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RTA Protocol: Late Final Payments Are Not a Ticket to Greater Costs - Matthew Hoe, Jaggards & Taylor Rose Law

28/10/14. Can a claimant tear up the agreement and issue Part 7 proceedings for the damages if the defendant fails to pay damages and/or costs within 10 days of a settlement at Stage 2 of the RTA or EL/PL Protocol? That was the issue before the court in Coggon v Irvine (County Court at Birkenhead, 17 October 2014, unreported). The answer was ‘no’. The claimant was limited to RTA Protocol costs.

The Issue

Paragraphs 7.47 and 7.44 of the Protocols require the defendant to pay within 10 (business) days. It is a mandatory provision, but the Protocol contains no automatic consequence or sanction if the deadline is missed. Thus it is a question of what is reasonable in the circumstances.

The regional costs judge had identified the issue as arising in a number of assessments, and listed three cases together for consideration of the preliminary issue of whether it was reasonable for the claimant to exit the protocol and commence proceedings, and ultimately to recover costs on the standard basis calculated by reference to hourly rates and time spent.

This was thus an older case in which escape from the Protocol opened up the possibility of costs on an hourly rate. In more recent cases, where the issue arises also, the claimant seeks the fixed recoverable costs under CPR 45 Section IIIA, which invariably exceed the fixed Protocol costs under Section III. In those cases, the claimant does not so often go so far as to commence Part 7 proceedings for the damages, and merely seeks the pre-litigation stage of the fixed recoverable costs. Coggon is equally of interest in those cases because it considers the question of whether it is reasonable to...

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