DACB have successfully challenged a claim for post-issue fixed costs and obtained a costs order securing a finding that proceedings were issued unreasonably.
In Foley v Radinex the Claimant brought an action using the Pre-Action Protocol for Low value Personal Injury Employer’s Liability Claims (‘The Portal’). Although the Claims Notification Form confirmed the Claimant had suffered no loss of earnings, the Claimant removed the matter from the Portal referring to paragraph 7.9 which stipulates that the Defendant must provide loss of earnings information to the Claimant within 20 days of the admission of liability.
In fact, the Defendant did not possess any earnings information as the Claimant was an agency worker and when the information was obtained it simply confirmed that the Claimant did not suffer any loss of earnings. The Claimant attempted to rely on the lack of earnings information disclosed within the 20 days to justify departure from the Portal even though the Defendant did not have custody of it and when it was obtained it simply confirmed that there was no loss.
When proceedings were issued, there were no loss of earnings pleaded and the damages settlement did not include any loss of earnings element.
The Claimant sought costs in accordance with the ‘Portal drop-out’ costs that apply to issued cases that commenced in the Portal (CPR 45 Section IIIA, Table 6C) in the sum of over £6,000. In contrast, the Defendant argued that only costs that were commensurate with settlement within the Portal and without the additional costs of issuing proceedings should be allowed in the region of £2,300.
The court upheld the Defendant’s argument and found the exit from the Portal to be unreasonable and disallowed the additional costs relating to the issue of proceedings. The Claimant was awarded £2,342.10 costs and disbursements in relation to the Personal Injury underlying claim and the Defendant was awarded costs relating to the costs dispute in the sum of £2,200.
This case serves as a useful reminder that the courts have wide powers to penalise parties found to act unreasonably in cases subject to fixed costs, with particular reference to the principles set-out by the Court of Appeal in Williams v SOS for BIS [2018] EWCA Civ 852. Adam Burrell, Head of Costs at DACB pointed out that ‘although such cases tend to attract relatively low value disputes, if not challenged unreasonable behaviour soon adds up across several cases and it is therefore important to carefully apply targeted strategies to send the right message.’
The successful Defendant was represented by the costs team at DAC Beachcroft and Matthew Smith of Kings Chambers.
For more information or advice, please contact one of our experts in our costs team.
