COURT HAS A DISCRETION AS TO COSTS TO AWARD WHEN CLAIMANTS UNREASONABLY EXIT THE PORTAL: CPR 36.20 IS NOT DECISIVE
I am grateful to solicitor Matthew Hoe of Taylor Rose TTKW for sending me a copy of the transcript in Ansell & Evans -v- A.T & T (GB) Holdings Ltd (County Court at Oxford 14/12/2017 HHJ Clarke). A copy is available here Ansell & Evans v AT&T  The Circuit Judge found that the provisions of CPR 36.20 did not prevent the court from making a different order for costs if the court found that a claimant had unreasonably exited the portal. The court could make an order for lower costs under CPR 45.18.
The claimants were injured in a car accident. The claims entered the RTA Protocol and the defendant admitted liability within the permitted time period. The claimants then gave notice that their claims were not suitable for the protocol and exited.
The claimants then issued Part 7 proceedings. The defendant made early Part 36 offers and the claimants accepted those offers within 21 days.
THE ISSUE AS TO COSTS
The claimants sought to argue that fixed costs under CPR 36.20 applied and the court had no discretion to award any different costs. The defendants wanted to argue that the claimants had unreasonable exited the portal and were, therefore, entitled to no more than the fixed costs set out in CPR 45.18 and disbursements in accordance with CPR 45.19.
THE FINDINGS OF THE DISTRICT JUDGE
The District Judge found that the claimants had exited the portal unnecessarily and unreasonably.
She went on to find that the provisions of CPR 36.20 had the effect of ousting a determination under CPR 45.24.
THE CLAIMANTS’ APPEAL
The judgment of the District Judge was short (four paragraphs) and the claimants appealed arguing inadequacy of reasons and that the judge erred in law. Her Honour Judge Clarke agreed that the reasons were insufficient, however she upheld the central decisions made by the District Judge.
THE DECISION ON APPEAL
PART 36.20 is not definitive, the court can also look at the provisions of CPR 45.
On appeal the Circuit Judge did not accept the Claimant’s argument that they were automatically entitled to fixed costs. She found that the provisions at CPR 45 which give the court a discretion to award lower costs if the claimant had unreasonably exited the portal still applied.
“I am satisfied that, although CPR 36.20 does not clearly express it, it
was open to the Deputy District Judge to consider whether the Claimants acted
unreasonably and to make an order under CPR. 45.24 if she found that they did,
notwithstanding the acceptance of the Part 36 offer, for the following reasons:
i) in my judgment the scope of section IIIA has been brought into CPR 36.20 by
the effect of 45.29A and specifically 45.29A(1) and (3) in conjunction;
ii) reading CPR 36.20 without allowing that interpretation would give rise to
some absurdities which I do not consider can have been intended by the
draftsman that rule;
iii) for that reason I consider that, even when a Part 36 offer is accepted in time
when a claim has started under the protocol but has been discontinued and Part
7 proceedings have been started, that CPR. 45.24 does provide a route to make
a different costs order to that prescribed within CPR 36.20 – CPR 36.20 does
not oust it.”
Upholding the District Judge’s decision that the claimants had been unreasonable in leaving the portal
The claimants also argued that the District Judge had been wrong to find it was unreasonable for them to leave the portal. In correspondence the defendants had stated that it was possible that they would be raising the issue of causation and low velocity. The Circuit Judge considered the letter from the defendant’s insurer and state.