The claimant was limited to portal only costs following a detailed assessment and the court awarded costs at £3,380 where the sum originally claimed was £22,967. This resulted in a costs saving of over 85% for our client and, crucially, is a great example of joined up claims and costs handling.

At the detailed assessment hearing we took issue with the failure of the claimant to use the MoJ Portal and follow the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims, which resulted in the restriction of costs.

The case went to detailed assessment hearing before DJ Simister at St Helens County Court in November 2022. We made the following points:  

  • Overvaluation by the claimant: the valuation relied upon had been premature and should have awaited completion of the medical evidence
  • Quantum with medical evidence: it was clear that the case was at the lower end of the moderate bracket for ankle injuries; even with special damages the total value was not likely to exceed £15,000
  • Limitation: it was not about to imminently expire, and the second medical report was received 11 months before the primary period of limitation was due to expire
  • Even if the court did not agree with the above points, we stated that any doubt as to whether the value of the claim would exceed £25,000 should be exercised in favour of using the low value EL/PL Protocol and starting in the Portal. Reference was made to CPR 1.3 and the overriding objective which includes keeping costs to a proportionate level. A case can leave the Portal where it is valued over £25,000 but cannot enter the Portal after being issued at court

The claimant’s argument was that the claimant appeared to have a very serious injury. Having reviewed the available evidence, DJ Simister ruled that it was readily apparent that the claim would fall within the modest bracket from the very first medical report and the exclusion of this claim from the portal was wrong.

The District Judge referred to Clyde & Co’s joined up approach to portal abuse and costs markers in a positive way. The defendant had written to the claimant insisting upon a claim notification form (CNF) being sent and agreed that the claim should leave the Portal if the medical evidence justified an award at over £25,000. The court saw this as a reasonable request that the claimant should have complied with.

It was held that the claimant had therefore failed to follow the EL/PL Protocol and the claimant was restricted to portal costs.

The portal costs were allowed at £900 plus VAT plus disbursements of £2,300 (inc VAT and counsel fee at £150 plus VAT). The claimant was limited to punitive Portal costs at a total of £3,380 despite originally claiming £22,967 in costs.

We can expect to see these types of arguments becoming more prevalent from October 2023, with the expansion of Fixed costs to most claim types up to £100,000 damages. A consistent pre and post litigation approach to challenging adverse claimant behaviours, underpinned by robust data analysis, is essential to successfully challenging this growing adverse behaviour.

If you require any assistance in analysing, identifying and challenging claimant solicitors’ portal abuses, please do not hesitate to contact a member of the costs team.

Stella Ibitoye-Finch, Costs Solicitor at Clyde & Co, acted for the defendant.