Does the fixed regime costs apply in the multi – track ?

The court’s decision in the recent case of Qader & Ors  [2016] EWCA Civ 1109 provides some good news and a welcomed interpretation for solicitors acting for injured claimants.

The question which arose in these conjoined appeals was whether the fixed costs regime continues to apply to a case which started under the Pre-action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (“the RTA Protocol”), but which is allocated to the multi-track after the commencement of proceedings. The main issue revolved around the interpretation of Section IIIA of Part 45 of the Civil Procedure Rules, read together with the relevant provision of the RTA Protocol and against the background of the process of consultation preceding Jackson LJ’s Review of Civil Litigation Costs.

In this case it was identified that there may be a number of situations where claims are properly started in the RTA protocol, where liability is then disputed and proceedings issued, which are  likely to be allocated to the multi-track rather than the fast track. One such example is where an allegation is made that the claim was dishonestly fabricated. In the present cases, the allegations of the dishonest contrivance of the relevant accident led to the claims being allocated to the multi-track. The problem which arose for the claimants and their solicitors were that the matter was likely to last more than one day at court and would involve resisting serious allegations of dishonesty, but the recoverable legal costs might be limited to the fixed costs regime which was only truly suitable for fast track matters.

The issue arose primarily because there was nothing in rule 45.29 which expressly limits the fixed costs regime applicable to cases started but no longer continuing under the RTA Protocol to fast track cases, or which excludes the fixed costs regime when a case is allocated to the multi-track. The language of rules 45.29A and B, taken together, actually appears unambiguously to apply the fixed costs regime to all cases which start within the relevant Protocols but no longer continue under them.

The Court in considering these appeals concluded that Section IIIA of Part 45 should be read as if it expressly stated that the fixed costs regime is automatically dis-applied in any case allocated to the multi–track, without the requirement for the claimant to have recourse to Part 45.29J, by demonstrating exceptional circumstances.

The court carefully analysed the historic origins of the scheme now enshrined in Section IIIA of Part 45. In particular, the court highlighted that during the process of consultation which preceded the scheme, it was demonstrated that the intention of those legislating was that it should not apply to cases allocated to the multi-track.  The court concluded that the wording suggesting that the fixed cost regime continued to apply to cases allocated to the multi-track was a drafting mistake, which the court  had the power to put right by way of interpretation, even if it required the addition of words. It was held that in very rare cases where something had gone wrong, the court’s interpretative power must be used, as far as possible, to bring the language into accord with what it is confident was the underlying intention.

The outcome of these appeals were of particular significance and warranted intervention from the Personal Injury Bar Association and Association of Personal Injury Lawyers. It provides a sensible clarification on the issue raised, which solicitors representing injured people can rely upon if they are ever facing the prospect of the fixed costs regime for a claim allocated to the multi-track.

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