Prescott v The Trustees of the Pencarrow 2012 Maintenance Fund (2017)

The facts

The court was required to determine the basis in which the claimant’s costs were to be paid in a case which fell outside the protocol for low value RTA claims (RTA protocol) and the protocol for low value employers’ liability and public liability claims (EL/PL protocol).

At the time of the accident, the claimant was a passenger in a car which was being driven by her mother. The car collided with a tree that had fallen on to the highway and the tree was owned by the defendant.

The parties reached an agreement to settle the claim for £1,000 and the claimant sought costs on the standard basis. The claimant argued that, literally speaking, their claim did not fall within the definition of claims to be dealt with under the RTA protocol or the EL/PL protocol.

The defendant argued that the fixed costs regime under the relevant pre-action protocols applied because there was no reason for the claim ant to have increased costs for dealing with a very low value claim.


The judge held that the interaction between the RTA protocol and the EL/PL protocol led to the unusual consequence of this simple, low value claim falling outside the wording of the protocols.

It was specifically stated that had the claimant been a pedestrian, cyclist or horse rider at the time of being struck by the tree then the EL/PL protocol would have applied. It was seen that the fact that they were a passenger of the car at the time of the accident led to the claim apparently being excluded from the protocol.

It was held that the literal interpretation of the wording of the two protocols and the claims to which they applied produced a perverse result that had clearly not been intended because this would mean that a low value, straightforward claim would escape the fixed costs regime.

The court concluded that there was no good reason for the fixed costs regime not to apply to this type of case. It was noted that if standard costs applied then the claimant would receive significantly increased costs which would be disproportionate to the value and complexity of the claim. Also it was held that there were no public policy reasons for disapplying the fixed costs regime in cases like this, which were not intended to be dealt without outside of the protocols for low value claims.

What this means for you

In this case, the court considered the overriding objective of dealing with cases justly and at proportionate cost. In respect of this, the court had regard to saving expense, to the importance of the case, to the complexity of the issues, to the financial position of the parties and to ensuring that cases are dealt with proportionately in respect of the costs involved. It was specifically held that it would not be proportionate for the claimant to be awarded more than fixed costs and that the court’s allotted time to the matter would have been limited in respect of costs.

This is a positive judgment for defendants because the court took a sensible approach in respect of the application of fixed costs to these types of cases that do not, strictly speaking, fall within the protocol definitions. The fact that the claim did not sit within the literal definition of either of the protocols was seen as being a technicality which had not been intended.

In respect of casualty litigation, if the claimant had been awarded more than fixed costs then this could have potentially led to defendants being exposed to paying higher costs for these types of simple, low value claims, which other than their literal interpretation are best suited to the EL/PL protocol.