Ex-portal multi-track claims exempt from fixed costs provisions – Court of Appeal decision in Qader v Esure
Tom Semple considers the implications of the Court of Appeal’s decision in Qader and other v Esure Services Ltd  EWCA Civ 1109.
The Court of Appeal unanimously ruled that the fixed costs regime for claims that leave the RTA and EL/PL Protocols does not apply to those that continue on the multi-track. This is the second pro-claimant ruling on fixed costs provisions by the Court within a week. Commentary on Bird v Acorn Group Ltd can be found here.
The Court heard two appeals relating to road traffic accident claims that had been initiated under the RTA Protocol (‘the Protocol’), but subsequently were issued under Part 7 and allocated to the multi-track. In both cases, the Defendants alleged that the Claimants deliberately caused the accidents.
Under CPR r.45.29B, claims that no longer continue under the Protocol are subject to the fixed costs set out in Table 6B. There was no provision to exclude those that leave the Protocol and are then allocated to the multi-track from being subjected to fixed costs. There was, however, limited scope under r.45.29J in “exceptional circumstances” to escape fixed costs at the conclusion of the proceedings.
The Claimants argued that this could not have been what the Rule Committee. A claim can leave the Protocol for many reasons, including where the value of the claim changes to exceed £25,000 or where disputes on liability are complex, such as fraud allegations, and fixed costs would be inappropriate.
The Defendants argued that the rules were clear: all claims that were in the Protocol but no longer continue under it are subject to fixed costs. The fixed costs regime had an element of ‘rough justice’ and r.45.29J operated as a safety net. Further, there was a risk of creating satellite litigation at the allocation stage if it was established that fixed costs would not apply in multi-track cases.
The Court of Appeal held that, whilst largely agreeing with the Defendants’ submissions, applying fixed costs in multi-track cases was not what the Rule Committee had intended. This applied to both the RTA and EL/PL Protocols.
The Court relied upon the fact that much of the drafting of the provisions had focused on Lord Justice Jackson’s proposals for a regime of fixed recoverable costs for personal injury cases in the fast track. Further, when the Government consulted on fixed costs for low value personal injury claims, including the provisions that ultimately became Table 6B, the Government’s response on 27 February 2013 stated:
“It has always been the Government’s intention that these proposals apply only to cases in the fast track and if a case falling out of the protocols is judicially determined to be suitable for multi-track, normal multi-track costs rules will apply.”
The Court applied the decision in Inco Europe Ltd v First Choice Distribution  1 WLR 586 to rule that it had jurisdiction to put right an obvious drafting mistake to bring the provisions in line with the intention of the relevant legislator. It felt the best way to give effect to the intention of the Rule Committee was to insert the following into r.45.29B after the reference to r.45.29J:
“… and for so long as the claim is not allocated to the multi-track…”
The Court also invited the Rule Committee to address the anomaly of the apparent damages ceiling of £25,000 under part A of Table 6B, where a claim settles before issue. It appears not to consider the possibility that, when a claim leaves the Protocol, it’s value may have increased above the original £25,000 limit and will also need to account for vehicle damage.
This decision will be welcome news for claimants. In the knowledge that fixed costs will automatically be excluded from multi-track proceedings, they can feel assured that their claim can be properly investigated should it become more complicated or the value increase. Further, they will no longer have to gamble as to whether a judge will be sympathetic at the conclusion of proceedings to allow them to avoid fixed costs under r.45.29J. Given the majority of claims starting under the RTA or EL/PL Protocols will be allocated to the fast track, defendants can at least be confident that the adverse impact will be limited.
The route the Court took to reach its decision is arguably the most unusual feature of Qader. Rather than interpreting the rules as drafted and inviting the Rule Committee to address the apparent error, the Court went further by effectively re-drafting the provision. Although controversial, its jurisdiction to do so is very restricted. It will be rare that relevant legislator’s intentions will be so clearly identifiable and so clearly out of line with the legislation. This was an exceptional case.