Ferri v McGill  EWHC 952 (QB)
The claim was initially run under the pre-action protocol for low value personal injury road traffic accidents. After settlement (pre-issue) the claimant sought more than fixed costs. The rules mandate fixed costs in Protocol cases, subject only to allocation to multi-track or exceptional circumstances (r. 45.29J). At first instance the Master allowed an escape from fixed costs by setting a ‘low bar’ for exceptionality, finding that circumstances took the case out of the general run of cases which the Portal was intended to cover.
The Defendant appealed, and the test of exceptionality was (re)affirmed as a high one, the Judge stating that “policy reasons … in fixed costs [cases] …, while allowing for ‘exceptional circumstances’ to depart from the regime, require a more strict, not a ‘low bar’, approach”.
The case has been sent back to be reassessed by another Master.