In theory the RTA protocol provides a straightforward process by which low value RTA claims can be resolved, including the payment of fixed costs. However, this latest decision shows how easily satellite litigation regarding the process, and particularly payment of costs, can arise.

In Bates and Anr v Bourne and Anr (unreported), District Judge Baldwin sitting as the Regional Costs Judge in Liverpool heard two conjoined cases where the claimants had issued part 8 costs-only claims. Within these claims, both claimants were seeking the £300 fixed late settlement costs pursuant to paragraph 7.48(2) of the protocol.

The defendants objected stating that the claimants had failed to engage in negotiation or respond to requests made by the Defendant for further information during stage two. The defendants submitted that this conduct was “not what is envisaged by the protocol”. They further submitted that paragraph 7.43 imposed a positive obligation to negotiate during that period and a blatant failure to do so should lead to a sanction, namely disallowing the £300. They also criticised the drafting of paragraph 7.48(2), suggesting that it was ambiguous in terms of the relevance or otherwise of conduct.

District Judge Baldwin rejected these criticisms. “While it is right that the protocol is aimed at encouraging early settlement between the parties and at relegating court intervention to a last or at least late resort, that encouragement is created by the prescriptive and codified nature of the protocol and the PD 8B stage 3 procedure and by sanctions which are specifically set out therein to be applied when non-approved of behaviour occurs or is, in the singled out rule 45.24 situation, found to have occurred.

He observed that non-responsiveness by a defendant earlier in the RTA process results in immediate exit from the portal, whereas paragraph 7.43 was “more permissive than mandatory”, by giving the claimant the opportunity of the whole of the stage two period to accept or decline a defendant’s counter offer. The District Judge concluded that there was no ambiguity as the rules were prescriptive and mandatory in nature. Furthermore, if there were issues of conduct to raise there is a procedure set out at CPR 45.24 to address this.

The District Judge also suggested that if Defendant’s wished for matters to settle more quickly they should make sensible counter offers which would cause claimants to stop and think prior to progressing into litigation.

This is clearly a positive decision for claimants and shows that the courts are not always willing to indulge defendants when they raise speculative conduct points in the hope of a windfall. Here at MRN we are skilled at dealing with points of this nature and have had recent successes in protocol cases. We can provide timely advice on the merits of a defendant’s objections together with timely Part 36 offers which can be used to maximise recovery when these sorts of issues arise.