Introduction

West v. Burton ([2021] WLR(D) 379) is a pivotal case heard by the England and Wales Court of Appeal (Civil Division) on July 8, 2021. The case delves into the nuanced area of fixed costs and disbursements under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents ("the Protocol"), particularly when the claimant dies before the conclusion of the claim process. While the monetary stake in this case was modest, the implications extend to thousands of similar claims, affecting solicitors’ firms and insurers alike.

The central issue revolves around whether the costs and disbursements should be calculated under Section IIIA (or Section III) of Part 45 of the Civil Procedure Rules or under Section II, in scenarios where the claimant dies after issuing a Claim Notification Form (CNF) but before the settlement of the claim.

Summary of the Judgment

The appellant, identified as the defendant in the Part 8 proceedings, sought to have costs calculated under Section IIIA, which generally allows for higher recoverable costs. The respondent, acting as the executor of the deceased claimant’s estate, argued for the application of Section II, which typically results in lower recoverable costs.

The initial decision by District Judge Baldwin favored the respondent, determining that costs should be assessed under Section II. Upon appeal, Judge Graham Wood QC upheld this decision, concluding that the claim, due to the death of the claimant, was outside the Protocol's scope and thus should be governed by Section II. Consequently, the appeal was dismissed, reinforcing the approach that the claimant's death after issuing the CNF does not entitle the defendant to higher cost recoveries under Section IIIA.

Analysis

Precedents Cited

The judgment extensively referenced prior cases to elucidate the Court’s stance on fixed costs under the Protocol:

• Cham (a child) v Aldred [2019] EWCA Civ 1780: Highlighted the strict adherence to fixed costs, rejecting claims for additional disbursements not expressly covered by the Protocol.
• Sharp v Leeds City Council [2017] EWCA Civ 33: Emphasized the comprehensive nature of the fixed costs regime and the limited scope for exceptions.
• Hislop v Perde [2018] EWCA Civ 1726: Reinforced the expectation that fixed costs are the sole recoverable amounts, underscoring the autonomy of the fixed costs regime.
• Ferri v Gill [2019] EWHC 952 (QB): Affirmed that exceptional circumstances for additional costs under Section IIIA are rare and subject to a high threshold.

These precedents collectively establish a jurisprudential trend favoring a rigid interpretation of fixed costs, limiting the court’s willingness to deviate or accommodate exceptions.

Legal Reasoning

The Court meticulously examined the definitions and provisions within the Civil Procedure Rules (CPR) and the Protocol. Key points in the legal reasoning included:

• Definition of Claim and Claimant: The Court interpreted "claim" and "claimant" in the Protocol context as consistent with their conventional usage in legal proceedings, focusing on the individual who initiated the CNF.
• Impact of Claimant’s Death: Under the Law Reform (Miscellaneous Provisions) Act 1934, the death of the claimant does not extinguish the cause of action but shifts it to the estate. However, the Protocol explicitly excludes claims made by personal representatives, rendering the settlement outside its scope.
• Applicability of CPR Sections: Since the claim settled was on behalf of the executor and not the original claimant who initiated the CNF, the Court concluded that the appropriate section for cost assessment was Section II, not Section IIIA.
• Purpose and Intent of the Protocol: The Protocol aims for consistency in cost recovery, ensuring that claimants’ legal representatives receive fixed costs regardless of minor procedural variations, such as the claimant’s death.

The Court rejected the appellant’s arguments that focused on the initiation stage of the claim, emphasizing the sustained identity of the claimant throughout the process as envisioned by the Protocol.

Impact

This judgment has significant implications for future low-value personal injury claims, especially those involving unforeseen circumstances like the claimant’s death. Key impacts include:

• Cost Predictability: Legal practitioners and insurers can expect greater consistency in cost recoveries, as the decision reinforces the limited scope for additional costs under fixed regimes.
• Protocol Adherence: The ruling underscores the necessity for strict compliance with the Protocol’s definitions and provisions, discouraging attempts to reclassify claims based on post-initiation changes.
• Estate Management: Executors managing deceased claimants’ estates can rely on the Court’s stance to anticipate cost liabilities accurately, regardless of claim procedural outcomes.

Overall, the decision promotes legal certainty and reinforces the Protocol’s objective of streamlined, cost-effective dispute resolution in low-value claims.

Complex Concepts Simplified

Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents

A structured process outlined in the Civil Procedure Rules (CPR) aimed at facilitating early settlement of low-value personal injury claims without the need for litigation. It sets out the steps parties must follow before commencing legal proceedings, including the submission of a Claim Notification Form (CNF) and adherence to specific timelines and procedures.

Fixed Costs and Disbursements

Pre-determined costs that can be recovered by solicitors regardless of the actual time or resources spent on the case. Under CPR Part 45, these are categorized under different sections:

• Section II: Generally leads to lower cost recoveries, applicable when the claim does not meet certain higher thresholds or conditions.
• Section IIIA: Allows for higher cost recoveries, applicable under specific circumstances outlined in the CPR, often involving more complex or exceptional cases.

Claim Notification Form (CNF)

A formal document submitted electronically via the Portal to notify the defendant's insurers of the claimant's intention to seek damages under the Protocol. It initiates the Pre-Action Protocol process.

Part 8 Proceedings

A procedure under the CPR used for claims that are unlikely to require a full trial, often involving straightforward issues such as the recovery of costs without extensive factual disputes.

Conclusion

The West v. Burton judgment serves as a definitive guide on the assessment of costs in low-value personal injury claims under the Pre-Action Protocol, particularly when the claimant dies post-initiation. By affirming that such claims fall under Section II rather than Section IIIA, the Court has reinforced the Protocol’s intent to maintain cost predictability and procedural consistency. Legal practitioners and insurers must adhere strictly to the Protocol’s definitions and provisions, recognizing that the claimant's death does not elevate the claim to a higher cost recovery category. This decision not only clarifies the application of fixed costs in exceptional circumstances but also upholds the Protocol’s overarching goal of efficient and equitable resolution of low-value claims.