Where a person gives notification of a claim under the Protocol but thereafter dies before its conclusion and the notified claim then settles on behalf his Estate pre-issue, are the costs and disbursements payable by the defendant to be calculated by reference to Section IIIA (or III) of CPR 45? Or are they to be calculated by reference to the generally more favourable Section II of CPR 45?
This was the latest in a series of unsuccessful attempts to escape fixed costs as governed by Section IIIA of CPR 45 by reason of exceptional circumstances under CPR 45.29J. The claimant’s solicitors argued that it had been the claimant’s intention from the outset to pursue the claim outside the Portal. They had initially sent the defendant a letter of claim and only later added the claim to the Portal at the defendant’s insistence in order to progress matters, saying that “the Defendant refused to consider the matter unless a Portal submission was made”.