Not an EL/PL, not an RTA… What is this claim?!

Master Logan Prescott v The Trustees of the Pencarrow 2012 Maintenance Fund

A case which confirms the scope of the fixed costs regimes, closes a possible loophole in respect of the regimes and provides insight into how the judiciary deal with statutory interpretation.

Imagine a claim which falls under the definition of an RTA under the Pre-Action Protocol paragraph 1.1(16):

‘Road Traffic Accident’ means an accident resulting in bodily injury to any person caused by, or arising out of, the use of a motor vehicle on a road or other public place in England and Wales unless the injury was caused wholly or in part by a breach of the Defendant of one or more of the relevant statutory provisions as defined by section 53 of the Health and Safety at Work etc Act 1974.’

but to which one of the exclusions in paragraph 4.5 of the Protocol apply.

Many such cases will then fall under the scope of the EL/PL Protocol, to which there are further exceptions.

One such exception is found at Paragraph 4.3 (11):

‘This protocol does not apply to a claim-

(11) for damages arising out of a road traffic accident (as defined in paragraph 1.1(16) of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents).’

This begs the question, what happens when a claim satisfies the definition of an RTA for purposes of the RTA Pre Action Protocol, but to which an exception to the application of the RTA Pre Action Protocol applies? As the definition of an RTA is satisfied, the exception to the EL/PL protocol applies as well, so does the claim avoid fixed costs altogether?

Master Logan Prescott v The Trustees of the Pencarrow 2012 Maintenance Fund confirms that fixed costs do still apply, despite the apparent conflict with the above rules.

The Case

Logan Prescott was a passenger within a vehicle. The vehicle collided with a tree (owned by the Defendant) which subsequently fell onto the highway, causing injury. The claim settled in Master Prescott’s favour, but costs remained in dispute.

The parties agreed the matter was not an RTA for purposes of the RTA Protocol, as per paragraph 4.5(1):

‘This Protocol does not apply to a claim –

In respect of a breach of duty owed to a road user by a person who is not a road user’
The Defendant therefore argued that EL/PL fixed costs were applicable to the case. The Claimant however argued that in accordance with Paragraph 4.3 (11) (see above) the EL/PL Pre Acton Protocol does not apply and with both Pre Action Protocols disapplied, standard basis costs follow.

District Judge Richards goes to some length to explain that when interpreting legislation, the interpreter’s duty is to take into account the ’legal meaning’ and the context surrounding a rule, not just the literal/grammatical meaning thereof. Judge Richards considered the issue and determined that a literal interpretation of the rules would result in a ‘perverse result which was not the intention of the protocols’. With no increased risk in the claim, any windfall for the Claimant in recovering costs over that which would be awarded under fixed costs would be disproportionate and therefore contrary to the overriding objective. As such the matter was determined to fall within the EL/PL fixed costs regime, despite the exception in paragraph 4.3(11) clearly applying.

Analysis

There is certainly momentum behind the judiciary awarding fixed recoverable costs wherever they see reason to do so, even if an argument to the contrary holds weight. This case is an illustration of the Court’s desire to prioritise proportionality and the mitigation of costs over other objectives, even when to do so is directly in conflict with the literal interpretation of a rule.

District Judge Richards, interpreted the rules in the case so as to fit in with LJ Jackson’s desire for fixed costs to be comprehensive for PI claims, quoting Chapter 15 of Jackson’s Report:

“My conclusion is that all costs for personal injuries litigation in the fast track should be fixed … in my view, there is a high public interest in making litigation costs in the fast track both proportionate and certain.”

With the above in mind, Claimant’s should be extremely cautious of pursuing standard basis costs in fast track personal injury claims, particularly if they are relying on a literal interpretation of a rule, which could be considered contrary to the legal interpretation of the rule in context, to do so. This will have extended Application when the scope of fixed costs is extended.

Adam Fenton