For some bizarre reason it appears that readers are still struggling with my previous question concerning the “simple” new road traffic accident scheme. It’s almost as though I had asked a question that was impossible to answer.
Let me give you another question but, this time, also suggest the answer. I am grateful to Keith Hayward at Victory Legal Costs Solicitors for this one.
Proceedings are issued under Part 8 under the new Practice Direction 8B paragraph 1.1(1)(3) because of limitation. The case is then stayed in accordance with paragraph 16 to enable the claim to proceed under the new RTA claim process. The claim then falls out of the process, for example, because of an argument over contributory negligence (Protocol 6.15(1)). The claim is then settled amicably without the need for the stay to be lifted.
What costs apply?
Don’t just read on.
Go and read the rules and see if you can work out the answer first.
The answer seems to be governed by the new CPR 44.12C process:
(1) This rule sets out the procedure where—
(a) the parties to a dispute have reached an agreement on all issues (including which party is to pay the costs) which is made or confirmed in writing; but
(b) they have failed to agree the amount of those costs; and
(c) proceedings have been started under Part 8 in accordance with Practice Direction 8B.
The example seems to be caught by subparagraph (c).
The defendant can, and it will only be the defendant who wants to do this, apply under CPR 44.12C:
(2) Either party may make an application for the court to determine the costs.
And what costs are then payable? CPR 44.12C states:
(3) Where an application is made under this rule the court will assess the costs in accordance with rule 45.34 or rule 45.37.
Note the use of the word “will”, not “may”. The court has no discretion. Rule 45.34 and 45.37 allow for costs in accordance with the new fixed costs for the new RTA process. So, despite the matter not proceeding in the process, the process costs still apply.
This was obviously not intended but is another example of sloppily drafted rules. If any serious attempt had been made at trying to produce simple rules then there would have been a greater likelihood that this type of error would have been avoided. The Ministry of Justice is simply wrong to claim that the simpler the system, the more detailed the rules need to be. The courts are going to be swamped with fresh satellite litigation trying to unravel this botched job.
Of course, another reading of the rules might be possible and readers are welcome to suggest why the above analysis is wrong. However, the point is that the rules should be crystal clear on a straightforward issue such as this.
It’s not too late for the Ministry of Justice to pull the plug and I’m not just talking about the new IT system.