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 [2017]  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 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 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 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.



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.

“In that letter, the Defendant makes clear that until the car is inspected they do not
know whether they are going to be raising causation and low velocity per Casey v.
Cartwright, but they are providing advance warning that this is the way that their
thinking is going and that is why they want to inspect the vehicle.
36. Mr. Latham submits that a lot of costs can arise at this stage for the Claimants – that
they will have to serve proofs of evidence, they will have to start sending their client
to medical experts. Yes they will, but not until a Casey v. Cartwright letter is sent.
That is when the Defendnat provides the notification that he considers that this is a
low impact case, and that he intends to raise causation. If the Claimants choose to
incur these costs beforehand, that is entirely up to them but it is not a reasonable
action to eject or discontinue from the protocol upon receipt of an early warning flag
of a letter such as that of 4th August, which refers to Casey v Cartwright but is not a
‘Casey v Cartwright letter’. That is clearly also the decision reached by Deputy
District Judge Lynch. I cannot criticise it of course because I would have reached the
same decision. “