Prescott v Trustees of the Pencarrow 2012 Maintenance Fund, Plymouth CC, District Judge Richards, 12 June 2017

 

This decision provides important clarification as to the scope of the fixed costs regime (FCR) at CPR Part 45.

The Claimant (an infant) was a passenger in a car.  A tree from the Defendant’s estate had fallen into the road.  The Claimant’s car collided with the tree.  He suffered injuries as a result.  Damages of £1,000 were agreed and approved.

 

The issue before the Court was: where (a) a claimant suffers injury in a road traffic accident (“RTA”) as defined by para. 1.1 Pre-Action Protocol for Personal Injury Claims in Road Traffic Accidents but (b) the defendant is not a road user with the result that the claim is excluded from the RTA protocol, does the claim fall within the Pre-action Protocol for Low Value Personal Injury Claims (Employers’ Liability and Public Liability) Claims so as to bring it within the FCR?

 

The Claimant contended that the answer to this question is no; costs are at large.  He argued that on a plain reading of the rules:

  • The EL/PL Protocol cannot apply to this claim as it is excluded by 4.3(11) of the same: “This Protocol does not apply to a claim … 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”.  The definition of RTA was a wide one being “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”). 
  • It was common ground that the RTA Protocol at 4.5(1) excludes the claim from its ambit “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 (represented by Andrew Roy instructed by Shakespeare Martineau on behalf of NIG insurance) contended that the answer to this question was yes; costs are fixed.  It argued that:

  • A proper contextual consideration of the rules compelled a purposive interpretation reflecting and fulfilling the legislative intention that all simple fast track cases should fall within the FCR.
  • As per Qader v Esure Services Ltd [2016] EWCA Civ 1109; [2017] C.P. Rep. 10, the literal interpretation reflected a clear drafting error.  The exclusion of non-road users from the RTA Protocol reflected the pragmatic need for all communications in such cases to be via the Portal. This depended on the defendant insurer being on the comprehensive central database of compulsory motor insurance policies which was fed into the Portal.  Non road users do not carry compulsory motor insurance; that is the reason for their exclusion.  For expediency it was decided to graft the EL/PL Protocol onto the existing RTA Protocol.  However, the Rules Committee overlooked that the RTA Protocol excluded certain types of simple RTA claims as therein defined.  The Committee thereby inadvertently created a gap in what were intended to be seamless interlocking regimes covering all simple FCR claims.
  • The exclusion of such claims from the FCR would also be illogical and anomalous.

 

DJ Richards accepted the Defendant’s arguments.  He agreed with its submission that the exclusion of RTA claims from the EL/PL Protocol   “is to avoid the confusion of a claim which could be brought under two different protocols” rather than to remove them from the FCR altogether.  He held that “a literal interpretation of the interaction between the protocols results in my judgment, in a perverse result that was clearly not the intention of the protocols”.  The Claimant therefore recovered only fixed costs

 

This is a point of wide significance.   It determines the correct approach to costs in a very large and varied cohort of claims.  It includes those: (i) arising from defects in the highway when the claimant owns or is travelling in a vehicle; (ii) where the accident is caused by a cyclist, pedestrian or other person using the road but not a motor vehicle and therefore not required under s143 Road Traffic 1988 to carry compulsory insurance; (iii) arising from the presence of cattle, horses or other animals in the road; and (iv) arising from the presence of some other hazard in the road (e.g. trees, floodwater, debris, obstructions).

 

In the light of this, and unusually, the Judge granted permission to appeal.

 

For the full judgment click here.