Exit of Claim from MOJ Portal:
Foley v Radinex
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What is the MOJ Portal?
The MOJ Portal was initially introduced to deal with low value Road Traffic Accident claims. In July 2013, it was extended to deal with other low value personal injury claims, such as employers liability and public liability claims.
Prior to issuing Part 7 proceedings on a claim, the matter must be notified on the MOJ Portal if a low value matter (under £25,000 in value) whereby the allegations and details of the accident will be provided. The Defendant will then receive notification of the claim and set time periods are in place for the Defendant to respond in line with the EL/PL and RTA Protocols. If the Defendant admits liability and adheres to these deadlines, a settlement pack is sought to be agreed between the parties within the Portal, and the receiving party will receive fixed Portal costs on conclusion.
However, the level of fixed costs will increase if the matter exits the Portal, and increases in stages as the case is issued and proceed through the litigation process. The Defendant can remove the claim from the Portal themselves, or the claim will automatically drop out of the Portal if the Defendant denies liability or fails to provide a response to liability within the relevant time period.
Other reasons for exiting the Portal include, but are not exhaustive of the following:
– If the claim becomes valued in excess of £25,000.
– If the Defendant fails to advance an offer/respond to the Stage 2 pack in certain timescales.
– If Stage 1 costs are not paid within strict timescales.
Further reasons can apply however, there is some ambiguity in the Pre Action Protocol when a ‘must’ provision is given for an action to be completed, but the Protocol does not specifically state that the claim can be removed from the Portal on default of the same.
A common example of this is in relation to the Defendant failing to provide loss of earnings information in an EL claim.
Costs Penalties When there is an Unreasonable Exit of the Claim from MOJ Portal
The usual claims process will proceed once there is an exit of claim from MOJ Portal. For example, if the matter exited the MOJ Portal due to the Defendant’s failure to accept liability, it is likely that proceedings will be issued shortly after at the County Court by the Claimant’s Solicitors. In this instance, costs will be recovered at a higher rate for the issuing of proceedings rather than if they case was to settle pre action.
However, it is important that the overriding objective is taken into consideration and that the issuing of proceedings is only done so when reasonable. This was addressed in 2012 in the matter of Patel v Fortis when the Court criticised the receiving party for removing a matter from the Portal when the Defendant failed to electronically acknowledge a claim within a day, as per the Protocol.
In the more recent case of Foley v Radinex, as initially reported on by DAC Beachcroft, the Claimant submitted their claim for Employer’s Liability through the Pre-Action Protocol Portal. Paragraph 7.9 of the Protocol states that the Defendant must provide details of loss of earnings within 20 days of the admission of liability. This was not done in Foley, but the Claimant had submitted that there was no loss of earnings in the Claim Notification Form. In any event, the Claimant went on to remove the claim from the MOJ Portal due to the Defendant’s failure to provide details regarding Loss of Earnings.
To justify the exit of claim from MOJ Portal, the Claimant sought to rely on the Defendant’s failure to provide the information. The Defendant argued that as the Claimant was an agency worker, they did not possess this information. When proceedings were issued, there was no loss of earnings included in the pleadings and the damages settlement further did not include loss of earnings.
When the issue of costs arose, the Claimant sought costs at £6,000 in line with CPR 45 Section IIIA, Table 6C for an issued case. The Defendant argued that only costs which account for settlement within the Portal should be recovered and that the reason for the exit of claim from MOJ Portal was unreasonable, as was the reason for the issuing of proceedings.
Whilst the Court did not consider the reason for removal from Portal to be unreasonable (i.e. for failure to provide loss of earnings information), it decided in favour of the Defendant and held that the Claimant’s exit of claim from MOJ Portal was unreasonable. The Court disallowed the costs which related to the issuing of proceedings. The Claimant was awarded costs of £2,342.10 and disbursements as opposed to the £6,000 claimed for issuing proceedings. The Defendant was awarded their costs in relation to the costs dispute in the sum of £2,200.
The findings of this case should be a reminder to Claimant Solicitors that the Courts have wide powers of discretion which they can exercise in relation to costs when finding that a party has acted unreasonably in the main action. When the Protocol is ambiguous as to the consequences of failing to perform a ‘must’ requirement, the Court will be required to utilise their discretionary powers in assessing how reasonable the parties have been when deciding the costs consequences. Claimant Solicitors should therefore not act too keenly to remove a matter from the Portal for a minor technical breach, specifically when the Protocol does not provide for such fixed consequences.
ARC Costs have in fact been successful in arguing a reasonable removal of a matter from the Portal for a Defendant having failed to provide loss of earnings information. On that occasion however, there was a claim to be made for loss of earnings, and the Defendant had frustrated the same by failing to provide disclosure. As such it was deemed reasonable for the Claimant to have exited the Portal.
How Can ARC Costs Assist?
ARC Costs are specialist Costs Draftsman and Costs Lawyers. We hold expertise in dealing with both costs under the fixed costs regime and those which fall to be assessed by way of detailed assessment.
We can assist in ensuring the correct level of fixed recoverable costs is being sought, and regularly advise on disputed fixed costs and disbursements matters. We act on a ‘no win no fee’ basis for such matters where we are instructed to handle such disputes, and recover the entirety of our fees from the other side.
It may be that your case for costs falls to be reasonably assessed by the Court, for which we can assist by preparing a detailed Bill of Costs on your behalf to ensure maximum recovery of your costs. We can also negotiate with the other party to reach a suitable settlement of your costs.
Whatever your position on costs, as Costs Lawyers, we can assist you and represent you in Detailed Assessment Proceedings or in relation to costs which fall under the fixed costs regime.