Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents
In Anthony Mitchell West (Executor of the estate of the late Kenneth Morriss -v- Peter Burton  EWCA Civ 1005, the Court of Appeal held that a case that was pursued by the estate of the deceased person was not subject to the fixed costs provisions of Section III of the Civil Procedure Rules, but instead fell under Section II.
This was a Court of Appeal case that raises an issue as to the fixed costs and disbursements payable under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (“the Protocol”). The amount at stake was relatively very modest-a few hundred pounds, but the issue raised potentially could bear on many thousands of other cases arising under the Protocol; and could also potentially bear on cases relating to employer’s and public liability, by reference to the separate Protocol relating to such cases.
This case was originally dealt with by Judge Graham Wood QC, sitting in the Liverpool Court who observed that the issues arising in this case was straightforward to describe but was not straightforward to resolve.
The question for the Court at first instance and upon appeal was where a person gives notification of a claim under the Protocol, but thereafter dies before its conclusion and the notified claim then, without legal proceedings being issued, proceeds to settlement between the deceased’s personal representative and the Defendant’s insurers, are the costs and disbursements payable by the Defendant to be calculated by reference to Section IIIA (or, as the case may be Section III) of Part 45 of the Civil Procedure Rules? Or are they to be calculated by reference to Section II of Part 45 of the Civil Procedure Rules.
The Appellant (the Defendant in the Part 8 proceedings relating to the recovery of costs issued in the County Court) argued for the former proposition. The Respondent (the Claimant in such proceedings) argued for the latter proposition. The Court of Appeal was duly tasked in ruling as to which section of CPR 45 applies, Section IIIA or Section II.
Background to the Case
On 08.04.16 Mr Kenneth Morriss was involved in a road traffic accident with Mr Peter Burton. A claim notification form (“CNF”) was submitted electronically, via the Portal directed to Mr Burton’s insurer. The same was dated 03.05.16. The same was acknowledged by the Defendant insurer on 18.05.16.
No admission of liability was forthcoming by Mr Burton’s insurer with the claim subsequently exiting the Portal on 08.07.16.
Very shortly after that, on 14.07.16 Mr Morriss sadly died for reasons wholly unconnected with his accident.
There was then a period of silence with regard to the CNF. However, on 17.12.18 the same solicitors who had been instructed by Mr Morriss wrote to the insurers. The letter described their client as “Mr K Morriss (deceased)”. They indicated that they gave notice in accordance with the Protocol that they proposed to instruct an expert doctor, giving the names of three proposed doctors. Such a report was thereafter provided. On receipt of that report, and before any legal proceedings had been issued, the insurers made a Part 36 offer on 28.03.19. The solicitors’ client was there described as “Mr Kenneth Morriss”. The offer was in the sum of £1,375.00, with costs. On the same day, the solicitors responded that they were “now in receipt of our client’s instructions” to accept the offer. In the meantime, probate in respect of the estate of Mr Morriss had been granted to Mr Anthony West and his wife, Mrs Rosemary West, on 20.03.19. A copy of the Grant was provided to the insurers, it being the usual practice of insurers in such situations to require a Grant of Representation in order to ensure that they received a valid discharge.
The Part 36 offer having been accepted, the basis on which costs were to be paid – that is, whether it was pursuant to Section II or Section IIIA – became the subject of dispute. On 16.07.19 Part 8 proceedings were commenced in the Liverpool County Court with a view to resolving this dispute. The Claimant was initially named in the Claim Form as “Mrs W Morriss (as executor of the estate of Mr Kenneth Morriss, deceased)”; but this was in due course corrected by substituting Mr West as Claimant, in his capacity as executor.
After various procedural matters had been sorted out in the Part 8 proceedings, the case came on substantively before District Judge Baldwin, an experienced Regional Costs Judge, on 3.12.19. He concluded that the Claimant’s arguments were correct. He directed that the fixed recoverable costs and disbursements were payable under Section II : quantifying those costs and disbursements at £1,880. He ordered the Defendant to pay the costs of the assessment and of the Part 8 proceedings (save that there was no order as to the costs of one previous hearing). On 30.10.20, by a reserved judgment, Judge Graham Wood QC dismissed the defendant’s appeal, with costs.
The Legal Framework
- Civil Procedure Rules
The applicable parts of the Civil Procedure Rules and of the Protocol, when taken together, are, it has to be said, something of a mouthful.
By CPR r.45.9, which sets out the scope and interpretation of Section II relating to (among other things) costs-only proceedings, it is provided by r.45.9 (2) as follows:
(2) This Section applies where –
(a) the dispute arises from a road traffic accident occurring on or after 6 October 2003;
(b) the agreed damages include damages in respect of personal injury, damage to property, or both;
(c) the total value of the agreed damages does not exceed £10,000; and
(d) if a claim had been issued for the amount of the agreed damages, the small claims track would not have been the normal track for that claim.”
It is common ground that all such matters were satisfied here. But by r.45.9(3) it is in the relevant respect provided as follows:
“(3) This Section does not apply where-
(b) Section III or Section IIIA of this Part applies.”
Subsequent provisions in the rules go on to set out how fixed recoverable costs and disbursements are to be calculated under Section II (sometimes styled “predictive costs”). I need not, I think, for present purposes, set those out here. It is to be noted that r.45.13 also gives the court power to entertain a claim for an amount of costs (but not success fee or disbursements) greater than the fixed recoverable costs if it considers that there are “exceptional circumstances” making it appropriate to do so.
Rule 45.16 and following relate to fixed costs and disbursements under Section III. Those, in effect, deal with cases falling within what is described as the stage 3 procedure, where the matter has remained within the Portal. But it was and is common ground that Section III can have no application in the present case: just because the notified claim had exited the Portal on 8 July 2016. The potentially relevant section (if it is not Section II) thus has, in the circumstances of this case, to be Section IIIA once a costs-only application had been made in Part 8 proceedings.
Rule 45.29A sets out the scope and interpretation of Section IIIA. It provides as follows:
“45.29A – Scope and interpretation
(1) Subject to paragraph (3), this section applies—
(a) to a claim started under—
(i) the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (“the RTA Protocol”); or
(ii) the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims (“the EL/PL Protocol”),
where such a claim no longer continues under the relevant Protocol or the Stage 3 Procedure in Practice Direction 8B; and
(b) to a claim to which the Pre-Action Protocol for Resolution of Package Travel Claims applies.
(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.”
By r.45.29B it is provided:
“45.29B Application of fixed costs and disbursements – RTA Protocol
Subject to rules 45.29F, 45.29G, 45.29H and 45.29J, and for as long as the case is not allocated to the multi-track, 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.”
(b) The Protocol
The Protocol (I note that a new version has come into effect from 31 May 2021 but that does not apply here) is lengthy. For present purposes, the provisions of particular materiality are as follows.
Paragraph 1.1 of Section 1 of the Protocol contains various definitions. By paragraphs 1.(6) and (7), which are of central importance in this case, it is provided:
‘claim’ means a claim, prior to the start of proceedings, for payment of damages under the process set out in this Protocol;
‘claimant’ means a person starting a claim under this Protocol unless the context indicates that it means the claimant’s legal representative;”
Paragraph 1(10) defines “defendant” in the following way:
“(1) ‘defendant’ means the insurer of the person who is subject to the claim under this Protocol, unless the context indicates that it means-
(a) the person who is subject to the claim
(b) the defendant’s legal representative
Paragraph 1.2 sets the upper limit for claims notified under the Protocol. The Preamble contained in paragraph 2.1 of the Protocol then provides as follows:
“2.1 This Protocol describes the behaviour the court expects of the parties prior to the start of proceedings where a claimant claims damages valued at no more than the Protocol upper limit as a result of a personal injury sustained by that person in a road traffic accident. The Civil Procedure Rules 1998 enable the court to impose costs sanctions where it is not followed.”
Paragraph 3.1 then sets out (and importantly so) the aims of the Protocol. Those aims include ensuring that the defendant pays damages and costs using the process set out in the Protocol without the need for legal proceedings and that the claimant’s lawyers receive the fixed costs at each appropriate stage. Paragraph 4.1 then sets out, by way of scope, the circumstances where the Protocol applies. It is common ground that those circumstances as set out in that sub-paragraph applied in the present case. Paragraph 4.3 goes on to state that the Protocol ceases to apply where, at any stage, the claimant notifies the defendant that the claim has now been revalued at more than the Protocol upper limit. (In paragraph 7.76 it is further provided that a claim will no longer continue under the Protocol where a claimant gives notice that it is unsuitable for the Protocol.)
Paragraph 4.5 of the Protocol provides as follows:
“4.5 This Protocol does not apply to a claim—
(1) in respect of a breach of duty owed to a road user by a person who is not a road user;
(2) made to the MIB pursuant to the Untraced Drivers’ Agreement 2003 or any subsequent or supplementary Untraced Drivers’ Agreements;
(3) where the claimant or defendant acts as personal representative of a deceased person;
(4) where the defendant is a protected party;
(5) where the claimant is bankrupt; or
(6) where the defendant’s vehicle is registered outside the United Kingdom.”
By paragraph 5.11 it is provided:
“5.11 Claims which no longer continue under this Protocol cannot subsequently re-enter the process.”
This, in the present case, is also to be read in the light of paragraph 6.15 of the Protocol, which among other things provides that the claim will no longer continue under the Protocol where the defendant does not, within the relevant specified period, admit liability. It has always been common ground that that was the position here. Accordingly, by reason of the non-admission of liability the claim no longer continued under the Protocol as from 8 July 2016 and could not thereafter re-enter the process.
The Judgement below
District Judge Baldwin, in an ex-tempore judgment, accepted the Claimant’s argument that Section II was the applicable section in this case. To some extent, he relied on certain cases based on Scottish law which did not then correspond with the 1934 Act, and it is agreed that was an error. To some further extent he also relied on the provisions of Table B relating to fixed costs: which it is agreed before us are, in substance, neutral. Nevertheless, his primary reasoning was to accept the argument advanced on behalf of the claimant to the effect that the claim which was settled was that of Mr West as executor, not that initially notified by Mr Morriss himself. Accordingly, he held that this was not a Section IIIA case but was a Section II case.
On appeal, in his careful and lucid reserved judgment Judge Graham Wood QC reached the same conclusion. He noted that (among other stipulated exclusions) claims by personal representatives were excluded from the Protocol: the rationale evidently being that (as with, for example, bankruptcy and protected persons) potential complications, and thereby potentially increased costs, were inherent in such situations. He considered that it was necessary, under the fixed costs regime, to have regard to the identity of the claimant; and in the present case, as he held, the entitlement to the damages (and costs and disbursements) had on settlement, been the entitlement of Mr West as executor, who had not started the process: not of the deceased Mr Morriss who had initially notified the claim. He thus, in effect, considered that the scheme contemplated that the same individual would be involved as Claimant throughout.
The Judge considered that such an interpretation was strongly supported by purposive considerations. He could see no sensible rationale for the claim being outside the Protocol had Mr Morriss died before the CNF was issued (because of paragraph 4.5 of the Protocol) but within it had he died just one day after the CNF was issued. He endorsed remarks to similar effect made by Judge Gargan, sitting in the Middlesbrough County Court, in the case of Hilton v Proudfoot (15 April 2019; Claim No F03 YX 717).
The Appellant’s case was that because of the non-admission of liability, the claim no longer continued to be under the Protocol; and it thereafter could not re-enter it. Rules 45.29A and 45.29B, he went on, are specific that they apply to a claim “started under the Protocol”. Likewise, the definition of claim in paragraph 1(6) of the Protocol connotes a person starting a claim under the Protocol. Here, Mr Morriss was just such a person. The fact that, had he died before the CNF was issued, the claim would (by reason of paragraph 4.5(3) of the Protocol) have been excluded from the Protocol was, he said, irrelevant: just because he had not died before the CNF was issued. Thereafter the claim that was pursued and settled was the claim started by Mr Morriss, albeit vested (consequent upon the death of Mr Morriss) in Mr West as executor by reason of s.1(1) of the 1934 Act. Likewise, under the provisions of CPR r.45.29A and r.45.29B the focus, he said, was on the “claim started”: not on “the claimant”. Thus, whatever happened subsequently could not affect the position as it was when the claim was started. He also noted (in what was really, I think, a forensic point) that the letter of 17 December 2018 had not even purported to be a fresh claim but in effect by its wording connoted continuance of an existing claim.
It was further submitted that that interpretation gave rise to certainty. Nor did it give rise to a senseless or arbitrarily unfair result. To the contrary, if there was recovery of lesser costs and disbursements in any such case by reference to Section III or Section IIIA, as the case may be, that was the product of a scheme designed to be comprehensive and where (as the authorities showed) an element of “swings and roundabouts” was to be expected. Besides, he said, in appropriate cases resort could be had under the Rules (with regard to disbursements) to an argument based on a “particular feature of the dispute” or (with regard to profit costs) to an argument based on “exceptional circumstances”.
The case on Behalf of the Respondent challenged the starting point of Mr Mallalieu on behalf of the Appelant. Mr Williams, on behalf of the Respondent submitted, in essence, that whilst of course it was the case that Mr Morriss had started a claim by his issue of the CNF via the Portal that was not the claim which was the subject of the settlement; for that settlement related to the claim of Mr West as executor and Mr West was not the “Claimant” as contemplated by the Protocol. For this purpose, he said, it was important to appreciate that under the Protocol a “claim” was not simply to be equated with a claim in the form of a cause of action enshrined in legal proceedings as generally subject to and contemplated by the Civil Procedure Rules. He further submitted that purposive considerations strongly supported such an interpretation. He submitted that the scheme did not contemplate the involvement of any third parties, whether by reason of death, bankruptcy, mental health or otherwise; and it would be surprising that the costs outcome could be so different depending on the happenstance of whether, say, a prospective claimant died a day before a CNF could be issued or died a day after a CNF was issued. His position overall was that Judge Graham Wood QC was right and was right for essentially the right reasons.
The Court of Appeal’s Ruling
39. If a “claim” and “claimant” for the purposes of the fixed costs regime are to be equated with the meaning which they conventionally bear in the context of legal proceedings, then, given the provisions of s.1(1) of the 1934 Act and CPR r 19.8, the force of Mr Mallalieu’s arguments is clear-cut. But I do not consider that is how this scheme works. As the Judge noted, the word “claim” (and thence “claimant)” is not here being used in the Protocol in a formal sense. Rather it is being used as descriptive of a demand for damages prior to the start of any legal proceedings. Indeed, it is noticeable that, under the Protocol, a defendant is defined so as (primarily) to connote the insurer. The definition of “claim” in paragraph 1(6) of the Protocol is thus not to be equated with the definition of “claim” contained in CPR r.2.3. 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. By way of example, that is illustrated by the entitlement to an increase in fixed recoverable costs by reference to a specified area “where the claimant lives and works …. and instructs a solicitor who practises in that area”: (see CPR r. 45 (11)(2); 45.18(5); 45.29C(2)). That is also, in my opinion, the general tenor of the Protocol. For example, paragraphs 7.6 and 7.7 of the Protocol refer to photographs of “the claimant’s” injuries and to situations where “the claimant” is not wearing a seatbelt. Likewise, paragraph 7.8 refers to situations where “the claimant” is receiving continuing medical treatment. All this connotes that, for the purposes of the Protocol, the claimant throughout is regarded as the person who was involved in the road traffic accident. Furthermore, r.45.29A and r.45.29B are in terms confined to claims started under the Protocol. I consider, accepting the submissions of Mr Williams, that in this case the claim that was settled was that of Mr West. But Mr West was not himself the person who started the claim, within the meaning of the Protocol. Indeed, as executor he never could have started such a claim, given the provisions of paragraph 4.5(3) of the Protocol. Consequently, this was not a claim, for the purposes of assessing costs, within the ambit of CPR r.45.29A or r. 45.29B. Accordingly, costs fall to be assessed by reference to Section II.
40. It further follows that I agree with the Judge that the outcome would have been the same even had the claim not exited the Portal. The provisions of Section III would not have come into play; and this would still have remained a Section II case.
41. It seems to me that such an interpretation is also supported by purposive considerations. I do not say, any more than did Mr Williams, that the interpretation argued for by Mr Mallalieu gives rise to a result devoid of all sense: and Mr Mallalieu was also entitled to rely on the “swings and roundabouts” elements inherent in the overall scheme, as explained by the Court of Appeal.
42. I should add that there was brief discussion in argument as to what the position might be if a cause of action under the Fatal Accidents legislation arose. That is, for the purposes of Protocol claims, likely only rarely, if at all, to arise. The considerations arising on such a scenario are very different from the present case: not least because such a cause of action could not, ex hypothesi, accrue to a potential claimant while alive. In any event, there is the potential for such a case to be assigned to the multitrack or to be subject to a notice under paragraph 7.76. I therefore do not consider that such a scenario bears on the proper outcome for this appeal
43. I also add that the conclusion which I reach does not, in my opinion, result, as was suggested, in two potential applications for costs in two separate claims. The liability of Mr Morriss for costs incurred prior to his death will be a liability of his estate. As such, they are capable of being sought by the executor as part of the overall recoverable costs on the settlement or the determination of the executor’s claim.
In all the circumstances, I would, for my part, uphold the decision of the Judge and would dismiss this appeal. It will be a matter for the Rules Committee to consider whether it would be advantageous to set out the desired outcome for situations such as these in express terms.
Simply, if you have submitted a CNF form though the Road Traffic Accident Portal on behalf of a Client that dies, then his or her Executor are not bound by the cost’s provisions under Section III of the Civil Procedure Rules as it was not them that started the claim in the first place. Costs under Section II therefore apply.
How can PIC help?
As costs experts, Partners in Costs can assist with defeating any arguments of this nature raised by Defendant insurers or their legal representatives as this case gives clear guidance as to how costs fall to be paid in RTA portal matters where a party to those proceedings dies.