The Portal, Fixed Costs and Claims on the Multi-Track

Since the coming into force of the fixed costs regimes for road traffic accident, employer’s liability, and public liability, it has been unclear whether fixed costs apply to a claim properly started in the Portal, but which ends up being allocated to the Multi-Track – for example because the case develops such that the case value exceeds £25,000.

The unfairness of fixed costs applying to Multi-Track cases is plain: the fixed costs assume a trial lasting no longer than a day, without multiple expert witnesses. Multi-track cases are likely to involve significantly higher costs than necessary for fast track cases.

The Court of Appeal grappled with this issue in Qadar v Esure [2016] EWCA Civ 1109, and held:-

a) The detailed provisions of CPR 45.29A and B, “lead clearly to the conclusion that fixed costs apply to all cases properly started within the RTA Protocol but then continuing outside it, regardless of whether allocated to the fast track, to the multi-track, or, indeed, not allocated at all but dealt with at a disposal hearing”.
b) Nothing in the CPR conflicts with that outcome, nor would that outcome be irrational, even though it would lead to “rough justice” in some cases.
c) But it is clear it was never the intention of legislators that the fixed costs regime would apply to cases that ended up on the multi-track. This can only have arisen from a drafting mistake. Something has gone wrong.

The Court of Appeal unanimously found that the fixed costs regime should only apply “so long as the claim is not allocated to the multi-track” and that this should be added in to 45.29B.

By no means does this resolve all of the questions arising from the fixed cost regime. What of cases that settle for more than £25,000, before a claim is issued? The Court of Appeal invited the Rule Committee to consider this as soon as possible. One answer is that a higher value case is not “properly started” under the Protocol, so not subject to fixed costs. Watch this space…