After undertaking over a hundred stage three hearings I have experience a range of procedural issues and arguments. It’s usual to have more than one in any hearing.
I was instructed on a stage 3 hearing and the day before the Claimant received an offer which they accepted. It was a great offer so no hard feelings. It would have been a very interesting hearing and this post is why.
The Defendant failed to respond to the Claimant’s Stage 2 Settlement Pack
This was the first interesting issue. The Defendant failed to respond at all to the Stage 2 Settlement Pack. The Claimant issued Part 8 and requested a Stage 3 hearing.
This was new to me and the reason was due to the follow paragraph of the RTA protocol:-
7.40 Where the defendant does not respond within the initial consideration period (or any extension agreed under paragraph 7.36), the claim will no longer continue under this Protocol and the claimant may start proceedings under Part 7 of the CPR.
It settled for about £15,000 so if the matter settled ex portal pre issue then the fixed costs would have been at minimum £2,430 + VAT. Far more than the £1,050 + VAT at a stage after Part 8 was issue but before the Stage 3 hearing. It was more beneficial for the solicitors to issue Part 7 proceedings.
The more important question was whether the court even had the jurisdiction to hear the matter under Part 8. The rule did not give the option to exit the process, it explicitly said the process no longer applied.
Subject to limitation, if the Judge struck out Part 8 proceedings then the Claimant could just issue Part 7.
My plan was to submit that despite the protocol saying the process no longer applied, it did not prevent a Claimant from issuing Part 8 proceedings under CPR PD49F. Alternatively, if the Judge was not with me, I would make an oral application to transfer the claim to Part 7 with time for the Claimant to serve an amended claim form with Particulars of Claim.
The Defendant by could have challenged this and sort cost in any event. However, we then come onto the next issue.
The Defendant did not file an Acknowledgement of Service
Unsurprisingly the Defendant did not file its Acknowledgement of Service as per PD 49F para 8.1 and 8.2.
The consequences are found in PD 8 para 8.4:-
(1) This rule applies where –
(a) the defendant has failed to file an acknowledgment of service; and
(b) the time period for doing so has expired.
(2) The defendant may attend the hearing of the claim but may not take part in the hearing unless the court gives permission.
The point of ‘unless the court give permission’ can be said to mean that the party will need to seek relief from sanction. This flows from Chartwell Estate Agents Ltd v Fergies Properties SA & Anor [2014] EWCA Civ 506. At paragraph 25, the Court says:-
For this purpose, the phrase “unless the court gives permission” as contained in CPR 32.10 cannot, in my view, be applied in a free-standing way, leaving the exercise of judicial discretion at large. In deciding whether to give permission, the court has to have regard to and give effect to other relevant rules such as CPR 3.1. It also seems to me inescapable that, for this purpose, the court must likewise give effect to CPR 3.8 and CPR 3.9: just because CPR 32.10 is demonstrably imposing a sanction in the event of failure to serve a witness statement within the time specified.
I have previously prevented a Defendant from making submissions at a Stage 3 by arguing that ‘unless the court gives permission’ requires an application for relief, that the Defendant ought not to be able to make an application in the face of the court and without any evidence to support the application the Defendant would be prevented from taking part.
Inflation on PSLA
See my post about Blair v Jaber. I have had hit and miss success with this and I still think the point is valid, especially when one considers the preamble of the 16th Edition of the JC Guidelines says the following:-
“For the avoidance of doubt, of course, the guideline figures should be increased by the appropriateindex for inflation between editions”
Introduction to the Judicial College Guidelines –
Sixteenth Edition page xiv
Of course, my position would have more strength if the Defendant could not make submissions to rebut the argument if they were not given permission to take part.
Calderbank offer and its role in Stage 3 hearings
The Defendant made a Calderbank offer which was accepted. It said it was open for 21 days (which must have been left in from a precedent as the Stage 3 hearing was the subsequent day).
They could not have made a Part 36 offer because the rules for Part 36 are different for Stage 2 and 3 (see CPR 36.24 to CPR 36.30).
Could the Defendant to ask the Court to award its costs of attendance? I would have submitted no because Part 45 says the Court will order the defendant to pay costs. The circumstances were it limits costs are only prescribed in the circumstances where a protocol off is not beaten (i.e. the Defendant’s Part B offer).
There is absolutely nothing stopping the parties from agreeing to settle after Stage 2 and before the Stage 3 hearing. Those costs are prescribed as follows:-
45.23A Where—
(a) there is a settlement after the Court Proceedings Pack has been sent to the defendant but before proceedings are issued under Stage 3; and
(b) the settlement is more than the defendant’s relevant Protocol offer,
the fixed costs will include an additional amount equivalent to the Stage 3 Type A fixed costs.
Another what if
Of course I can never know what would have happened if it did not settle. There is little authority on the subject but it would have been an interesting hearing. Like anything, the settlement was in the Claimant’s best interest and that is all that matters.
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.