An Analysis of Ansell & Evans -v- A.T & T (GB) Holdings Ltd
The less than perfect drafting of the fixed costs rules contained in CPR 45 continue to be a cause of contention between receiving and paying parties for numerous reasons. Ansell & Evans -v- A.T & T (GB) Holdings Ltd provides guidance on a specific issue, from which a more general conclusion can be drawn.
The claim relates to a low value road traffic accident taking place in 2015 and therefore subject to the pre-action protocol for low value personal injury claims in road traffic accidents. The matter was submitted to the Portal and liability was swiftly admitted by the Defendant. Shortly thereafter the Defendant wrote to the Claimant indicating that the accident was potentially of low velocity. The Defendant requested an inspection of the Claimant’s vehicle in order to investigate this possibility. As a result of this letter, the Claimant removed the matter from the portal due to complexity. Shortly after this exchange, the Defendant confirmed that LVI was no longer an issue and the matter settled via Part 36 offer and acceptance.
The Claimant’s Argument
The Claimant submitted that as the matter had settled via Part 36, the award for costs would be in accordance with CPR 36.20 (2):
(1) This rule applies where—
(a) a claim no longer continues under the RTA or EL/PL Protocol pursuant to rule 45.29A(1); or
(2) Where a Part 36 offer is accepted within the relevant period, the claimant is entitled to the fixed costs in Table 6B, Table 6C or Table 6D in Section IIIA of Part 45 for the stage applicable at the date on which notice of acceptance was served on the offeror.
According to the Claimant then, there was no discretion for the Judge on assessment, the Claimant was entitled CPR 45.29 fixed costs and the Judge had no option to award anything else.
The Defendant’s Argument
The Defendant did not accept that there was no discretion available to the Judge, referring to CPR 45.29A(3):
(3) Nothing in this section shall prevent the court making an order under rule 45.24
CPR 45.24 reads:
(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; or
(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.
The Defendant argued that despite there being no specific reference to CPR 45.24 within CPR 36.20, the discretion for the Court to award the lower CPR 45.18 costs still applies to cases which leave the portal and are subsequently settled pursuant to Part 36.
Decision on Appeal
In her sensible and well-structured Judgement, Her Honour Judge Clarke, explains that:
‘There is a clear tension between two specific rules, namely CPR 36.20, and CPR 45.24 and how they both affect the general rule’
The tension is resolved however, because CPR 36.20(1) states it applies when a claim no longer continues under the RTA protocol pursuant to CPR 45.29A(1).
CPR 45.29A(1) cannot be considered as incorporated into CPR 36.20 in isolation as this would lead to clearly incorrect outcomes (no entitlement to VAT or London weighting for example). The Judge concludes that CPR 45.29A(1) incorporates both subsection (3) of that rule as well as CPR 45.24.
HHJ thus opens the door to the Judge having discretion to award the lower Part 45.18 fixed costs even when a matter has left the portal and settles by Part 36.
‘Although CPR 36.20 does not clearly express it, it was open to the Deputy District Judge to consider whether the Claimants acted unreasonably and to make an order under CPR 45.24 if she found they did, notwithstanding the acceptance of the Part 36 offer.’
Firstly there is the obvious and specific confirmation that acceptance of a Part 36 offer will not prevent the Court from potentially reducing the costs in line with CPR 45.24 where the Claimant unreasonably left the portal.
Secondly and perhaps having a more significant general impact, the ruling confirms that the mere potential for a case to become more complicated is not sufficient reason for a claim to leave the portal due to complexity. It was not enough that the Defendant had indicated they were considering the possibility of an LVI argument to justify leaving the portal. The additional complexity cannot be taken into account until the arguments are actually raised (in the case of an LVI argument via a ‘Casey v Cartwright letter’). This needs to be borne in mind when considering leaving the portal, as should a Claimant leave the portal for complexity, but the complexity does not materialise, the Claimant will be left exposed to recovering lower CPR 45.18 costs despite having undertaken additional work.
The Judiciary continues to paper over the cracks in the Part 45 rules by providing purposive interpretations of the same. This makes literal interpretation and analysis of the rules as written increasingly difficult. The general pattern however is that where there is uncertainty, the Judiciary tries to interpret the rules in a common sense way to achieve a just and proportionate outcome.