YOU CANNOT CLAIM ADDITIONAL COSTS AFTER A SECOND CNF IS SENT IN THE PORTAL PROCESS: DISTRICT JUDGE DECISION

I am grateful to barrister James Miller for sending me a copy of the decision of District Judge Rouin in Thandi -v- Esure Services Ltd (9th June 2021).    Thandi v Esure – Approved Judgment – 09.06.21 V1 The claimant served a second CNF after Part 8 proceedings had been issued.   The District Judge rejected an argument that the claimant could rely on the second CNF in relation to the case dropping out of the portal process.

THE CASE

The claimant in a personal injury action sent a claims notification form to the defendant.  The claimant’s solicitors were intervened in by the Law Society and new solicitors were instructed. Those solicitors issued proceedings under the Part 8 procedure. However during the currency of the stay ordered when proceedings were issued the new solicitors sent a second claim notification form. No response was received and the claim dropped out of the protocol process.   Subsequently the Part 8 proceedings were converted to Part 7 proceedings.   The claim settled shortly before trial.

THE ISSUE: IT WAS ALL ABOUT THE COSTS

The question was which rules as to costs applied.   The defendant argued that it was not permissible for the claimant to send out a second CNF.

“The defendant’s position is that the decision to send the second claim notification form is not capable of justification and therefore
a finding to that effect should be sufficient to persuade me that I should exercise my power to limit the costs recoverable by the claimant to sums by reference to CPR Rules 45.18 and 45.19 rather than the basis upon which the bill which is currently being assessed is drawn.”

THE JUDGE’S DECISION – NO JUSTIFICATION FOR SENDING A SECOND CNF

The judge found that there was no justification for sending a second CNF. The rules only allowed a further CNF to be sent if the original had been sent to the wrong defendant.

My view is this. I have no direct evidence about the lack of access to portal information and documentation on the part of Taylor Price following the intervention into Leslie Charles solicitors. The absence of such evidence, in my view, significantly weakens the claimant’s case on the submission that there was no option but to issue a second claim notification form. However, in any event, the way in which paragraph 5.2 of the pre-action protocol to which I referred earlier is framed seems to me to lead me to the conclusion that there was no basis for the claimant sending the second claim notification form either in the form that it did, or at all, and I confirm that I respectfully adopt and agree with submissions made by counsel for the defendant in that context. It is clear to me that by reference to paragraph 5.2 the only circumstances in which it is permissible to send a second claim notification form, i.e. the sending of the original claim notification form to the wrong defendant, clearly does not apply here.

WHAT THE CLAIMANT SHOULD HAVE DONE

The District Judge stated that the claimant’s solicitors should have sought directions within the action rather than serve a new CNF.

9. There is a further difficulty, in my judgment, in the case as presented to me on behalf of the claimant, because the claimant clearly knew of the existence of a live set of proceedings, albeit one that was stayed, because it was they rather than Leslie Charles, that is to say Taylor Price rather than Leslie Charles, who had actually issued those proceedings and sought the stay from the court. That, in my view, fatally undermines any submission to say that there was no other option than to issue the second claim notification form. In my judgment, the claimant could and should have made an application within these existing proceedings for directions in light of the issues regarding the current state of the protocol process, the difficulties caused by the intervention of Leslie Charles solicitors and how to progress matters in order for that process to be moved forward in those circumstances. That, in my judgment, was the correct course of action to take, not any attempt to instigate effectively a second process or a fresh process by the sending of a second claim notification form.

THE RESULT: (LOWER) FIXED COSTS APPLIED

“Having concluded that there was no basis for the second claim notification form to be sent, the logical further conclusion that I am drawn to, it seems to me, is that any attempt to recover costs based on the claim dropping out of the protocol due to the absence of a response to that second claim notification form must also be fatally flawed. Given the conclusions I have outlined in this judgment as to how the claimant has approached this issue, that is to say by progressing matters by attempting to serve and rely upon a second claim notification form rather than seeking guidance or assistance from the court within the existing proceedings, I am readily drawn to accepting the submissions made on behalf of the defendant to the effect that I should exercise the discretion conferred on me by CPR 45.24 such as to limit the costs recoverable in this case by the claimant to those recoverable by reference to Rules
45.18 and 45.19 of the CPR.”

TWO OTHER MATTERS

The judgment contains two other matters.

11. There are a couple of other points which I wish to make before concluding this particular judgment, which are that I see no basis for making any criticism of the defendant’s approach to the issue of its liability for costs in respect of these proceedings. The way in which the issues of costs have been approached by the defendant have in my judgment been entirely appropriate and so there is nothing that I would wish to indicate by way of criticism to that approach which would have any impact on the decision that I have just reached.

12. Furthermore, I finally, in conclusion, confirm that I expressly decline any invitation that might have been made to me by counsel for the claimant to exercise any form of hindsight about how the case ultimately proceeded towards a conclusion to factor into my consideration in terms of the application of the discretion that I was invited to apply in the context of limiting the claimant’s costs. I have not therefore taken any factors regarding the ultimate route to settlement of these proceeding