The ‘new’ fixed costs regime for EL/PL cases was introduced nearly three years ago and people are still understandably unsure as to the full extent of the highly convoluted CPR 45.
CPR 45 is split into two relevant Sections for EL/PL costs; Section III THE PRE-ACTION PROTOCOLS FOR LOW VALUE PERSONAL INJURY CLAIMS IN ROAD TRAFFIC ACCIDENTS AND LOW VALUE PERSONAL INJURY (EMPLOYERS’ LIABILITY AND PUBLIC LIABILITY) CLAIMS which runs from CPR 45.16 to CPR 45.29 and SECTION IIIA CLAIMS WHICH NO LONGER CONTINUE UNDER THE RTA OR EL/PL PRE-ACTION PROTOCOLS – FIXED RECOVERABLE COSTS which runs from CPR 45.29A to CPR 45.29L.
It is usually easy to distinguish which section will be applicable. Generally speaking Section III applies to claims which have started on the EL/PL Portal and have settled on the Portal; whereas Section IIIA applies to claims which have started on the EL/PL Portal and have fallen off the Portal and settle thereafter, at any point up to and including Trial.
“There are some exceptions when your claims will not be subject to the Pre-Action Protocol and therefore will not be subject to fixed costs.”
There are some exceptions when your claims will not be subject to the Pre-Action Protocol and therefore will not be subject to fixed costs, a list is provided within the Pre Action Protocol:
- “Where the claimant or defendant acts as personal representative of a deceased person;
- Where the claimant or defendant is a protected party as defined in rule 21.1(2);
- In the case of a public liability claim, where the defendant is an individual (‘individual’ does not include a defendant who is sued in their business capacity or in their capacity as an office holder);
- Where the claimant is bankrupt;
- Where the defendant is insolvent and there is no identifiable insurer;
- In the case of a disease claim, where there is more than one employer defendant;
- For personal injury arising from an accident or alleged breach of duty occurring outside England and Wales;
- For damages in relation to harm, abuse or neglect of or by children or vulnerable adults;
- Which includes a claim for clinical negligence;
- For mesothelioma;
- For damages arising out of a road traffic accident (as defined in paragraph 1.1(16) of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents).”
The above list represents the exceptions provided for within the Pre Action Protocol, CPR 45.29A provides one more
- This section does not apply to a disease claim which is started under the EL/PL Protocol.
The above section of CPR 45.29 provides that, in essence if you have a disease claim which has one employer Defendant, you would put the matter on the Portal. However regardless of the number of Defendants as soon as the case exits the Portal the case is no longer subject to fixed costs. This of course is good news to the Industrial Disease practitioners out there.
It is worth noting, matters which are valued over and above £25,000.00 may not be subject to fixed costs. Recently Qader V Esure gave authority that matters which start on the Portal (RTA/EL/PL) and later get allocated to the Multi Track would not be bound by ‘new’ fixed costs, a recent amendment to CPR 45 put this Judgement into legislation, this amendment is within the latest revision of amendments to the CPR which is going through now and will be concrete legislation on 6th April 2017. The important point in this Judgement/new provision of the CPR is the allocation to the Multi Track, as such if you have a case which settled ex-Portal but pre-Allocation for £100,000.00 you would still be limited to fixed costs, which can be considered rather harsh.
“If you have a case which settled ex-Portal but pre-Allocation for £100,000.00 you would still be limited to fixed costs.”
The most important time to be considering the application of fixed costs is at the outset of the case. If you find yourself with a new instruction where the Claimant has sustained a significant injury or you have a reasonable belief that the matter may be high value, we would advise that quantum is considered in great depth. This is important because, if you choose not to put the claim on the Portal (thus avoiding fixed costs) and the claim later settles for less than £25,000.00 the Defendant will argue that you should be limited to Fixed Costs anyway. If you have carefully considered quantum before sending the Letter of Claim you will be able to evidence that you had reasonable belief that the claim was valued at more than £25,000.00; as such you will have complied with the Pre Action Protocol and have maximised your potential cost recovery.
Of course this is a very brief article on the EL/PL Portal costs, if any queries you do have are not covered in the above please do not hesitate to contact us and one of our experts will be in touch.