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Costs: Clarifying the EL/PL Portal Exemption for "damages in relation to harm, abuse or neglect of or by children or vulnerable adults

The SCCO has recently provided some useful guidance on the application and interpretation of the exemption from the Pre-Action Protocol for Low Value Personal Injury (Employers' Liability and Public Liability ["the EL/PL Protocol"] at paragraph 4.3(8) excluding claims brought for "damages in relation to harm, abuse or neglect of or by children or vulnerable adults".

Background

The Claimant in this matter was a senior prison officer at HMP Winchester who suffered a shoulder injury whilst restraining, with two others, an agitated prisoner during the course of his employment with the Defendant. Thompsons Solicitors acting for the Claimant did not enter the matter in the EL/PL Portal but, instead, sent a Letter of Claim bringing the matter under the Pre-Action Protocol for Personal Injury Claims and making no mention of the EL/PL Protocol.

Liability was denied and proceedings protectively issued under a Statement of Value limited to £5,000 prior to obtaining medical evidence however, following medical evidence, the Claim Form was amended to a value limited to £30,000.  The matter ultimately concluded under a Part 36 offer of £15,000, which Thompsons stated was due to the liability risk in the claim rather than a direct reflection of its value, and costs were claimed on a standard basis.

The Defendant argued that costs should be limited to Portal Costs only in line with CPR 45.24 but to be applied via CPR 44 [as per Williams v Secretary of State for Business, Energy & Industrial Strategy [2018] EWCA Civ 852] in light of the Claimant's failure to commence the claim under the Portal however the Claimant advanced two arguments which the Court considered:

(1) The claim was not eligible for the Portal as it was brought for damages in relation to harm, abuse or neglect of or by a vulnerable adult; and/or

(2) The claim was not eligible for the Portal as it was reasonably valued at the outset as having a value over £25,000.

The Claimant relied on two unreported decisions in support of their position on harm, abuse and neglect – both were first instance decisions obtained by Thompsons in Manchester and Doncaster County Courts – Zlupko v Manchester City Council [2019] and Gibbons v Rotherham, Doncaster and South Humber NHS Foundation Trust [2019].

Consideration

The wording of the exemption at paragraph 4.3(8) of the EL/PL Protocol is somewhat convoluted as written stating the Protocol does not apply to a claim "for damages in relation to harm, abuse or neglect of or by children or vulnerable adults" and required consideration of two main issues, namely what was meant by harm, abuse or neglect and who constituted a vulnerable adult.

Harm, Abuse or Neglect

Considering the Claimant's position that harm was to be read broadly, the Deputy Master found this to be incorrect and that the word harm could not be read separately from the words abuse or neglect:

"It is implicit in [the Claimant's] analysis that the word ‘harm’ means, or is capable of meaning, personal injuries per se.  I cannot accept this argument. I do not believe that it is permissible to run a blue pencil through words ‘abuse or neglect’ and to focus on the word ‘harm’ as if it stood in isolation. In my view, the true meaning of the word ‘harm’ is given by its surrounding words. Put otherwise, the words ‘harm, abuse or neglect’ ought to be read as a phrase, with each word giving context to the others…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 focuses on the nature of the acts or omissions in question, not on the mere fact that a personal injury has been caused".

The Deputy Master then went on to note the rather gaping flaw in the Claimant's argument – if harm meant any form of harm [ie personal injury] then the exemption would apply to any claim involving a child [ie harm…of…children…] when the Protocol itself specifically caters for claims brought by children:

"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…"

Vulnerable Adult

The Deputy Master then considered the meaning of vulnerable adult which is defined at paragraph 1.1(20) of the Protocol having the "the same meaning as in paragraph 3(5) of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 – that definition being "“vulnerable adult” means a person aged 18 or over whose ability to protect himself or herself from abuse is significantly impaired through physical or mental disability or illness, through old age or otherwise."

The Deputy Master found that whether a person would be considered vulnerable would depend on the circumstances of the claim citing as an example that:

"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"

In the context of this particular claim, the alleged vulnerability was the agitated state of the prisoner due to bereavement however the Master did not consider this to meet the test and noting that the Claimant:

"faced an uphill struggle in persuading the court that a high-risk prisoner who needed to be restrained by no less than three prison officers (and who injured one of them) would readily fall into the category of being ‘vulnerable’".

Valuation

The Deputy Master did then go on to consider whether the claim had been reasonably valued at over £25,000.00 at the outset and agreed with Thompsons that, given the potential loss of earnings and pension, the claim could reasonably have exceeded £25,000.00 and had been settled under that threshold due to Counsel's advice that prospects of success on liability were poor. 

Consequently, costs were allowed on the standard basis however this argument is not the true importance of the case and the rejection of the harm, abuse and neglect exemption to claims of this nature is a positive outcome for defendants and insurers.

Comment

It is important to note this is not a binding judgement however it is likely to be seen as highly persuasive as the case was heard by Deputy Master Friston, author of Friston on Costs one of the two leading practitioner texts in the field; The Deputy Master's finding that the exemption does not cover any personal injury of or by a child or vulnerable appears something of a triumph of common sense and purposive interpretation which can, interestingly, be contrasted to the decisions in Zlupko and Gibbons relied upon by Thompsons; in both those cases the judges expressed their misgivings that the Protocol exemption was intended to cover such cases but found they were constrained by the wording of the clause.

The decision here is therefore important as the exemption was being used as a loophole by firms acting in the care and prison arenas whereby any claim involving personal injury [harm] by a vulnerable adult or child could validly avoid the Portal and the fixed costs that followed – allowing a claim for rather higher standard basis / hourly rate costs instead.  It is pleasing to see that loophole neatly closed.

Contact

For more information please contact Josh Mayo josh.mayo@dwf.law 

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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