On appeal by the Defendant, the Court found a dermatitis claim should have proceeded through the MOJ Portal and was therefore subject to the fixed costs regime.

Facts

The Claimant brought a claim for damages following the development of dermatitis on her left hand.

The Claimant alleged the dermatitis resulted from her exposure to compounds found in the beauty products she was required to use during the course of her employment with the Defendant. These products were used regularly throughout her working day to administer beauty treatments.

The Claimant alleged that the dermatitis developed around April 2013. Damages were ultimately settled for £5,000.

Portal claim?

As this was a "disease" claim and the Letter of Claim post-dated 31 July 2013, the Defendant queried why the claim had not been placed in the MOJ Portal at the outset of the action. The Claimant's Solicitor responded to advise that in their view the matter was outside the Portal due to the complexity of these types of claim and given that the likely value would be over £25,000.

Upon receipt of the Claimant's bill of costs (totalling £18,910.80) consideration was given as to whether the Claimant was entitled to recover costs on the standard basis. The evidence presented by the Claimant during the claim did not offer any support to a potential valuation at over £25,000.

The following points supported the Defendant's position that this claim should have been placed in the MOJ Portal:

  • This was a disease claim that was not caused by one accident/incident.The dermatitis had allegedly developed following regular use of products during the Claimant's working day.
  • This was not a mesothelioma claim; the only disease claim excluded from the Portal.
  • There was only one Defendant.
  • The Letter of Claim post-dated 31 July 2013.
  • The Claimant did not present any evidence to support a potential valuation of over £25,000.The top of the JSB guideline bracket for dermatitis claims was £9,240.The Claimant's special damages claim would therefore have had to exceed £15,000, which they did not.The Claimant only served an unqualified schedule of loss during the claim and all items were marked 'to be confirmed'.
  • Damages were ultimately settled for £5,000.

Points of dispute

The Defendant submitted in the Points of Dispute that the Claimant had breached the Pre-Action Protocol for Low Value Personal Injury (Employer's Liability and Public Liability) Claims and as such, the Claimant should be limited to recovery of no more than the fixed costs in rule 45.18 in accordance with CPR 45.25(1) and (2).

The Claimant incorrectly pleaded in her Points of Reply that the Protocol did not apply to this claim as it was a "disease" claim and the dermatitis had developed prior to 31 July 2013. They also stated that in the early stages of the claim the Claimant believed the value may exceed £25,000 and that the claim would not have continued under the Portal in any event given the Defendant denied liability.

Costs assessment

The bill was lodged for provisional assessment and the Deputy District Judge did proceed with a standard basis assessment.

The Deputy District Judge simply stated that she agreed that the matter was suitable for provisional assessment in response to our submissions that the costs should be limited to fixed costs. The Defendant had not however sought to challenge the suitability of the matter for provisional assessment in the Points of Dispute, but rather that fixed costs were applicable due to the Claimant's conduct.

Unfortunately, the provisional assessment process does not lend itself well to arguments of a technical nature, as the time allocated to the judge is very limited. It is therefore often the case that these arguments are simply "glossed over".

The Claimant's bill was subsequently calculated to have been provisionally assessed at £9,562.08.

The Appeal

The Defendant lodged a challenge against the Deputy District Judge's decision on the preliminary issue of whether the Claimant should be limited to fixed costs.

Following oral submissions from both parties, the Deputy District Judge agreed the Claimant was wrong in law to say this case was exempted from the MOJ Portal. Further, this was a matter which should have gone through the Portal as there was nothing to suggest the case had a value of over £25,000.

The Deputy District Judge ordered fixed costs and these were allowed at £3,468.40. The only disbursements which were allowed were the fees for the medical report, two sets of medical notes, the addendum (reduced to £200 plus vat), along with a court fee of £208.

The Deputy District Judge went on to award the Defendant costs of £5,000 as the Claimant had failed to beat the Defendant's offer that had been made prior to the service of Points of Dispute.

The Claimant has therefore been ordered to pay the Defendant the sum of £5,000 for costs, plus the overpayment of £1,366.40 on their costs following the previous payment on account.

In summary:

  • Claimant's costs claimed at: £18,910.80
  • Provisional assessment: £9,562.08
  • Costs assessment following hearing: £3,468.40

What can we learn?

  • This issue is likely to arise in future cases as it is inevitable that claimant solicitors will look for ways to avoid placing claims of this nature into the MOJ portal in order to circumvent the fixed costs regime.
  • The Portal requirements are very specific and defendants will only be successful in their arguments if all the conditions have been met, as was the case in this particular claim.Each case will therefore need to be assessed on its particular facts.
  • It is clear however from recent case law that claimants cannot use hindsight as a justification for not submitting the claim through the MOJ portal.
  • The Claimant in this case tried to use the Defendant's denial of liability to argue that the matter would have fallen out of the Portal in any event.Whilst this would most likely have been the case, the Claimant should still have followed the correct procedure as set out in the Pre-Action Protocol for Low Value Personal Injury (Employer's Liability and Public Liability) Claims. The penalties for not complying are clearly set out in CPR 45.25.