Misuse of Low Value Personal Injury Claims Protocol Limits Claimant to Portal Costs

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Published: 7th October 2021
Area: Arbitration and Collaborative

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If a claimant acts unreasonably by not following the EL/PL Protocol for Low Value Personal Injury Claims, especially if a claim is believed to be worth more than the limit required for Portal costs to apply, they could be limited to those fixed Portal costs. The law is, any personal injury claim worth less than £25,000 must be limited to Portal Costs.    

The case of Harford v Music Store Professional UK/DV247 Ltd [2021] and the ‘unreasonable use’ of the EL/PL Protocol resulted in fixed costs applying to this claim will be of interest to the market. 

The situation

The claimant pursued a claim against his employer in April 2015, having had an accident at work whilst lifting heavy items. The claimant’s GP diagnosed a potential inguinal hernia and there was a further diagnoses of two lumber sacral prolapsed discs in his spine. 

A Letter of Claim was sent just over two years after the claimant’s medical diagnoses, which stated that the claim was not suitable for the Portal. Liability was denied. The claimant had investigations and treatments leading to evidence being gathered for general and special damages, with Part 8 proceedings issued stating the claim value was between £10,000 and £50,000.  

The issue for discussion is whether the claimant acted unreasonably in not using the EL/PL Protocol for Low Value Personal Injury Claims, and whether he should be limited to the Portal costs (per CPR 45.24(2)(b)(ii)). 

The initial valuing of the claim

In June 2020, the claimant’s solicitor gave a witness statement explaining how he valued the claim in the first place. He explained his reasoning for it to be valued as a high value claim, and how he came to the conclusion that it was worth more than £25,000. 

Did the evidence back this up?

After all the evidence was gathered and counsel’s advices were given, it was apparent that the claim’s value was no longer higher than the Portal limit. The claimant then accepted a settlement from the defendant, which totalled £11,200. 

The claimant’s submission

  • The decision not to use the Portal was reasonable, due to the fact that the claim was valued as higher than the Portal limit 
  • Valuing a claim is seen as an ‘art’, rather than a science. Usually, the value is no more than an estimation of what a court would likely award.  

The claimant’s solicitors submitted ‘that the defendant must show that the claimant’s assessment of the likely value of the claim was so unreasonable that the court should drastically limit their costs entitlement to Portal costs’ (Bailii.org).  

The defendant’s submission

  • The defendant submitted that fixed costs apply in accordance with CPR 45.24(2)(b)(ii)According to the case reportIn that situation, the court may order that the defendant pay no more than fixed costs in Rule 45.18, together with the disbursements allowed in accordance with Rule 45.19. 

The ruling

On 17th June 2020, Costs Judge Haworth found the claimant to have acted unreasonably in not using the Portal or correct protocol, so determined the issue in favour of the defendant. Judge Haworth said:  

“I am satisfied that on reviewing the facts of this case, bearing in mind an accident in 2015, a letter of claim on 26 May 2017, coupled with the fact that the second medical evidence does not appear to have been obtained until 15 January 2018, less than three months before the expiry of limitation, to proceed with the claim outside the EL/PL Protocol was unreasonable. In my judgment, the reason for the issue of proceedings on 19 March 2018 was conditioned by the expiry of the limitation period without thought to the benefits of the Protocol and its undoubted relevance in these proceedings.” 

The costs in question were limited to the fixed amount of £4,205.00. 

In conclusion

This case shows that whilst the ‘art’ of valuing the claim is not easy, claimants’ solicitors should give proper considerations to it and if there is any doubt as to whether the claim meets the Portal thresholds or not, they should start the claim in the Portal. If the claim subsequently increases in value, for whatever reason, they can always drop it out at a later date. 

If you would like to discuss a costs-related matter concerning a defendant claim, please contact Rav Johal or another member of the team costs team. 

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