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Court considers whether Claimant's costs should be restricted to fixed costs and the 'vulnerable adult' exception

Scott v Ministry of Justice (2019) Sen Cts Costs Office (Deputy Master Friston) 05/12/2019

In this case, the Senior Courts Costs Office was asked to determine whether the Claimant's costs should be restricted to the fixed costs allowed under the EL/PL protocol. The Court was asked to consider two issues:

• whether the claim should be excluded from the EL/PL Protocol because the Claimant's injury had been caused by a 'vulnerable adult', and;
• whether the Claimant elected not to apply that protocol by reason of him having placed too high a value on the claim.

The facts

The Claimant was employed by the Defendant as a senior prison officer. In August 2013, the Claimant and two other prison officers were escorting a prisoner back to his cell. The prisoner resisted and had to be restrained; the Claimant was injured. He sustained a rupture of his left rotator cuff.

The issues

Vulnerable adult?

The Claimant argued that the EL/PL Protocol (and therefore CPR, Part 45) did not apply because the prisoner was a 'vulnerable adult' who had caused him 'harm' and as a result the case fell within the exception contained in paragraph 4.3(8) of the EL/PL protocol…..

'This Protocol does not apply to a claim … for damages in relation to harm, abuse or neglect of or by children or vulnerable adults.'

The Claimant maintained that the words 'of or by' means that the exception applies to claims brought by 'vulnerable adults' who have been injured, and also where a 'vulnerable adult' has caused an injury to someone else.

The Judge disagreed with the Claimant's interpretation of paragraph 4.3(8). He did not accept the Claimant's argument that the word 'harm' means or is capable of meaning personal injuries per se. The Judge noted that you cannot run a blue pencil through the words 'abuse or neglect' and focus on the word harm. The words 'harm, abuse or neglect' ought to be read as a phrase, with each word giving context to the others.

Furthermore, the Judge noted that if the word 'harm' could be read as meaning personal injuries per se, this would cause serious internal inconsistencies in the EL/PL Protocol, i.e. it would also apply to children and the elderly who would be excluded from the EL/PL Protocol. The Judge noted that this would exclude a quarter of the population, and in his view and "it is inherently unlikely that the exception created by paragraph 4.3(8) of the EL/PL Protocol was intended to be so broad".

In any event, having considered the definition of 'vulnerable adult' the Judge was of the view that a high-risk prisoner who needed to be restrained by no less than three prison officers (and who had injured one of them) would not readily fall into the category of being 'vulnerable'. In order to bring a claim within the vulnerable adult exception, the context in which the claim is being brought must sensibly support such a conclusion and each case will turn on its own facts.

The Judge therefore concluded that the exception in paragraph 4.3(8) of the EL/PL Protocol did not apply on the facts of this case.

Valuation of the claim

The Defendant argued that the Claimant unreasonably valued the claim at more than £25,000 and that the EL/PL protocol ought to apply. The claim settled by way of the acceptance of a Part 36 offer in the sum of £15,000.

It therefore fell to the Judge to determine as a question of fact whether the Claimant had unreasonably valued the claim. Having considered the evidence, the Judge was satisfied that at the time that the letter of claim was written the Claimant reasonably valued the claim on a full-liability basis at considerably more than £25,000. The claim was settled at £15,000 because the Claimant had concerns about whether he would succeed on liability.

The Court therefore concluded that the costs should be assessed without reference to CPR 45.

Forbes comment

We welcome this published decision relating to the exception contained in paragraph 4.3(8) of the EL/PL protocol. It is an argument that we have seen run on a number of occasions to avoid the application of fixed costs and this decision helpfully offers clarification on the issue. We agree with Deputy Master Frissions interpretation that it was highly unlikely that the exception created by paragraph 4.3(8) of the EL/PL Protocol was intended to be so broad and far reaching.

The issue relating to the unreasonable valuation of the claim was ultimately an issue of fact. However, it is worth noting that where applicable, Defendants can rely on the provisions in CPR Part 44 to argue that Claimants costs should be restricted to those that would have been allowed had the claim been valued correctly.

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