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You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Shahow Qader & Ors v Esure Services Ltd [2015] EWHC 18 (TCC) (15 October 2015) URL: https://www.bailii.org/ew/cases/EWHC/TCC/2015/18.html Cite as: [2015] EWHC 18 (TCC) |
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Birmingham Civil Justice Centre |
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B e f o r e :
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SHAHOW QADER & 2 OTHERS | Claimants/Appellants | |
-v- | ||
ESURE SERVICES LIMITED | Defendant/Respondent |
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Crown Copyright ©
This is an application for permission to appeal the order of District Judge Salmon made on 3 June 2015 (pages 68-70). It is brought by notice of appeal dated 24 June 2015. By an order made on 13 July 2015 that application, together with the hearing of the appeal if permission were granted, was ordered to be heard on a date to be fixed. By notice dated 24 August 2015 the hearing was fixed for 9 September 2015. At the hearing it was agreed by Mr Skeate who appeared for the appellants and Mr Smith who appeared for the respondent that it would be appropriate for me to hear submissions on both the application and the appeal at the same time, and give my decision on both in the same ruling.
The key issue raised in the appeal is whether, on a proper construction of the relevant provisions of the CPR, a fixed recoverable costs regime now applies to low value personal injury claims arising out of a road traffic accident, which start under the RTA Protocol but no longer continue under that Protocol or the Stage 3 Procedure, and instead proceed on the multi track.
The accident occurred on 25 October 2013. On 2 September 2014 a claim form was issued. The first claimant was the driver of a Peugeot 307 motorcar, the second claimant was the front seat passenger and the third claimant was a passenger in the rear. In the claim form the value was stated as follows "The claimants expect to recover in excess of £5,000 but not in excess of £15,000." In the particulars of claim (pages 4 -9) the claimants alleged that Mrs Hannah Matthews driving a Ford Focus drove into the rear of the Peugeot. The Defence is dated 31 October 2014 (pages 38 -45). In it the defendant averred "the collision was deliberately induced by the driver of the Peugeot ", alleging in paragraph 3 that "the Peugeot approached a slip road" which Mrs Matthews could see was entirely free from traffic, but that "notwithstanding this, the Peugeot braked sharply to a standstill, halfway into the slip road", with the result that "despite braking, Mrs Matthews was unable to avoid a collision". In paragraph 4 of the defence the defendant alleged that "all claims arising from the alleged collision are fraudulent". In paragraph 3 of the reply dated 13 November 2014 (pages 48 - 51) the claimants alleged that "As the claimants travelled, a vehicle in front of braked and turned into the road on the left without signalling", that "the first claimant reduced his speed so as to avoid a collision with the vehicle in front, when the defendant driver collided into the rear of his vehicle", and also "denied that the slip road was entirely free from traffic". In paragraph 4 the claimants denied "any suggestion ... that this accident was induced".
In paragraph 12 of his order, DJ Salmon made the following order:
"CPR 45.29A fixed costs will apply to the claimant's costs. Costs management does not apply to this case."
He then refused permission to appeal in that order. In his reasons for refusing permission to appeal (page 72) he stated:
"(a) The rule is clear on its face that the determining factor is not track but value in respect of the operation of the fixed costs regime.
(b) There is in CPR 45.29J a provision allowing the court to depart from the fixed costs regime whereby the court "if it considers that are exceptional circumstances making it appropriate to do so, the court will consider a claim for an amount of costs ... which is greater than the fixed recoverable costs ..." a fraud case lasting two days may well be such a case.
(c) CPR 3.12 (c) clearly contemplates costs on the multi track being subject to fixed costs."
CPR rule 45.29A is to be found in Section IIIA of Part 45, which is entitled "Claims which no longer continue under the RTA or EL/PL Pre-Action Protocols - Fixed Recoverable Costs". Paragraph (1) provides as follows:
"Subject to paragraph (3), this section applies where a claim is started under
(a) the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents ("the RTA Protocol"); or
(b) . the EL/PL Protocol
but no longer continues under the relevant Protocol or the Stage 3 Procedure in Practice Direction 8B."
It is not necessary for present purposes to consider paragraphs (2) and (3) of that rule.
"A notable difference between the two is that, whereas the original protocol applied to claims of not more than £10,000, the revised protocol applies to claims of no more than £25,000."
"Stage 2 proceeds on the assumption that the objective is to enable the parties to settle issues of quantum by negotiation. It is a highly prescriptive
process."
Stage 2 therefore deals with issues of quantum.
"This section and Practice Direction 3E applies to all Part 7 multi track cases, except
(a) where ... the amount of money claimed ... is £10 million or more; or
(b) ; or
(c) where the proceedings are the subject of fixed costs or scale costs or where the court otherwise orders."
It is not necessary to consider subparagraph (b) for present purposes. Nor is it necessary to consider whether the phrase "or where the court otherwise orders" at the end of subparagraph (c) is to be read as a matter falling wholly or only within the terms or ambit of that subparagraph, or is to be read as a separate matter, in effect as a subparagraph (d).
" ... the amount of fixed costs is set out in Table 6B."
Table 6B[2] is entitled "Fixed costs where a claim no longer continues under the RTA Protocol." Section B of table 6B sets out the fixed costs "If proceedings are issued under Part 7, but the case settles before trial". Three stages at which the claim might settle are then provided for: on or after the date of issue but prior to the date of allocation under Part 26; on or after the date of allocation under Part 26, but prior to the date of listing; and finally on or after the date of listing but prior to the date of trial. The fixed costs are respectively £1,160 and 20% of the damages; £1, 880 and 20% of the damages; and £2,655 and 20% of the damages.
"Table 9[3] shows the amount of fast track trial costs which the court may award ..."
If the value of the claim is no more than £3,000, the amount of fast track trial costs which the court may award is £485; if the value of the claim is more than £3,000 but not more than £10,000 then the amount of fast track trial costs which the court may award is £690; if the value of the claim is more than £10,000 but not more than £15,000, then the amount of fast track trial costs which the court may award is £1,035; and for proceedings which were issued on or after 6 April 2009 if the value of the claim is more than £15,000, then the amount of fast track trial costs which the court may award is at £1,650. It is thus to be noted that the figures in table 9 are in each case slightly lower than those in section D of table 6B.
CPR rule 52.3 (6) provides:
"Permission to appeal may be given only where
(a) the court considers that the appeal would have a real prospect of success; or
(b) there is some other compelling reason why the appeal should be heard."
In paragraph 2 of his written submissions Mr Skeate submitted that the claimant had a reasonable prospect of success in the appeal, in the sense (as with the criteria for summary judgement) that the appeal did not raise points which were false fanciful or imaginary but instead were "better than merely arguable" (see the notes at paragraph 24.2.3). He also submitted that there was some other compelling reason why the appeal should be heard.
Mr Skeate extracted the first two sentences of ground 1 (pages 74-5) as the heading of his skeleton argument in respect of ground 1. They provide:
"The learned District Judge was wrong in law to conclude that fixed recoverable costs ... must apply to multi track cases that started in the RTA pre-action protocol .... Had the learned District Judge interpreted the rules and the overriding objective correctly he would have concluded that the fixed recoverable costs scheme does not apply to multi track cases that start under the RTA protocol."
In the course of his oral submissions Mr Skeate clarified or summarised ground 1 as follows: "The District Judge wrongly interpreted rule 45.29A by failing to interpret it purposively; the purpose being to interpret the Jackson reforms."
"11. the Judge interpreted the rules correctly. CPR rules 3.12, 45.29A and 45.29C all operate consistently together irrespective of allocation to a particular track. It is the value of the claim that is determinative. As the rules are clear there is no scope for purposive interpretation.
12. The interpretation sought by the claimant would do considerable violence to the wording of (those rules). CPR 3.12 would have to be read as if the words "(unless the proceedings had been allocated to the multitrack)" appeared immediately after the words "fixed costs" in rule 3.12 (1) (c). CPR 45.29A would have to be read as if it is stated in addition "this section does not apply to a claim that has been allocated to the multitrack". CPR 45.20 9C (4) (a) (ii) would have to be read as if the words "to the fast track" were inserted after the words "allocates the claim".
13. Such a degree of violence is not permissible in the name of interpretation, even if it is purposive interpretation."
(1) As the note to paragraph 45.29A .1 in the 2015 edition of 'Civil Procedure' provides, Section IIIA of Part 45 was inserted by the Civil Procedure (Amendment No 6) Rules 2013 (SI 2013 /1695). Those rules were made on the 5 July 2013, and came into force on 31 July 2013. The transitional provisions in rule 10 provide that:
"The amendments made by rules 6 and 7 apply only to claims started under the Pre-action Protocol for Low Value Personal Injury claims in Road Traffic Accidents where the Claim Notification Form is sent in accordance with that Protocol on or after the 31 July 2013."
As the accident in this case occurred on 25 October 2013, by definition the CNF can only have been sent in accordance with the protocol after the date specified in rule 10.
(2) Rule 7 of those rules deals with Part 45, and rule 7 (16) provides:
"After rule 45.29, insert Section IIIA as set out in the Schedule to these Rules."
The whole of Section IIIA is then set out in the Schedule. It follows that, as a matter of law, Section IIIA was inserted into Part 45 on 5 July 2013, and came into force on 31 July 2013.
(3) The text of CPR rule 45.29A is quite clear: it states that Section IIIA of Part 45 will apply when a claim is started under the RTA Protocol, but no longer continues under that Protocol or the stage 3 procedure set out in Practice Direction 8B.
(4) In those circumstances there is no need or requirement for a court to interpret the rule.
(5) If I am wrong in coming to either of the above conclusions, then I consider the way in which Mr Skeate seeks to interpret the rule goes beyond a process which can be achieved through the medium of interpretation. Instead I accept Mr Smith's submission that such a conclusion can only be reached by what would amount to a re-casting of the rule.
(1) Paragraph 4.1 of the RTA Protocol states that it applies where "... (4) if proceedings were started the small claims track would not be the normal track for that claim". It does not state that the protocol only applies to claims proceeding on the fast track. Similarly, in paragraph 4.5, which sets out a number of matters where the protocol does not apply, it does not state that the protocol will not apply where the claim proceeds on the multi track.
(2) The text of CPR rule 3.12 (1) (c) is equally clear: it expressly contemplates the existence of proceedings on the multi track "where the proceedings are the subject of fixed costs". I reject any submission to the effect that the text of that subparagraph is in some way to be confined to only certain instances of fixed costs.
(3) The heading of table 6B is "Fixed costs where a claim no longer continues under the RTA Protocol". It does not state that such fixed costs are to be confined to claims proceeding on the fast track. Indeed, the very fact that table 6B exists in addition to table 9, which is expressly stated to apply to fast track trial costs, indicates that it is to be used in proceedings other than those on the fast track.
"The most significant change from July 31, 2013 is the fixed costs regime prescribed by Section IIIA of Part 45. Thus in cases which exit the process and proceed under Part 7, costs are no longer at large and subject to assessment, but are governed by the rules in Section IIIA ... These rules prescribe the fixed costs recoverable by a successful claimant. An unsuccessful claimant will generally have the benefit of QOCS protection (qualified one-way cost shifting) ..."
Mr Skeate extracted the first two sentences of ground 2 (page 75) as the heading of his skeleton argument in respect of ground 2. They provide:
" the learned District Judge erred in law by failing to apply the overriding objective in CPR rule 1.2 when applying the rules. If, contrary to grounds 1 and 3 of this appeal, the fixed recoverable costs scheme could apply to the instant, then there is a discretion for the court to decide whether to apply the fixed recoverable costs scheme or not."
"It would be applying the overriding objective correctly to decide that the fixed recoverable costs scheme would not apply in this instance, and it would be just and proportionate for standard basis costs to apply instead. Doing so would afford as level a playing field between the parties as possible, and would enable the appellants to prosecute their claims properly and effectively as well as to secure professional legal representation."
The essence of Mr Skeate's submission was that the court should interpret rule 45.29A in such a way that it does not - contrary to its plain meaning - apply to low value personal injury claims which started under the RTA Protocol, and are now proceeding on the multi track, so as to enable the court to give effect to the overriding objective in accordance with CPR rule 1.2.
"CPR 1.2 (b) does not permit the court to deny the CPR their clear effect, simply because that effect might be thought not to fit well with the overriding objective. The issue here was not that the court below did not seek to give effect to the overriding objective; the issue was that the court ... found the rules clear and not permissive of the interpretation invited by the claimant. Contrary to the argument of the claimant, interpretation of the CPR is not an exercise of judicial discretion."
(1) As stated above, the text of CPR rule 45.29A is quite clear: it states that Section IIIA of Part 45 will apply when a claim is started under the RTA Protocol, but no longer continues under that Protocol or the stage 3 procedure set out in practice direction 8B.
(2) In those circumstances, it is neither necessary nor appropriate for the court to interpret the rule.
(3) As a result, the provisions of CPR rule 1.2 (b), which are concerned with the interpretation of any rule, are not engaged.
Mr Skeate extracted the first sentence of ground 3 (page 75) as the heading of his skeleton argument in respect of ground 3. It provides:
"If, contrary to ground 1, the learned District Judge correctly interpreted the rules such that they state that the fixed recoverable costs scheme applies to multi track cases that started under the RTA Protocol, then he erred in law by applying the rules, as they are ultra vires, being contrary to section 3 and article 6 in schedule 1 to the Human Rights Act 1998." (my slight revision)
"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."
Article 6 provides:
"In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...."
For present purposes it is only necessary to consider the provision that "... everyone is entitled to a fair ... hearing"
" .. in so far as the District Judge attached weight to the contention that rule 45.29J potentially alleviated any hardship to (the appellant) ..., he fell into error by failing to consider and/or attach sufficient weight to the fact that, in order to take advantage of any such perceived assistance, claimant solicitors would have to run the case to conclusion incurring costs much greater than (fixed recoverable costs), without any certainty of how the discretion of the eventual trial or costs judge would be exercised. ... Claimants would not be willing to risk expending substantial sums in costs without any certainty of recovering these, even if successful in the litigation, and claimant solicitors would not be willing to act on a 'no-win no fee' basis with such uncertainty'
"The learned District Judge erred in law in holding that the fixed recoverable costs scheme applies to the instant case ... as, if that were correct, it would ... be contrary to article 6 Schedule 1 HRA 1998 ... Doing so would jeopardise the appellants rights to a fair trial by preventing them from obtaining effective professional legal representation and preventing them from properly and effectively prosecuting their claims and from defending themselves from ... the allegations of fraud from which the appellants liberty is at risk."
"Even if the argument made sense, it would still be hopeless. There are at least three reasons why. Firstly, it is legitimate to seek to contain costs by reference to the value of the claim. Secondly, a balanced regime has been established whereby the costs that can be recovered by defendants are also contained. This includes not just the effect of CPR 45 section IIIA but also the effect of CPR 44 section II, qualified one-way cost shifting. Thirdly and most importantly, CPR 45.29J safeguards against the complaint raised by the claimant. In order for CPR 45.29K & L to operate effectively, the application pursuant to CPR 45.29J is to be made at the end of the proceedings. That does not deny the right to a fair trial; it simply ensures that any decision on costs reflects what actually does happen, rather than what might happen. To suggest that this regime denies the right to a fair trial when the claimants are represented for a conditional fee notwithstanding the allegations of fraud against them is hard to understand. ... No argument has been raised that the retainers permit the claimants solicitors to cease representation simply because there is a chance that the costs recovery between the parties in the event of success for the claimants might be less than had been anticipated. Between the parties costs orders have never provided a full indemnity and any argument that such an indemnity is required in order to satisfy the right to a fair trial is wrong"
(1) Mr Skeate's submissions on ground 3 replicate to a significant extent those made on ground 2, which I have already rejected.
(2) I accept Mr Smith's submissions on ground 3, in particular those set out in paragraph 16 of his written submissions.
(3) The provisions of CPR rule 45.29J provide a material safeguard against injustice. If such consideration occurs at the end of the proceedings, in my judgement that does not dilute the effectiveness of such a safeguard.
As I have rejected each of Grounds 1, 2 and 3 it follows that the appeal fails and will be dismissed. If the terms of an appropriate order cannot be agreed, I will hear submissions on costs and any consequential matters when this judgement is formally handed down.
DG
15.10.15
Note 1 see the notes in Civil Procedure 2015 to paragraph 4.1 of Practice Direction 8B [Back] Note 2 Civil Procedure 2015 at pages 1504-5 [Back] Note 3 Civil Procedure 2015 at page 1522
[Back] Note 4 Pace paragraph 35 of the judgement of the Court of Appeal in Mitchell [Back]