“Is my claim an exception to the ruling?”
This was a Public Liability matter which occurred in 2017. The damages for the Claimant’s injuries were in the bracket £11,650.00 to £35,760.00. The conducting fee earner concluded that the matter was not suitable for the portal, and damages would likely exceed £25,000.00, therefore a decision was made to exclude it from the portal. The Defendant in hindsight took issue with this and following submission of a traditional bill of cost, an offer based on FRCS was proposed.
The Claimant, a minor, was attending a family holiday in Somerset. She was walking with her family past a Mini Golf attraction, when the wooden shutter fell and forcefully hit her on the head, knocking her to the ground.
The Claimant attended hospital where she was diagnosed with soft tissue injuries to her neck, back and left knee as well as concussion. Following her return home, the Claimant started to suffer with headaches, sleep disturbance, nightmares, enuresis, separation anxiety and anger. She also complained of problems with her eyes. It was agreed to proceed with and MRI scan which was found to be normal.
Initial instructions were taken a review of the matter, it’s potential valuation and whether it was a portal claim was undertaken at the outset. It was a comprehensive review based on the fee earner’s knowledge of the matter at that time and included a consideration of the JC Guidelines for the quantum of the claimant’s PSLA. The damages for the Claimant’s injuries were in the bracket £11,650.00 to £35,760.00. The fee earner concluded that the matter was not suitable for the portal.
A protocol letter of claim was submitted and the Defendant requested this be placed within the MOJ portal. The Claimant however continued to demonstrate significant symptoms relating to the trauma as such the instructed solicitor believed that this was unsuitable for the MOJ portal due the complexity and potential value.
Primary liability was admitted at an early stage. Expert evidence was obtained from a psychologist and the matter settled pre issue for £6,250.00. The matter proceeded to an infant approval hearing.
Partners in Costs were instructed on behalf of the Claimant solicitors as their regular costs agents and a bill of costs was submitted to the Defendant’s costs representatives in the sum of £42,157.80 on an informal basis. Their response was to offer fixed recoverable costs in the sum of £5,943.00. Agreement couldn’t be reached therefore the assessment proceedings were commenced. Owing to the value of the claim, the matter would usually be provisionally assessed; however, given that the issue required oral submissions, the parties agreed that a detailed assessment was required, a proposal with which the Court agreed.
At the hearing Counsel for the Defendant argued that on the information available to the Claimant, the case always had a value of less than £25,000.00 pointing in particular to the medical notes which indicated a full recovery. Counsel for the Claimant argued that it was reasonable on the basis of the considerable clinical uncertainty in relation to the extent of injuries to a minor.
At the hearing the Court accepted the following:
- It was appropriate for the solicitor to take account of the ongoing concerns of the parents and the medical uncertainty.
- The uncertainty persisted even after the time the decision not to use the Protocol was made. There were later medical entries which indicated that further investigations were needed.
- The attendance notes showed that all of these matters were considered with care. The Court rejected the Defendant’s argument that this was a “formulaic” attendance note. In any event there was nothing wrong with a solicitor using templates to guide their decision making. The attendance notes which recorded the solicitor’s decision clearly showed the uncertainty that prevailed at that time and that it was a reasonable step to assume that the matter did not fall within the Protocol.
Therefore, the Claimant was successful on the preliminary issue of whether costs should be paid on the standard basis, with quantum of costs to be assessed at a later date.
A substantially increased offer proposed on standard basis costs shortly followed from the Defendant which was considered reasonable for acceptance.
There is a recent decision on this point, which supported the claimant’s case to escape the FRC. In the unreported decision of Plaktevicius-v- Etills Limited (County Court at Derby), DJ Davis held that where an EL/PL claim is settled for £18,000.00, it was not subject to FRC on the basis the claim had been reasonably valued at over £25,000.00.
In the above named case, guidance was proposed by the Court for determination of a reasonable valuation at the outset, set out in the points listed at paragraph 69 of the judgment:
“a. The valuation must be objectively reasonable that is to say within an objectively reasonable range- if it is not the claimant is restricted to fixed costs;
- As the protocols set out, the court is looking at the claimant’s valuation; I reject the defendant’s arguments as to ‘self-certification’.
- Hindsight has no place when the court looks back to appraise the valuation at the point when it was carried out. Whereas later documents such as the settlement sum can be taken into account to a degree, too much reliance on settlement sums can introduce an element of hindsight through the back door and may ignore for example even in a full liability case that a claimant may just need the money quickly and be prepared to accept less than full value (I stress that is not an issue on the facts of this case, but I make the point generally);
- The correct question is- did the claimant’s solicitors have a reasonable belief that the claim on the basis of the evidence before the claimant’s solicitors at the time of assessment could be likely to exceed £25,000? Put another way was there no objectively reasonable prospect of the claimant’s damages ever exceeding £25,000.
- The burden in terms of justifying the valuation lies with the claimant;
- Given the stage at which the assessment is made (absent usually any medical evidence or concrete details as to pecuniary loss) the test should not be overly stringent, and certainly nothing as strict as had a case been valued with all medical and other evidence in place, as would be the case for example just before a full-blown Part 7 claim was issued, for the purposes of statement of value in the claim form and calculation and payment of court fees.
- There is never a point at which assessment of value can be said to be made too early. As Ms. Bedford submitted, ‘how long is a piece of string’? That depends in each case and that breeds uncertainty. Given that the garnering of hard documentary evidence is Stage 2 work, it does not sit easily with the scheme of the EL/PL Protocol to expect claimants to obtain this at Stage 1. Even had this Page 15 of 16 case been put in the portal, the parties would have been none the wiser as to the medical and pecuniary loss position until hard evidence was forthcoming. There will always be cases where claimants’ solicitors will get it wrong, either through inexperience or failure to take the most basic instructions, but claimants’ solicitors run the risk; there can be no automatic presumption that claimants should wait until they have assembled the evidential jigsaw before issuing a letter of claim. Equally, whilst some solicitors may wish to delay issue for whatever reason, there is no obligation on solicitors to do so- at their own risk as to costs as stated above, they can issue an expeditious letter of claim.”
How can PIC assist:
As experts within their field, PIC are happy to advise on whether or not there are reasonable prospects of escaping fixed costs on a case-by-case basis.
David Webster, Senior Legal Costs Negotiator
12.12.2024