CPR 44 has sufficient width to enable a court to order fixed portal fixed costs when there is unreasonable failure to use Protocol

Williams v The Secretary of State for Business, Energy & Industrial Strategy [2018] EWCA Civ 852 

Claim details

This Court of Appeal case looks at the CPR 44 conduct provisions and that failing to use the protocols set out therein could lead to fixed costs being awarded.

The Claimant’s claim was for damages associated with hearing loss incurred in the course of his employment. Given the nature of the claim, there were arguably two potential Defendants and as such the Claimant failed to use the EL/PL Protocol.

A Letter of Claim was submitted to the Defendant and in response the Defendant stated that

“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 Claimant still did not submit the claim through the Claims Portal on the basis that there remained two possible Defendants at the time Letters of Claim were being submitted. However, the action eventually settled by way of a Part 36 Agreement in the sum of £2,500.00 prior to the issue of proceedings. The Claimant did not pursue the claim against the other Defendant due to lack of prospects.

Unsurprisingly therefore, the Defendant took issue with costs being payable on the standard basis and successfully argued that the Claimant was only entitled to fixed costs as if the matter had proceeded through the Portal. The DJ held that this was inevitably only ever going to be a one Defendant case.

This decision was overruled by the Circuit Judge on the grounds that there was scope in the rules that if there was more than one Defendant the EL/PL Protocol would not apply. Comment was however passed, that it was open to a Costs Judge to find the appropriate basis of recovery of costs.

The Defendant therefore appealed. Their main argument was that there was a lacuna in the CPR and that they interpreted the same to confine the Claimant to fixed costs. The Defendant also argued the exercise of discretion.

Considerations given to the arguments presented during the Appeal:

The Court found that the Claimant had only incurred a higher lever of costs because she had failed to unreasonably follow the EL/PL Protocol.

The Court commented that a claim which started under the Protocol and was then unreasonably removed from it would attract fixed costs and that a claim that unreasonably was never made under the Protocol would not attract fixed costs, was illogical.

The absence of Part 7 Proceedings was also considered and it was stated in the Judgement that “…the absence of Part 7 proceedings and the absence of a judgment means that r.45.24 does not apply to this case. Accordingly, that route to fixed costs is not open to the Defendant.”

Also considered was the Part 36 regime. The Court indicated that, if the Defendant had wanted to limit its Part 36 offer to fixed costs, because of the argument about the viability of the claim against the other potential Defendant, then it could have said so expressly in their offer letters.

The Court therefore looked towards CPR 44 for the Basis of Assessment and pointed out that these provisions contain numerous ways in which a party whose conduct has been unreasonable can be penalised in costs. It was also considered “…that Part 44 provides a complete answer to the issues raised on this appeal. In a case not covered by r.45.24, such as this one, a defendant can rely on the Part 44 conduct provisions to argue that only the EL/PL Protocol fixed costs should apply.”

Conclusion

“… I would dismiss the appeal on the first ground. Neither the EL/PL Protocol nor r.45.24 provides a mechanism which automatically applies the fixed costs regime in circumstances where a claim has not been started under the Protocol and/or has not been the subject of a Part 7 claim and a judgment. There is no drafting error, obvious or otherwise, in the CPR.”

 

“… I would allow the appeal on the second ground. In a case where the Protocol should have been used, and its non-use was unreasonable then, pursuant to the Part 44 conduct provisions, the claimant will usually be entitled to recover only the fixed costs and the disbursements permitted by the Protocol.”

Therefore, whilst the first argument regarding constructions was rejected, the Defendant’s case succeeded in the Court of Appeal on the discretion point.