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Costs in the EL/PL Protocol – Scott v Ministry of Justice

  • 16 December 2019 16 December 2019
Costs in the EL/PL Protocol – Scott v Ministry of Justice

The Claimant, employed as a prison officer, was injured by an inmate whilst attempting to restrain him. The Claimant issued a claim against the Defendant. The value of the claim was stated to no more than £5,000 on the Claim Form. Three months later the Particulars of Claim were served with the value on the Claim Form amended to over £30,000. A defence denying liability was served alongside a Part 36 offer of £15,000. The Claimant accepted the Part 36 offer.

The parties were unable to agree whether the EL/PL Protocol applied, thus restricting the Claimant to fixed costs.

The Defendant submitted the Claimant had initially misled the Court about the claim's true value, and the subsequent acceptance of the Part 36 of £15,000 implied the amended value of £30,000 was inflated.

The Claimant submitted that the exception at paragraph 4.3(8) of the EL/PL Protocol applied, arguing that the inmate was a vulnerable adult who caused harm to the Claimant. Paragraph 4.3(8) states: "This protocol does not apply to a claim….for damages in relation to harm, abuse or neglect of or by children or vulnerable adults." Further, at the time that the Claim Form was protectively issued, the Claimant's solicitor had not obtained counsel's advice or a medical report. The Claimant's representative stated "there was no intention to mislead the court or to undervalue the claim".

Deputy Master Friston found applying the exception in these circumstances would "cause serious internal inconsistencies in the EL/PL Protocol," dismissing the Claimant's submission. In addition, the Claimant's submission that the inmate was a vulnerable adult was also dismissed, as it was "impossible to characterise the lawful and proper restraint of a prisoner as being an act that makes that person into a 'vulnerable adult."

However, whilst the Court was not entirely satisfied with the conduct of the claim, the Claimant's representatives had not acted unreasonably or improperly as they had "intended to review and revise the claim form" upon receipt of expert evidence and Counsel's advice. The Claimant had accepted the offer of £15,000 on receipt of that advice on his prospects of success. Based upon these conclusions the Claimant was permitted to recover costs from outside of the fixed costs regime.

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