Since the introduction of the portal for low value Employer’s Liability and Public Liability claims, Claimant Solicitors must take extra care when conducting and valuing their case. A recent case dealt with here at MRN illustrates this precise point well.

The Claimant’s Solicitors were instructed to act in respect of an incident which occurred at an indoor ski centre. The Claimant had completed a run on the slope and was waiting for her partner at the end of the run. Without warning, a man who was taking instructions from a ski instructor provided by the Defendant, collided with the Claimant. As a result she suffered a fractured Femur.

Prior to notifying the Defendant regarding the accident, consideration was given to the value of the claim. The value of the claim was put at slightly in excess of £25,000.00. This fact was recorded on the file. On this basis a Letter of Claim was prepared and served on the Defendant. The matter was not placed in the Public Liability low value portal as the value placed the matter outside the scope of that portal.

The Defendant went on to deny liability and raise contributory negligence as an issue. Shortly before proceedings were issued, the Claimant made a Part 36 offer in the sum of £19,000.00. The offer was not accepted and proceedings were issued with a statement of value in excess of £25,000.00.

Following service of the defence the Defendant made a Part 36 offer of £16,800.00 which the Claimant accepted. The Claimant then submitted a claim for costs. In response, the Defendant submitted that the Claimant had acted unreasonably in valuing the claim and that it should have been submitted through the Public Liability portal. The Defendant also made a Part 36 offer in the amount of the fixed costs recoverable, accepting that the matter would have exited the portal due to the denial of liablity.

The Claimant’s Solicitor came to us with the offer and the explanation provided by the Defendant. We advised accordingly and agreed that the offer should be rejected and a formal Bill of Costs prepared. This was formally served, together with a Part 36 offer which was based on approximately 70% of our valuation of the recoverable costs on the standard basis.

Points of Dispute were served by the Defendant maintaining the dispute and referring to two County Court decisions regarding the issue of unreasonable conduct around the portals. Neither were on all fours with the present case. Points of Reply were prepared which set out the Claimant’s version of events in detail.

No agreement could be reached between the parties and as a result, a Provisional Assessment was requested. The Court determined that the Claimant had acted reasonably in not placing the matter within the portal. He stated that the valuation of the claim was reliable and the subsequent level of the Part 36 offer and settlement merely reflected the level of litigation risk and contributory negligence. The District Judge also commented on the well drafted Bill of Costs and Points of Reply which were frequently referenced in the decision.

In addition, the Claimant beat her own Part 36 offer. As a result a 10% uplift on the assessed costs, enhanced interest, and indemnity costs following the last date for acceptance of the offer were all recovered from the Defendant.

Here at MRN we are experts at providing advice on complex issues such as this and fighting your corner to ensure you achieve an excellent recovery of costs in all of your cases.