ARC Costs recently assisted in a case where the level of legal costs were disputed following an exit from the portal due to the complexity of the case.

MOJ Portal costs rules

The MOJ Portal is a system that was introduced on 31 July 2013, alongside the fixed costs regime, to make it easier and quicker for Claimants to make personal injury claims. The Pre Action Protocols set out a number of rules and procedures that must be followed, including rules about which types of cases are suitable for the Portal.

In general, cases that are suitable for the MoJ Portal are those that are lower in value, relatively straightforward and do not involve any complex legal issues. Low value personal injury, employers liability, and public liability claims, as well as personal injury claims in road traffic accidents should be submitted to the MOJ Portal.

Claims that fall within the Portal will be subject to the fixed recoverable costs regime.

Case study: Costs when a claim exits the Portal

ARC Costs recently assisted in the recovery of costs for a successful claim for personal injuries and losses arising from a road traffic accident. The Claimant suffered a fractured wrist and nose, soft tissue injuries to the shoulder and face, a dental injury, buzzing in their ears and mild psychological injuries.

The claim was initially submitted to the Portal, meaning the MOJ portal costs would apply. However, due to the complexity of the case, it was removed from the Portal.

Paragraph 7.76 of the Pre-Action Protocol states;

“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) 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 fixed costs in rule 45.18.”

In this case, the Defendant argued that the Claimant had removed the claim from the protocol in a non-complaint manner, and stated that they had not provided mandatory notice that the claim would exit the Portal under paragraph 7.76 of the Protocol. They also submitted that there was no good reason for the claim to exit the portal; that fixed costs should apply in these circumstances, with costs being limited to stage 1 and stage 2 costs under CPR 45.18.

In relation to the removal of the matter from the portal, ARC Costs made the argument that, paragraph 7.76 of the RTA Protocol does not state that a separate written notification of the removal of a matter from the portal is required. The Defendant was provided notice of the removal via the portal itself; therefore, no additional notice was required.

ARC Costs made comparisons to other sections of the Protocol in which specific reference to the requirement for written notice was stated; for example, in paragraph 6.19:

6.19 Where the defendant fails to pay the Stage 1 fixed recoverable costs within the period specified in paragraph 6.18 the claimant may give written notice that the claim will no longer continue under this Protocol. Unless the claimant’s notice is sent to the defendant within 10 days after the expiry of the period in paragraph 6.18 the claim will continue under this Protocol.

In relation to the complexity of the case, ARC Costs submitted that, due to the fact that 5 reports from 4 different specialisms, which included Orthopaedic, ENT, Dental and Maxillofacial experts, were required, a Stage 3 hearing would have been inappropriate, and a full disposal hearing would have been required.

Further submissions argued that, given the extent of the injuries and the permanence of some of the Claimant’s injuries, the Receiving Party reasonably believed that the claim was too complex for the Portal. ARC Costs argued that this was a matter that has reasonably been removed from the Portal and issued, and as it settled before the date of allocation, fixed profit costs under CPR 45.29C Table B apply.

The matter proceeded to a Costs Hearing, where after lengthy oral submissions, the District Judge gave ARC Costs favourable Rulings on both the portal notice of removal point, and then the reasonableness of removal point. Thereafter, the District Judge ordered the Defendant to pay the Claimant’s costs as per CPR 45.29C Table B as well as costs of the application and the hearing.

How can ARC Costs assist?

ARC Costs have the skills and experience to assist claimants in escaping the fixed costs scheme in specific circumstances.

We can then assist throughout the process of Detailed Assessment in preparing your Bill of Costs on if necessary, or conducting fixed costs assessment proceedings under CPR 36.20, as well as negotiating with the other side on the level of costs to be recovered. As independent experts, out services extend to either Paying or Receiving parties, and we often deal with disputes to Bills via settling Points of Dispute or Replies, as well as providing costs advocacy services if needed.

Should you require any assistance or free initial advice, please feel free to call us on 01204 397302, or email one of our costs experts direct on info@arccosts.co.uk.

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