Claimant limited to portal costs following unreasonable exit from portal
DWF has successfully restricted a claimant to fixed portal costs following a premature decision to remove the claim from the MoJ portal. Sukhjit Dhadwal, who represented the defendant Local Authority in relation to the costs issues in the claim, outlines the findings.
At a glance
- The claimant (a minor) suffered an injury in the school playground.
- The Local Authority admitted liability in the MoJ Portal, but reserved their rights on causation.
- The claimant's solicitors removed the claim from the portal on the basis that the defendant's position on causation had been reserved.
Master Haworth in the SCCO held that the claimant should not have removed the claim from the portal, as the defendant had a clear intention to compensate the claimant following its negligence
The claimant in this matter suffered a cut lip and broken milk teeth following a fall in the school playground. Subsequently, the claimant retained solicitors who sent a CNF to the defendant on 13 July 2015. On 21 August 2015, within the required portal deadline, the defendant admitted liability in the portal.
The defendant followed up this admission with correspondence dated 18 November 2015 reiterating the admission of primary liability, “subject to causation”. The claimant promptly notified the defendant that the claim would be removed from the MoJ Portal. The defendant clarified its position explaining that causation was not being denied but that medical evidence was needed before an offer could be made, and invited the claimant's medical evidence in order to make offers to settle.
The claimant's claim was compromised in the sum of £2,500 following approval from the court. The claimant's solicitor proceeded to serve a bill in the sum of £7,097.92 on the basis that they believed they were entitled to recover costs as the claim had correctly exited the MoJ Portal.
In points of dispute, we argued on behalf of the defendant, that the claimant had been unreasonable in removing the claim, on the basis that an admission of liability had been made and the defendant had a clear intention to compensate the claimant in damages.
We also raised the point that the conduct of the defendant was not inconsistent with the definitions as specified in paragraph 1.1 of the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims:
1.1 In this Protocol
(1) ‘admission of liability’ means the defendant admits that
(a) the breach of duty occurred;
(b) the defendant thereby caused some loss to the claimant, the nature and extent of which is not admitted; and
Subsection (b) allows the defendant to raise causation and this is also consistent with the admissions made in the CNF response. At provisional assessment stage, the SCCO found in favour of our arguments. However, this led to the claimant requesting an oral hearing.
The oral hearing took place in front of Costs Officer Martin, as he had provisionally assessed the bill. At the hearing, Costs Officer Martin felt compelled to reverse his decision on the basis that allegations made with regard to causation amounted to the defendant not admitting any loss. The defendant's expressed intention to compensate was not considered relevant by the costs judge, so we sought instructions from the defendant to appeal this decision and request a rehearing on the point of principle.
Master Haworth of the Senior Courts Costs Office agreed with the defendant's submissions andoverturned Costs Officer Martin's decision. The claimant's costs were assessed in the sum of £2,941, with the defendant awarded costs of the assessment.
The claimant's solicitors had been quick to remove the claim from the portal where there was a perceived doubt as to the defendant's intentions in the correspondence outlining that causation was an issue.
The Master accepted our submission that the defendant should not be precluded from raising medical causation (i.e. the extent of any injuries, as opposed to whether any injury was caused at all) as an issue.
Master Haworth held that the claimant had 'jumped the gun' by taking steps to remove the claim from the MoJ Portal. If there was a doubt as to whether the defendant was arguing that no injury had been caused by its admitted negligence, this could have been clarified before any further steps were taken. Master Haworth in his judgment, took the view that the overriding objective calls for cooperation between the parties. Once the claim had exited the portal, the defendant clarified its stance, which was that causation was not being wholly denied but that medical evidence was needed before an offer could be made.
Master Haworth was satisfied that the defendant had made clear to the claimant that a positive admission was made, medical causation was a live issue but the defendant's ultimate objective was to achieve settlement of the claim.
Following judgment, Master Haworth exercised his discretion and applied CPR 45.24 to reduce the claimant's costs to £2,941. This represented a 59% saving on the costs that were initially claimed.
For further information please contact Sukhjit Dhadwal on 020 7645 4132 or at Sukhjit.Dhadwal@dwf.law or Steven Dawson on 0113 261 6118 or Steven.Dawson@dwf.law
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.