Qader & Ors v Esure Services Ltd

Application for permission to appeal, and if granted, the appeal

The key issue

The proceedings

On 30 January 2015 DDJ Nadarajah directed that the case be allocated to the multi track, and listed the matter for a CCMC on 3 June 2015. In paragraph 3 of the notes accompanying notices of hearing of CCMC's (page 67) there is a note that budgets must be filed by the date specified in CPR rule 3.13. The claimants’ budget is in fact dated 26 November 2014, and the defendant's is dated 26 January 2015. The matter then came before DJ Salmon on 3 June 2015.

DJ Salmon’s order dated 3 June 2015

He then refused permission to appeal in that order. In his reasons for refusing permission to appeal (page 72) he stated:

“(a)

The rule is clear on its face that the determining factor is not track but value in respect of the operation of the fixed costs regime.

(b)

There is in CPR 45.29J a provision allowing the court to depart from the fixed costs regime whereby the court "if it considers that are exceptional circumstances making it appropriate to do so, the court will consider a claim for an amount of costs ... which is greater than the fixed recoverable costs ..." a fraud case lasting two days may well be such a case.

(c)

CPR 3.12 (c) clearly contemplates costs on the multi track being subject to fixed costs."

The relevant rules

…. the EL/PL Protocol

The editors’ notes to the RTA Protocol begin at paragraph C13A-001 (page 2865) of the current 2015 edition of ‘Civil Procedure’. In the second paragraph they consider the 2013 edition and the previous 2010 edition of the protocol, and continue:

The notes continue to give a summary of both the stage 1 and stage 2 processes, and then of the stage 3 procedure. As they observe: “Stage 1 begins when a claimant ... completes and sends to the insurer of the defendant ... a claim notification form….Within 15 days the defendant must complete and send to the claimant the ‘Insurer Response’ section of the CNF. Amongst other things that section invites the defendant to state whether liability is admitted or not.". Stage 1 therefore deals with issues of liability. As regards stage 2, the editors’ note continues:

Where liability has been admitted, but the parties cannot agree quantum, the stage 3 procedure may then be invoked. As the editors state: "Where parties ... are unable to agree the amount of damages payable at the end of the stage 2 process, a claim may be made using the court procedure ("the stage 3 procedure") ... set out under CPR Part 8 (alternative procedure for claims) in accordance with Practice Direction 8B ....". As the editors note (at page 2867) "a claim under Practice Direction 8B must be started in a county court, and will normally be heard by a District Judge". However, it is open to a claimant instead to exit the ‘portal’ (Footnote: ¹) and commence proceedings by issuing a Part 7 claim form. In the present case the claimants have issued a Part 7 claim form.

CPR rule 3.12 is to be found in Section II of Part 3, which is entitled "Costs management". Paragraph (1) provides as follows:

“This section and Practice Direction 3E applies to all Part 7 multi track cases, except

(a)

where ... the amount of money claimed ... is £10 million or more; or

(b)

…; or

(c)

where the proceedings are the subject of fixed costs or scale costs or where the court otherwise orders."

It is not necessary to consider subparagraph (b) for present purposes. Nor is it necessary to consider whether the phrase "or where the court otherwise orders" at the end of subparagraph (c) is to be read as a matter falling wholly or only within the terms or ambit of that subparagraph, or is to be read as a separate matter, in effect as a subparagraph (d).

CPR rule 45.29C is entitled "Amount of fixed costs - RTA Protocol”. Paragraph (1) provides:

“ ... the amount of fixed costs is set out in Table 6B."

Table 6B (Footnote: ²) is entitled "Fixed costs where a claim no longer continues under the RTA Protocol." Section B of table 6B sets out the fixed costs "If proceedings are issued under Part 7, but the case settles before trial". Three stages at which the claim might settle are then provided for: on or after the date of issue but prior to the date of allocation under Part 26; on or after the date of allocation under Part 26, but prior to the date of listing; and finally on or after the date of listing but prior to the date of trial. The fixed costs are respectively £1,160 and 20% of the damages; £1, 880 and 20% of the damages; and £2,655 and 20% of the damages.

Section C of table 6B sets out the fixed costs "If the claim is disposed of at trial". They are the total of (a) £2,665 and (b) 20% of the damages agreed or awarded; and (c) the relevant trial advocacy fee." Section D of table 6B sets out the trial advocacy fees. If damages, either agreed or awarded, are not more than £3,000, the trial advocacy fee is £500; if damages are more than £3,000 but not more than £10,000, the trial advocacy fee is £710; if the damages are more than £10,000 but not more than £15,000, the trial advocacy fee is £1,070; and finally if the damages are more than £15,000, the trial advocacy fee is £1,705.

CPR rule 45.38 (1), which is in the separate Section VI of Part 45 entitled "Fast Track Trial Costs", provides:

“Table 9 (Footnote: ³) shows the amount of fast track trial costs which the court may award ..."

If the value of the claim is no more than £3,000, the amount of fast track trial costs which the court may award is £485; if the value of the claim is more than £3,000 but not more than £10,000 then the amount of fast track trial costs which the court may award is £690; if the value of the claim is more than £10,000 but not more than £15,000, then the amount of fast track trial costs which the court may award is £1,035; and for proceedings which were issued on or after 6 April 2009 if the value of the claim is more than £15,000, then the amount of fast track trial costs which the court may award is at £1,650. It is thus to be noted that the figures in table 9 are in each case slightly lower than those in section D of table 6B.

Application for permission to appeal

In support of his submissions on ‘reasonable prospect of success’, Mr Skeate pointed to the substantive grounds: ground 1 being that the district judge had failed to interpret CPR rule 45.29A purposively, so as to implement the Jackson reforms; ground 2 being that the district judge had failed to interpret the rule in accordance with the overriding objective; and ground 3 being that if the rule did mean that the fixed recoverable costs keen applied to multi track cases which started under the RTA protocol, and then it was in conflict with the provisions of section 3 of the 1996 act and article 6 of the convention. He submitted that the nature of those grounds was such that the appellant had reasonable prospect of success in each and/or all of them: see paragraph 2 (d).

In support of his submissions on ‘some other compelling reason’ Mr Skeate submitted that the appeal raised issues of wide interest, and raised a point on which there was no prior authority: see paragraph 2 (e) and (f).

Mr Smith dealt with permission only briefly in paragraph 10 of his written submissions, submitting simply that the appellants had no real prospect of success in the appeal and all that there was no compelling reason to grant permission to appeal.

I have come to the conclusion that the appellants just establish that they should be granted permission to appeal under both grounds (a) and (b) of CPR rule 52.3 (6). I therefore turn to consider the substantive issues which are raised in the appeal

Ground 1 of the appeal: failure to interpret rule 45.29A in a purposive manner

Mr Skeate developed his submissions under ground 1 between paragraphs 5 and 10 of his written submissions. Paragraph 11 relates to matters under the Human Rights Act and/or Convention, and it is more appropriate to deal with those points under ground 3; that is also the position as regards his point relating to rule 45.29J which he develops in paragraphs 9 and 10 of his written submissions. In similar manner, I shall deal with the point in the second sentence of ground 1, and also paragraph 6 (b) of his written submissions, relating to the overriding objective, when considering ground 2.

In paragraph 6 (a) of his written submissions Mr Skeate submitted that the District Judge "by adopting a technical approach rather than a purposive one" when interpreting CPR rule 45.29A, fell into error. In paragraph 7 he made his key submission that "there is no room whatever for doubt that the fixed recoverable costs scheme was implemented only in relation to the fast track", referring in support of that submission to chapter 15 of the Jackson final report, and two passages in the keynote speech delivered by Jackson LJ on 30 September 2014.

In paragraphs 9 and 10 of his written submissions, Mr Skeate made submissions about the District Judge’s approach to CPR rule 45.29J, though this point was not in fact identified by Mr Skeate in the grounds of appeal as set out in pages 74-77 of the appeal bundle.

In paragraphs 11 to 13 of his written submissions Mr Smith submitted as follows:

“11.

… the Judge interpreted the rules correctly. CPR rules 3.12, 45.29A and 45.29C all operate consistently together irrespective of allocation to a particular track. It is the value of the claim that is determinative. As the rules are clear there is no scope for purposive interpretation.

12.

The interpretation sought by the claimant would do considerable violence to the wording of (those rules). CPR 3.12 would have to be read as if the words "(unless the proceedings had been allocated to the multitrack)" appeared immediately after the words "fixed costs" in rule 3.12 (1) (c). CPR 45.29A would have to be read as if it is stated in addition "this section does not apply to a claim that has been allocated to the multitrack". CPR 45.20 9C (4) (a) (ii) would have to be read as if the words "to the fast track" were inserted after the words "allocates the claim".

13.

Such a degree of violence is not permissible in the name of interpretation, even if it is purposive interpretation."

In his oral submissions (DG/101) Mr Smith developed the points made at paragraph 12 and 13 of his written submissions by submitting that such an outcome could not be achieved through the medium of interpretation, but instead would amount to a re-casting of the rule.

I have come to the following conclusions:

As the note to paragraph 45.29A .1 in the 2015 edition of ‘Civil Procedure’ provides, Section IIIA of Part 45 was inserted by the Civil Procedure (Amendment No 6) Rules 2013 (SI 2013 /1695). Those rules were made on the 5 July 2013, and came into force on 31 July 2013. The transitional provisions in rule 10 provide that:

“The amendments made by rules 6 and 7 apply only to claims started under the Pre-action Protocol for Low Value Personal Injury claims in Road Traffic Accidents where the Claim Notification Form is sent in accordance with that Protocol on or after the 31 July 2013."

As the accident in this case occurred on 25 October 2013, by definition the CNF can only have been sent in accordance with the protocol after the date specified in rule 10.

Rule 7 of those rules deals with Part 45, and rule 7 (16) provides:

“After rule 45.29, insert Section IIIA as set out in the Schedule to these Rules."

The whole of Section IIIA is then set out in the Schedule. It follows that, as a matter of law, Section IIIA was inserted into Part 45 on 5 July 2013, and came into force on 31 July 2013.

The text of CPR rule 45.29A is quite clear: it states that Section IIIA of Part 45 will apply when a claim is started under the RTA Protocol, but no longer continues under that Protocol or the stage 3 procedure set out in Practice Direction 8B.

In those circumstances there is no need or requirement for a court to interpret the rule.

If I am wrong in coming to either of the above conclusions, then I consider the way in which Mr Skeate seeks to interpret the rule goes beyond a process which can be achieved through the medium of interpretation. Instead I accept Mr Smith's submission that such a conclusion can only be reached by what would amount to a re-casting of the rule.

I am fortified in coming to my conclusion that the text of CPR rule 45.29A is clear by the following matters as regards the text of the RTA Protocol and the relevant rules:

Paragraph 4.1 of the RTA Protocol states that it applies where "... (4) if proceedings were started the small claims track would not be the normal track for that claim". It does not state that the protocol only applies to claims proceeding on the fast track. Similarly, in paragraph 4.5, which sets out a number of matters where the protocol does not apply, it does not state that the protocol will not apply where the claim proceeds on the multi track.

The text of CPR rule 3.12 (1) (c) is equally clear: it expressly contemplates the existence of proceedings on the multi track "where the proceedings are the subject of fixed costs". I reject any submission to the effect that the text of that subparagraph is in some way to be confined to only certain instances of fixed costs.

The heading of table 6B is "Fixed costs where a claim no longer continues under the RTA Protocol". It does not state that such fixed costs are to be confined to claims proceeding on the fast track. Indeed, the very fact that table 6B exists in addition to table 9, which is expressly stated to apply to fast track trial costs, indicates that it is to be used in proceedings other than those on the fast track.

For those reasons I reject Mr Skeate’s key submission that "there is no room whatever for doubt that the fixed recoverable costs scheme was implemented only in relation to the fast track". To the contrary: the effect of inserting Section IIIA into Part 45 was to implement a fixed recoverable costs scheme in low value personal injury claims arising out of a road traffic accident, which start under the RTA Protocol but no longer continue under that Protocol or the Stage 3 Procedure, but instead now proceed on the multi track. Such a conclusion is consistent with the notes in paragraph C13A – 007 in Civil Procedure 2015 which provide (page 2868):

“The most significant change from July 31, 2013 is the fixed costs regime prescribed by Section IIIA of Part 45. Thus in cases which exit the process and proceed under Part 7, costs are no longer at large and subject to assessment, but are governed by the rules in Section IIIA ... These rules prescribe the fixed costs recoverable by a successful claimant. An unsuccessful claimant will generally have the benefit of QOCS protection (qualified one-way cost shifting) ..."

Insofar as it is necessary to do so, I also note that Jackson LJ expressly contemplated "… the possibility of introducing a scheme of fixed costs ... into the lower reaches of the multi track": see paragraph 2.10 of chapter 16 of his final report. For the reasons stated above, it would appear that by amendment to the CPR, such a scheme of fixed recoverable costs has indeed been introduced into "the lower reaches of the multi track", certainly as regards cases which began via either the RTA Protocol or the EL/PL Protocol.

I also reject Mr Skeate’s wider submission that it is incumbent on the court, here the District Judge, to interpret the CPR "so as to implement the Jackson reforms". As Jackson LJ explained in the forward to his preliminary report, his task was "... to review the rules and principles governing the costs of civil litigation and to make recommendations in order to promote access to justice a proportionate cost". In the foreword to his final report Jackson LJ wrote "I therefore propose a coherent package of interlocking reforms, designed to control costs and promote access to justice." His task was thus to make recommendations and/or proposals, but not to make the rules: that was and remains the task initially of the Rules Committee and thereafter of Parliament.

The material before me indicates that there are instances where recommendations or proposals made by Jackson LJ have not been accepted or adopted by the Rules Committee. See for example Jackson LJ's proposal for the wording of paragraph (b) of CPR rule 3.9 as set out in paragraph 6.7 of chapter 39 of his final report. It appears that recommendation was not accepted or adopted by the Rules Committee: the actual wording of paragraph (b) of CPR rule 3.9 is materially different from that recommended or proposed by Jackson LJ (Footnote: ⁴).

Such analysis reveals a critical flaw in Mr Skeate’s submissions. The conundrum is to identify which of Jackson LJ's recommendations or proposals a judge should have regard to when interpreting a rule: should a judge have regard only to those recommendations which have been accepted or adopted by the rules committee, or to all of his recommendations, irrespective of their acceptance or adoption by the Rules Committee? The very fact that such a question can be posed indicates that Mr Skeate has defined the process of interpretation too widely.

I also reject Mr Skeate’s submission that it was incumbent on the District Judge to "adopt a purposive approach to interpreting the rules" is: see paragraph 6 and 7 of his written submissions. In my judgement there is no ambiguity, or lack of clarity, in the meaning of the words and expressions used in Section IIIA of Part 45 which would require a judge to construe or interpret them. Instead the task is simply to apply the plain meaning of those words and expressions.

For those reasons I reject ground 1.

Ground 2 of the appeal: failure to interpret rule 45.29A in accordance with the overriding objective

In the course of his oral submissions Mr Skeate clarified or summarised ground 2 as follows: “The District Judge wrongly interpreted rule 45.29A by failing to interpret it in accordance with the overriding objective."

Mr Skeate developed his submissions under ground 2 between paragraphs 12 and 14 of his written submissions. In paragraph 14 (a) he submitted:

“It would be applying the overriding objective correctly to decide that the fixed recoverable costs scheme would not apply in this instance, and it would be just and proportionate for standard basis costs to apply instead. Doing so would afford as level a playing field between the parties as possible, and would enable the appellants to prosecute their claims properly and effectively as well as to secure professional legal representation."

The essence of Mr Skeate’s submission was that the court should interpret rule 45.29A in such a way that it does not - contrary to its plain meaning - apply to low value personal injury claims which started under the RTA Protocol, and are now proceeding on the multi track, so as to enable the court to give effect to the overriding objective in accordance with CPR rule 1.2.

In paragraph 14 of his written submissions Mr Smith submitted:

“CPR 1.2 (b) does not permit the court to deny the CPR their clear effect, simply because that effect might be thought not to fit well with the overriding objective. The issue here was not that the court below did not seek to give effect to the overriding objective; the issue was that the court ... found the rules clear and not permissive of the interpretation invited by the claimant. Contrary to the argument of the claimant, interpretation of the CPR is not an exercise of judicial discretion."

I have come to the following conclusions:

As stated above, the text of CPR rule 45.29A is quite clear: it states that Section IIIA of Part 45 will apply when a claim is started under the RTA Protocol, but no longer continues under that Protocol or the stage 3 procedure set out in practice direction 8B.

In those circumstances, it is neither necessary nor appropriate for the court to interpret the rule.

As a result, the provisions of CPR rule 1.2 (b), which are concerned with the interpretation of any rule, are not engaged.

It is perhaps permissible to observe that the nature and ambit of the allegations of fraud which are made in the present case are discernibly of a different nature from the types of allegation often made in cases of commercial fraud in proceedings in the Chancery Division, the Commercial Court, or the TCC. Such cases often involve examination of considerable volumes of documents, analysis of legal principles of fiduciary duty, and consideration of often complex commercial factual matrices. In contrast, the central factual issue in the present case is simply whether the first claimant applied the brakes in such a manner that he induced a relatively minor road traffic accident to occur. While the claimants’ overall probity will no doubt be explored at trial, perhaps involving consideration of their conduct before the accident, at the accident, and indeed after the accident, and it may be necessary to consider some documents (such as relevant medical records), the overall nature of the case to my mind still answers the description of a low value personal injury claim arising out of a road traffic accident, albeit proceeding on the multi track. It does not therefore appear that the nature of the underlying proceedings is such that the implementation of fixed recoverable costs for such a claim would - of itself - cause affront to the overriding objective.

For those reasons I reject ground 2.

Ground 3 of the appeal: applying rule 45.29A in contravention of section 3 of the Human Rights Act 1998 and article 6 of the Convention.

Section 3 (1) of the 1998 Act provides:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."

Article 6 provides:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...."

For present purposes it is only necessary to consider the provision that "... everyone is entitled to a fair ... hearing"

In paragraph 9 of his written submissions Mr Skeate submitted as follows:

“ .. in so far as the District Judge attached weight to the contention that rule 45.29J potentially alleviated any hardship to (the appellant) ..., he fell into error by failing to consider and/or attach sufficient weight to the fact that, in order to take advantage of any such perceived assistance, claimant solicitors would have to run the case to conclusion incurring costs much greater than (fixed recoverable costs), without any certainty of how the discretion of the eventual trial or costs judge would be exercised. ... Claimants would not be willing to risk expending substantial sums in costs without any certainty of recovering these, even if successful in the litigation, and claimant solicitors would not be willing to act on a ’no-win no fee’ basis with such uncertainty’

In paragraph 15 of his written submissions Mr Skeate further submitted:

“The learned District Judge erred in law in holding that the fixed recoverable costs scheme applies to the instant case ... as, if that were correct, it would ... be contrary to article 6 Schedule 1 HRA 1998 ... Doing so would jeopardise the appellants rights to a fair trial by preventing them from obtaining effective professional legal representation and preventing them from properly and effectively prosecuting their claims and from defending themselves from ... the allegations of fraud from which the appellants liberty is at risk."

In paragraph 16 of his written submissions, Mr Smith submitted as follows:

“Even if the argument made sense, it would still be hopeless. There are at least three reasons why. Firstly, it is legitimate to seek to contain costs by reference to the value of the claim. Secondly, a balanced regime has been established whereby the costs that can be recovered by defendants are also contained. This includes not just the effect of CPR 45 section IIIA but also the effect of CPR 44 section II, qualified one-way cost shifting. Thirdly and most importantly, CPR 45.29J safeguards against the complaint raised by the claimant. In order for CPR 45.29K & L to operate effectively, the application pursuant to CPR 45.29J is to be made at the end of the proceedings. That does not deny the right to a fair trial; it simply ensures that any decision on costs reflects what actually does happen, rather than what might happen. To suggest that this regime denies the right to a fair trial when the claimants are represented for a conditional fee notwithstanding the allegations of fraud against them is hard to understand. ... No argument has been raised that the retainers permit the claimants solicitors to cease representation simply because there is a chance that the costs recovery between the parties in the event of success for the claimants might be less than had been anticipated. Between the parties costs orders have never provided a full indemnity and any argument that such an indemnity is required in order to satisfy the right to a fair trial is wrong"

In the course of his oral submissions, Mr Skeate accepted that no reasonable or sensible criticism or complaint could be made of the fixed recoverable costs regime which applies to the fast track. Nor, in my judgement, can reasonable or sensible criticism or complaint be made of the fixed recoverable costs regime provided for in table 6B which, in my judgement, applies to low value personal injury claims arising out of a road traffic accident, and which are proceeding on the multi track. Both Mr Skeate and Mr Smith also accepted in the course of oral submissions that there are occasions when matters proceeding on the fast track continue to a second day.

I have come to the following conclusions:

Mr Skeate’s submissions on ground 3 replicate to a significant extent those made on ground 2, which I have already rejected.

I accept Mr Smith's submissions on ground 3, in particular those set out in paragraph 16 of his written submissions.

The provisions of CPR rule 45.29J provide a material safeguard against injustice. If such consideration occurs at the end of the proceedings, in my judgement that does not dilute the effectiveness of such a safeguard.

For those reasons I reject ground 3.

Overall conclusion