The High Court has allowed a claimant to recover costs outside the personal injury protocol after they upped the value of the claim from £5,000 to more than £25,000. In the process, a deputy master rejected the defendant’s application that claimant solicitors effectively misled the court about the claim's true value. 

Prison officer Timothy Scott had initially issued a claim to the Ministry of Justice over an assault by a prisoner. The claim quoted the lower amount without the benefit of expert evidence or counsel’s advice; the defendant argued that Scott then unreasonably valued the claim at the higher level. 

The claim settled for £15,000 through a Part 36 offer with no judgment entered in favour of the claimant, but the issue of costs remained unresolved. 

Deputy Master Friston, sitting at the Senior Courts Costs Office in Scott v Ministry of Justice, said the difference in valuations called for an explanation - but he ruled out misconduct on the part of the claimant and his solicitors. 

Scott's solicitor had submitted it was ‘entirely reasonable’ at the commencement of the claim to estimate its worth at more than £25,000. He stated that, with hindsight, the case might have been worth even £50,000, but he was mindful that he was ‘protectively issuing’ the proceedings before other assessments on losses could be carried out. The defendant argued it was ‘difficult to reconcile’ that the claim form originally set the threshold value at £5,000. 

Deputy Master Friston, while ‘not entirely satisfied’ with the claimant’s explanation, agreed there was an intention to review the valuation once expert evidence and counsel advice was received. The fact that a Part 36 offer, lower than £25,000, was accepted did not alter that conclusion.  

He rejected the defendant’s application that the claimant had acted unreasonably and/or improperly by effectively trying to mislead the court and the MoJ.  

‘I do not believe that there was any intention to mislead anyone, this being because the claimant’s solicitors had at all material times intended to review and revise the claim form.’ 

The deputy master rejected a submission from the claimant that the EL/PL protocol did not apply because the prisoner was a 'vulnerable adult’. This, it was said, engaged the exception in the Civil Procedure Rules which states the protocol does not apply to a claim ‘for damages in relation to harm, abuse or neglect of or by children or vulnerable adults’.  

Claimant lawyers urged the deputy master to take a ‘very broad interpretation’ to the wording and said they could apply where a ‘vulnerable adult’ has caused an injury to someone else. The deputy master did not accept that a prisoner, being restrained by three prison officers at the time of the injury suffered by Scott, was a ‘vulnerable adult’.