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Costs: Is a hernia considered disease or injury?

  • Legal Development 13 December 2021 13 December 2021

The Costs Team at Clyde & Co recently successfully overturned an initial finding on Provisional Assessment which had held that a hernia was to be considered a disease for the purposes of applying CPR 45.

Costs: Is a hernia considered disease or injury?

This successful outcome at the Oral Review hearing meant that Claimant was limited to fixed costs as opposed to the hourly rate costs which had initially been awarded at the Provisional Assessment.

Our submissions at the Oral Review referred to existing case law which had held that when considering whether a condition was a disease for the purposes of CPR 45, it is  the ordinary sense of the word that is relevant, not the provisions within the Pre- Action Protocol. The first instance Judge, who also heard the Oral Hearing, agreed and overturned his own decision therefore finding that the Claimant was limited to Fixed costs and not entitled to hourly rate costs.


After suffering a recurrent hernia, allegedly resulting from his employment, the Claimant commenced a claim in the MOJ Portal. After the claim exited the MOJ Portal, the claim was allocated to the fast track.

Upon settlement, the parties disagreed to whether a hernia was a disease for the purposes of CPR 45. The interpretation of hernia would determine if fixed costs or hourly rate costs would apply. We submitted that a recurrent hernia was not a disease for the purposes of CPR 45. The Claimant disagreed, arguing that there was no specific accident or other similar event that caused the injury, meaning that the classification of a hernia as a disease was appropriate.

At Provisional Assessment DDJ Buckley made the decision that a hernia is an injury occurring “not as the result of an accident” by reference to paragraphs 2.1 and 2.2 of the Pre-Action Protocol for Disease and Illness Claims (“the Disease Protocol”).  Therefore, hourly rate costs applied. We requested an Oral Review of that decision.

Oral Review Hearing

The question before the Court was whether a hernia is a disease for the purposes of CPR 45.  Referring to the case of Patterson v Ministry of Defence [2012] EWHC 2767 we highlighted the discussion of the relationship between the Disease Protocol and CPR 45. We submitted that this High Court decision was binding, and despite Patterson dealing with success fees per Part 45, the same principle should apply to the fixed costs set out in Part 45.

Within the Patterson judgment, it was held that the natural meaning of the word should be considered in determining whether it is a disease. In common usage, if a person informs you that they have developed a hernia it would not be identified as a disease. Furthermore, the ordinary meaning of the word ‘disease’ had been implicitly accepted by the Claimant and his solicitors, as reflected in the Particulars of Claim and witness statement. 

Unsurprisingly, the Claimant’s position was that the original decision made by DDJ Buckley at the Provisional Assessment was the correct one and should be maintained at this hearing. The Claimant referred to CPR 45.29A which indicates that fixed costs do “not apply to a disease claim which is started under the EL/PL Protocol.” The Claimant stated that as the Claims Notification Form had been submitted under the Disease Protocol,  fixed costs could not apply. There were allegedly numerous cases involving hernias that were initiated by way of the Disease Protocol. This was the basis on which the Claimant’s solicitors had progressed this claim too. In response, we noted that whilst the matter had started under the Disease Protocol, this did not affect the authority of the Court to deal with this issue.


DDJ Buckley ruled that he was bound by the decision in Patterson. Whilst the case did deal with a different element of the CPR, it did address the relationship between the Disease Protocol and CPR 45. 

At paragraph 44 of Patterson, it was held that "I can see no basis for concluding that the term disease in CPR 45 was intended to be interpreted by reference to the protocol the purpose of which is very different from CPR 45". In addition, at paragraph 45 "I conclude therefore that the definition of disease in the protocol let alone any general understanding of personal injury practitioners which may underline that definition is not a reliable guide to the meaning of disease in CPR 45".  The Judge further considered that the Claimant had “not demonstrated that the term disease in CPR 45 is used in other than its natural and ordinary meaning”.

In considering the ordinary meaning and nature of the particular injury DDJ Buckley found on balance that the injury was not a disease for the purposes of CPR 45. He went on to assess the fixed costs and awarded £14,517 inclusive of disbursements, a significant reduction from the costs claimed of £26,196.12.

This outcome meant that the Defendant’s Part 36 offer had been successful and Defendant was awarded their costs of the assessment, including the Oral Review hearing.


Additional authors:

Stella Ibitoye-Finch

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