Till Death Do Us Part (from Fixed Costs)
If a claim is brought under the pre-1 October 2023 Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents, and the Claimant dies prior to the settlement of damages, then the matter will not attract Fixed Recoverable Costs (although it may instead will attract predictive costs if settled pre-issue for £10,000 or less).
The issue was highlighted in the case of West v Burton [2021] EWCA Civ 1005. In this case, an RTA that occurred on 8 April 2016, the Claimant, Mr Morriss, submitted his Claim Notification Form to the MOJ Portal. The Defendant’s insurer acknowledged the same.
The matter then exited the Portal, absent a liability decision from the Defendant. Six days later, the Claimant sadly passed away, for reasons unconnected with the accident.
The Defendant’s insurer subsequently advanced a Part 36 offer to the Claimant (who was still addressed by name, despite being deceased) to settle damages at £1,375.00. The offer was accepted by the Claimant’s solicitor, on behalf of the Estate. Probate had been granted to Mr West, Mr Morriss’ Personal Representative.
What then became the subject of dispute was how the deceased Claimant’s costs would be calculated. Owing to the exceedingly modest value of the claim, the dispute centred on whether costs would be calculated by way of Section II of CPR 45.9 (sometimes referred to as predictive costs), or Section III/IIIA of CPR 45.16, fixed recoverable costs. Part 8 costs-only proceedings were issued with a view to resolving this.
At first instance, District Judge Baldwin declared that costs were payable by the Defendant under Section II, the amount of costs and disbursements being £1,880.00.
Naturally, the Defendant appealed, seeking Part III/IIIA costs. The appeal was dismissed by Judge Graham Wood QC, pointing out that Section III could not apply, because the matter had exited the Portal, and Section III (the Stage 3 procedure, in other words) only applied to cases that remained in the Portal.
Judge Wood then looked at Section IIIA, which crucially refers to claims that began on the Portal but were no longer in the Portal, as was the case here. CPR 45.29A deals with Section IIIA, and provides that as long as the Claim Notification Form was submitted on or after 31 July 2013 (as was the case here), then the only costs allowed would be Fixed Recoverable Costs pursuant to CPR 45.29C, and disbursements in line with CPR 45.29I. Judge Wood further commented that the Protocol excluded claims made by a Personal Representative.
The matter was then taken to the Court of Appeal, and heard by Lord Justice Singh, Lord Justice Dingemans and Sir Nigel Davis. It was noted from the Protocol rules that once a matter falls outside of the Portal, it cannot re-enter it. One of the most common reasons for a matter timing out of the Portal is where there is no liability response from the Defendant within the proscribed timeframe, as was the case here.
Lord Justice Singh then considered the Law Reform (Miscellaneous Provisions) Act 1934, which sets out the notion that where a person to an action dies, their pre-existing cause of action continues, on behalf of the deceased’s estate, in accordance with CPR 19.8.
Lord Justice Singh commented as follows:
- “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.”
Lor Justice Singh went on to state that even if the claim had remained in the Portal, the outcome would have been the same, and Section II costs would have applied.
This case highlights the fact that for low value personal injury claims that begin on the Portal, and that would always be destined for the Fast Track, a party’s death (unconnected to the accident) during the lifetime of a case, materially alters the costs position, more specifically it can mean that Fixed Recoverable Costs are not applicable.
Have you had a client pass away during the course of their claim? If you require advice on the costs position, please get in touch.
Mike Hollin, Costs Consultant
07.03.2024