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SUCCESS AGAINST PROCEEDINGS FOR LATE RTA PROTOCOL FINAL PAYMENTS



Mon 10 November 2014

Taylor Rose Law has taken the first steps to discourage the practice of commencing Part 7 proceedings for damages where a defendant is slightly late in making payment of damages or costs agreed under stage 2 of the RTA or EL/PL Protocols. 

In Coggon v Irvine, the costs payment was marginally late, and the claimant commenced Part 7 proceedings with particulars of claim setting out a claim for damages as if no agreement had been reached. 

The claimant alleged that the defendant was in breach of the mandatory terms of the Protocol by not making payment within the required time.  The defendant argued that it is always an abuse of process to commence proceedings for damages where they have already been agreed, and drew a distinction between the position for interim agreements and final agreements under the protocols.  Where there is a failure to make a payment within the prescribed time at an interim stage, the Protocols provide for automatic exit. There is no equivalent provision where final payments are late.

The court held that the claimant had acted unreasonably and disproportionately and limited the claimant to protocol fixed costs pursuant to the power in CPR 45.24.  The judgment is unlikely to be the final word on the issue, but is a strong pointer to claimants that issuing proceedings in this way is not appropriate even when they are understandably irked by late payments. 


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