It’s a fix!!!!
Representatives for Claimants in Employers’ Liability and Public Liability claims should read this article, as the recent case of Ferguson v Royal Borough of Grennwich 2025 EWCC 30 exemplifies the important considerations that should be undertaken when valuing a claim at the outset.
Substantive claim
The substantive claim related to an accident on 17th May 2016, when the Claimant sustained injuries using a rope swing in Borstal Woods. The rope apparently snapped, and the Claimant fell some distance down an embankment.
A Letter of Claim dated 12th December 2018 was served. Within the Letter of Claim, the Claimant’s Solicitors valued the case at a figure in excess of £25,000 and stated that the claim was outside of the scope of the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims. Therefore, the Claimant’s Solicitors did not have any intention of submitting a Claim Notification Form (CNF) through the MOJ Portal.
In the Defendant’s Insurers Letter of Response (dated 30th April 2019) they denied liability and alleged contributory negligence.
The Claimant’s Solicitors subsequently obtained an expert report from a Consultant Orthopaedic and Spinal Surgeon. A Part 7 Claim form was filed and issued on 21st September 2020. The value as stated on the Claim form was £25,000.
The Claim was thereafter allocated to the Fast-Track and a Trial was listed on 6th October 2022 (ELH 2 days).
At the start of the Trial on 6th October 2022, the Claimant’s Solicitors made an Application to reallocate the case to the Multi-Track. This Application failed.
The Trial thereafter took place as listed although at the end of 2nd day, it was noted that the District Judge did not have sufficient time to give judgment which was reserved.
On 24th November 2022 and following submissions, the District Judge gave judgment that the accident was caused by the Defendant’s breach of the duty and that that damages should be reduced by 50% on account of what he found to be the Claimant’s contributory negligence. The Defendant was ordered to pay damages in the sum of £5,477.84 and pay fixed costs.
The District Judge considered that the Claimant should be limited to fixed costs in accordance with CPR 45.18 and disbursements in accordance with CPR45.19.
The Appeal
The Claimant’s Solicitor lodged an appeal against the Judgment made on 24th November 2022. The grounds of appeal included the fact that the Judge had erred in fact in concluding that the Claimant’s Solicitors acted unreasonably by valuing the claim at more than £25,000 at the time the Letter of Claim was served and thereby failing to assess costs on the standard basis.
The core issue therefore was whether the Claimant’s Solicitors had acted unreasonably by valuing the claim above £25,000 at the time the Letter of Claim was served.
The Appeal Judge reaffirmed that the valuation of a claim must be based on information at the time and not with the benefit of hindsight. Nevertheless, the Appeal Judge concluded that the District Judge was entitled to find the initial valuation unreasonable and whilst acknowledging that different judges might take different views, the Appeal Judge found no misdirection in the District Judge’s reasoning.
Of importance, the judgment highlighted that even without the expert medical report, the Claimant’s Solicitors had access to relevant information via their own client, with details about recovery and weakness in other heads of loss should have provided a more conservative valuation.
The Court therefore determined that a reasonable Solicitor, with the knowledge available in December 2018, would not have valued the case at a figure above £25,000.
Also, the Claimant’s belief that the claim remained arguably worth more than £25,000 at Trial did not undermine the reasonableness of the District Judge’s conclusion. The ground that the Judge had erred in fact in concluding that the Claimant’s Solicitors acted unreasonably by valuing the claim at more than £25,000 at the time the Letter of Claim was served and thereby failing to assess costs on the standard basis was accordingly dismissed.
As the above case clearly shows, the issue as to whether a claim should be commenced in the MOJ Portal or otherwise illustrates the fine margins when assessing the claim value.
My opinion is that issues similar to the above case will continue as Claimants’ Solicitors must make early valuations which is often without any benefit of medical evidence and is usually based solely on the instructions of their own client – and as we know the difference in costs being ultimately awarded either by way of fixed costs or standard basis costs can be massive.
How can PIC help?
Fixed costs have been around for a long time now and they continue to be expanded upon.
Partners in Costs (PIC) are experts in all costs matters including fixed costs and have expert teams of Costs Lawyers and Draftspersons committed to putting the profit back into legal costs.
Established in 1996, Doncaster-based PIC are a Claimant-only cost firm specialising in a tailor-made service agreement to suit the client.
PIC can be contacted on 01302 343666.
Nick Tomlinson, Costs Consultant
10.07.2025