Stage three MOJ hearings are strange creature. The court will determine damages for a Claimant’s personal injury claim, just like it would do at a fast track trial. Prior to 2013 most liability admitted claims would settle due to the significant cost consequences (including the recovery of ATE premiums and success fees) if a case proceeded to a quantum trial.
Now, following the creation of the low value protocol, we now have a system which will encourage parties to proceed to a final hearing to have damages assessed. If the consequences of failing to beat their revised Part 36 consequences of portal claims were more substantial these hearings may have been few and far between.
The legal fees awarded are low but to compensate for this, the Court will apply less scrutiny to evidence. I’ve heard it regularly referred to as ‘rough and ready’. Witnesses are not cross examined and Part 35 experts are not challenged or asked questions by the Defendant. In some cases, a Claimant would suffer greatly if their claim did proceed under Part 7 and proceeded to a final hearing.
I’ve undertaken a vast number of stage 3 hearings over the past two years and the one take away that I have is that despite the ‘rough and ready’ approach by the court, Claimants can fail to sufficiently evidence their heads of loss. An underused tool available to Claimants (and Defendants might I add) are witness statements.
Witness statements
To non-moj litigators and advocates, it must seem bizarre that witness statements are rarely used in the MOJ process. It is no doubt discouraged by the wording of paragraph 7.11 in the low value protocol:-
7.11 In most cases, witness statements, whether from the claimant or otherwise, will not be, required. One or more statements may, however, be provided where reasonably required to value the claim.
Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents
The rule does not prohibit the use of witness statements. In fact it doesn’t even say in which circumstance a witness statement is appropriate save for where it is ‘reasonably required to value the claim’. That’s quite a broad definition. I would also suggest that in order to value a claim, one must adduce the appropriate evidence.
I will give an example where a witness statement would have been beneficial for an MOJ claim.
Example of where a witness statement would have been useful – PSLA
I recently attended a Stage 3 hearing where only 60% of the injury was attributable to the index accident (the prior accident taking place 10 days earlier). the medical examination was early on in the prognosis period and there had already been a reasonable improvement in symptoms. The prognosis was 12 months.
The Defendant’s offer was below the suggested bracket in the JC Guidelines. Their suggestion was that the symptoms were minor and that once you reduce to account for only 60% being attributable then the figure appropriate dropped below the bracket. In response I argued that the bracket accounted for exacerbation claims and that is what this was. Despite a 12 month prognosis, the Claimant had proposed a much lower figure, near the bottom of the bracket to account for the exacerbation.
The Judge determined that despite the 12 month prognosis period, the Claimant was making such significant progress by the time he saw the expert that it was very likely that recovery would happen much sooner than 12 months. He decided to consider an award at the bottom of the bracket and then reduced by 40%, producing a figure less than the Defendant’s Part B offer.
The saving grace was that the Judge accepted my submission on inflation and increased accordingly, meaning the Claimant narrowly escaped the cost consequences of Part 36.
If the Claimant had a statement explaining how his symptoms persisted for a period of time, then the Judge would have been less likely to make the determination that he did. After all, Judges have a generous ambit when it comes to awarding PSLA.
The benefits of witness statements in MOJ proceedings
It is a fantastic tool which is open to Claimants and Defendants to utilise. This is important when no oral evidence can be heard at a stage 3 hearing. So unless the Defendant adduces evidence to controvert what a Claimant says in a witness statement, that evidence is likely to be accepted (and a Defendant is likely to be unwilling to exit the MOJ process and expose themselves to significantly more costs in order to challenge evidence).
There are some heads of loss that ought to have a witness statement.
Credit hire
Credit hire is a must. Now that it is common ground that credit hire remaining heads of loss will remain in the portal, parties must ensure their evidence is sufficient to either prove or challenge a relevant point.
So often I was getting instructions where there was no evidence from the Claimant at all to establish impecuniosity or need. I’ve had bank statements which had caused the Judge to question various payments and with no evidence from the Claimant to explain, the Judge dismissed the application of impecuniosity.
I’ve also had Defendants argue that the Claimant should be limited to certain rates with either no evidence or no witness statement to prove when an intervention letter was sent (which is important for succeeding on the point of rate). This also applies to physiotherapy/rehabilitation costs.
Care and assistance
A really straight forward statement would do wonders for claims for care and assistance. They are never going to be complicated but the presence of such as statement makes it clear that the care and amount of care actually took place.
Future losses
If a loss will be incurred in the future, a statement from the Claimant explaining why it cannot be incurred now and that they will use the money for that loss is very important.
I was for a Defendant who challenged a Claimant for not undertaking Cognitive Behavioural Treatment straightaway and was claiming it as a future loss. It wasn’t a treatment only available privately (i.e. it was available on the NHS) and there was no guarantee that the Claimant would need all sessions recommended. On this occasions the Judge allowed it but a straight forward statement would have secured the recovery.
Loss of earnings
I was quite surprised how many Claimants claims a loss of earrings without showing their ‘maths’ or ‘workings out’. It is less of a problem for salaried Claimants but where some loss of earnings are more complicated, a statement from the Claimant explaining how they earn and why there is a loss goes a long way.
So often I had an explanation given to me in instructions and I’ve had to explain that I was limited due to the absence of evidence from the Claimant which would have filled in the evidential gap.
No need for an overcomplicated statement
It really is straightforward and I do not think witness statements are used enough. Many of these cases just need a bit more evidence to establish and the common misconception is that you do not need a witness statement means you ought not to. the Court will treat the scrutiny of evidence in a wholly different way to Part 7 proceedings, but the fundamental principle is that it is for the claimant to prove their claim and therefore their heads of loss.
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.