Williams -v- The Secretary of State for Business, Energy and Industrial Strategy [2018] EWCA CIV 852 TOM CARTER 1
1. The Court of Appeal handed down its judgment in this case on 20 April 2018. Tom Carter appeared for the claimant. Alexander Hutton QC appeared for the defendant. 2. The issue in this case was whether a claimant who unreasonably failed to start a claim under the EL/PL protocol could be limited to fixed costs where the conditions in CPR 45.24, which gives the Court power to limit a claim to fixed costs, were not met. 3. The Court of Appeal held that CPR 45.24 cannot be applied where two conditions are not met: namely where a claimant has not started part 7 proceedings and where a judgment in the claimant s favour has not been entered. Further, CPR 45.24 did not contain a drafting mistake as had been the case in Qader -v- Esure [2016] EWCA Civ 1109. 4. But the Court of Appeal held that where CPR 45.24 does not apply, the Court still has a power under its general CPR 44 costs powers, particularly misconduct under CPR 44.11, to limit a claimant to fixed costs. 5. Per Coulson LJ: 64. For these reasons, I would dismiss the appeal on the first ground. Neither the EL/PL Protocol nor r.45.24 provides a mechanism which automatically applies the fixed costs regime in circumstances where a claim has not been started under the Protocol and/or has not been the subject of a Part 7 claim and a judgment. There is no drafting error, obvious or otherwise, in the CPR. 65. Although Judge Godsmark QC may have had Part 44 in mind, I would allow the appeal on the second ground. In a case where the Protocol should have been used, and its non-use was unreasonable then, pursuant to the Part 44 conduct provisions, the claimant will usually be entitled to recover only the fixed costs and the disbursements permitted by the Protocol. The Facts 6. The case involved a claimant bringing a noise-induced hearing loss claim against two former employers. Such a claim falls within the EL/PL protocol and so the effects of this decision will apply to any other claim under the same protocol or other relevant protocols. 2
7. The claimant sent letters of claim to two former employers. Thus, he could not send a CNF (because that can only take place where there is one defendant) and so did not start his claim under the EL/PL protocol. 8. In fact, his second former employer soon disclosed documentation showing that he had been provided with hearing protection and that it was a term of his contract that he would wear hearing protection. Those familiar with deafness claims will know that this was not necessarily the end of the matter, but the claimant chose not to pursue that second defendant further. 9. His first former employer, originally British Coal and now the Secretary of State, admitted liability from the outset. 10. Before issuing a claim, the claimant then settled his claim against the remaining defendant by accepting the defendant s part 36 offer of 2,500. That then entitled the claimant to costs. The Arguments 11. The defendant argued that the claimant should only recover fixed costs because he should only ever have pursued one defendant and thus could and should have started his claim under the protocol. 12. The claimant argued that the rule for limiting a claim to fixed costs, CPR 45.24, did not apply because it only applies where a claimant starts proceedings under part 7 and where a judgment is given in favour of the claimant. There had been no part 7 proceedings and no judgment. 13. The defendant argued that the rule should be given a purposive construction to enable it to be applied anyway. Alternatively, the defendant argued that the two conditions in CPR 45.24 were a drafting mistake and should be corrected as had been the case in Qader -v- Esure [2016] EWCA Civ 1109. 14. Further, the defendant argued that the Court could still reduce a claimant s costs under its general CPR 44 powers. The claimant argued that where CPR 45.24 prima facie governed the Court s power to award only fixed costs, it would undermine the purpose of the rule to reduce costs under CPR 44 where the rule did not apply. 3
The Court of Appeal decision 15. The Court of Appeal accepted the claimant s case, as the judge had done on the first appeal, that CPR 45.24 could not apply: 40. However, as Judge Godsmark QC found, r.45.24 does not apply to the facts of the present case. There have been no Part 7 proceedings. There has been no judgment. Although Mr Hutton QC sought to argue that in some way the requirement for Part 7 proceedings and a final judgment were simply examples of when the court could exercise its discretion under r.45.24, I am unable to accept that submission. It is clear that r.45.24 is dealing with specific circumstances where the court may exercise its discretion to order the payment of no more than fixed costs. Those circumstances (where there are Part 7 proceedings and a judgment) are not examples, but pre-conditions which have to exist before the rule can be applied. 50. For these reasons, like Judge Godsmark QC, I would not be prepared to rewrite r.45.24 in order to meet the facts of the present case. The absence of Part 7 proceedings and the absence of a judgment means that r.45.24 does not apply to this case. Accordingly, that route to fixed costs is not open to the defendant. 16. The Court of Appeal rejected the defendant s argument that CPR 45.24 contained a drafting mistake: 47. In my view, there are a number of answers to this alternative argument. First, it is arguable that the policy referred to in paragraph 45 above was adopted by the CPRC, and found its way into r.45.24 and some of the costs sanctions within the EL/PL Protocol itself. Secondly, there is no policy document which contains the words which Mr Hutton QC now suggests are inadvertently missing. On that basis, it cannot be said that there has been an obvious drafting error. Thirdly, I consider that Mr Hutton QC's submission misunderstands the function of the CPRC. 48. The CPRC is a statutory body which is obliged to consider the MOJ policy documents with which it is provided, but has no obligation to accept or implement all or any part of those policies. The CPRC is there to consider the proposals from the MOJ and to make Rules to address any part of those policies which it considers appropriate. Therefore, as a matter of law, the policy documents themselves cannot usually be relied on as an aid to the interpretation of the CPR. At the very least, the minutes and other documents generated by 4
the CPRC would be required, in order to see what the CPRC's response was to the policy in question. Moreover, the usual practice, if it transpires that there has been a drafting error, is simply for the rule to be corrected, although that is not a process that has retrospective effect (see Qader at paragraph 53). 17. The Court of Appeal then held that the claimant s costs could nevertheless be reduced by operation of CPR 44: 53. Mr Carter sought to argue that it was somehow inherent in r.45.24 that Part 44 would not apply at all in cases like this. He argued that, if the same result could be achieved by way of Part 44, then r.45.24 was otiose. 54. I do not accept those submissions. Since r.45.24 does not apply to this case, its existence cannot be relied on as excluding rules which, on their face, do apply. Moreover, r.45.24 would not necessarily be rendered otiose by the provisions of Part 44: it would always depend on the facts. In any event, a situation where, depending on the circumstances, the CPR may provide more than one route to the same result, is hardly uncommon. 55. More widely, Part 44 provides important general rules about costs and the sorts of matters which, in the exercise of its discretion, a court may wish to take into account when assessing costs. For Part 44 to be disapplied (in whole or in part), as Mr Carter urges, there would have to be clear words setting out the nature and scope of any such disapplication. There are none here. Accordingly, I consider that Part 44 applies to this case. The unreasonable failure by the claimant to follow the EL/PL Protocol, as found by the DDJ, triggers the Part 44 conduct provisions. 56. In my view, it is at this point that paragraphs 2.1, 3.1 and the warning at 7.59 of the EL/PL Protocol, become relevant. Taken together, those paragraphs comprise a clear indication that, if a claim should have been started under the Protocol but was not, and it was unreasonable that the claim was not so started, then by the operation of the Part 44 conduct provisions, the claimant should be limited to the fixed costs that would have been recoverable under the EL/PL Protocol. 5
61. For these reasons, I consider that Part 44 provides a complete answer to the issues raised on this appeal. In a case not covered by r.45.24, such as this one, a defendant can rely on the Part 44 conduct provisions to argue that only the EL/PL Protocol fixed costs should apply. Conclusion 18. On a practical level, defendants can now make safely make pre-issue part 36 offers to claimants who have unreasonably not started a claim under the relevant protocol. 19. Of course, whether a defendant can rely on this decision to limit a claimant to fixed costs in those circumstances will depend on the court finding that the claimant did in fact act unreasonably. It will not automatically follow that because the protocol was not used, this was unreasonable. 20. I would suggest that, rightly or wrongly, this decision does now render CPR 45.24 meaningless. Even where it does apply, a defendant can simply rely on the general costs provisions under CPR 44. CPR 45.24 still provides that the Court may and not must limit costs so it does not provide any greater certainty than the general costs provisions. 21. The decision also raises a potential question mark over other powers in the CPR. It was held in this case that CPR 45.24 at para 55 that: For Part 44 to be disapplied (in whole or in part), as Mr Carter urges, there would have to be clear words setting out the nature and scope of any such disapplication. How far does this logic extend to other powers under the CPR, whether costs provisions or case management powers under CPR 3? Tom Carter April 2018 Disclaimer: The information and any commentary on the law contained in this article is provided free of charge for information purposes only. The opinions expressed are those of the writer(s) and do not necessarily represent the view of Ropewalk Chambers as a whole. Every reasonable effort is made to make the information and commentary accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by the writer(s) or by Ropewalk Chambers. The information and commentary does not, and is not intended to, amount to legal advice to any person on a specific case or matter. You are expressly advised to obtain specific, personal advice from a lawyer about your case or matter and not to rely on the information or comment contained within this article. 6