07 December, 2017
Forbes successfully defended an attempt by Claimant solicitors to obtain more lucrative fixed costs after the matter fell out of the portal following a failure by the Claimant to submit the correct CNF.
The Claimant was injured whilst working on a building site operated by the Defendant. The Claimant submitted an Employers Liability CNF via the portal on 6 March 2015. The Defendant's loss adjusters emailed the Claimant's solicitors on 9 March 2015 advising that the claim was rejected as the Claimant was not a direct employee of the Defendant and invited them to submit the claim via the correct PL CNF. This request was ignored by the Claimant's solicitors who simply sent various correspondence requesting a liability decision and threatening a pre-action disclosure application. The Claimant was asked on a number of occasions to submit the claim via the correct channel and on 7 September 2015, the Defendant again indicated that the matter should be dealt with under their public liability policy and confirmed that liability would not be raised as an issue.
The Defendant argued that portal costs should apply as the Claimant's solicitors had acted unreasonably in failing to submit the correct CNF despite numerous requests to do so and that the matter had only exited the portal due to their unreasonable behaviour. The Claimant maintained that they had not acted unreasonably; the Claimant was an employee and therefore fixed predictable costs should apply as a result of the matter having exited the portal.
Part 8 proceedings were issued and Points of Dispute and Replies drafted. The matter was listed for a provisional assessment hearing where costs were assessed in favour of the Defendant on the basis of portal costs being recoverable.
The Claimant did not accept this decision and the matter was listed for an oral hearing. At the oral hearing the Judge agreed that there was no contact of employment (whether implied or otherwise) between the Claimant and the Defendant. The Court concluded that the claim should have been issued by way of a Public Liability CNF and that the Defendant loss adjuster could not be criticised for its actions especially since it invited such a CNF to be submitted; the Defendant properly removed the matter from the Portal, and by issuing the wrong CNF the Claimant unreasonably caused the matter to exit the Portal such that only Portal costs (with disbursements) ought to be recoverable. The Claimant was ordered to pay the Defendant's costs of the Part 8 proceedings.
This is a great decision for Defendants and a vindication of the stance taken by the Defendant loss adjuster. Claimant solicitors will often go to great lengths to escape portal costs and to maximise their costs by whatever means possible. Although the sums disputed are often small, it is important to send a clear and consistent message that attempts to flout the rules will not be condoned by the Courts. Where necessary reasonable conduct issues should be raised where Claimant Solicitors have not followed the spirit of the portal protocol.