Fee earners should have automatic tasks to remind them to exit the MOJ Portal where necessary. One circumstances is where the Stage 1 fees have not been paid within the 10 business days of the Stage 2 Settlement Pack being sent to the Defendant.
It should be the case that these opportunities are few and far between. Defendant compensators should be on it like sonic. If the opportunity arises, a Claimant ought to cash in on what is a reasonable opportunity or reason to exit the MOJ Portal.
There is also the second interim payment. This must be paid within six weeks of the Court Proceedings Pack is sent.
The protocol rules
The relevant paragraphs follow from 7.70 to 7.75
Non-settlement payment by the defendant at the end of Stage 2
7.70 Except where the claimant is a child the defendant must pay to the claimant—
(1) the final offer of damages made by the defendant in the Court Proceedings Pack (Part A and Part B) Form less any—
(a) deductible amount which is payable to the CRU; and
(b) previous interim payment;
(2) any unpaid Stage 1 fixed costs in rule 45.18;
(3) the Stage 2 fixed costs in rule 45.18; and
(4) the disbursements in rule 45.19(2) that have been agreed including any disbursements fixed under rule 45.19(2A).
7.71 Where the amount of a disbursement is not agreed the defendant must pay such amount for the disbursement as the defendant considers reasonable.
7.72 Subject to paragraphs 7.73 and 7.74 the defendant must pay the amounts in paragraph 7.70 and 7.71 within 15 days of receiving the Court Proceedings Pack (Part A and Part B) Form from the claimant.
7.73 Paragraph 7.74 applies where the defendant is required to make the payments in paragraph 7.70 but does not have a certificate of recoverable benefits that remains in force for at least 10 days.
7.74 The defendant should apply for a fresh certificate of recoverable benefits as soon as possible, notify the claimant that it has done so and must pay the amounts set out in paragraph 7.70 within 30 days of receiving the Court Proceedings Pack (Part A and Part B) Form from the claimant.
7.75 Where the defendant does not comply with paragraphs 7.72 or 7.74 the claimant may give written notice that the claim will no longer continue under this Protocol and start proceedings under Part 7 of the CPR.
Summary of the rules
Essentially, if the Defendant has not paid the Stage 1 fees, Stage 2 fees final offers on all heads of loss and reasonable disbursements then, subject to CRU, the claim can exit the MOJ protocol and issue Part 7 proceedings.
Unlike its Stage 1 counter part at para 6.19, there is no time limit to give notice.
Six weeks is a long time and I can imagine some firms, once the minimum time following the service of the Court Proceedings Pack, will have issued Part 8 proceedings. It doesn’t matter, opting out and issuing or transferring to Part 7 is easy.
Part 8 proceedings have not been issued
It really is simple when Part 8 proceedings haven’t been issued yet. Give notice to the Defendant, exit the process and issue Part 7 claim.
That’s it.
Part 8 proceedings are already been issued
DON’T PANIC!!! It’s really easy.
You give notice to the Defendant and then you prepare an application to transfer the Claim to Part 7 proceedings.
The application will set out the procedural rules in the protocol (as above) and annex the evidence in support, namely the written notice to the Defendant and any relevant correspondence.
Your application seeks transfer to Part 7 and the court must allow it as per the protocol.
Does it work in practice or is this theoretical?
I’ve done this on many occasions in practice. In fact I was one of the first fee earners, in my previous employed practice, to make such an application .
The MOJ and litigated cases were in dedicated teams. The MOJ team allocated me a case as written notice was given in accordance with paragraph 7.75. The portal fee earner had no previous cases to refer to. I had no precedent to use.
I made the application with nothing but the protocol. It was that straight forward. I even attached an amended Part 8 claim form by crossing out the sections I no longer needed (such as the heading stating it was a Part 8 claim form and wrote, in red, Part 7).
The Court approved the application on port and my application became the firm’s template.
As above, it should be the case that these situations are few and far between. The last one I dealt with was at least 3-4 years ago. However given the limited fixed in the MOJ Portal (which I note is not increasing in October 2023) it is sensible to take advantage to maximise profit where possible.
Information
AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.