ARGUMENT THAT FIXED COSTS APPLIED GETS A BUMPY RIDE: PROTOCOL DOES NOT APPLY TO HIGHWAYS CASE
I am grateful to barrister James Bentley for drawing my attention to the judgment in Bateman v Devon County Council (HHJ Mitchell, Plymouth County Court, 2nd September 2019) in which it was decided that fixed costs did not apply to a case where a motorcyclist was injured because of a defective road.
The claimant was injured whilst riding a motorcycle along the road. The accident was caused by the uneven road. After proceedings were issued the claimant accepted a Part 36 offer of £1,500.
THE ISSUE BEFORE THE JUDGE
The judge was asked to consider whether the Public Liability Protocol, and thus fixed costs, applied. It was common ground that the Road Traffic Protocol did not apply, the defendant was not a highway user.
The Public Liability Protocol also has exclusions.
“10. Those include at paragraph 4.3(ii) damages arising out of a road traffic accident and that
road traffic accident is as defined in paragraph 1.1(16) of the Road Traffic Act Protocol.
The definition of a road traffic accident at paragraph 1.1 of the Road Traffic Act Protocol is
‘An accident resulting in bodily”
The judge noted the two different approaches.
11. In very broad terms, the claimant says that the wording of the Public Liability Protocol is
clear, and leaves no room for ambiguity. It simply does not apply and the fixed costs
regime therefore has no application.
12. The Defendant, on the other hand, has argued that the Public Law Protocol should be read
and construed in a purposive way such that fixed costs should be applied to this claim.
13. Alternatively, fixed costs should be indirectly applied by use of CPR 44.4 which contains
matters the Court has to have regard to in dealing with costs, including conduct of the parties.
13. In essence, this is a conflict between two different approaches to interpretation: the strict
approach by the Claimant and the purposive approach by the Defendant. Certainly that has
been the position until today.
[There are two paragraphs numbered 13 in the judgment].
THE JUDGE’S DECISION (1) DEFINITION OF ROAD TRAFFIC ACCIDENT
The judge considered, and rejected, the defendant’s argument that this was not a road traffic accident as meant by the rules.
The first point that I must address, by way of the Defendant’s revised submission, is that in
fact the road traffic exception from the Public Liability Protocol does not apply to this case.
16. The basis on which that argument is made is that it is said that the cause of the accident was
not another vehicle, but a defect in the road so it is argued that the claim does not come
within the definition of an accident caused by or arising out of the use of any motor vehicle.
In other words, it is argued that there is no sufficient causal connection between the accident
on the one hand and the use of a vehicle on the other hand; that the use of a vehicle was
simply part of the background circumstances.
17. I have to say, whilst initially considering that argument as it was being developed I was
tempted to agree with it, in the sense that that approach would introduce congruity in the
approaches between the two protocols.
18. In developing the argument, I have been referred to a recent Supreme Court case of
R&S Pilling t/a Phoenix Engineering (Respondent) v UK Insurance Ltd  UKSC 16.
for the purposes of Section 145(3) of the Road Traffic Act 1988. That was the case of a fire
in a vehicle in a garage, and it was held that that did not arise out of the use of a vehicle but
the use of the vehicle was incidental.
19. It is plain from some consideration of that authority – and there has not been a great deal of
time this afternoon to consider it in detail – but it is plain from even a relatively cursory
examination of that authority, that the phrase in question has been considered in a plethora
of cases down the years, including reference to the case of Dunthorne v Bentley 
Lloyd’s Rep 560 at paragraph 44 where a motorist who was run down crossing the road,
having run out of petrol, those circumstances still came within the definition of arising out
of the use of a vehicle.
20. If the definition in the Road Traffic Act Protocol was injury caused by the use of a car then
that would point to the definition not applying in this instance. However, it is important to
my mind that the phrase being considered extends to ‘arising out of’, not simply ‘caused by’
and to my mind it is right to say that that denotes a broader approach.
21. It seems to me, standing back, that a person who drives into a defect in the road: that
denotes an accident that arises out of the use of a vehicle. There is a clear nexus between
the use and the incident so to my mind, on the face of it, the exclusion of the
Public Liability Protocol at paragraph 4.3(11) does apply.
THE JUDGE’S DECISION (2): THE DEFENDANT’S “PURPOSIVE” APPROACH COULD NOT BE USED
The judge then went on to consider, and reject, an argument that a “purposive” approach to the exclusion meant that the court should find that fixed costs apply.
That leads me then to consider the purposive approach to interpretation of the exclusion, in
other words the case put by the Defendant in the skeleton argument and, indeed, in the
original skeleton argument of the same counsel in the Pencarrow case.
23. The Defendant’s case, in a nutshell, is that the basic policy objective has been to apply fixed
costs to Road Traffic Accident and Public Liability claims of this nature, that the exception
should be considered in the light that the Road Traffic Act Protocol was drafted first and
that the Public Liability Protocol came later and, in many respects, was drafted onto the
earlier protocol and inadvertently a loophole has been missed that was not intended because
such would be contrary to the general policy objective.
24. In response to that, I have been taken by Mr Bentley on behalf of the Claimant to the case of
Inco Europe Ltd v First Choice Distribution  1 WLR 58 – another case at the highest
level – and the speech by Lord Nicholls for the test to be applied in interpreting legislation.
That is a threefold test and Lord Nicholls makes it clear that courts have to be abundantly
clear in respect of each aspect of the test.
25. The first matter or the first aspect of the test is the intended purpose of the provision in
question and what the Court would need to be clear about – certainly on the Defendant’s
case – is that the intended purpose, effectively, was to make sure that the protocols were
26. The Claimant says, on the other hand, that the intention may well simply have been to
ensure that road traffic accidents did not fall within the Public Liability Protocol, hence the
exception, and that individual cases were then left to see whether they fell within the Road
Traffic Act Protocol which was already in place prior to the Public Liability Protocol; and
developing that, that in fact there is no all-encompassing approach, in the sense that both the
Road Traffic Act Protocol and the Public Liability Protocol have exceptions to them.
27. I have to say in considering intended purpose, it is not clear to me – certainly not in the
sense of being abundantly clear – that these Protocols when read against each other were
intended to be an all-encompassing provision in the way that the Defendant maintains.
28. Second that by inadvertence, Parliament failed to give effect to the purpose intended. It is
correct to say that in the Jackson Review of costs, one of the conclusions was an intention
that fixed costs applied to all fast-track cases.
29. However, it is common ground that that has not been implemented by the rule makers.
There are no less than six exceptions to the Road Traffic Act Protocol and no less than 11
exceptions to the Public Law Protocol. It might be said – indeed it has been argued, and I
think I would agree – that not all those exceptions cover particularly complicated situations.
Therefore, it is not clear to me that there was some inadvertent overlooking of an intended
purpose, again certainly not abundantly clear.
30. The third aspect is the substance of the provision that Parliament intended. I accept that the
Court does not need to be satisfied on the precise wording intended but it needs to be
abundantly clear on at least the substance of what was intended. There is a distinct lack of
evidence in that respect in this particular case.
31. I have been referred to the Court of Appeal case of Qadar v Esure  EWCA Civ 1109.
In that case, the Court had clear evidence from the Ministry that fixed costs were not
intended to follow through into cases that were allocated to the multi-track, so the
Court of Appeal was able to impose a purposive interpretation because the position was
32. Contra-wise, in the case of Williams v The Secretary of State for Business, Energy &
Industrial Strategy there was no policy evidence for reading the fixed costs provision at
CPR 45.24 as applying where there had not been Part 7 proceedings or the entry of
judgment. Therefore, in that case the Court found that it could not find an obvious drafting
error because the Court did not have the evidence in front of it.
33. This is a similar case, it seems to me. The Court simply has no policy evidence in front of it
to be able to conclude what the substance of the intended provision actually was.
Therefore, in conclusion, I have no sure foundations for adopting a purposive construction
where the literal position is clear.
34. Indeed, it seems to me that it would have been clear to the draftsman that Road Traffic Act
claims such as this, that have a public liability element, were likely to be excluded. The
exception to the Road Traffic Act Protocol, in respect of breach of duty by someone who is
not a road user, makes that position pretty obvious and – certainly from where I am sitting,
without evidence to the contrary, there is no reason to think that that was overlooked. It
does not seem to me to be a particularly difficult point.
35. That leads me very briefly to consider the indirect argument.
36. I have been referred, again, to the case of Williams v The Secretary of State for Business,
Energy & Industrial Strategy. In that case it was held that CPR 44.4, which enables the
Court to take conduct into account, can be a route to fixing a Claimant with, or limiting a
Claimant to, fixed costs, even where a case does not fall within Protocol.
37. I have to say the case of Williams v The Secretary of State for Business, Energy & Industrial
Strategy was a very different case from what I can currently dealing with. That was a case
where the Court was highly critical of the Claimant’s conduct in bringing a claim against
two Defendants where the claim against one Defendant was very weak; and that was a
means of avoiding the Protocol. This is not one of those cases. It seems to me this was
always a case where the Protocol either applied or not. As it happens, I have held that it did
not and so it seems to me there can be question of conduct being held against Claimant.
38. Therefore, my conclusion is that the Public Law Protocol does not apply directly or
indirectly to this claim.
A COPY OF THE JUDGMENT
A copy of the judgment can be found here
James’ article on the case can be found here