PI Brief Update

Haven’t We Dealt With All the Portal Issues Now? - Sarah Robson, Alpha Court Chambers

28/09/15. Many MOJ Portal issues have been resolved, and if you practice in this area of law you probably know the main ‘ins and outs’ of the Portal. We know it is a tightly bound, stand-alone code, and we know the Protocol is ‘King’, unlike most other protocols. We know you cannot add to it by outside legal principles such as offer and acceptance, waiver and affirmation, common law mistake, and even that (most of) the CPRs do not apply. We’ve shaken out principles such as you do not need a judgment to engage CPR 45.24, you cannot justify a total failure to use the Portal, you cannot change your reason for leaving the Portal to a different one later, you cannot consider what happened after a breach. We know the default position on finding a Portal breach is Portal costs. We’ve seen a whole myriad of what sort of excuses for coming out of the Portal are, and are not, deemed reasonable by the courts, with the general theme that minor technical breaches on their own are not enough to justify leaving the Portal. Despite sorting out all of these issues, twists and turns in the seemingly never-ending Portal saga abound, no less than in the recent case of Payne v Scott, Birkenhead CC, DDJ Smedley, 13.07.15.

Under CPR 45.24, if a court finds that a Claimant has elected to leave the Portal process and starts proceedings under Part 7, but considers the Claimant acted unreasonably in removing a case from the Portal or causing a claim to leave the Portal, the court can restrict the Claimant to no more than Portal costs. The key issue in Payne v Scott was whether it was the Claimant who had caused the case to come out of the Portal, in circumstances where the court ordered it out of the Portal process...

Image cc flickr.com/photos/120600995@N07/14262980504

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