Qader and Others v Esure Services Ltd The Personal Injury Bar Association and Another (Interveners)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Briggs,Lord Justice Gross,Lord Justice Tomlinson
Judgment Date16 November 2016
Neutral Citation[2016] EWCA Civ 1109
Docket NumberCase No: A2/2015/3614 & A2/2016/0200
Date16 November 2016
Between:
Qader & Ors
Appellant
and
Esure Services Limited
Respondent

and

(1) The Personal Injury Bar Association
(2) The Association of Personal Injury Lawyers
Interveners
Khan & Anr
Appellant
and
McGee
Respondent

and

(1) The Personal Injury Bar Association
(2) The Association of Personal Injury Lawyers
Interveners

[2016] EWCA Civ 1109

Before:

Lord Justice Tomlinson

Lord Justice Gross

and

Lord Justice Briggs

Case No: A2/2015/3614 & A2/2016/0200

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM BIRMINGHAM COUNTY COURT

HIS HONOUR JUDGE GRANT

BM50112A

ON APPEAL FROM BIRMINGHAM CIVIL JUSTICE CENTRE

DISTRICT JUDGE RICH

A62YP323

Royal Courts of Justice

Strand, London, WC2A 2LL

Nicholas Bacon QC (instructed by Nesbit Law Group) for the Appellant Qader & Ors

Tim Horlock QC and Paul Higgins (instructed by Horwich Farrelly Solicitors) for the Respondents Esure Services Ltd

Roger Mallalieu (instructed by DWF LLP) for the Appellant Khan & Anr

Nicholas Bacon QC (instructed by Nesbitt Law Group) for the Respondents Mcgee

Mr Robert Weir QC and Ms Jasmine Murphy (instructed by Simpson Millar LLP) for the Personal Injuries Bar Association

The Association of Personal Injury Lawyers for were not represented in court

Hearing dates: 25 October 2016

Approved Judgment

Lord Justice Briggs
1

These conjoined appeals raise this common question about the fixed costs regime for claims started under the RTA Protocol namely: whether the fixed costs regime continues to apply to a case which no longer continues under the RTA Protocol but is allocated to the multi-track after being issued under Part 7. The issue turns mainly on the interpretation of section IIIA of CPR Part 45, read together with the relevant provisions of the RTA Protocol, and against the background of the process of consultation which preceded the making of that section in 2013, by way of implementation of fixed costs proposals in the reports of Jackson LJ in his Review of Civil Litigation Costs. It requires the court not merely to interpret the relevant provisions, but to consider whether they suffer from an obvious drafting mistake which can be put right so as to bring them into compatibility with the intention of the relevant legislator, namely the Civil Procedure Rule Committee, pursuant to the court's exceptional jurisdiction to do so as explained by Lord Nicholls in Inco Europe Limited v First Choice Distribution [2000] 1 WLR 586, at 592.

The RTA Protocol

2

The RTA Protocol provides an efficient modern framework for the resolution of modest personal injury claims arising out of road traffic accidents. It operates through an online portal whereby claimants' lawyers and defendants' insurers are able to exchange details about the claims, consider and (if appropriate) admit liability and then settle or have speedily determined any issues about quantum. Very large numbers of claims are resolved without the need for any court proceedings at all. A further large number are resolved within the confines of the Protocol by a speedy, document-based process of court determination under Part 8 either without any hearing, or with a short hearing before a District Judge at what is called Stage 3 of the Protocol procedure, governed by CPR 8BPD.

3

The RTA Protocol was not designed for the resolution of large claims or complex disputes. It came into operation in 2010, with a "Protocol upper limit" of £10,000. Valuation of a claim for the purpose of establishing whether it fell within the Protocol upper limit required vehicle related damages to be excluded. Those are damages for the pre-accident value of the vehicle, for vehicle repair, for vehicle insurance excess and for vehicle hire: see paragraph 1.1(18). All references to paragraphs in this section of the judgment are to the paragraphs of the RTA Protocol in its form after amendment for accidents occurring after July 2013. That amendment included raising the Protocol upper limit to £25,000.

4

The RTA Protocol procedure has three stages. Stage 1 is designed to lead to an early admission of liability in appropriate cases. Stage 2 is designed to promote early settlement of disputes as to quantum in cases where liability has been admitted. Stage 3, as already described, provides for judicial determination of disputes as to quantum which cannot be resolved by the parties.

5

A detailed and comprehensive fixed costs regime has, at least since July 2013, been an essential foundation for the effectiveness of the RTA Protocol, being part of a mechanism which strikes a balance between the need to secure access to justice for the victims of road traffic accidents by providing an economic basis for the provision of legal services to deserving claimants, and the risks of disproportionate costs being incurred in relation to relatively modest claims, with adverse consequences in terms of the cost of motor insurance for the public. That fixed costs play this important part is apparent from the statement of the aim of the RTA Protocol in paragraph 3:

"Aims

3.1 The aim of this Protocol is to ensure that –

(1) The defendant pays damages and costs using the process set out in the Protocol without the need for the claimant to start proceedings;

(2) damages are paid within a reasonable time; and

(3) the claimant's legal representative receives the fixed costs at each appropriate stage."

6

Claims arising from road traffic accidents properly started within the RTA Protocol may leave it without resolution or determination within it for a number of reasons. The most common reason is where liability is not admitted at Stage 1. Other reasons include a revaluation of the claim so as to take it above the Protocol upper limit: see paragraph 4.3; or a failure by the defendant's insurers or representatives to respond to the Claim Notification Form, also at Stage 1. In such cases the claimant may seek to negotiate an out of court settlement with the defendant or, in default, issue proceedings in the ordinary way under Part 7.

7

Those proceedings will, if liability remains in dispute, typically lead to allocation to the fast track and a trial taking not more than one day. Alternatively liability may be admitted late, or the proceedings may be unopposed, leading to a judgment on admissions or in default for damages to be accessed, at a disposal hearing ordered under CPR 26 PD para 12. Of course, the case may be settled at any stage during those various procedures. As will appear, the costs regime for cases which started within the RTA Protocol is designed to provide a fixed costs outcome, whether the case fights or settles, thereby removing the all too prevalent risk in the past of expensive satellite litigation about the assessment of costs.

8

There is now established a very similar protocol for dealing in substantially the same way with personal injury cases in the context of employers' liability and public liability, called "the EL/PL Protocol", for which a very similar fixed costs regime was also established, with effect from July 2013. Although these appeals concern cases started within the RTA Protocol, it is likely that their outcome will affect the interpretation and application of the similar and indeed overlapping provisions in Part 45 about the EL/PL Protocol.

The Fixed Costs Regime

9

Part 45, headed "Fixed Costs" makes detailed provision for fixed costs in a variety of different types of proceedings. It is divided into six largely self-contained sections. For present purposes, the court is concerned only with sections III and IIIA. Section III deals with cases started (or which ought to have been started) within the RTA and EL/PL Protocols, and which remain within those Protocols, (unless settled earlier) through to a Stage 3 Part 8 determination. Section IIIA is headed:

"Claims Which No Longer Continue Under the RTA or EL/PL Pre-Action Protocols – Fixed Recoverable Costs"

Viewed as a whole, at first sight section IIIA appears to make comprehensive provision for the recovery only of fixed costs in all cases which start but no longer continue under either of the relevant Protocols, subject only to expressly stated exceptions.

10

Thus, Part 45.29A, headed "Scope and Interpretation" provides as follows:

"(1) Subject to paragraph (3), this section applies where a claim is started under—

(a) the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents ('the RTA Protocol'); or

(b) the Pre-Action Protocol for Low Value Personal Injury (Employers' Liability and Public Liability) Claims ('the EL/PL Protocol'), but no longer continues under the relevant Protocol or the Stage 3 Procedure in Practice Direction 8B.

(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."

Sub rule (2) expressly excludes disease claims. Sub rule (3), by its reference to Part 45.24, makes special provision where a claimant fails to comply with the relevant Protocol or unreasonably elects not to continue with that process.

11

Part 45.29B and C make detailed provision for fixed costs in cases which no longer continue under the RTA Protocol. So far as is relevant, they provide as follows:

" Application of fixed costs and disbursements – RTA Protocol

45.29B

Subject to rules 45.29F, 45.29G, 45.29H and 45.29J, 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.

Amount of fixed costs – RTA Protocol

45.29C

...

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