Brayan Jimenez v Esure Services Ltd
| Jurisdiction | England & Wales |
| Judge | Master Friston |
| Judgment Date | 30 July 2021 |
| Neutral Citation | [2021] EWHC B15 (Costs) |
| Court | Senior Court Costs Office |
| Docket Number | SCCO Ref: 2019 BTP 000650 |
[2021] EWHC B15 (Costs)
SENIOR COURTS COSTS OFFICE
FROM THE COUNTY COURT MONEY CLAIMS CENTRE
Royal Courts of Justice
Strand, London, WC2A 2LL
DEPUTY Master Friston
SCCO Ref: 2019 BTP 000650
Ms Amy Philipson (counsel for the Claimant, instructed by Applebys Solicitors Ltd)
Mr James Miller (counsel for the Defendant, instructed by Keoghs Solicitors LLP)
Introduction
This judgment follows a provisional assessment of the Claimant's costs carried out on 24 February 2020. Both parties requested a post-provisional oral hearing (albeit in respect of different items); that hearing took place remotely on 9 October 2020. I gave permission for the parties to submit post-hearing Skeleton Arguments; these were written in late October 2020.
In essence, I must decide three points: firstly, whether the amount of costs claimed by the Claimant is subject to a compromise; secondly, whether the Claimant acted unreasonably in exiting the Portal (this turning on whether it was open to the Claimant to seek an interim payment); and thirdly, whether the amount of the Claimant's profit costs should be determined by reference to the damages that are inclusive or exclusive of vehicle-related damages.
Before I give my judgment, I would like to thank counsel not only for the the high quality of their submissions, but also for their patience in answering my many queries and questions about the operation of the Portal.
Background
The underlying claim arose out of a road traffic collision on 8 March 2018. The Defendant's insured was leaving an underground carpark when he struck the Claimant's car close to the nearside front door. This caused the Claimant to suffer wrenching injuries to his neck and lower back muscles.
The claim was submitted to the Portal by way of a Claims Notification Form (CNF) that was completed on 8 March 2018. Liability was admitted shortly thereafter. The Claimant had already obtained an engineer's report dealing with the damage to his car; I understand that the claim for vehicle repairs was short lived (namely, it settled on about 10 April 2018).
A consultant in accident and emergency medicine (a Mr Weerasinghe MBBS, MSc, MRCSEd, FRCEM) was instructed to prepare a report on the Claimant's musculoskeletal injuries; his report was written on 14 May 2018. As I understand matters, Mr Weerashinge recommended that a psychological report be obtained.
On 13 July 2018, the Claimant requested an interim payment (in the sum of £1,000). I was told (and I accept) that the reason this request was made was because the Claimant wished to fund the obtaining of a psychological report, the fee for which was about £1,250. That request was made at the end of Stage One; no request for a stay had been made pursuant to paragraph 7.12 of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents from 31 July 2013 (‘the Protocol’). I was told that the reason the Claimant did not seek a stay was because, at that stage, Stage Two had not commenced, so the Claimant was not under any pressure of time in any event.
The Defendant did not respond to the Claimant's request. As a result, the Claimant gave notice that the matter had exited the Portal; this was on about 30 July 2018. As I understand matters, that notice elicited no response (and in particular, no attempt was made to make payment of the monies that had been requested).
A clinical psychologist (a Dr Mir Clin Psy D, BSc, HCPC Reg) was then instructed to report on the psychological aspects of the matter. His report became available on about 12 September 2018. In the meantime (namely, on about 24 August 2018) the parties settled the claim for credit hire.
On about 10 October 2018, the Claimant served both the medical evidence and details of his special damages. This did not elicit a response, so proceedings were issued. I do not know when the Defence was served, but I understand that the admission of liability was maintained.
On 7 February 2019, the Defendant made a Part 36 offer to settle the matter in the sum of £5,350. On 8 February 2018, the Claimant wrote to say this:
‘We assume, from the terms of your letter, that our clients [sic] costs will be dealt with on post issue fixed costs basis and reasonable disbursements. If this is not correct then please return to us within the next 3-days.’
The Claimant seeks to characterise this as being a counteroffer (namely, an offer to accept £5,350 plus costs calculated in accordance with CPR, r 45.29C).
On 15 February 2018, the Claimant wrote to the Defendant in the following terms:
‘We are pleased to confirm our client accepts the offer to pay damages of £5,350.00 in full and final settlement of her claim for personal injuries and special damages.
This is of course on the basis that our client's post issue fixed costs and reasonable disbursements will be paid in addition.’
The Defendant subsequently sent the Claimant a cheque for the damages.
As to the events thereafter, the narrative to the Bill of Costs reads as follows:
‘The Claimants costs were sent to the Defendants' solicitors and we failed to receive fixed costs, despite several chasers. The Defendants are now trying to argue post fixed costs do not apply. Yet the agreement/settlement was based on post issue fixed costs basis and reasonable disbursements and there [sic] part 36 offer under the rules are clear that post issue fixed costs apply.
There is a clear agreement in place.’
Notice of Commencement was served on about 17 April 2019. That notice says, in terms, that the authority for an assessment derives from ‘a Part 36 offer dated 08.02.2018’. Furthermore, the narrative the Bill of Costs reads as follows:
‘On 15/02/2018 the offer was accepted by the Claimant and subject to the claimant solicitors post issue fixed costs being paid. A letter is attached … which clearly states that the damages are agreed only on the basis post issues costs are paid.’
Fixed costs of £4,385.67 (exclusive of VAT) were claimed, plus £650 for Mr Weerasinghe's report, £1,250 for Dr Mir's report, and £150 for the engineer's report. Once the costs of the drafting the Bill of Costs were included, the total claimed (including VAT) was £8,246.40.
Points of Dispute were served on 9 May 2019. I carried out a provisional assessment on 24 February 2020. On 9 March 2020, the Defendant requested a post-provisional review of my decision on Points 2, 4, 7 and 8. During the hearing, I was told that the Claimant had sought to challenge my decision on Point 3, this being by way of a letter dated 11 March 2020. Neither I nor Mr Miller (who appeared for the Defendant) were aware of this letter, but my enquiries with the SCCO office confirmed that it had, in fact, been received on 13 March 2020. Counsel (very sensibly) agreed that rather than adjourning the matter, I should hear argument on the point and then give counsel the opportunity to make post-hearing written submissions. In the event, it became clear that the arguments that both counsel wished to raise were complex, and as such, both counsel took the opportunity to rehearse their arguments in full in post-hearing Skeleton Arguments.
Points 2 and 4
The parties agreed that these two points essentially went to the same costs and that I ought to deal with them together. In essence, Point 2 went to the issue of whether there had been a concluded compromise that fixed the costs to those allowable under CPR, r 45.26C; in particular, the Defendant's objection was to the narrative to the Bill of Costs (which implied that there had been such a compromise). Point 4, on the other hand, was based on the assumption that there was no such compromise (and was therefore in the alternative): it went to the issue of whether the Claimant had acted unreasonably in exiting the Portal. In particular, Point 4 read as follows:
‘This is a claim which was commenced in accordance with the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (the “RTA Protocol”) but did not continue in accordance with the RTA Protocol. Instead, the claimant elected to issue Part 7 proceedings. The claim was subsequently settled via Part 36 acceptance. The defendant contends that, in accordance with Rule 45.24, the claimant's costs should be limited to no more than the fixed costs in rule 45.18 together with the disbursements allowed in accordance with rule 45.19 on the basis that the claimant acted unreasonably by discontinuing the process set out in the RTA Protocol and starting proceedings under Part 7. The claimant purported to discontinue the process set out in the RTA Protocol because the defendant failed to make an interim payment. However, the defendant contends that the claimant was not entitled to request such an interim payment because stay of the protocol had not been agreed. Accordingly, the provisions in paragraphs 7.13 to 7.30 of the RTA Protocol did not apply.
Paragraph 7.12 of the RTA Protocol provides that:-
“Where the claimant needs to obtain a subsequent expert medical report or a non-medical report, the parties should agree to stay the process in this Protocol for a suitable period. The claimant may then request an interim payment in accordance with paragraphs 7.13 to 7.16.”
The defendant would aver that the agreement to stay the protocol is a precursor to requesting an interim payment as was found by District Judge Doyle in Luvin v Ageas Insurance Limited (2015) (Exhibit BM1).
As such, the claimant was not in a position to trigger the procedure for requesting an interim payment. Accordingly, the defendant was not bound to make an interim payment in accordance with Paragraph 7.19 of the RTA Protocol and the claimant cannot rely on Paragraph 7.29 in order to justify his decision to start...
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