In this new era we are all very much alive to potential costs issues before a case even gets off the ground. It is widely known that exiting a pre-action protocol where it was unreasonable to do so is likely to limit costs to fixed portal costs. However, what is the position where a claim doesn’t even begin in the portal.
The Court of Appeal addressed the question in Williams -v- The Secretary of State for Business, Energy & Industrial Strategy  EWCA Civ 852 (http://www.bailii.org/ew/cases/EWCA/Civ/2018/852.html)
The Claimant claimed for NIHL following a period of employment with both Defendants. The claim settled but there was an argument about costs.
Ordinarily, one would expect such a claim to proceed under the Pre-Action Protocol for Low Value Personal Injury (Employer’s Liability and Public Liability) Claims. However, the claimant had not used the protocol as there were two potential defendants. Under paragraph 4.3 (6) the protocol doesn’t apply to disease claims where there is more than one employer defendant.
Whilst the claim had initially proceeded against two employers, it became clear very early on that the claim against the potential second defendant had no prospects. The defendant therefore argued that the claim should have been brought under the protocol and fixed costs ought to apply. The first instance DDJ agreed that had proper instructions been obtained from the claimant it would have been clear that the claim against the proposed second defendant was very weak. Therefore, there was an unreasonable failure to use the protocol.
The Court of Appeal held that where a claim should have been started in the protocol but unreasonably wasn’t then the conduct provisions contained in CPR 44 provide the complete answer to cases such as this. Whilst neither CPR 45.24 or the protocol provided automatically for fixed costs in such a situation, under CPR 44 the claimant could be restricted to the fixed costs and disbursements allowed for by the protocol.
The Court of Appeal went on to indicate that defendants seeking to raise this argument should do so as soon as possible. This will usually be when the defendant files an acknowledgment of service stating its intention “to contest the claim or to seek a different order” in response to Part 8 proceedings.
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