The EL/PL Protocol And The Meaning Of ‘Vulnerable Adult’ In Para 4.3(8)

vulnerable

An employers liability claim which settled outside the EL/PL Protocol for £15,000 was not restricted to the fixed costs that would have been allowed had the EL/PL Protocol been applied.

Deputy Master Friston in the SCCO had to determine two issues, both of which were relevant to the wider determination of which costs regime should apply, namely:

  • whether the claim was excluded from the EL/PL Protocol by reason of the claimant’s injury having been caused by a ‘vulnerable adult’, and
  • whether the claimant elected not to apply that protocol by reason of him having placed too high a value on the claim.

The claim was brought by a prison officer who had been assaulted by a violent prisoner on grounds of the defendant’s failure to realise and record the fact that the Prisoner had a propensity to violence.

Although purportedly valued at over £25,000 prior to sending the letter of claim, proceedings had been issued protectively the following year for up to £5,000. The Claim Form had then been amended to a value of up to £30,000 at around the same time that Particulars of Claim were filed. It ultimately settled on acceptance of the defendant’s first offer of £15,000.

Notwithstanding its value, the claimant argued that the prisoner was a ‘vulnerable adult’ within the meaning of paragraph 4.3(8) of EL/PL Protocol, which reads as follows:

‘This Protocol does not apply to a claim … for damages in relation to harm, abuse or neglect of or by children or vulnerable adults.’

As such, it was argued, the case was excepted from the EL/PL Protocol.

The Deputy Master did not accept this, firstly by reason of the nature of the claim itself.

“In my view, the meaning of the phrase ‘harm, abuse or neglect’ is that it means abuse, neglect or other such harm. Put otherwise, it focusses on the nature of the acts or omissions in question, not on the mere fact that a personal injury has been caused… Furthermore, if it were right to say that the word ‘harm’ encompassed personal injuries per se, I would have expected it to be separated from the words ‘abuse or neglect’ by something weightier than a mere comma.”

Secondly, he found that the prisoner was not himself a vulnerable adult.

“I take the view that in order to bring a claim within the ‘vulnerable adult’ exception in paragraph 4.3(8) of the EL/PL Protocol, the context in which the claim is being brought must sensibly support such a conclusion… I have no hesitation in saying that the exception in paragraph 4.3(8) of the EL/PL Protocol did not apply. To his credit, Mr Fletcher recognised that he faced an uphill struggle in persuading the court that a high-risk prisoner who needed to be restrained by no less than three prison offices [sic] (and who injured one of them) would readily fall into the category of being ‘vulnerable’.”

The defendant then argued that the claimant had unreasonably valued the claim at more than £25,000 prior to sending the letter of claim only to then value it at up to £5,000 on the Claim Form and then to accept a Part 36 Offer of £15,000.

The Deputy Master dismissed these concerns.

“…having seen the relevant attendances [sic] notes and solicitor-and-client correspondence, I am quite satisfied that at the time that the letter of claim was written the Claimant reasonably valued the claim on a full-liability basis at considerably more than £25,000.”

He accepted the claimant’s explanation that…

“I was mindful that I was protectively issuing the proceedings, I did not have my medical evidence, there were liability and causation difficulties and the future loss of earnings and pension loss would be significant and required Counsels input following a conference. Prior to service of the proceedings these issues were reviewed in conference and by that stage it had become clear that due to the legal causation difficulties meant [sic] that the claim no longer had reasonable prospects of success if early settlement could not be achieved.’”

As for accepting the offer of £15,000, he said…

“I can see that file confirms Mr Reynolds’ evidence, namely, that the Claimant accepted the Defendant’s offer because he had concerns about whether he would succeed on liability. As such, the fact that the offer was accepted sheds little light on the Claimant’s full-liability valuation of the claim.”

In light of all of the above costs would be assessed on the conventional basis.

SCOTT V MINISTRY OF JUSTICE [2019] EWHC B13 (COSTS)