Fast track fixed costs are automatically dis-applied in any case allocated to the multi-track

Readers may remember the judgment of HHJ Grant at first instance: it was given in the autumn of last year and for more than 12 months it has given rise to practical difficulties for solicitors and counsel acting for claimants in low-value road traffic cases where fraud is alleged in the defence. For some reason it said at the top of the judgment that it was given in the “Technology and Construction Court”. Though this was not a particularly hi-tech case, it did involve a point of construction: the construction of Section IIIA of CPR Part 45. Judge Grant held that even if a case started in the Portal was later allocated to the multitrack, if it was of fast track value the costs were those fixed in Table 6B in Part 45.

It was always obvious that these fixed costs were for fast track cases, not multitrack. If an officious bystander at the negotiations in 2012-13 had suggested to the MoJ, MASS and ABI some express provision in Section IIIA of Part 45 that these fixed costs were only to apply to fast track cases, they would have testily suppressed him with a common ‘Stop being a pedant!””

But unfortunately the final draft of Section IIIA left room for doubt. Rule 45.29B says :

“if, in a claim started under the RTA Protocol, the CNF is submitted on or after 31.Jul.13, the only costs allowed are … fixed costs …”.

The CoA, by its judgment in Qader, has now brought some much-needed clarity to this rule by qualifying it with the words, “for so long as the claim is not allocated to the multi-track…”. Thus fast track fixed costs are automatically dis-applied in any case allocated to the multi-track.

Think now about track allocation:

• The CoA recognised a risk that their decision would give rise to satellite litigation at the allocation stage, with claimants moving heaven and earth to dis-apply the fixed costs regime by persuading the case management judge to allocate to the multitrack.
• The CoA thought that the DJs’ “good sense and vigour” will address this risk – by “penalising those who seek to abuse the opportunity to which the allocation stage gives rise”!
• But there’s a difficulty here. The CoA described at [18] two examples of fraud defences: the first is where it is alleged that the driver in front slammed on the brakes deliberately, while the second is an allegation of a sophisticated conspiracy to engineer a multi-car incident. The CoA suggests that the first example is fast track while the second is multi track. But at the allocation stage there could be reasonable differences of opinion about where a given case lies on that spectrum.
• Paragraph [18] goes on to say “furthermore, the consequences for a claimant of being found to have been party to the fraudulent contriving of a RTA” may well be severe. But aren’t the consequences severe whether it’s a “slam-on” or a fraud ring?

The final point to note is about rule 45.29J, the “exceptional circumstances” costs provision for cases which remain in the fixed costs regime. The CoA described it as a safety valve which ought to be applied (if at all) only at the end of proceedings. You cannot get a pre-emptive r.45.29J order.