Post-Portal PADs: Six Months On

A previous blog released in July explained that fixed costs apply to post-portal PADs save for in exceptional circumstances. At the time it was explained that Claimant Solicitors appeared to be pleading ignorance to the new rules which was perhaps acceptable given the change was in its infancy. Six months on perhaps less leniency can be afforded but despite this Forbes are still seeing regular claims for sums in excess of the fixed cost regime.

A number of tactics have been spotted with the most regular tactic/argument being that PADs are not Interim Applications for the purpose of assessing costs. To the writer this argument is somewhat perverse and to date no plausible explanation has been provided for what PADs are if they are not Interim Applications.

Case law exists which supports the assertion that PADs are Interim Applications. The leading Judgment in this respect can be found in the case of Connaughton v Imperial Health. Paragraph 28 of the Judgment is short but sweet, it simply states, ‘The fact is that applications for PAD are interim orders’. The writer can do not better than to simply agree with the Judge in this respect and when directed to this Judgment many Claimant Solicitors have agreed to fixed costs, however in certain instances the Defendant’s stance has still been challenged and the matter has ended up at a hearing.

Thankfully at each and every hearing ran by Forbes, no Judge has yet to find that a PAD is anything other than an Interim Application. When combined with a well placed costs offer made in advance of the hearing, the news is good for Defendants and Insurers alike who can then endeavour to recover their costs of the hearing.

So six months on where are we? Well we at Forbes continue to take the fight to Claimant Solicitors on this issue and continue to be successful. All that has evolved are the tactics we are seeing to attempt to wriggle out of the regime but none of these have yet been successful. Continue to watch this space as whilst challenges are now less frequent they do still arise and as Forbes are at the forefront of this battle we are well placed to keep you appraised of developments throughout.

Nigel McCloy

About Nigel McCloy

Solicitor in the Insurance department
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