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News | Mon 21st Nov, 2016
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 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.
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