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West v Burton [2021] EWCA Civ 1005 - Fixed Costs & Disbursements Payable Under The Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents - Nicholas Dobbs, Temple Garden Chambers

20/10/21. The appeal in West v Burton concerned the fixed costs and disbursements payable under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (‘the Protocol’). The Court of Appeal framed the issue at the heart of the matter in this way: 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 (CPR), or are they to be calculated by reference to Section II of Part 45 of the CPR?

The Court of Appeal reviewed the applicable parts of the CPR and the Protocol, including the scope of Sections II and IIIA, as well as relevant provisions in the Law Reform (Miscellaneous Provisions) Act 1934. The Court was referred to a number of decisions in which CPR Part 45 and the Protocol were considered, noting that the general approach had been to treat the relevant provisions as “comprehensive and not readily to be subject to judicial amplification or implication” (see paragraphs [26] to [30]). It was noted that previous authorities had emphasised the comprehensive nature of the fixed costs regime, the small category of exceptions, and the fact that there will inevitably be swings and roundabouts as there are in any regime designed to deal with high bulk, low value claims.

The Court held that if a ‘claim’ and ‘claimant’ for the purposes of the fixed costs regime were equated with the meaning that they conventionally bear in the context of legal proceedings, then the force of the appellant’s arguments was clear-cut. However, that was not how the scheme worked: the words ‘claim’ and ‘claimant’ were not being used in the Protocol in a formal sense, but rather as descriptive of a demand for damages prior to the start of any legal proceedings. Notably, under the Protocol, a defendant was defined so as primarily to connote the insurer. The definition of ‘claim’ in paragraph 1(6) of the Protocol was therefore not to be equated with the definition of a ‘claim’ in CPR 2.3. The Rules and the Protocol were drafted on the footing that the claimant throughout remained the person who issued the Claim Notification Form.

Accordingly, for the purposes of the Protocol, the claimant was to be regarded as the person who was involved in the road traffic accident. As an executor could not have started such a claim, given paragraph 4.5(3) of the Protocol, the claim in this case, for the purposes of assessing costs, could not come within the ambit of Section IIIA. Accordingly, costs fell to be assessed by reference to Section II. 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 the matter would still have remained within Section II. The appeal was dismissed, with the court adding, “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.”

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