In the recent case of Qader & Others v Esure Services Limited the Court of Appeal ruled that fixed costs do not have to apply to a case that has dropped out of the road traffic accident protocol and into the multi-track.
The accident incurred in October 2013 and the three Claimants allege that the Defendant’s driver drove into a collision with the rear of their vehicle on a slip road. The claims were valued at less than £15,000 and started under the Road Traffic Accident Protocol. In the Defence the Defendant alleged that the Claimants had deliberately induced the accident by braking suddenly on a slip road which was entirely free from traffic. At the CMC the claim was allocated to the multi-track.
In the first instance it was held that fixed costs under CPR 45.29A would apply to the case.
CPR 45.29A states:
“(1) Subject to paragraph (3), this section applies where a claim is started under—
(a) the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents ('the RTA Protocol'); or
(b)the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims ('the EL/PL Protocol'),
but no longer continues under the relevant Protocol or the Stage 3 Procedure in Practice Direction 8B.
(2) This section does not apply to a disease claim which is started under the EL/PL Protocol.
(3) Nothing in this section shall prevent the court making an order under rule 45.24”
DJ Salmon stated that:
a) “The rule is clear on its face that the determining factor is not track but value in respect of the operation of the fixed costs regime.
b) There is in CPR 45.29J a provision allowing the court to depart from the fixed costs regime whereby the court "if it considers that are exceptional circumstances making it appropriate to do so, the court will consider a claim for an amount of costs ... which is greater than the fixed recoverable costs ..." a fraud case lasting two days may well be such a case.
c) CPR 3.12 (c) clearly contemplates costs on the multi-track being subject to fixed costs.”
The Claimants subsequently appealed and HHJ Grant upheld DJ Salmon’s Judgment.
The Claimant subsequently appealed again and the claim was fast tracked to the Court of Appeal.
In his Judgment, Lord Justice Briggs stated that the drafting of the rules by the Civil Procedure Rules Committee represented an ‘apparent failure to implement the continuing intention … to exclude multi-track cases from the fixed costs regime being enacted for cases leaving the RTA and EL/PL protocols’.
Lord Justice Briggs went on to state that ‘The intended purpose of the fixed costs regime in this context was that it should apply as widely as possible but not to cases where there had been a judicial determination that they should continue in the multi-track.’
Lord Justice Briggs ruled that ‘ The best way to give effect to that intention seems to me to be to add this phrase to Part 45.29B, after the reference to 45.29J “… and for so long as the claim is not allocated to the multi-track…”’.
Therefore should a claim start in the RTA, EL/PL portal, but subsequently be allocated to the multi-track, fixed costs would not apply.
This is an interesting Judgment as the Court has expressly asked for a change in the rules to account for its Judgment.
Written by Michael Mansi - Costs Lawyer
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