I had been instructed to appear on behalf of a Defendant Insurer to defend a small claims trial in respect a road traffic accident and the sub sequential loss. Liability was not an issue but damages were not agreed. In a novel circumstance, the Claimant decided to deal with the matter herself and not instruct her insurers to deal with the same.
They did slightly better than their best offer for the pre accident value and secured much more than what my clients were seeking to offer at trial. However there were claiming for the time and money incurred from the inconvenience of having to deal with the claim.
The Judge agreed with my submission that the cost of inconvenience was not recoverable but it was actually quite an interesting exchange to get there
Was there a right to recovery of damages for inconvenience?
I submitted to the Judge that the Claimant didn’t have a right to recover any losses arising from inconvenience. I relied on Farley v Skinner [2001] UKHL 49.
I had submitted that the only circumstance where loss for inconvenience could succeed was where there had been a breach of contract which was intended to give rise to pleasure, peace of mind, etc. and the breach prevented that.
I argued that the House of Lords affirmed that negligence would not attract such an award. The Judge challenged whether the fact that the Claimant had now clarified their loss of convenience was in fact a loss of earnings.
I respectfully argued that this could not be right. The issue here was that my client’s insured driver damaged the Claimant’s car and the purpose was to bring the chattel back to its original state. This was to pay the money of the vehicle (which was uneconomical to repair) at the time the loss was incurred. Anything after that was incidental to the claim and not the loss.
The personal injury example
The Judge pondered briefly and asked me to consider a personal injury matter. Claimants claimed a sum for inconvenience, loss of earnings and travel expenses (akin to this Claimant’s losses) arising from a claim as a result of negligence.
This analogy was helpful. I explained that when a personal injury Claimant travelled to physiotherapy or a treating medical appointment, they were taking steps to return to their pre accident state.
The time spent by the Claimant looking for a new car wasn’t steps taken to return to the pre accident state. That’s because the payment of the pre-accident value is the remedy. Everything after that did not flow from the accident.
The incidental and inconvenience losses pleaded in personal injury cases were not steps to bring the Claimant to the pre-accident state.
Another personal injury example
Years ago I took over a case with a psychologist report and the court, at directing stage, did not give permission on paper to rely on that report.
I attended the application hearing to argue for permission to rely on the report. The reason it failed (and why the Judge on paper probably didn’t grant permission) was because the symptoms flowed specifically from the stress of being called a liar by the Defendant’s insurer when they denied liability.
The loss was too remote and flowed from the litigation. We all know it can be stressful and this was akin to the time and expense of the Claimant in the above case looking for a new car and negotiating with my client.
Why is incidental loss and inconvenience claimed in personal injury if it’s not recoverable?
It shouldn’t. Travel to part 35 experts, telephone calls to lawyers and any other costs that doesn’t directly flow from either the accident or remembering the injury is not recoverable.
It’s usually a default head of loss in a schedule in special damages. Not only is it faulty in law, there is a risk of it causing issues.
In one fast track trial, I got instructions to drop that head of loss, yet the Judge decided to enquire about it (including telephone calls) which led to a dip on the Claimant’s credibility for approving a schedule with a head of loss he never claimed.
The Claimant in the above case (who was very pleasant and merely felt aggrieved by the amount offered by the Defendant) could be reasonably excused for not understanding that the losses were recoverable in law.
If your proclaim (or other case management software) has these types of losses in the precedent schedule of special damages, ask your administrator to remove them. They are not valid losses.
Information
AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.