A claimant who issued a second claim notification form (CNF) after her original solicitors closed has been limited to protocol fixed costs even though the case ultimately settled outside of it.
Regional Costs Judge Rouine in Birmingham held that the rules did not permit the issue of a second CNF in these circumstances.
In Thandi v Esure, the firm that initially represented the claimant and issued a CNF was shut down by the Solicitors Regulation Authority. The claimant instructed new solicitors, Taylor Price, which issued part 8 protective proceedings with expiry of the primary limitation period looming.
The case was then stayed at their request pending either confirmation that the protocol had been complied with and a request to start the stage 3 procedure, or the claimant wanting to exit the protocol and request a lift of the stay to launch part 7 proceedings.
Instead, Taylor Price issued a second CNF and, after receiving no response to it, applied to lift the stay and commence part 7 proceedings. This happened and the claim eventually settled.
The defendant argued that there was no justification for sending the second CNF and so the claimant’s recoverable costs should be limited to protocol fixed costs.
The claimant’s position was that Taylor Price had no option but to send the CNF because it did not have access to the claim details from the first solicitors.
Judge Rouine said that, under paragraph 5.2 of the protocol, the only situation in which a claimant could send a second CNF was when the first went to the wrong defendant.
Further, the claimant’s case was “fatally” undermined by the fact that she and her solicitors knew a live set of proceedings, albeit one that was stayed, existed.
“In my judgment, the claimant could and should have made an application within these existing proceedings for directions in light of the issues regarding the current state of the protocol process, the difficulties caused by the intervention of Leslie Charles solicitors and how to progress matters in order for that process to be moved forward in those circumstances.”
As a result, any attempt to recover costs based on the claim dropping out of the protocol due to the absence of a response to the second CNF “must also be fatally flawed”, the judge went on.
Fiaz Siddique for the claimant. James Miller for the defendant.