Mitchell Ferguson v Royal Borough of Greenwich [2025] EWCC 30

[2025] EWCC 30

Case No G12YY302

IN THE COUNTY COURT AT CANTERBURY

Date 29/05/2025

The Law Courts

Chaucer Road

Canterbury

Kent

CT1 1ZA

Before

HER HONOUR JUDGE CATHERINE BROWN

Between

MR MITCHELL FERGUSONClaimant /

ROYAL BOROUGH OF GREENWICHDefendant /

Jennifer Dickinson (instructed by Express Solicitors) for Appellant

Paul Hughes (instructed by DWF Law LLP) for Respondent

Hearing Hearing date: 29 April 2025

Judgment: 29 May 2025

JUDGMENT

[1]The Appellant (“the Claimant”) filed an Appellant’s Notice on 8 December 2022 seeking permission to appeal the order for costs made by District Judge Thistle (“the judge”) on 24 November 2022.

[2]The procedural history of the appeal is unclear and I only have a duplicate file. The file was first referred to me in October 2024 and, in order to avoid further delay so far as possible, I directed that the case should be listed for a “rolled up” permission to appeal and appeal hearing. Unfortunately that hearing was not listed before me until 29 April 2025. At the conclusion of the hearing I reserved my judgment.

The Claim

[3]The claim arose from an accident on 17 May 2016. On the findings of the judge at trial, the accident occurred when the Claimant, who was then aged almost 16, used a rope swing attached to a tree in Borstal Woods. The rope snapped and the Claimant fell some distance down the embankment below the tree. The Respondent (“the Defendant”) was the occupier of Borstal Woods. The Defendant was aware through its employee that the rope swing was there and the risk inherent in its presence was recognised by the Defendant because similar rope swings had been removed previously.

[4]The letter of claim was dated 12 December 2018. In the letter of claim the Claimant’s solicitors valued the claim at more than £25,000 and stated that it was therefore outside of the scope of the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims (“the EL/PL Protocol”) by reason of paragraph 4.1(3) of the EL/PL Protocol. Therefore the Claimant’s solicitors were not intending to submit a Claim Notification Form through the MOJ Portal. Rather the letter of claim stated that it was written in accordance with the Pre-Action Protocol for Personal Injury Claims (“the PI Protocol”).

[5]The Defendant’s Insurer’s letter in response denying liability and alleging contributory negligence is dated 30 April 2019. The response did not raise any issue concerning the quantum of the claim and nor did it take issue with the Claimant’s solicitors use of the PI Protocol, rather than the EL/PL Protocol.

[6]The Claimant’s solicitors thereafter obtained a medical report from Mr Richard Coombs, Consultant Orthopaedic and Spinal Surgeon, dated 14 August 2019.

[7]The claim form pursuant to CPR Part 7 was filed by the Claimant’s solicitors and issued on 21 September 2020. The value on the claim form was limited to £25,000.

[8]The Defendant maintained a denial of primary liability both pre- and post-proceedings. In the alternative, the Defendant alleged contributory negligence.

[9]On 8 January 2021 the claim was allocated to the fast track.

[10]The case was listed for trial on 3 September 2021 with a time estimate of 4 hours. The trial was, however, vacated by the court and it was ordered to be relisted with a revised time estimate of 2 days.

[11]The Claimant’s solicitors made an unsuccessful application to reallocate the case to the multi-track that was, it appears from the transcript of the hearing on 24 November 2022, heard by the judge at the start of the trial.

[12]The case eventually came to trial before the judge on 6 October 2022. Although the judge completed hearing the evidence and submissions on that date, he had insufficient time to also give judgment. Although this case now had a time estimate of 2 days, the judge had another case already listed on 7 October 2022 and so he was unable to give judgment on the following day.

[13]Judgment on liability and quantum was delivered by the judge at a CVP hearing on 24 November 2022. He then heard submissions and he made decisions concerning costs and ancillary matters. His order dated 24 November 2022 was in the following terms: 1. There is judgment for the claimant in the sum of £5477.84, to be paid by 4pm on 8/12/22. 2. The Defendant shall pay the Claimant’s fixed costs of £1,998 by 4pm 8/12/22.

[14]Paragraph 1 of the judgment reflected the fact that the judge had found that the accident was caused by the Defendant’s breach of the duty owed to the Claimant pursuant to the Occupiers’ Liability Act 1984 and that he also found that damages should be reduced by 50% on account of what he found to be the Claimant’s contributory negligence.

[15]There are no appeals against the findings of the judge on primary liability, contributory negligence or the quantum of damages.

[16]Paragraph 2 of the order is the subject of this appeal. The judge found that the successful Claimant’s costs should be limited to fixed costs in accordance with CPR 45.18 and disbursements in accordance with CPR 45.19.

Grounds of Appeal

[17]The grounds of appeal are:- Ground 1. The Learned Judge erred in fact in concluding that the Appellant acted unreasonably by valuing his claim at more than £25,000 at the time he sent a letter of claim and thereby failing to assess costs on the standard basis. Ground 2. The Learned Judge made an error of principle in determining that having found that that the Appellant acted unreasonably by valuing the claim at more than £25,000, he was required by the rules to restrict costs to ‘Portal costs’ pursuant to CPR 45.18 and 45.19. Ground 3. The Learned Judge’s decision to restrict costs to ‘Portal costs’ pursuant to CPR 45.18 and 45.19 was wrong and in any event outside the ambit of reasonable discretion in circumstances where liability was denied, and the Appellant was successful at trial. Ground 4. The Learned Judge erred in the amount of costs awarded in any event in assessing the ‘Portal costs’ pursuant to Table 6 of CPR 45.18 rather than Table 6A.

Respondent’s Notice

[18]The Defendant in the Respondent’s Notice accepts that, if the judge was correct to restrict costs to “Portal costs”, then the fixed costs should have been those prescribed by Table 6A (“Fixed Coss in relation to the EL/PL Protocol”) rather than Table 6. Ground 4 was therefore conceded. The Respondent’s Notice conceded that the correct figure for costs in the order was £2,478, as opposed to £1,998, and the Defendant has already paid that correct sum (if the judge was otherwise correct in limiting the costs to “Portal costs”) to the Claimant.

[19]In the Respondent’s Notice, the Defendant set out the basis on which the Defendant contended that the judge was entitled to make the order that he did.

[20]In the alternative, the Defendant sought in the Respondent’s Notice to: Uphold the judge’s decision for the same reasons pursuant to CPR 44.3, CPR 44.4 and CPR 44.11 discretion.

Rules, Practice Directions and Pre-Action Protocols

[21]The relevant rules and practice directions are those which were applicable prior to the significant amendments that came into force on 1 October 2023. The pre-action protocols are the EL/PL Protocol as it was prior to 1 October 2022 (formerly in Practice Direction 8B). The PI Protocol is that which has been in force since 6 April 2015. CPR Part 44 General Rules about Costs 44.3— Basis of assessment(1) Where the court is to assess the amount of costs (whether by summary or detailed assessment) it will assess those costs— (a) on the standard basis; or (b) on the indemnity basis, but the court will not in either case allow costs which have been unreasonably incurred or are unreasonable in amount. (Rule 44.5 sets out how the court decides the amount of costs payable under a contract.)

(2) Where the amount of costs is to be assessed on the standard basis, the court will— (a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and (b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party. (Factors which the court may take into account are set out in rule 44.4.) … (5) Costs incurred are proportionate if they bear a reasonable relationship to— (d) any additional work generated by the conduct of the paying party; … 44.4— Factors to be taken into account in deciding the amount of costs (1) The court will have regard to all the circumstances in deciding whether costs were— (a) if it is assessing costs on the standard basis— (i) proportionately and reasonably incurred; …

(3) The court will also have regard to— (a) the conduct of all the parties, including in particular— (i) conduct before, as well as during, the proceedings; … 44.11— Court’s powers in relation to misconduct (1) The court may make an order under this rule where— (a) a party or that party’s legal representative, in connection with a summary or detailed assessment, fails to comply with a rule, practice direction or court order; or (b) it appears to the court that the conduct of a party or that party’s legal representative, before or during the proceedings or in the assessment proceedings, was unreasonable or improper. (2) Where paragraph (1) applies, the court may— (a) disallow all or part of the costs which are being assessed; or (b) order the party at fault or that party’s legal representative to pay costs which that party or legal representative has caused any other party to incur. (3) Where— (a) the court makes an order under paragraph (2) against a legally represented party; and (b) the party is not present when the order is made, the party’s legal representative must notify that party in writing of the order no later than 7 days after the legal representative receives notice of the order. CPR Part 45 Section IIIThe Pre-Action Protocols for Low Value Personal Injury Claims in Road Traffic Accidents and Low Value Personal Injury (Employers’ Liability and Public Liability) Claims 45.16— Scope and interpretation (1) This Section applies to claims that have been or should have been started under Part 8 in accordance with Practice Direction 49F (“the Stage 3 Procedure”). (2) Where a party has not complied with the relevant Protocol rule 45.24 will apply. The “relevant Protocol” means— … (b) the Pre-action Protocol for Low Value Personal Injury Claims (Employers’ Liability and Public Liability) Claims (“the EL/PL Protocol”). (3) A reference to “Claim Notification Form” or “Court Proceedings Pack” is a reference to the form used in the relevant Protocol. 45.17 Application of fixed costs, and disbursements The only costs allowed are— (a) fixed costs in rule 45.18; and (b) disbursements in accordance with rule 45.19; … 45.18— Amount of fixed costs (1) Subject to paragraph (4), the amount of fixed costs is set out in Tables 6 and 6A. … Table 6A Fixed costs in relation to the EL/PL Protocol … Where the value of the claim for damages is more than £10,000 … 45.19— Disbursements (1) Subject to paragraphs (2A) to (2E), the court— (a) may allow a claim for a disbursement of a type mentioned in paragraphs (2) or (3); but (b) will not allow a claim for any other type of disbursement. … 45.24— Failure to comply or electing not to continue with the relevant Protocol—costs consequences (1) This rule applies where the claimant— (a) does not comply with the process set out in the relevant Protocol; or (b) elects not to continue with that process, and starts proceedings under Part 7. (2) Subject to paragraph (2A), where a judgment is given in favour of the claimant but— (a) the court determines that the defendant did not proceed with the process set out in the relevant Protocol because the claimant provided insufficient information on the Claim Notification Form; (b) the court considers that the claimant acted unreasonably— (i) by discontinuing the process set out in the relevant Protocol and starting proceedings under Part 7; (ii) by valuing the claim at more than £25,000, so that the claimant did not need to comply with the relevant Protocol; (iii) except for paragraph (2)(a), in any other way that caused the process in the relevant Protocol to be discontinued; or (c) the claimant did not comply with the relevant Protocol at all despite the claim falling within the scope of the relevant Protocol, the court may order the defendant to pay no more than the fixed costs in rule 45.18 together with the disbursements allowed in accordance with rule 45.19. … CPR Part 45 Section IIIA. - Claims Which No Longer Continue Under the RTA or EL/PL Pre-Action Protocols and Claims to Which the Pre-Action Protocol for Resolution of Package Travel Claims Applies—Fixed Recoverable Costs 45.29A— Scope and interpretation (1) Subject to paragraph (3), this section applies— (a) to a claim started under— … (ii) the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims (“the EL/PL Protocol”), where such a claim no longer continues under the relevant Protocol or the Stage 3 Procedure in Practice Direction 49F; … (3) Nothing in this section shall prevent the court making an order under rule 45.24. Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims Preamble 2.1 This Protocol describes the behaviour the court expects of the parties prior to the start of proceedings where a claimant claims damages valued at no more than £25,000 in an employer’s liability claim or in a public liability claim. The Civil Procedure Rules 1998 enable the court to impose costs sanctions where this Protocol is not followed. Scope

4.1 This Protocol applies where— (1) either— (a) the claim arises from an accident occurring on or after 31 July 2013; … (2) the claim includes damages in respect of personal injury; (3) the claimant values the claim at not more than £25,000 on a full liability basis including pecuniary losses but excluding interest (“the upper limit”); and

(4) if proceedings were started the small claims track would not be the normal track for that claim. …

4.2 This Protocol ceases to apply to a claim where, at any stage, the claimant notifies the defendant that the claim has now been revalued at more than the upper limit. … Contributory Negligence, liability not admitted or failure to respond 6.13 The claim will no longer continue under this Protocol where the defendant, within the relevant period in paragraph 6.11— (1) makes an admission of liability but alleges contributory negligence; (2) does not complete and send the CNF response; (3) does not admit liability; or (4) notifies the claimant that the defendant considers that— (a) there is inadequate mandatory information in the CNF; or (b) if proceedings were issued, the small claims track would be the normal track for that claim. 6.14 Where the defendant does not admit liability the defendant must give brief reasons in the CNF response. 6.15 Where paragraph 6.13 applies the claim will proceed under the relevant Pre-Action Protocol and the CNF will serve as the letter of claim (except where the claim no longer continues under this Protocol because the CNF contained inadequate information). … NB. Various other provisions in the EL/PL Protocol set out circumstances in which a case will or may no longer continue under the EL/PL Protocol (which it is unnecessary to set out in full) including:- 7.26-7.28 Where a defendant fails to make an interim payment requested by the claimant or the claimant is not content with the amount of the interim payment paid; 7.53-7.58 Where a defendant does not pay sums due to the claimant in respect of an offer that has been accepted or fixed costs or disbursements that are due from the defendant. General provisions 7.59 Where the claimant gives notice to the defendant that the claim is unsuitable for this Protocol (for example, because there are complex issues of fact or law or where claimants contemplate applying for a Group Litigation Order) then the claim will no longer continue under this Protocol. However, where the court considers that the claimant acted unreasonably in giving such notice it will award no more than the applicable fixed costs in rule 45.18.

Case Law

[22]The leading authority touching on the issues arising in this appeal is Williams v The Secretary of State for Business, Energy & Industrial Strategy

[2018] EWCA Civ 852

. The relevant paragraphs are taken from the judgment of Lord Justice Coulson, with which Lord Justice Hamblen and Lord Justice Lewison agreed. “Introduction 1. In this judgment, I shall refer to the claimant, the respondent to this appeal, as “the claimant”. I shall refer to the defendant, who brings this appeal from the decision of Judge Godsmark QC, as “the defendant”. The appeal concerns the appropriate approach to costs when a claimant unreasonably fails to follow a Pre-Action Protocol which allows for the recovery of fixed costs and disbursements only, where the claim is settled before the commencement of proceedings. … 4. There are two broad grounds of this appeal. The first is whether, on a proper interpretation of the EL/PL Protocol and/or CPR Pts 36 and 45, Judge Godsmark QC was right to conclude that the fixed costs regime envisaged by the EL/PL Protocol did not directly apply in a case where the claim itself was settled before proceedings were started. This issue also encompasses an attempt by the defendant to redraft rule 45.24 because of what is said to be a failure by the Civil Procedure Rule Committee (“the CPRC”) to follow a policy set out in various documents by the Ministry of Justice. The second issue is whether, even if rule 45.24 does not apply to this case, the various rules within CPR Pt 44, that allow a court to take into account the conduct of a party when assessing costs, apply to this case and, if so, whether they lead to the same result, namely that the claimant was entitled to recover only his fixed costs and disbursements in accordance with the EL/PL Protocol. … The Proper Interpretation of Part …45 … 30. Rule 45.24 does cover the position if a claim should have been brought under the EL/PL Protocol but was not. It cannot therefore be said that this was an eventuality that the CPR ignored. On the contrary, rule 45.24 is a detailed provision dealing with the costs consequences where the claim was either not made or not continued under the EL/PL Protocol. 40. However, as Judge Godsmark QC found, rule 45.24 does not apply to the facts of the present case. There have been no Part 7 proceedings. There has been no judgment. Although Mr Hutton QC sought to argue that in some way the requirement for Part 7 proceedings and a final judgment were simply examples of when the court could exercise its discretion under rule 45.24, I am unable to accept that submission. It is clear that rule 45.24 is dealing with specific circumstances where the court may exercise its discretion to order the payment of no more than fixed costs. Those circumstances (where there are Part 7 proceedings and a judgment) are not examples, but pre-conditions which have to exist before the rule can be applied. 41. Moreover, it is unsurprising that rule 45.24 assumes the existence of proceedings and a judgment. It is part of a wider scheme. With the exception of rule 45.23A (which was itself a later addition to fill a perceived gap in the Rules), all of Section III of Part 45, starting at rule 45.16 and including rule 45.24, applies where proceedings have been commenced and been pursued to judgment. That in turn is consistent with the principal function of the CPR: to govern the conduct of proceedings once they have commenced. … The Proper Interpretation of CPR Part 44 …52. These provisions contain numerous ways in which a party whose conduct has been unreasonable can be penalised in costs (what I shall call “the Part 44 conduct provisions”). In my view, the Part 44 conduct provisions provide a complete answer to a case like this. They provide ample scope for a district judge or a costs judge, when assessing the costs in a claim which was unreasonably made outside the EL/PL Protocol, to allow only the fixed costs set out in the EL/PL Protocol.

53. Mr Carter sought to argue that it was somehow inherent in rule 45.24 that Part 44 would not apply at all in cases like this. He argued that, if the same result could be achieved by way of Part 44, then rule 45.24 was otiose.

54. I do not accept those submissions. Since rule 45.24 does not apply to this case, its existence cannot be relied on as excluding rules which, on their face, do apply. Moreover, rule 45.24 would not necessarily be rendered otiose by the provisions of Part 44: it would always depend on the facts. In any event, a situation where, depending on the circumstances, the CPR may provide more than one route to the same result, is hardly uncommon.

55. More widely, Part 44 provides important general rules about costs and the sorts of matters which, in the exercise of its discretion, a court may wish to take into account when assessing costs. For Part 44 to be disapplied (in whole or in part), as Mr Carter urges, there would have to be clear words setting out the nature and scope of any such disapplication. There are none here. Accordingly, I consider that Part 44 applies to this case. The unreasonable failure by the claimant to follow the EL/PL Protocol, as found by the deputy district judge, triggers the Part 44 conduct provisions.

56. In my view, it is at this point that paragraphs 2.1, 3.1 and the warning at 7.59 of the EL/PL Protocol, become relevant. Taken together, those paragraphs comprise a clear indication that, if a claim should have been started under the Protocol but was not, and it was unreasonable that the claim was not so started, then by the operation of the Part 44 conduct provisions, the claimant should be limited to the fixed costs that would have been recoverable under the EL/PL Protocol.

57. I consider that support for this approach can be found in O’Beirne v Hudson

[2010] EWCA Civ 52

;

[2010] 1 WLR 1717

. In that case, there was a claim for general damages just above the small claims track limit of £1,000 and the claim settled for £400. The judge said that there was nothing in the consent order which precluded the costs being assessed by reference to the small claims track. The Court of Appeal agreed, holding that, even where a consent order provided for costs to be assessed on a standard basis, Part 44 meant that the assessment of costs could proceed on the basis that, in respect of each item, the costs judge asked whether it was reasonable for the paying party to pay more than would have been payable had the case been allocated to the small claims track.

58. Mr Hutton QC sought to distinguish this case on the basis that there was no unreasonable avoidance of a Protocol. In my view, whilst that might a difference on the facts, it does not affect the applicability of Part 44 to any case where the payee might otherwise recover more than is reasonable in all the circumstances. Indeed, in another case relied on by the defendant (Javed v British Telecommunications plc

[2015] EWHC 90212 (Costs)

), where the claimant had failed to follow a Protocol, Master Simons, Costs Judge, again approached the assessment under Part 44 and found at para 42 that “had the claimant acted reasonably, then her solicitors would not have been entitled to recover any more than fixed recoverable costs and it seems to me that it would create injustice if they were to profit as a result of their unreasonable conduct”.

59. In both O’Beirne and Javed, the assessment was to be undertaken by reference to what is now rule 44.4 (which, at the time of both those cases, was rule 44.5), namely by having regard to all the circumstances of the case, including conduct. It seems to me that, in a case where a claim was not reasonably made under a Protocol, rule 44.11 (Misconduct) is of equal, if not more, importance. It will very often be because of misconduct on the part of the claimant or the claimant’s legal representatives that a claim was made which unreasonably avoided the relevant Protocol altogether. In addition, I note that, whilst O’Beirne favoured an item by item approach to the assessment, Master Simons in Javed said that that was unnecessary in these sorts of circumstances. For my own part, I prefer the approach of Master Simons. If the judge has concluded that, as a result of unreasonable conduct, the relevant fixed costs represent the maximum recovery, then an item by item approach is unnecessary.

60. Mr Hutton QC accepted that Part 44 provides a mechanism which achieves the result he seeks. His principal complaint was that it was a less certain remedy than the automatic application of the fixed costs regime. I have already said that that criticism is unrealistic: any dispute about whether or not the EL/PL Protocol should have been used, and whether its nonuse was unreasonable, will inevitably introduce a level of uncertainty which cannot be cured by the CPR, at least until that dispute has been resolved.

61. For these reasons, I consider that Part 44 provides a complete answer to the issues raised on this appeal. In a case not covered by rule 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. … 65. Although Judge Godsmark QC may have had Part 44 in mind, 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.” The Proper Interpretation of Part …45 The Proper Interpretation of CPR Part 44 “had the claimant acted reasonably, then her solicitors would not have been entitled to recover any more than fixed recoverable costs and it seems to me that it would create injustice if they were to profit as a result of their unreasonable conduct”.

The Proper Interpretation of CPR Part 44

[23]I will deal with the other authorities and first instance judgments to which I was referred on the issues in the case when I address the grounds of appeal.

Law Relating to Appeals

[24]The test for granting permission to appeal is to be found in CPR 52.6: (1) …, permission to appeal may be given only where— (a) the court considers that the appeal would have a real prospect of success; or (b) there is some other compelling reason for the appeal to be heard.

[25]CPR 52.21 provides:(1) Every appeal will be limited to a review of the decision of the lower court unless— (a) a practice direction makes different provision for a particular category of appeal; or (b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.

(2) Unless it orders otherwise, the appeal court will not receive— (a) oral evidence; or (b) evidence which was not before the lower court.

(3) The appeal court will allow an appeal where the decision of the lower court was— (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

(4) The appeal court may draw any inference of fact which it considers justified on the evidence.

[26]In any appeal against the exercise of discretion the Court will only interfere if the Judge below had not merely preferred a solution different to that which the Appellate Court might have chosen, but went further and “exceeded the generous ambit within which a reasonable disagreement is possible.” See G v G

[1985] 1 WLR 647

, cited with approval in Tanfern v Cameron McDonald

[2000] 1 WLR 1311

[27]The authorities relied upon by Mr Hughes in his skeleton argument at paragraphs 19 and 20 (SCT Finance v Bolton

[2002] EWCA Civ 56

and Dixon v Blindley Health Investments

[2015] EWCA Civ 1023

) confirm that the “generous ambit” afforded to the first instance judge is particularly generous in relation to questions of costs.

The Judgment

[28]Although the judge’s judgment on the issues of primary liability, contributory negligence and quantum was delivered orally in a conventional manner, and that judgment has been transcribed and approved by the judge, his judgment on the various issues arising in relation to costs is (in the normal way) to be found in the transcript of the exchanges between the judge and counsel representing each of the parties at the hearing on 24 November 2022: Miss Dickinson (as at trial and on appeal) for the claimant and Miss Albou for the defendant (Mr Fetto at trial and Mr Hughes on appeal). Ground 1 29. The Learned Judge erred in fact in concluding that the Appellant acted unreasonably by valuing his claim at more than £25,000 at the time he sent a letter of claim and thereby failing to assess costs on the standard basis.

Ground 1

[29]The relevant parts of the transcript, after the delivery of the judgment and after questions of damages and interest had been finalised, are as follows:- District Judge Thistle: Thank you. Anything further, Miss Dickinson? Miss Dickinson: Sir, well, no offers have been beaten. There is the issue of costs. Sir, you, you may note from the court file that a costs schedule on the standard basis has been filed. That is because this claim never entered the portal, because those instructing me at the time of notifying the Defendant of the claim were under the reasonable belief that it would be a claim for in, in excess of £25,000. And so therefore, in my submission, standard costs are applicable because we don’t fall within the fixed costs regime. Sir, you, you may be assisted by the, the White Book, rule 45.2.9D? District Judge Thistle: Bear with me just a moment if you wouldn’t mind? (pause) District Judge Thistle: Did you say that the Claimants were of the view that it would be in excess of £25,000? Miss Dickinson: Yes. That was at the time of sending the letter of claim. District Judge Thistle: Right, but obviously the claim was limited to £25,000. Miss Dickinson: It was at the time of issue, Sir, but -- District Judge Thistle: All right. Miss Dickinson: You may recall, I did seek a sum greater than that. I think it was (connection lost) 28,000 pounds I sought. There was also the application to reallocate to the multi track, which wasn’t granted at the very beginning of trial. District Judge Thistle: Right, OK, sorry, which was the rule you said I should refer Miss Dickinson: It’s at page 1,576, 45.2.9D … (pause) Miss Dickinson: Just get it up myself, Sir. District Judge Thistle: Yes. (pause) Miss Dickinson: Yes, so it’s setting out what cases fall under the fixed cost regime, and it states in any:

“In a claim started under the EL/PL protocol, or in a claim to which travel package regulations apply, the only costs allowed are fixed costs.”

And my submission, Sir, is that this claim rightfully did not start under that regime, because there was that reasonable belief of it being in excess of £25,000. Of course it related to a 16 year old boy with an unstable wrist fracture and shoulder fracture. If the Court considers that belief was unreasonable, then fixed costs may apply, but my submission is that belief was reasonable at the time the letter of claim was issued and with the knowledge available to my instructing solicitors. District Judge Thistle: And what changed between then and issue to change the view to limit it to £25,000? Miss Dickinson: There was the medical report of Mr Coombes. I don’t have instructions why those instructing me didn’t issue up to £28,000, Sir, but that is a decision they made. District Judge Thistle: Right, and what was their belief based on that it was in excess of £25,000 at the point, what’s in the letter of claim? Miss Dickinson: On the basis of the injuries suffered by a very young claimant. So there was an unstable wrist fracture to, I believe, the dominant wrist, although I, I may be mistaken as to that. And also -- District Judge Thistle: I think it’s non dominant. Miss Dickinson: Apologies, Sir, I missed that. District Judge Thistle: I think it was his non dominant wrist. Miss Dickinson: Ah, thank you. Non dominant wrist, and a shoulder fracture with ongoing restrictions and pain, likely to have an impact on future earnings and the like. I appreciate the Court has today found that not to be the case, but at the time of issuing the letter of claim, in my submission it was a reasonably held belief. In which case I would invite you, Sir, to set this aside for detailed assessment. District Judge Thistle: I’m grateful. Miss Albou? Miss Albou: Unsurprisingly we strongly dispute that. If I could refer you to page 1,570 of the White Book, rule 45.24? District Judge Thistle: Yes, I’m there. Thank you. Miss Albou: Thank you. Subsection 2:

“Where judgment is given in favour of the Claimant but” -- And I’m looking at either B or C, you could use either: “the Court considers that the Claimant acted unreasonably” -- We’d then go to number 2: “by valuing the Claimant more than £25,000, but that the Claimant did not need to comply with the relevant protocol” – Well, here they didn’t value it at more than £25,000 anyway: “or in any other way that caused the process in the relevant protocol to be discontinued, or did not comply with the relevant protocol at all. Despite the claim falling within the scope of the relevant protocol, the Court may order the Defendant to pay no more than the fixed costs.”

Despite the claim falling within the scope of the relevant protocol, the Court may order the Defendant to pay no more than the fixed costs.” Sir, with respect to my learned friend’s submissions, it’s obvious that this was a claim that was going to fall below £25,000. There cannot have been a reasonable belief or otherwise. At trial today they’ve, even on 100% basis, been awarded only just above £10,000. Nowhere near the £25,000 limit. And because of the contributory element they’ve actually got, as we know, half of that. Their application to reallocate to the multi-track failed. It’s a case that was dealt with in a day, as do most fast track claims. And my understanding, although I wasn’t at the trial, is that although it was listed for a two-day hearing, I think the Court didn’t have availability to deal with it over two days and said, shall we proceed even though we only have one day? And the Claimant said, yes. All of the evidence was dealt with in one day, and we’ve only come back for an hour today for judgment. Sir, I can address you on further particular matters if there’s something that you would like me to specifically, but those are my submissions as to why it’s evident that this was a fast-track claim all along, should have been started under the protocol, and pursuant to 45.24 the Claimant cannot and should not recover more than fixed costs. District Judge Thistle: I’m grateful. Miss Dickinson, anything by way of clarification? Miss Dickinson: Just as to the number of days of listing. Of course this was listed for two days, and in my submission we have taken two days. Even though we are only here for an hour on the second day, nevertheless it couldn’t be heard, within one day. And it was only down to court listing that we didn’t (connection lost) that way for the second day of listing. District Judge Thistle: Right. I’m asked to consider an issue with regard to costs in this matter as to what regime of costs applies. The Claimant’s case being that fixed costs should not be applicable in this case, it not having passed through the portal. The Defendant opposes that view and says it should be that only fixed costs apply as the matter should have proceeded through the portal, the issue being whether it was reasonable for the Claimant to be of the view that it was a claim worth in excess of £25,000 as set out in rule 45.24. As I say, it’s common ground that the portal wasn’t utilised, and the Claimant’s case is that that was because there was a view it was over £25,000. It’s right to say that the claim was issued on a basis that it was in excess of £10,000 and limited to £25,000. The point being made on behalf of the Claimant is that at the stage the letter of claim was sent, the Claimant was reasonably of the view that it was over and above that, the difference said to be the receipt of the medical report which came after the letter of claim but before issue of proceedings. The basis upon which the belief of it being over £25,000 is said to be as a result of the age of the Claimant and the nature of the injuries sustained. It seems to me that on the basis of the information available at that stage, it’s very difficult to see how the matter could have been valued over £25,000. Had a medical report been provided sooner which would indicate more severe injuries, one could have some support for that. But based on the information with which I’m provided, it seems to me that the claim would fall within the region of the fast track being the £25,000 value of the claim. And therefore I agree that it should be the fixed cost regime that applies in this matter.

Despite the claim falling within the scope of the relevant protocol, the

[30]The letter of claim dated 12 December 2018 had said the following about quantum (apart from the assertion that the claim was valued at more than £25,000):- Description of our Client’s injuries Without prejudice to medical legal evidence that will be commissioned in due course it would appear that our Client sustained injuries including;• Broken left arm requiring surgery to have metal plates fitted;

• Associated soft tissue injuries. Medical Experts In accordance with the Personal Injury Pre-Action Protocol we intend to instruct one of the following experts to examine our client. We shall forward details of our proposed medical experts to you in due course.

[31]The report of Mr Coombs dated 14 August 2019 (following an examination on that date) contains the following:- ACCIDENT … He was swinging on a rope swing when the rope snapped and I am informed that he fell 20 feet. He landed very heavily on his left hand side. He was transferred by ambulance to Kings College Hospital in Denmark Hill. He had suffered the following injuries: INJURIES: 1. bruises and contusions 2. dazed and shocked 3. post traumatic stress 4. left arm injury 5. left leg injury He was kept in hospital for 4 - 6 days. X-rays were requested, and a fracture was noted in the left arm. He required a major operative procedure. He suffered a fracture in the region of the left wrist. The radius and ulnar were fractured and stabilised with the appropriate metal work. He has shown be a copy of the X-rays confirming the serious unstable fracture of the left radius and ulnar which required internal fixation. … DRUG THERAPY He required analgesic medication for 6 - 8 weeks after the accident in question. He initially required Morphine in hospital. MEDICAL RECORDS This patient was kept as an inpatient at Kings College Hospital for 4 – 6 days. He has had one visit to Kings College Hospital. He has also been seen at Queen Elizabeth Hospital, Woolwich. … X-RAYS This patient has shown me X-rays of the fractured radius and ulna. He has also shown me post operative X-rays showing suitable stabilisation of the bones with plates and screws holding both radius and ulnar in an appropriate position. The metal work is still in position. … PRESENT STATE Following the accident in question he informs me that he was away from school for 3 - 4 weeks. This patient's symptoms have improved to a considerable degree. For some time after the accident in question he had extreme difficulty with sporting activities. He still has discomfort affecting the left arm. For some time after the accident he had difficulty with physical tasks. It is now more than three years since the accident. He now appears to have reached a plateau of recovery. In the initial period he had problems with personal hygiene and dressing himself. He required considerable care and assistance. He had difficulty gripping firmly with the left hand. He is naturally right handed but any task requiring the use of both hands and arms was very much more difficult for him. ON EXAMINATION He has a full range of cervical spinal movement of flexion, extension, lateral flexion and rotation. He has no spinal pain. He has a full range of bilateral shoulder movement with 180 degrees of abduction, 80 degrees of external and 80 degrees of internal rotation with minimal discomfort at extremes of movement. He has a range of bilateral elbow movement from 0 - 150 degrees. The right wrist has 90 degrees of palmar flexion, 90 degrees of dorsiflexion, 90 degrees of supination and 90 degrees of pronation. The left wrist has 70 degrees of palmar flexion, 70 degrees of dorsiflexion, 75 degrees of supination and 75 degrees of pronation and two thirds of the normal grip strength in the left hand compared with the normal right hand. There are scars where he has undergone operative procedures over the radius and ulnar. There is a volar scar approximately 20cm in length and a scar over the ulnar which is approximately 12cm in length. Both scars are well healed. The metal work is still present. There is some induration in the underlying soft tissues where the metal work is palpable. OPINION AND PROGNOSIS This patient suffered an unpleasant accident which occurred at approximately 1pm on 17th May 2016. In summary, he was playing in Bostal Wood in Abbey Wood. He was swinging on a rope swing when the rope snapped and I am informed that he fell 20 feet. He landed very heavily on his left hand side. He was transferred by ambulance to Kings College Hospital in Denmark Hill where he was kept as an inpatient for 4-6 days. With regard to specific issues: 1. The medical records document an injury with a greenstick fracture of the right forearm which occurred in 2001 when he was a baby, less than two years old. He had made a good recovery from that earlier accident and had no residual symptoms affecting the right arm. 2. He was badly dazed and shocked. He was not knocked unconscious. He suffered jarring injuries to the neck and back. He had particular pain and discomfort in the left arm. I have reviewed the X-rays which revealed a fracture of the radius and ulnar. He has also shown me X-rays of the fracture of the left proximal humerus by the shoulder. The shoulder was treated conservatively without an operative procedure and appears to have united. He has received appropriate expert care for the wrist fracture which was stabilised with a plate and screws. He made a good recovery and required plaster for a period of time. 3. He was away from his studies for 3 - 4 weeks. He has now reached a plateau of recovery. It is more than three years since the accident in question. He appears to have an acceptable range of shoulder and cervical spinal movement. He has slight stiffness in the left wrist. 4. No further operative procedures are planned at the present time. He has now reached a plateau of recovery. He had very considerable pain and discomfort for some time after the accident in question. His confidence was greatly affected. 5. He may ultimately require further investigation and treatment but as already noted this is unlikely. It is my opinion that he has a 10 - 15% or less chance of requiring further investigation and treatment within the next ten years as a direct result of the accident in question. If he does have persistent problems it would be appropriate to consider him for an MRI scan of the left wrist, the cost of which is £850. I believe he is an entirely genuine individual. It is my opinion that this patient’s present symptoms are directly related to the accident in question and would not have arisen but for that accident. With regard to further issues: 1. This patient has suffered substantial psychological symptoms following the accident in question. It is inappropriate for an orthopaedic surgeon to comment in detail on psychological issues which should be subject to a separate report from a psychologist or psychiatrist. 2. The patient had great difficulty with sporting activities for more than three months following the accident in question. He continues to have some problem with sporting activities. 3. I am informed that he continued to have difficulty with heavy physical tasks until September 2016. 4. He has required some care and assistance from friends and relatives, and particularly his mother. He required approximately 4hrs of assistance for the first three weeks following the accident. 5. It is understood that this Claimant is carrying out warehouse work and this does involve lifting. He has noted pain and discomfort in his left arm. 6. The bruises and contusions to the left hip, left arm, left shoulder and both legs resolved within a period of approximately six weeks. I am informed that the neck and back symptoms had resolved within three months following the accident in question, although the Claimant was reporting some minor ongoing backache, particularly if he was leaning forward doing tasks such as washing up or stacking pallets at work. It is also understood that the Claimant had pain in the left arm for approximately four months.

[32]No psychiatric evidence was relied upon by the Claimant.

[33]At trial Miss Dickinson contended that general damages for pain, suffering and loss of amenity should be assessed at £18,000. That was based on Judicial College Guidelines (JC) category for wrist injuries 7(H)(c), which had a bracket of £12,590-£24,500. That category is for less severe injuries where they still result in some permanent disability, for example, a degree of pain and stiffness.

[34]Mr Fetto (counsel for the Defendant at the trial) submitted that the appropriate award was a maximum of £9,000. He placed the injury into JC category 7(H)(d) that had a range of £6,080-£10,350. It covers injuries where the recovery from a fracture or soft tissue injury takes longer than 12 months, but is complete or largely complete, save for minor symptoms.

The judge assessed general damages at £10,500.00 on a full liability basis.

[36]The Claimant advanced financial claims for care and assistance (£1,706.30), relying upon evidence from his mother, and for miscellaneous expenses for painkillers and cost of travel. Having heard the evidence, the judge found that the Claimant had not proved his claims and no sums were awarded. Further, the judge dismissed a claim for disadvantage on the labour market, holding that the medical report did not support such a claim.

[37]Therefore the full liability value of the claim on the judge’s findings was £10,500.

[38]As I have already said, there is no appeal from the judge’s findings on quantum.

[39]Miss Dickinson submits, however, that the judge was wrong in finding that the Claimant’s solicitors unreasonably valued the claim at more than £25,000 in December 2018, when the letter of claim was written. She points out that it is the judgment of the Claimant’s solicitor that is referred to in the EL/PL Protocol. She notes that the Defendant’s insurers did not take issue with that assessment in their response to the letter of claim.

[40]At the time the solicitors made the assessment, they did not have the benefit of Mr Coombs’ report. She submitted that it could not be suggested that the solicitors should have waited to obtain the report before writing the letter of claim because that would have been inconsistent with the encouragement in the EL/PL Protocol to exchange information early and to enable defendants to comment on proposed experts.

[41]Once the solicitors had Mr Coombs’ report, the claim was limited to £25,000 when it was issued. However, Miss Dickinson relied upon the fact that she considered that it was properly arguable at trial that the value of the case in fact exceeded £25,000 once general damages and the other losses claimed were taken into account.

[42]Miss Dickinson submits the following at paragraphs 37-38 of her skeleton argument:37. It is submitted that District Judge Thistle erred in his finding that the Claimant acted unreasonably when valuing his Claim. The Claimant made an objectively reasonable decision at the time of commencing his claim. The fact that less, even significantly less, than £25,000 was later awarded by the Court with the benefit of further information does not change the reasonableness of the decision made years earlier without the that information.

38. It is wrong in law for a retrospective standard to be applied with the benefit of further information. This appears to be the approach that the Learned Judge took on the basis of what he awarded at trial. District Judge Thistle further indicated that his reasoning was based upon the need to obtain a medical report prior to making an assessment of value, and thereby commencing the claim. As aforesaid, it would have been in direct contradiction with the Protocol to delay notifying the Defendant of a claim in order to obtain medical evidence. There are also practical implications for claimants’ solicitors in doing so as they need to make an evaluation of prospects of succeeding before incurring the disbursements on a condition fee basis.

[43]In response Mr Hughes relies upon the “generous ambit” referred to in the case law in relation to appeals, particularly on questions of costs, to which I have already referred.

[44]He submits that the transcript does not support the submission that the judge was using the benefit of hindsight. The judge expressly referred to the information available to the Claimant’s solicitor “at that stage”, namely when the letter of claim was written.

[45]Mr Hughes contended that it had been open to the Claimant to provide further material to the judge to support their contention that their valuation was not unreasonable, or to request an adjournment to permit further evidence to be submitted.

[46]Mr Hughes further contended that, in any event, the factors that were relied upon in Mr Coombs’ report in order to explain why the claim when issued had been limited to £25,000, were factors that were or should have been known to the Claimant’s solicitors in December 2019. In particular, the solicitors should have known from speaking to their client that he had made a good recovery long before December 2019. On the Defendant’s case, this should have led to an appreciation that the likely level of damages was going to be modest. Further, the Claimant’s solicitors should have identified that the other heads of loss, including the claim for disadvantage on the labour market, were weak and therefore were unlikely to enhance the value of the claim to any meaningful degree.

[47]In my judgment a solicitor in the position of the Claimant’s solicitors in December 2019 is in a difficult position in valuing the claim with any degree of accuracy. I bear in mind that, simply because the valuation has turned out at trial to be wrong, even significantly wrong, does not necessarily mean that the original valuation was unreasonable.

[48]However, I have come to the conclusion that, whilst other judges might not have reached the same conclusion, District Judge Thistle was entitled to decide that the Claimant’s solicitors’ valuation of the claim at in excess of £25,000 when the letter of claim was written was unreasonable.

[49]In reaching that conclusion I agree with Mr Hughes’ submission that the judge did not misdirect himself by using the benefit of hindsight. On the contrary, it is clear from the transcript that he had well in mind what information the solicitor did or did not have when the letter of claim was written. Bearing in mind that much of what is contained in Mr Coombs’ report was a history that would have been available to the solicitors from their own client, in my judgment the judge was entitled to conclude that a reasonable solicitor in possession of the information that they had, or ought to have had, at that time would not have valued the case at more than £25,000.

[50]Further, the judge was entitled, in my judgment, to reach that finding despite the fact that Miss Dickinson had considered it properly arguable at trial, notwithstanding the limitation on the claim form, that the claim was worth more than £25,000. That is not to suggest that Miss Dickinson behaved in any way improperly in advancing the case on that basis. It is simply that her judgment about what was properly arguable concerning the value of the claim did not mean that the judge was precluded from reaching the judgment that he did on this question.

[51]Therefore, although I consider that permission to appeal should be granted on this ground (and all other grounds), ground 1 is dismissed. 53. The Learned Judge made an error of principle in determining that having found that that the Appellant acted unreasonably by valuing the claim at more than £25,000, he was required by the rules to restrict costs to ‘Portal costs’ pursuant to CPR 45.18 and 45.19.

[52]Once the judge had made the decision that is the basis of ground 1, the parties and the judge then engaged in discussion concerning the “fixed costs” and the disbursements claimed by the Claimant. These included, in particular, claims for various disbursements for work undertaken by Miss Dickinson, which the judge disallowed. There is no appeal against any of those determinations.

[53]It was accepted on appeal that, at this stage, both counsel and the judge were dealing with the fixed costs and disbursements under CPR 45 Section IIIA 45.29A to 45.29L and Tables 6B, C and D. Those provisions apply to Part 7 claims that have gone to trial.

[54]However, before the figures had been finalised, Miss Albou on behalf of the Defendant raised a further point. It is accepted on behalf of the Defendant that this was not a point that had been raised in advance with Miss Dickinson and it appears to have taken both her and the judge by surprise. That is not a suggestion that Miss Albou deliberately failed to alert the Claimant’s counsel to the point that she then took, but it perhaps explains why the hearing proceeded as it did. Miss Albou: Sir, if I perhaps could just take five minutes and I’ll tally it up, and then we can see where we’ve all got to? District Judge Thistle: By all means. (pause) Miss Albou: Sorry, Sir, I actually think there’s a further issue of, area of disagreement, because when we’re looking at the fixed costs the fee that, you look at the first fee, so that’s £3,790. And that would be based on page 1,578 of the White Book, which is 45.29B. So that’s when basically the claim no longer continues under the protocol. But what we’re looking at is, because it should have been started under the protocol, we say it would have been dealt with within it. And so when you’re looking at what’s allowed under 45.18 and 19, they don’t actually get any of those fees at all. They just get the fees that are set out within the table. Again, it might help, I’m sorry, I know I’m taking you back and forth, it might help to actually cross refer back to 45.24, which is how we got there to begin with. District Judge Thistle: You cut out there, Miss Albou, sorry, with the number, the exact reference. Miss Albou: Sorry, the, the, the starting point for us is 45.24, which is at page 1,570. And that’s where it states that we only get what’s in 45.18 and 45.19. Whereas what they’ve actually set out in their schedule is more than those amounts that they’ve allowed. The amount that they’re seeking are based off of, my understanding, 45.29E, which is at page 1,576. And I think I’m right in that, yeah, which is the situation, you’ll see table 6C, so I’m looking at page 1,577:

“Fixed costs where a claim no longer continues under the PL protocol.”

Over the page, so 1,578, sorry, that’s where we are, yeah, no longer falls on the protocol, public liability claims, paragraph C, that’s what they’ve put in the fixed costs schedule. Which would be the usual case if they’d taken the appropriate steps, but because they didn’t, and because we’re now awarding costs under 45.24, they only get what’s in 45.18 and 45.19. District Judge Thistle: Miss Dickinson? Miss Dickinson: Apologies, Sir. This is a, a novel argument on me that I’ve not heard before. I’ll, I’ll just need a moment. District Judge Thistle: OK. (pause) Miss Dickinson: Can I clarify with my learned friend what, what she says the Claimant should be entitled to in that case? Miss Albou: Yeah. So if we, we go to 45.18 together … (pause) Miss Albou: The amount of the protocol set out in, in table 6A … Miss Dickinson: Well, Sir, I strongly dispute that. The amounts set out under the tables are for where the matter stays within the protocols under the portal. But, as we know, liability has strongly been denied throughout this matter, and has been contested all the way through. So even if it had been started under the portal, it would no longer have continued under the portal, and the clause in 45.25 would have applied. Of course it was always open to the Defendant to admit liability, and then argue costs on this basis, to say that it should fall under the table 6. But at no stage have they done that, nor have they made any offers contingent on that basis. So that’s, in light of the Court’s ruling that we are under the fixed costs, in my submission we are under the fixed costs of 45.25. Miss Albou: Sir, if I could just come back on one point? What my learned friend says is true to the degree that that’s what might have happened had they taken the usual steps. But the whole point is they didn’t. And when you look at the wording at 45.24 it refers to:

“A failure to comply or electing not to continue.”

It’s a failure. So essentially there may be a slightly punitive element, but that’s the nature of the rule in this situation. The Claimant didn’t take the appropriate steps, therefore they are limited to those costs as set out in the rule. District Judge Thistle: Yes, I have some sympathy with the position adopted by Miss Dickinson, given the nature of dispute, it may well have been that had the matter started in the portal it would then have left the portal as she opines. The difficulty I’m presented with is that rule 45.24 is clear that failure to comply or electing not to continue within the relevant protocol, which is, as I say, the case here because it wasn’t started in the protocol, and otherwise should have been, results in the effect that the fixed costs under rule 45.18 and 19 apply as applicable. So it seems in those circumstances the Claimant is limited to those fixed costs as a result of the consequences of rule 45.24. Miss Dickinson: Sir, I, I would ask for permission to appeal that decision on the basis that it is, the Court has misdirected itself as to the applicable rules in this case. District Judge Thistle: In respect of which rule do you say I’ve misdirected myself? Miss Dickinson: 45.24. District Judge Thistle: (indicates understanding) Miss Dickinson: The Court has applied the same as a punitive measure, what, where we should be under the rules in 45.25. District Judge Thistle: I refuse permission to appeal. The rule sets out that this rule applies where the Claimant does not comply with the process set out in the relevant protocol or electing not to continue with that process, and starts proceedings under part 7, and the consequences thereof follow. This is a case where, as I say, the Claimant didn’t comply with the protocol and issued proceedings. Therefore it seems to me that the consequences of 45.24 amply reflect what I’ve set out, and for those reasons I refuse permission to appeal.

[55]Mr Hughes submitted in his skeleton argument that ground 2 was an argument that had not been raised before the judge. However, given the way in which the point was raised below, without notice to the Claimant, and the reality of a hearing listed for an hour only to deal with judgment and all of the consequential matters, sensibly and pragmatically that was not a point that he pursued in his oral submissions.

[56]Miss Dickinson submitted that the provision relied upon by the judge, CPR 45.24, is governed by CPR 45.16, which governs the scope of Section III. This was not a claim that had been started under Part 8 and, given the denial of liability and the raising of contributory negligence by the Defendant, it could not be said, on the Claimant’s case, that Part 8 should have been used. Therefore, it was submitted that the judge was wrong in finding that CPR 45.24 applied to this case.

[57]Further, although the parties and the judge had been proceeding upon the assumption that the fixed costs and disbursements under Section IIIA would apply until Miss Albou raised this point, Miss Dickinson submitted that, as the title of Section IIIA and the wording of CPR 45.29A made clear, those fixed costs only apply to cases that had started under the EL/PL (or the RTA or the Resolution of Package Travel) Protocol, but which no longer continued under that Protocol. Her argument was that, since the claim had never started in the EL/PL Protocol, Section IIIA fixed costs had no application even if, as the judge found, the Claimant’s solicitors had failed to start the claim in the Protocol because they had unreasonably valued the claim in excess of £25,000.

[58]Miss Dickinson’s position was that the judge should have found that the Claimant was entitled to costs assessed on the standard basis in accordance with CPR 44, subject only to the conduct provisions in CPR 44 that are relied upon by the Defendant in the Respondent’s Notice in accordance with Williams.

[59]Mr Hughes did not accept that CPR 45.24 only applied to claims that were within the scope of CPR 45.16. He relied upon CPR 45.29A(3) (in relation to claims within Section IIIA) as confirmation that the court could apply CPR 45.24 to cases that fell outside of Section III.

[60]Further, the Defendant relied upon the words of Coulson LJ at paragraph 39 of Williams, which were not qualified, as well as the further comments at paragraph 41.

[61]Mr Hughes suggested that CPR 45.24 was a specific provision that must prevail over more general provisions elsewhere (see Solomon v Cromwell

[2011] EWCA Civ 1584

[62]I must bear in mind that Williams was a case in which a claim was never issued. Therefore, CPR 45.24 had no application to the case and any observations about its scope must be read in that context. They are plainly obiter dicta.

[63]In my judgment, leaving aside CPR 45.29A(3), the provisions in Section III are subject to CPR 45.16 which governs the scope of the section, including the application of CPR 45.24. CPR 45.16 is not a general provision that is subject to the specific provisions of CPR 45.24. CPR 45.24 is a rule that only applies to cases within the scope of Part III, unless the rules otherwise provide (such as in CPR 45.29A(3)).

[64]The claim was not started under Part 8. The question for the judge should have been whether it was a claim that should have been started under Part 8 so as to bring it within the scope of Section III.

[65]The judge had found that the claim should have been brought within the EL/PL Protocol. However, that finding did not of itself mean that it was a claim that should have been started under Part 8. In order to determine whether the case was within the scope of Section III, the judge had to make a finding as to whether or not the claim would have remained within the Portal, or whether it would have exited it prior to Stage 3, if the Claimant had complied with the EL/PL Protocol at the outset.

[66]In my judgment, had the judge been invited to give consideration to that point, the only conclusion properly open to him on the facts of this case would have been “no”. Even when the claim was limited to £25,000 when it was issued, the Defendant maintained its denial of liability and its allegations of contributory negligence, the latter of which was successful at trial. No offers were made in the proceedings by the Defendant at any stage despite the fact that, because of the operation of qualified one-way costs shifting, it was highly unlikely that the Defendant would recover its costs even if the claim was successfully defended at trial.

[67]In my judgment, it is not an improper use of hindsight, as Mr Hughes suggested in his submissions, for me to conclude that no reasonable judge could or would have found that this was a case that would have remained within the EL/PL Protocol and therefore that it should have been started under Part 8. It is an inference of fact which the judge would have been entitled, indeed required to, draw on the basis of the evidence that the case would have exited the Portal following a denial of primary liability and an allegation of contributory negligence being made by the Defendant, even if the EL/PL Protocol had been complied with by the Claimant.

[68]In reaching that conclusion I am conscious that Mr Hughes has drawn to my attention the judgment of HHJ Gregory in Raja v Day 2 March 2015, Birkenhead County Court, and the judgment of HHJ Parker in Dawrant v Part and Parcel Network Ltd 28 April 2016, Liverpool County Court.

[69]In Raja the point was not argued (see [17]), liability was never disputed and the claim settled by Part 36 offer within a few months of being presented to the correct paying party (the Motor Insurers’ Bureau). It was, therefore, a very different case to the one with which I am concerned. HHJ Gregory found at [13] and [19] that the district judge’s conclusion that the claim would have had to leave the Portal process was a “misapprehension” and he found at [16] that “there should have been no exit from the portal”.

[70]Dawrant appears to bear more similarities to the current case in that the first instance judge concluded that the claim would have exited the Portal in any event. HHJ Parker found that she applied “hindsight and speculation which … she should not have done”. However, the relatively brief ex tempore judgment, although it refers to the list of authorities referred to earlier in the judgment and the passages set out in the appellant’s skeleton argument, does not explain why the judge considered that the authorities cited meant that the first instance judge was precluded from considering whether the claimant would or would not have been limited to Portal costs if the correct procedure had been followed.

[71]However, in any event, Dawrant was also a case which had settled prior to trial. That is in contrast to the current case where liability remained in issue throughout. Although I agree with HHJ Parker at [46] when he referred to “the fact that the way that a defendant’s insurance company reacts to Part 7 proceedings can be very different to the portal”, there is no basis in this case for thinking that the Defendant or its insurers would have settled this particular case given that liability was contested up to and including trial.

[72]The authorities referred to by HHJ Parker in his judgment included Francis v Francis & Dickinson

[1955] 3 WLR 973

, 980 as approved post-CPR by the Court of Appeal in Ku v Liverpool City Council

[2005] 1 WLR 2657

at [20]. However, in my judgment both cases were dealing with very different situations.

[73]In Francis the court was warning about criticising the judgment of a legally funded solicitor with the benefit of hindsight. In Ku the court was likewise emphasising that the risk assessment of a solicitor entering into a conditional fee agreement was not to be impugned because of the wisdom of hindsight. Those are, in my judgment, very different situations from the present.

[74]In Straker v Tudor Rose

[2007] EWCA Civ 368

a claimant had beaten a defendant’s Part 36 offer of £9,000 by being awarded £11,688 at trial, but he was only awarded his costs for a limited period pre-issue and there was no order for costs thereafter. That was apparently on the basis that, had the claimant been reasonable in the sums that he sought, and had the claimant entered into negotiations, then the claim would have settled because the defendants would have offered a higher sum. At [36] the Court of Appeal found that this was for

the judge to engage in speculation and Waller LJ said:

“an investigation as to how negotiations would have gone is precisely the form of investigation which should be avoided. In a case about money a defendant has the remedy in his own hands where a claimant is being intransigent. He can pay into court the maximum sum he is prepared to pay.”

[75]In my judgment Straker is an unsurprising judgment in the context of the self-contained code that is Part 36. However, I do not consider that the judgment in that case mandates the Court to ignore the reality of a case when it is being contended that it is a case that falls within Section III despite the fact that it is clear, in my judgment, that it would never have been started under Part 8 in accordance with the Stage 3 Procedure.

[76]The position of the Defendant in this case is, in my judgment, to seek a windfall in relation to costs in circumstances in which, even if (as the judge found) the claim should have been brought within the EL/PL Protocol, the claimant would never have been limited to Protocol costs because, as a result of the Defendant’s approach to the issue of liability, it would inevitably have exited the Portal. Given the stance taken by the Defendant throughout, even though they were never going to recover their costs even if successful in defending the claim (because of qualified one-way costs shifting), it is fanciful on the facts of this case to suppose that a different approach would have been taken if the claim had started in the EL/PL Protocol.

[77]As I have said, there are two preconditions for CPR 45.24 to apply (leaving aside for the moment CPR 45.29A(3)). The first precondition is that, subject to paragraph 2A (which has no application to this case), the judge finds that one of the factors in CPR 45.24(2) applies. The second precondition is that the judge finds that it is a claim that should have been started under Part 8 in accordance with the Stage 3 process. It is only if the judge makes those findings that the judge can go on to consider whether costs should be restricted to Portal costs in accordance with CPR 45.24(3).

[78]Further, although CPR 45.29A(3) extends the scope of CPR 45.24 to claims not within the scope of Section III, it only extends it to claims that fall within Section IIIA. In my judgment Miss Dickinson is correct in her submission that this is not a claim within the scope of Section IIIA and, therefore, that CPR 45.24 does not apply to this claim by virtue of that provision either.

[79]However, that leaves the question of when CPR 45.24(2)(b)(ii) would apply. In my judgment that is in cases in which liability is not disputed, contributory negligence is not alleged, and none of the other conditions for leaving the Portal apply. So, in this case, had liability been admitted by the Defendant and no allegations of contributory negligence had been made, then the Defendant could have relied upon CPR 45.24 because it would have been a claim that should have been started under Part 8.

[80]Further, even if liability had been disputed under the PI Protocol, but the case had subsequently settled as happened in Dawrant, depending upon the facts of the case it would be open to a judge to find, as HHJ Parker said in that case, that the insurer might well have taken a different approach (namely settling the case within the Portal process rather than initially disputing liability) had the claim been brought in the EL/PL Protocol.

[81]In such a case an insurer might rely upon evidence of the different ways in which cases started under the EL/PL Protocol and those started in accordance with the PI Protocol are assessed and treated. Such evidence is frequently relied upon in my experience when applications are made to withdraw pre-action admissions by defendants. In this case there was no evidence that the insurer would have taken a different approach had this case been started in the EL/PL Protocol.

[82]The question in each case would be whether it was a claim that “should have been started under Part 8 in accordance with Practice Direction 49F (“the Stage 3 Procedure”)”.

[83]Further, CPR 45.24(b)(ii) could also apply where a claim no longer continued under the EL/PL Protocol because the claimant re-valued the claim at more than £25,000, having initially commenced the case within the Protocol, where that re-valuation was unreasonable. However, other limbs of CPR 45.24 might be more directly applicable in that situation.

[84]Therefore, in my judgment, the judge was wrong to find that this was a case to which CPR 45.24 applied. I therefore allow the appeal on ground 2. Ground 3 87. The Learned Judge’s decision to restrict costs to ‘Portal costs’ pursuant to CPR 45.18 and 45.19 was wrong and in any event outside the ambit of reasonable discretion in circumstances where liability was denied, and the Appellant was successful at trial.

[85]In the light of my finding on ground 2, this ground strictly does not arise. However, I deal with it for completeness in case I am wrong concerning the application of CPR 45.24 to the circumstances of this case.

[86]Miss Dickinson submits that the judge in any event misdirected himself in finding that, if CPR 45.24 applied, the Claimant was limited to the fixed costs in CPR 45.18 and the disbursements in CPR 45.19. She points out that CPR 45.24 uses the word “may” rather than “must” and contends that the judge failed to exercise his discretion. Had he done so, given the denial of liability and the allegation of contributory negligence, the Claimant’s case is that he would have concluded that it was unjust to limit the Claimant’s costs to those applicable to claims that should have remained within the relevant Protocol. By limiting the costs as he did, the Claimant was unfairly sanctioned since the costs recovered were significantly less than those that would have been applicable had the Claimant’s solicitor not (on the judge’s finding) unreasonably valued the claim at more than £25,000 in the letter of claim. That outcome was punitive and disproportionate in its effect.

Ground 3

[87]Miss Dickinson set out in some detail the factors that distinguished this liability denied case, which was listed for 2 days and which involved a great deal of work by solicitors and counsel, from the kind of cases to which CPR 45.18 and 45.19 costs apply in normal circumstances. She submitted that the finding of the judge would have a deterrent effect upon cases where liability is disputed being pursued for fear that the original valuation of the claim might be successfully challenged. Given the Defendant’s stance on liability, the fact that the Claimant had won at trial and the Defendant had made no offers to settle, and the fact that this point on costs had only been raised for the first time during the hearing at which judgment was given, Miss Dickinson submitted that, even if the judge had been exercising his discretion, he could not properly have reached the conclusion that he did.

[88]Mr Hughes accepted that the wording of CPR 45.24(2) gave a discretion to the judge, rather than requiring him to limit costs to those in CPR 45.18 and 45.19, if that provision applied at all.

[89]He, however, submitted that, even if the judge had been wrong in finding that he was bound to limit the Claimant’s costs to what have been described as “Portal Costs”, nonetheless it would have been a proper exercise of his discretion to do so. In that regard the Defendant relies upon Williams by analogy.

[90]In my judgment, although entirely understandable, given the way in which the point was raised, and the failure of both counsel at the hearing to draw his attention to the word “may” in CPR 45.24(2), the judge was wrong in concluding that he was obliged to limit the Claimant’s costs to Portal Costs, rather than merely having a discretion to do so. That he considered himself bound is clear from the sympathy he expressed in relation to Miss Dickinson’s position. He plainly made his decision on the assumption that, if CPR 45.24 applied, the result necessarily was that the Claimant was limited to fixed costs under CPR 45.18 and disbursements under CPR 45.19.

[91]Therefore, if I had not allowed the appeal on ground 2, I would in any event have allowed it on ground 3. Ground 4 95. The Learned Judge erred in the amount of costs awarded in any event in assessing the ‘Portal costs’ pursuant to Table 6 of CPR 45.18 rather than Table 6A.

[92]If I am wrong concerning ground 2 and if, notwithstanding the judge’s misdirection of himself in relation to ground 3, in the exercise of his discretion he should have limited the Claimant’s costs to Portal costs, as I have already said, the Defendant concedes that the costs awarded were calculated on an incorrect basis.

[93]This agreed error reinforces the point that the judge was required to deal with a large number of highly technical points within a limited time and, in that context, it is entirely understandable how errors came to be made. Respondent’s Notice 98. Uphold the judge’s decision for the same reasons pursuant to CPR 44.3, CPR 44.4 and CPR 44.11 discretion.

[94]As a result of my conclusion on ground 2, the judge should have made an order for costs in accordance with CPR 44.

Ground 4

[95]There was no suggestion that the order for costs should be anything other than the Defendant paying the Claimant’s costs as the Claimant was clearly the successful party. No offers had been made by the Defendant.

[96]In considering the appropriate order for costs, the judge would have had to take into account his finding that the Claimant had unreasonably valued the claim at in excess of £25,000 and that, on my finding, had the Claimant complied with the EL/PL Protocol, the claim would have left the Portal following the denial of liability by the Defendant and the allegations of contributory negligence.

[97]In my judgment, in those circumstances, and applying the reasoning in Williams, the judge would have concluded that the Claimant’s costs should be limited to those that applied to cases falling within Section IIIA of Part 45.

Respondent’s Notice

[98]In my judgment, a reasonable judge could not properly have concluded that the Claimant should be limited to the Portal costs as the Respondent’s Notice contends. That would put the Claimant in a significantly worse position in relation to costs than would have been the position had there been compliance by the Claimant with the EL/PL Protocol.

[99]In any event, since the judge did not in fact exercise his discretion because of his erroneous conclusion that he was required to limit the Claimant to Portal costs, it is common ground that I must exercise the discretion afresh.

[100]In my judgment, limiting the costs to the fixed costs in accordance with Section IIIA meets the justice of the case. The Claimant does not benefit from the unreasonable failure (on the judge’s findings) to follow the EL/PL Protocol when he should have done so, and the Defendant does not have a windfall in relation to costs in a case in which the Defendant has fought and lost on the issue of primary liability and where no offer was made to settle the case.

[101]Finally, if I am wrong in my conclusion on ground 2, I would have found that in this case, even if CPR 45.24 applied, it would not have been a proper exercise of discretion for the Claimant’s costs to be limited to Portal costs on the facts of this case. Therefore, I would have found that the appropriate costs order, if CPR 45.24 applied, would also have been fixed costs calculated in accordance with Section IIIA.

Conclusion

[102]Therefore I grant permission to appeal on all grounds and I allow the Claimant’s appeal on ground 2. Paragraph 2 of the judge’s order shall be varied so as to substitute the appropriate figure for fixed costs and disbursements calculated in accordance with Section IIIA of Part 45 and applying the rulings made by the judge in relation to the various disbursements. Subsequent to the circulation of the draft of this judgment, the parties have agreed that figure at £8,005.69. Credit is to be given by the Appellant for the sum of £2,478.00 already paid by the Respondent.

[103]Finally I thank both counsel for their helpful submissions in this case. HHJ Catherine Brown Designated Civil Judge for Kent County Court at Canterbury