UNREASONABLE FAILURE TO USE PROTOCOL WILL LEAD TO FIXED COSTS BEING AWARDED: COURT OF APPEAL DECISION: CPR 44 RULES THE DAY
In Williams v The Secretary of State for Business, Energy & Industrial Strategy  EWCA Civ 852 the Court of Appeal considered the issue of the personal injury protocol and fixed costs. It was held that CPR 44 has sufficient width to enable a court to order that a claimant is confined to portal fixed costs.
“… the Part 44 conduct provisions provide a complete answer to a case like this. They provide ample scope for a District Judge or a Costs Judge, when assessing the costs in a claim which was unreasonably made outside the EL/PL Protocol, to allow only the fixed costs set out in the EL/PL Protocol.”
- The claimant sent letters of claim to the defendant seeking damages for hearing loss incurred in the course of his employment.
- At no stage did the claimant attempt to use the the EL/PL Protocol. It was argued that there were two potential defendants. (Cases with more than one defendant are not subject to the portal rules).
- On receipt of the letter the defendant wrote:
“If this claim is not submitted through the Claims Portal and the claim is ultimately settled against our Client alone, the Defendant will seek an order from the Court for fixed costs to be applied under CPR Part 45.24.”
- The action eventually settled for £2,500. Settlement was by way of a conventional Part 36 offer. The claimant had come to the conclusion that there was no viable claim against the other defendant.
THE ISSUE AS TO COSTS
The District Judge concluded that the claimant was only entitled to fixed costs as if the matter had proceeded through the Protocol. It was held that this was, in reality, a one-defendant case and, although there was a lacuna in the rules, the claimant was only entitled to fixed costs. This decision on the construction of the rules was overturned by the Circuit Judge. However the Circuit Judge did observe that it was open to the costs judge to find that fixed costs were the appropriate basis for recovery. The parties declined the judge’s invitation that he determine the issue of the applicable level of costs. The defendant appealed.
The defendant’s main argument was that there was a lacuna in the Civil Procedure Rules and that they should be construed so as to confine the claimant to fixed costs. The Court of Appeal rejected this aspect of the defendant’s case, finding that it required a strained construction which was not justified. However the defendant succeeded on the discretion point. The court holding that CPR 44 meant that, in these circumstances, a
THE COURT OF APPEAL JUDGMENT
The Court of Appeal considered, and rejected, the defendant’s argument in relation to construction. However the argument in relation to the exercise of discretion was accepted.