Kerry Underwood

PORTALS, VULNERABLE ADULTS, HARM AND INCORRECT VALUATION

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The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

 

In

Scott v Ministry of Justice [2019] EWHC B13 (Costs)

the Senior Courts Costs Office allowed recovery of costs on the standard, open, basis where the claim had been valued at £5,000, not put on the portal, re-valued at over the £25,000 portal limit, and settled by acceptance of the defendant’s Part 36 offer of £15,000.

The court also ruled on the meaning of “vulnerable adult” within the portal process and on the definition of “harm” in the portal.

Here the claimant, a prison officer, was injured by a prisoner.

A Claim Form was issued stating that the claimant did not expect to recover more than £5,000, but following receipt of an expert’s report three days later, and a conference with counsel, the endorsement of the value on the Claim Form was amended to in excess of £30,000.

On acceptance of the defendant’s Part 36 offer of £15,000, the defendant argued that only Employers’ Liability/Public Liability portal costs should be paid.

The claimant argued that the portal, and therefore CPR 45, did not apply as the prisoner who injured the claimant was a vulnerable adult and Paragraph 4.3(8) of EL/PL Protocol reads:

“This Protocol does not apply to a claim… for damages in relation to harm, abuse or neglect of or by children or vulnerable adults.” (My italics).

Thus, there needs to be “harm, abuse or neglect” to, or by, a vulnerable adult.

 

Harm

Here, there was no “abuse or neglect”, so the issues were whether conventional personal injury amounts to “harm” and whether a prisoner was, by definition, a vulnerable adult.

The court held that personal injury, of itself, was not “harm”.

 

“16. If that phrase had read ‘abuse, neglect or harm’ (namely, if the order of the words had been different), I would have had no hesitation in saying that the word ‘harm’ was a reference to acts or omissions that are akin to abuse or neglect. The fact that the word ‘harm’ precedes the words ‘abuse’ and ‘neglect’ makes me pause for thought, but I am not overly troubled by this as there is precedent for qualifying words following (rather than preceding) words that are qualified (see, for example, Pengelly v Bell Punch Co Ltd [1964] 1 WLR 1055). In my view, the meaning of the phrase ‘harm, abuse or neglect’ is that it means abuse, neglect or other such harm. Put otherwise, it focusses on the nature of the acts or omissions in question, not on the mere fact that a personal injury has been caused.

17. Furthermore, if it were right to say that the word ‘harm’ encompassed personal injuries per se, I would have expected it to be separated from the words ‘abuse or neglect’ by something weightier than a mere comma. This is because harm (in the sense of injuries) is fundamentally different from abuse and neglect (which are acts or omissions); by way of illustration, the phrase ‘personal injury, abuse or neglect’ reads badly and is jarring.

18. There is, however, a more fundamental problem with Mr Fletcher’s argument. If the word ‘harm’ could be read as meaning personal injuries per se, this would cause serious internal inconsistencies in the EL/PL Protocol. In particular, if Mr Fletcher’s analysis were correct, it would also apply to children (including those who bring public liability claims as a result of having sustained an injury). This would mean that any child with any personal injury (whether as a result of abuse or neglect or otherwise) would be excluded from the EL/PL Protocol. This, however, is demonstrably false, as that protocol repeatedly makes reference to children. By way of example, paragraph 6.4 states that ‘where the claimant is a child, this must be noted in the relevant section of the CNF, and paragraph 6.5 says that ‘where the claimant is a child the statement of truth may be signed by the parent or guardian’. There are similar references at paragraphs 6.16, 7.24. 7.44 and 7.53. In my view, it would make no sense at all for the EL/PL Protocol to include multiple provisions relating specifically to child claimants, only for that same protocol to disapply itself. This requires a different reading of the meaning of the word ‘harm’ to that urged upon me by Mr Fletcher.

19. As a crosscheck (and it is no more than that), I note that if Mr Fletcher’s analysis were correct, the exception created by paragraph 4.3(8) of the EL/PL Protocol would be a demographically sizeable one. It would include all claims involving children, and would potentially include claims involving the elderly (not to mention disabled people and people with mental illnesses). This could include, say, a quarter of the population. In my view, it is inherently unlikely that the exception created by paragraph 4.3(8) of the EL/PL Protocol was intended to be so broad.

 

Vulnerable Adults

The court held that the status of a person covered could change depending upon the circumstances:

 

“…a woman may well be ‘vulnerable’ for the purposes of the EL/PL Protocol if she were to bring an employers’ liability claim alleging sexual abuse within her workplace, but that same person may well not be classed as being ‘vulnerable’ if she were to bring a public liability claim against a supermarket because she slipped on a grape. Put otherwise, a person’s status may change depending on the circumstances. In this regard, I note that a context-specific approach tends to apply in other circumstances in which the court considers the phrase ‘vulnerable adult’ (see, for example, A Local Authority v (1) MA (2) NA and (3) SA [2005] EWHC 2942 at [77] and [78], per Mumby J, which deals with the use of that phrase for the purposes of the court’s inherent jurisdiction).”

 

On the facts here, the court held that the prisoner was not a vulnerable adult and therefore the EL/PL exception did not apply.

 

Valuation

The court found that the claimant had not unreasonably valued the claim and that there had been no intention to mislead the court or the defendant by initially putting the value at only £5,000 on the Claim Form.

Consequently, the costs should be assessed without reference to CPR 45, that is they should be assessed on the open, standard, basis and not on the fixed costs or portal basis.

Written by kerryunderwood

December 18, 2019 at 7:24 am

Posted in Uncategorized

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