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16 November 2016
Tomlinson, Gross and Briggs LJs
 EWCA Civ 1109
A claim started under the Pre- action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents but then subsequently allocated to the multi-track does not automatically fall outside of the fixed costs provisions of that Protocol at part IIIA. However, Part 45.29B should now be read to include, after the reference to 45.29J ‘…and for so long as the claim is not allocated to the multi-track…’ thereby providing recourse to costs budgeting, costs management and the other ordinary costs provisions relating to the multi-track where such a claim is reallocated for whatever reason.
Both appeals related to road traffic accidents where the defence alleged allegations of dishonesty and fraud in relation to what essentially amounted to conspiracy to orchestrate an incident. Due to the complex nature of the defences, each of the cases were allocated to the multi-track after initially being issued under Part 7 of the RTA Protocol. There was no challenge on appeal regarding the allocation to the multi-track by the case management judges. The problem before the court was that, subject only to the prospect of obtaining a greater amount than the fixed costs pursuant to an application under Part 45.29J, the claimants in each case and their solicitors could only hope to recover costs upon the basis of a fixed cost regime. Lord Justice Briggs asserted that such a fixed costs regime ‘was plainly designed to be suitable only for fast track cases.’
The confusion surrounding section IIIA of CPR Part 45 apparently stemmed from ‘a drafting mistake,’ which it was concluded that the court has the power to rectify via judicial interpretation. The judge opined that based on the historical analysis of the fixed costs regime, several government consultation papers and a 2009 report by Jackson LJ on the matter, there could be no doubt that the intention of those legislating never intended fixed costs to ever apply to multi-track cases.
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The court concluded that the proposed clarification of Part 45.29B would redress one area of confusion, namely that the fixed costs regime should apply as widely as possible, but not to cases where there has been a judicial determination that they should continue in the multi- track.
This was a welcomed interpretation and approach taken by the court. Interestingly, a further point raised in the case, which was beyond the scope of the appeals, was to invite the Rule Committee to consider revisiting the anomaly represented by the £25,000 apparent damages ceiling in Part A of Table 6B, and also to invite consideration to amending section IIIA of Part 45 in the round to incorporate such changes across the employers’ liability and public liability protocol as well. It is hoped that these points are revisited and addressed in the near future.
Kim Pryce & Matthew Allan, Anthony Gold