Fixed Costs and Multiple Claimants
The judgment in Melloy & Anor v UK Insurance Ltd [2022] EW Misc 4 (CC) addressed the issue arising where there are two or more Claimants in proceedings for damages that fall within Part IIIA of CPR45.
Background
The Claimants were passengers in a motor vehicle when it was struck from behind by a vehicle driven by the Defendant’s insured, as a result of which the Claimants suffered modest whiplash type injuries.
A Claim Notification Form (CNF) for each Claimant was sent to the Defendant in accordance with the Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (“the Protocol”). The Defendant denied liability and therefore the claim no longer continued under the Protocol. The Claimants issued a Part 7 claim for damages on 23 July 2020 resulting in an award of general damages of £1,750.00 and £1,500.00 respectively for the Claimants and special damages of £265.00 for physiotherapy. This was more favourable than the Claimants’ earlier Part 36 offers.
The judgment arose at the end of a short trial, with His Honour Judge Glen noting that:-
“This judgment addresses a short but not unimportant point on the application of the fixed costs regime contained within CPR45.”
The Issue and Arguments
The issue to be addressed was the award for costs to be made under the Fixed Costs Regime. The Claimants contended that the costs award must contain a separate award under Section C of Table 6B to CPR45 in respect of each Claimant.
Whilst the Defendant conceded that a separate award could be made under paragraph (b) of that Section (20% of the damages awarded), only a single award could be made.
HHJ Glen noted that the Claimants’ Counsel “anchors himself” to the reasons given by HHJ Pearce sitting at Chester County Court in Neary & Neary v Bedspace Resource Limited (2015) which were, in essence, that the Protocol, and therefore CPR45.29A, contemplate only a single claim and a single Claimant, and therefore each Claimant is entitled to recover the fixed costs in Table 6B.
The Defendant argued that “the claim” for this purpose was the claim issued on 23 July 2020, and that even though there were two Claimants, there was only one claim and therefore there could only be one award of fixed costs.
The Rules and the Protocol
HHJ Glen then set out the relevant Rules and the Protocol. The Protocol defines a claim as being:-
“…a claim, prior to the start of proceedings, for payment of damages under the process set out in this Protocol”
And a Claimant as
“…a person starting a claim under this Protocol.”
He noted that:-
“It is common ground that only one claimant can be included in a Protocol claim.”
HHJ Glen then moved onto claims which no longer proceed under the Protocol which are dealt with by Part IIIA of CPR 45. In relation to CPR45.29B, it was noted that reference was made to “the case” for the purposes of allocation, and “claim” in the context of costs.
Discussion
HHJ Glen stated that the answer to the issue:-
“…must be derived from a construction of the relevant Rules against the context of the purposes of the Protocol and the fixed costs regime.”
The Defendant argued that to award two sets of fixed costs to the Claimants would result in a windfall to the Claimants’ solicitors which was out of proportion to the actual additional work involved in representing more than one client. HHJ Glen noted that whilst this may be the case:-
“…it is the essence of any fixed costs regime that there will be swings and roundabouts.”
In referring to Qader v Esure Services Ltd. [2016] EWCA Civ 1109, HHJ Glen stated that:-
“The outcome cannot inform the construction except in the most exceptional case.”
HHJ Glen undertook an analysis of the word “claim”, of which he stated:-
“At first sight, the word ‘claim’ might be taken to denote the court proceedings.”
He noted that whilst this was “certainly its conventional meaning” and was supported by the wording of CPR45.29C(4)(a), by contrast, the wording of CPR45.29A:-
“…appears to contemplate a claim that may have started life under the Protocol but has a continuing existence outside of it.”
He noted that it was interesting that CPR45.29B drew a distinction between:-
“ …’the case’ in the context of allocation and ‘a claim’ in the context of costs.”
He stated that this wording must be taken to be a deliberate choice of words by the Rules Committee:-
“…given that it differs from the wording suggested by Briggs LJ in Qader.”
With reference to CPR45.29C(2) (regarding the position in relation to costs where the Claimant lives or works in an area set out in Practice Direction 45), HHJ Glen wondered how these provisions would apply if only one award could be made, where one Claimant met the criteria, but the other did not.
Further, Section A of Table 6B clearly contemplated an award of costs of “the claim” prior to any proceeding being issued.
HHJ Glen stated that the expressions ‘claim’ and ‘claimant’ had an autonomous meaning for the purposes of Part IIIA of CPR45. They referred to the claim started by, and the Claimant who submitted, the Claim Notification Form and not to the claim or the Claimant in the proceedings.
“This conclusion is it seems to me supported by such authority as exists.”
HHJ Glen referred to the case of West v Burton [2021] EWCA Civ 1005, where, in addressing the position of the Executor who carried on the claim for a Claimant who had died shortly after submitting the CNF, Sir Nigel Davies said:-
“Read as a whole, the Rules and the Protocol are, in my opinion, drafted on the footing that the claimant throughout remains the person who issued the CNF.”
Conclusion
HHJ Glen concluded that in his judgment, where there are two or more Claimants in proceedings for damages that fall within Part IIIA of CPR45,
“…each such claimant (assuming that they have each submitted a CNF) is separately entitled to the costs set out in Table 6B.”
How PIC can help
At PIC, we can assist with queries relating to fixed costs.
Allison Green, Costs Consultant
14.07.22