a Civil costs war looming, I must question why we have overhauled the litigation funding landscape when Lord Justice Jackson’s own report states that only 10% of claims were disproportionate (the remedy ironically seems disproportionate to the problem). Further I must question could we, as lawyers, have done more to prevent this? What did we achieve with our papers, petitions and judicial review? The answer is next to nothing, as they fell on deaf ears. The biggest impact of the reforms will be on the personal injury industry and only the large firms, who make small profit margins over high volumes of cases, will survive. Save for the large firms the personal injury industry is on the ropes, unsteady on its feet staring into a blurry abyss, just waiting for a knockout punch (which might be delivered in raising the small claims limit). So the real question is what do we do now? And the answer is that it is time for an Ali style rope a dope. We have lost the CFA argument with the government so we need to focus on the stopping the small claims limit being raised and ensuring that fixed costs are not introduced into the fast track. Our methods of lobbying with papers and petitions have not worked so we need to take a new approach and (credit where credit is due) I am grateful to a Partner of a large PI firm for this suggestion: we need to educate the people. The large PI firms need to work together and lobby the government through television commercials and public debates. We need to use the media to communicate a message and dispel the idea, created by the tabloids, of greedy fat cat lawyers. Further, we need to be truthful in our campaigns. State that we will be paid x for x amount of hours work and quite simply we will not undertake that work as the proposed fees do not provide sufficient remuneration. The public are not fools and they know that when we are arguing about access to justice we are doing so because it affects our own pocket. But what they do not know is how much we are paid, for these cases, and if they were to know their perception would change. The other benefit of this approach is that it would surprise the government. They can ignore our petitions and papers but they would not be able to ignore a public campaign. Our current lobbying techniques are archaic and we need to adapt and, most importantly, we need to change the public’s perception.