FREE CHAPTER from ‘A Practical Guide to Personal Injury Fixed Costs in Portal and Ex-Portal Cases’ by Alexander Mellis

INTRODUCTION


Fixed costs in personal injury are supposed to be straight forward, avoid the need for time spent on assessment and control the level of costs payable by Defendants. Whilst it usually secures those aims, there are gaps, lacunas, nuances and specific interpretations which any practitioner – be it solicitor, CILEX, paralegal, counsel or, dare I say, judge – should know.

To fully understand fixed costs, the below comments from the Court of Appeal should always be borne in mind:

31. The starting point is that the plain object and intent of the fixed costs regime in relation to claims of this kind is that, from the moment of entry into the Portal pursuant to the EL/PL Protocol (and, for that matter, the RTA Protocol as well) recovery of the costs of pursuing or defending that claim at all subsequent stages is intended to be limited to the fixed rates of recoverable costs, subject only to a very small category of clearly stated exceptions. To recognise implied exceptions in relation to such claim-related activity and expenditure would be destructive of the clear purpose of the fixed costs regime, which is to pursue the elusive objective of proportionality in the conduct of the small or relatively modest types of claim to which that regime currently applies.

41. The fixed costs regime inevitably contains swings and roundabouts, and lawyers who assist claimants by participating in it are accustomed to taking the rough with the smooth, in pursuing legal business which is profitable overallSharp v Leeds City Council1 per Lord Briggs (as he then was).

30. The starting point is that fixed costs and assessed costs are conceptually different. Fixed costs are awarded whether or not they were incurred, and whether or not they represent reasonable or proportionate compensation for the effort actually expended. On the other hand, assessed costs reflect the work actually done. The court examines whether the costs were incurred, and then asks whether they were incurred reasonably and (on the standard basis) proportionately.” Broadhurst v Tan2 per Lord Dyson MR.

The costs are not designed to be fair in individual cases. Arguably unfair results in an individual case, against either a defendant or a claimant, are not reasons to interpret the rules differently. As such it is undoubtedly important not to miss out on recovering the costs a claimant is entitled to when they are available. Similarly, defendants will want to ensure that the aim of reducing costs payable is properly met. Understanding the ‘swings and roundabouts’ nature of the costs in the areas covered by this book is important to contextualise some of the judicial decisions and results of the rules, which on occasion are most certainly the ‘rough’ rather than the ‘smooth’.


Scope

This book is aimed at everyone who deals with costs in cases which start life in the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (“the RTA Protocol”), the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims (“the EL/PL Protocol”) and the Pre-Action Protocol for Resolution of Package Travel Claims (“the Travel Sickness Protocol”). The main focus of the book is those claims that exit those Protocols, for whatever reason, together with claims under the Travel Sickness Protocol. For the RTA and EL/PL Protocols it also covers those claims where liability is admitted and that therefore stay in the Portals and either settle or go on to be determined at a Stage 3 Hearing.

A brief aside on some of the nomenclature used. The ‘Portal’ refers to the programme or process that the claims go through, the ‘Protocol’ to the rules that govern the relevant Portal.

The scope of each of these Protocols is only briefly covered. That it is included at all is primarily because it can and does sometimes arise as an issue throughout the lifetime of proceedings, even right up until the end. In that way, whilst it is generally taken as a given that the case you are dealing with falls within the fixed costs covered in this book, it would be remiss not to alert readers to the occasional issues that can arise. It is not, however, intended as a comprehensive guide to the scope of the Protocols.

The one obvious distinction that needs to be considered at the outset is that the book, or at least this first edition, does not cover the newly introduced Pre-Action Protocol for Personal Injury Claims Below the Small Claims Limit in Road Traffic Accidents (“the RTA Small Claims Protocol”).

More fundamentally, for claims involving road traffic accidents after 31 May 2021 that involve personal injury damages up to £5,000 – and all whiplash injuries lasting below 2 years fall under that level due to the introduction of the Whiplash Injury Regulations 2021 – they are unlikely to fall within the scope of this book.

The RTA Small Claims Protocol is supposed to be accessible to litigants in person as well as lawyers and so it is hoped will not need to be included in a book such as this one. Time will tell if that hope proves well founded.

Some, but not all, of the rules are re-produced in full at the relevant sections of this book. Whilst familiarity with their wording and meaning is vital to accurately deploying the understanding of the rules and issues that arise from them, merely reproducing the White Book, rules or protocols would be of little benefit.


Qualified One-Way Costs Shifting (“QOWCS”)

A further context that needs to be remembered throughout dealing with the issues covered by this book is Qualified One-Way Costs Shifting. It was introduced in 2013 as part of the package of reforms to control costs but maintain access to justice in personal injury claims. The rules are to be found in Part 44 rules 44.13 to 44.17. For claims not subject to a CFA before 1 April 2013, an unsuccessful claimant in a claim for personal injuries, under the Fatal Accidents Act 1976 or arising out of death or personal injury that survives for the benefit of the estate under the Law Reform (Miscellaneous Provisions) Act 1934 does not have to pay the successful defendant’s costs. There are exceptions to that, most importantly if the claim is found to be fundamentally dishonest or struck out for the reasons set out at r44.15. Importantly it does not include being struck out for a failure to comply with a rule or practice direction. A further exception is where the claim is made for the financial benefit of either somebody else or includes a claim other than for personal injury, so called “mixed” claims.

A further exception is in applications for Pre-Action disclosure, per r44.13(1).

Any costs order can also be enforced where a claimant does recover damages, such as a costs award made at an interim stage or where a defendant beats their own Part 36 offer. Recoverability in those circumstances is limited to the level of damages awarded.

What is important to understand is that QOWCS does not alter the principle of what costs order should be made, only the enforceability of it.

The law described in this book was believed to be accurate on 20 July 2021.

Alexander Mellis
August 2021

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1 [2017] 4 WLR 98

2 [2016] 1 WLR 1928