A claim which starts under the RTA protocol but proceeds on the multi track remains subject to the fixed recoverable costs regime. So held HHJ David Grant in the case of Qader v Esure (Unreported, 15th October 2015). The case concerned a claim for damages for personal injury arising out of an RTA. The value of the claim was pleaded at £5,000 to £15,000. The Defendant alleged that the accident had been staged by the Claimant and the claim was allocated to the multi track. At a CCMC a district judge ordered that “CPR 45.29A fixed costs will apply to the claimant’s costs. Costs management does not apply to this case.” The Claimant appealed.

CPR rule 45.29A is to be found in Section IIIA of Part 45, which is entitled "Claims which no longer continue under the RTA or EL/PL Pre-Action Protocols - Fixed Recoverable Costs". Paragraph (1) provides as follows:

"Subject to paragraph (3), this section applies where a claim is started under

  1. the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents ("the RTA Protocol"); or
  2.  .... the EL/PL Protocol

but no longer continues under the relevant Protocol or the Stage 3 Procedure in Practice Direction 8B."

The judge found that the text of this rule is clear and 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 the Practice Direction 8B.

The Claimant argued that the district judge’s ruling breached Article 6 of the European Convention of Human Rights as claimants' solicitors would not be willing to risk expending substantial sums in costs without certainty of recovery and would be unwilling to act on a ‘no-win no fee’ basis with such uncertainty. HHJ David Grant rejected this argument saying that the provisions of CPR rule 45.29J provided a material safeguard against such injustice. That rule allows the court in exceptional circumstances to allow costs greater than the fixed recoverable costs at the end of proceedings.

The judgment of HHJ David Grant is well-written, compelling and seems right on the rules as they have been drafted. Many claims start out on the EL/PL and RTA protocols but are subsequently moved to the multi-track when it becomes clear that there are much more complicated issues and that the value might be more than originally anticipated. The rules and this judgment are likely to have far-reaching consequences although the provision in the rules for fixed costs to include 20% (RTA claims) and 30% (EL/PL claims) of the damages may go some way to mitigating the harsher consequences in claims which start out as low value but end up as high value. Stuck between the Scylla of paying very high court fees and the Charybdis of a fixed costs regime for a claim which starts under the relevant protocols, claimants’ solicitors will want to exercise great caution. Whether the rule committee intended or foresaw all of this is open to question.