Roundel Legal Costs Solicitors have been instructed on a number of cases whereby the likely damages were considered to likely exceed £25,000.00 at the outset of the claim, proceeding by way of Letter of Claim, only for the actual damages recovered to be significantly less than the initial valuation. These cases have been opposed by paying parties who have attempted to restrict the Claimant to Portal costs due to alleged unreasonable failure to use the Portal.
The Pre-Action Protocol for Low Value Personal Injury (Employers Liability and Public Liability Claims) provides as follows:
2.1. This Protocol describes the behaviour the court expects of the parties prior to the start of proceedings where a claimant claims damages valued at no more than £25,000.00 in an employers’ liability claim or in a public liability claim. The Civil Procedure Rules 1998 enable the court to impose costs sanctions where this Protocol is not followed.
And: 4.1 This Protocol applies where (3) the claimant values the claim at not more than £25,000 on a full liability basis including pecuniary losses but excluding interest (‘the upper limit’).
Challenges made:
A number of challenges have been made, utilising either CPR 45.24 or CPR 44.4, by paying parties in support of their argument that Portal costs should be applicable. The relationship between rules 45.24 and 44.4 together with how non-compliance with a relevant Protocol should be addressed by the court is the subject of binding authority in the case of Williams v Secretary of State for Business Energy and Industrial Strategy [2018] 4 WLR.
Whilst the direct application of the law changes depending on the case, the overriding principles are of reasonableness and overall conduct. In each of the cases that have proceeded to Court for Detailed Assessment the initial valuation was supported by a comprehensive file note and reference to case law. On one case, the Defendant had denied liability, which did not support their argument.
Whilst this remains a contentious point, and one which can go either way, Roundel Legal Costs Solicitors have been successful on every disputed case of this type to date. If the initial valuation is reasonable, justified, and supported by evidence the rules state that the claim is not suitable for the portal. In such circumstances it is appropriate for the matter to proceed by way of Letter of Claim and standard costs should be applicable.
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