The Court of Appeal decision in Qadar v Esure [2016] EWCA Civ 1109 recently considered whether fixed fees continue to apply once the claim has left the RTA protocol and subsequently been allocated to the multi-track.
Background
The original action resulted from a car accident in 2015. The damages were valued at between £15,000.00 and £20,000.00, firmly within the realm of the fast track. However, DDJ Nadarajah directed the claim be allocated to the multi-track due to the facts of the matter, including the Defendant’s allegation of fraud.
The Claimant went on to win the claim but was unsuccessful in obtaining costs on the standard basis and as such was limited to fixed fees. On application to appeal, the claimant argued for standard basis costs on three grounds:
- The DJ had failed to interpret CPR 45.29A so as to implement the Jackson reforms purposively
2) The DJ had failed to interpret CPR 45.29A in accordance with the overriding objective
3) The Application of Rule 45.29A is in contravention of Section 3 of the Human Rights Act 1998 and Article 6 of the Convention
Unfortunately for the Claimant, HHJ Grant found for the Defendant on all three grounds.
For further details of the main action please see: Does the Claimant get a right to a fair trial if fixed costs apply when the matter is reallocated to the multi track?
Court of Appeal Judgment
On consideration of the matter, the Court of Appeal found for the Claimant and held that fixed costs no longer apply in claims that are commenced in the RTA protocol but continue within the multi-track. In coming to this decision the Court analysed the history of the rules and determined that it was never the intention of the Rules Drafting Committee that cases in the multi-track should be limited to fixed costs.
Lord Justice Briggs determined that the Court could ‘put right’ obvious drafting errors where the Rules Drafting Committee had failed to implement the intention of the Government. In doing so the Court added to Part 45.39B, after the reference to 45.29J, ‘…and for so long as the claim is not allocated to multi-track’
Conclusion
Although this Court of Appeal decision will be hailed by Claimants as a fair result, which doesn’t impede the right to fair trial and which will make Defendants think twice before alleging fraud, it does raise further issues.
Interestingly and somewhat clairvoyantly, on the Claimant’s application to appeal, the Defendant’s representative (Mr Smith) stated that in finding for the Claimant, major revisions to the CPR would be required. And it could be argued that he was right! Many may consider the approach taken by LJ Briggs to be a step too far; that he went beyond the Court’s ambit in interpreting the CPR and in effect rewrote a provision that he disagreed with.
The position is also unclear where a claim is started within the RTA Protocol and then settles for in excess of £25,000.00 but is never allocated to multi-track. I suspect this point may will be litigated in the not to distant future.
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