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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
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)
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
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
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.
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.