Anthony Mitchell West (Executor of the Estate of the late Kenneth Morriss) v Peter Burton
| Jurisdiction | England & Wales |
| Judge | Sir Nigel Davis,Lord Justice Dingemans,Lord Justice Singh |
| Judgment Date | 08 July 2021 |
| Neutral Citation | [2021] EWCA Civ 1005 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2020/1947 |
[2021] EWCA Civ 1005
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT LIVERPOOL
HH Judge Graham Wood QC
Claim No F08LV675
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Singh
Lord Justice Dingemans
and
Sir Nigel Davis
Case No: A2/2020/1947
Roger Mallalieu QC and Sofia Ashraf (instructed by DWF Costs Ltd) for the Appellant
Benjamin Williams QC (instructed by PM Law Limited, Solicitors) for the Respondent
Hearing date: 15 June 2021
Approved Judgment
Introduction
This appeal raises an issue as to the fixed costs and disbursements payable under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (“the Protocol”). The amount at stake in the present case is very modest – a few hundred pounds. But the issue raised potentially could bear on many thousands of other cases arising under the Protocol; and, as we were told, could also potentially bear on cases relating to employment and public liability, by reference to the separate Protocol relating to such cases. So this appeal has a significance going beyond its own individual determination. Permission to appeal was granted by Males LJ on 17 December 2020.
As the Judge in the court below (Judge Graham Wood QC, sitting in the Liverpool County Court) observed, the issue arising in this case is straightforward to describe but is not straightforward to resolve. That issue perhaps can be put in this way. Where a person gives notification of a claim under the Protocol but thereafter dies before its conclusion and the notified claim then, without legal proceedings being issued, proceeds to settlement between the deceased's personal representative and the defendant's insurers, are the costs and disbursements payable by the defendant to be calculated by reference to Section IIIA (or, as the case may be, Section III) of Part 45 of the Civil Procedure Rules? Or are they to be calculated by reference to Section II of Part 45 of the Civil Procedure Rules?
The appellant (the defendant in the Part 8 proceedings relating to the recovery of costs issued in the County Court) has argued for the former proposition. The respondent (the claimant in such proceedings) has argued for the latter proposition. It was common ground before us that costs and disbursements will always, or almost always, be greater if calculated under Section II; and given the huge volume of cases brought under the Protocol the outcome is thus important both for solicitors' firms specialising in such cases and for insurers in this field.
The appellant was represented before us by Mr Roger Mallalieu QC and Ms Sofia Ashraf. The respondent was represented before us by Mr Benjamin Williams QC. The arguments presented to us, both written and oral, were excellent.
Background Facts
The backgrounds facts, and chronology of events, can be shortly summarised.
On 8 April 2016 Mr Kenneth Morriss (who was born on 26 May 1933) was involved in a road traffic accident with Mr Peter Burton. He promptly consulted solicitors. On his behalf they submitted electronically, via the Portal, a claim notification form (“CNF”) directed to Mr Burton's insurers. This was on 3 May 2016. The CNF was acknowledged by the insurers on 18 May 2016. The procedure adopted was pursuant to the Protocol.
No admission as to liability was made (it is said that at that stage there was an issue as to causation). That being so, under the terms of the Protocol, to which I will come, the notified claim on 8 July 2016 “exited” (in the word commonly used in this context) the Portal.
Very shortly after that, on 14 July 2016 Mr Morriss sadly died. It was and is common ground that his death was in no way related to the road traffic accident.
There was then a period of silence with regard to the CNF. However, on 17 December 2018 the same solicitors who had been instructed by Mr Morriss wrote to the insurers. The letter described their client as “Mr K Morriss (deceased)”. They indicated that they gave notice in accordance with the Protocol that they proposed to instruct an expert doctor, giving the names of three proposed doctors. Such a report was thereafter provided. On receipt of that report, and before any legal proceedings had been issued, the insurers made a Part 36 offer on 28 March 2019. The solicitors' client was there described as “Mr Kenneth Morriss”. The offer was in the sum of £1,375, with costs. On the same day, the solicitors responded that they were “now in receipt of our client's instructions” to accept the offer. In the meantime, probate in respect of the estate of Mr Morriss had been granted to Mr Anthony West and his wife, Mrs Rosemary West, on 20 March 2019. A copy of the Grant was provided to the insurers, it being the usual practice of insurers in such situations to require a Grant of Representation in order to ensure that they received a valid discharge.
The Part 36 offer having been accepted, the basis on which costs were to be paid – that is, whether it was pursuant to Section II or Section IIIA – became the subject of dispute. On 16 July 2019 Part 8 proceedings were commenced in the Liverpool County Court with a view to resolving this dispute. The claimant was initially named in the Claim Form as “Mrs W Morriss (as executor of the estate of Mr Kenneth Morriss, deceased)”; but this was in due course corrected by substituting Mr West as claimant, in his capacity as executor.
After various procedural matters had been sorted out in the Part 8 proceedings, the case came on substantively before District Judge Baldwin, an experienced Regional Costs Judge, on 3 December 2019. He concluded that the claimant's arguments were correct. He directed that the fixed recoverable costs and disbursements were payable under Section II: quantifying those costs and disbursements at £1,880. He ordered the defendant to pay the costs of the assessment and of the Part 8 proceedings (save that there was no order as to the costs of one previous hearing). On 30 October 2020, by a reserved judgment, Judge Graham Wood QC dismissed the defendant's appeal, with costs.
The Legal Framework
(a) Civil Procedure Rules
The applicable parts of the Civil Procedure Rules and of the Protocol, when taken together, are, it has to be said, something of a mouthful.
By CPR r.45.9, which sets out the scope and interpretation of Section II relating to (among other things) costs-only proceedings, it is provided by r.45.9 (2) as follows:
“45.9
…..
(2) This Section applies where –
(a) the dispute arises from a road traffic accident occurring on or after 6 October 2003;
(b) the agreed damages include damages in respect of personal injury, damage to property, or both;
(c) the total value of the agreed damages does not exceed £10,000; and
(d) if a claim had been issued for the amount of the agreed damages, the small claims track would not have been the normal track for that claim.”
It is common ground that all such matters were satisfied here. But by r.45.9(3) it is in the relevant respect provided as follows:
“(3) This Section does not apply where–
….
(b) Section III or Section IIIA of this Part applies.”
Subsequent provisions in the rules go on to set out how fixed recoverable costs and disbursements are to be calculated under Section II (sometimes styled “predictive costs”). I need not, I think, for present purposes, set those out here. It is to be noted that r.45.13 also gives the court power to entertain a claim for an amount of costs (but not success fee or disbursements) greater than the fixed recoverable costs if it considers that there are “exceptional circumstances” making it appropriate to do so.
Rule 45.16 and following relate to fixed costs and disbursements under Section III. Those, in effect, deal with cases falling within what is described as the stage 3 procedure, where the matter has remained within the Portal. But it was and is common ground that Section III can have no application in the present case: just because the notified claim had exited the Portal on 8 July 2016. The potentially relevant section (if it is not Section II) thus has, in the circumstances of this case, to be Section IIIA once a costs-only application had been made in Part 8 proceedings.
Rule 45.29A sets out the scope and interpretation of Section IIIA. It provides as follows:
“45.29A – Scope and interpretation
(1) Subject to paragraph (3), this section applies—
(a) to a claim started under—
(i) the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (“the RTA Protocol”); or
(ii) the Pre-Action Protocol for Low Value Personal Injury (Employers' Liability and Public Liability) Claims (“the EL/PL Protocol”),
where such a claim no longer continues under the relevant Protocol or the Stage 3 Procedure in Practice Direction 8B; and
(b) to a claim to which the Pre-Action Protocol for Resolution of Package Travel Claims applies.
(2) This section does not apply to a disease claim which is started under the EL/PL Protocol.
(3) Nothing in this section shall prevent the court making an order under rule 45.24.”
By r.45.29B it is provided:
“45.29B Application of fixed costs and disbursements – RTA Protocol
Subject to rules 45.29F, 45.29G, 45.29H and 45.29J, and for as long as the case is not allocated to the multi-track, if, in a claim started under the RTA Protocol, the Claim Notification Form is submitted on or after 31st July 2013, the only costs allowed are—
(a) the fixed costs in rule 45.29C;
(b) disbursements in accordance with rule 45.29I.”
I also add that, with regard to fixed disbursements, Section II and Section IIIA allow, among other things for “any other disbursement that has arisen...
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