SIMON SHIRTCLIFFE v SANDRA ELIZABETH BAKER [2013] EW Misc B32 (CC)

IN THE MOLD COUNTY COURT
[2013] EW Misc B32 (CC)Case No Claim No. 2ML00661Venue Claim No. 2ML00661, Law Courts, Civic Centre, Mold
Between
SIMON SHIRTCLIFFEClaimantSANDRA ELIZABETH BAKERDefendant
Before
District Judge HumphriesCosts Draftsman for the Claimant: MR. PAUL TIDMANCounsel for the Defendant: MISS ERICA BEDFORDDate 2 October 2013
[1]THE DISTRICT JUDGE: This is an interesting costs assessment which, to an extent, turns on the interpretation of the protocol for low value personal injury claims in RTA matters. I say to an extent because the argument is somewhat unusual. It is not disputed that the claim was entered on the portal on 13th September 2011 or that the claimant's first Stage 2 pack offer was made for £4,641.96 on 10th January 2012. The 35 day total consideration period pursuant to rule 7.28 of the portal runs from the following day. There was some disagreement initially but I think then conceded, and certainly I find as a fact that the last day of that period was 28th February 2012.[2]On 23rd February, the claimant made a further offer, having previously made an offer on 30th January, and that offer was accepted on 24th February. The 23rd February is, on any reading, within five days of the 28th namely the end of the total consideration period and, therefore, 7.30 of the protocol was triggered. That says:
"Where a party makes an offer 5 days or less before the end of the total consideration period (including any extension to this period under paragraph 7.29), there will be a further period of 5 days after the end of the total consideration period for the relevant party to consider that offer. During this period ('the further consideration period') no further offers can be made by either party."
However, despite the settlement agreement, the claimant issued proceedings on the 12th March, because the claimant says that the defendant was in breach of 7.40 of the protocol which relates to payment. That says that except where the claimant is a child (or other provisions apply), the defendant must pay the agreed damages and costs, as set out in that provision, within ten days of the end of the relevant period in paragraphs 7.28 to 7.30 during which the parties agreed settlement.[3]The defendant submits that as the 5 day extension pursuant to 7.30 was triggered here, payment, was not due until 20th March – and payment was made prior to that – and hence the claimant issued prematurely. The Part 7 proceedings were actually then settled by negotiation at a higher figure than the pre-issue settlement, once those proceedings had been issued and served, and a Tomlin Order was filed with the court which provided for a stay of the proceedings in the usual way and provided for the defendant to pay the claimant's reasonable costs to be assessed if not agreed. Therefore, it is the defendant's case that as proceedings were issued prematurely the costs should be limited to those fixed costs which they would have received at the point of agreement within the RTA protocol on 24th February. Therefore, as I say, I am not asked to decide whether or not there was a concluded agreement which give rise to an automatic entitlement to fixed costs. What I have to decide is whether the costs claim put forward by the claimant is unreasonable and whether I should limit those costs to those which they would have received, if the protocol provisions had been complied with.[4]Dealing initially with rule 7.4 and the requirement for payment within 10 days, the claimant's case, in the written submissions and before me today, is that it should run from settlement. I have to say I do not accept that. However, perverse it may be, it seems to me that the rules are entirely clear and unequivocal: 7.40 says that the costs are payable and the damages are payable within ten days of the end of the relevant periods in paragraphs 7.28 and 7.30. Those relevant periods are the total consideration period (the initial 35-day period), or the mandatory five-day extended period, or any period agreed between the parties. It is clear that the trigger point for the ten days, on a bare reading of those rules, must be the end of the period and not the date of the settlement.[5]In this case, the total consideration period ended on 28th February. Ten working days from then takes us to 13th February. There was a leap year in 2012 and so ten working days takes us to 13th February. Cheques were sent out on 12th February. There is no evidence before me— MR. TIDMAN: I think it is March, is it not? MISS BEDFORD: Yes, it is March. THE DISTRICT JUDGE: March, sorry. Sorry, yes, I am into March. I beg your pardon. Thank you. Ten working days, of course, takes us to 13th March. Cheques were sent out on 12th March. There is no evidence before me as to whether they were received on the 13th or later, but they were certainly sent back by the claimants solicitors on the 15th so it must have been before then.[6]I am told proceedings were issued on 12th March; that is, even before 13th March which was the last day for payment. There is an interesting argument as to when the extended period under the protocol kicks in, when settlement is achieved within 5 days of the end of the original total consideration period whether the ten-day period and runs from the end of the original period (which would be the 28th here) or from the extended period five working days later. It seems to me that I do not have to make a determinative decision on that point, but I have to say that the argument put forward on behalf of the defendant is persuasive.[7]My role is to decide what is reasonable for costs purposes, and here, it seems to me, we have a situation, on my interpretation (and I think it is a clear interpretation), where, even if we take the original consideration period that expired on the 28th, that ten working day period would not have expired until the 13th, and the proceedings were issued on the 12th. I find, in those circumstances, that the conduct of the claimant was unreasonable and that, on any view and any interpretation of the rules, those proceedings were issued hastily and prematurely in an attempt to avoid the fixed costs regime.[8]I am told that, had the protocol agreement been honoured, the claimant would have received £1,924 in costs and disbursements, and, in exercising my unfettered discretion in relation to costs in a detailed assessment, I find it entirely reasonable to limit the costs recoverable in these proceedings to those costs which would have been recoverable at that stage. Therefore, there will an order for costs in favour of the claimant for £1,924. (End of judgment) (Submissions on costs and assessment of costs followed)