12 December, 2016
The Court of Appeal has confirmed that cases that start in the personal injury protocol and are subsequently allocated to the multi-track are not subject to fixed recoverable costs.
In the matter of Qadar v Esure Services Ltd & Khan v McGee  EWCA Civ 1109 the two RTA claims had both started under the RTA Protocol but had been allocated to the multi-track following allegations of dishonesty. The judge had concluded at first instance that CPR r.45.29A provided that the fixed costs regime should apply regardless of the allocation of the case to the multi-track. He held that the claimant might ultimately obtain relief under CPR r.45.29J but only at the end of the proceedings.
On Appeal, Lord Justice Briggs however concluded that section III A of CPR Part 45 should be read as if the fixed costs regime which it prescribes for cases which start within the RTA Protocol but then no longer continue under it 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.
In his Judgment, Lord Justice Briggs considered the historical origins of the section arguing that the intended purpose of the fixed costs regime for cases which had started under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents was that it should not apply to multi-track cases. Consequently, he resolved that the best way to give effect to that intention was to add the phrase to CPR r.45.29B "...and for so long as the claim is not allocated to the multi-track...".
Whilst Lord Justice Briggs has invited the rule committee to consider at its earliest opportunity an amendment to section IIIA of part 45, the Judgment is fairly conclusive and not surprising in the circumstances. Multi track cases inevitably require additional work and trials usually last for more than one day. Whilst the instant case relates to a RTA matter, the ruling equally applies to EL and PL claims.
Going forward, Defendant's must be mindful that if they put forward arguments which leads to the matter being allocated to the multi-track there will be a greater exposure to costs outside of the fixed recoverable costs regime.