This was a conundrum that I was face with many years ago whilst I was an employed litigator. I received a case from the ‘new client team’ because the Claimant was a motorcyclist who says he sustained injury as a result of a pothole. A letter of claim had been drafted and I sent it. I was met with the usual ‘please submit this claim via the MOJ portal.
The case ended up before a District Judge who was renowned for being very angry. The Defendant contested an application for Pre-Action Disclosure claiming we had not followed the protocol. I had instructed Tom Challacombe of KBG Chambers (because there was no way I was doing the hearing on New Years Eve in front of this Judge) and he secured a decision in our favour.
This decision had been considered differently and the questions still remains, can an occupant of a motor vehicle, who sustains injury due to a pothole, escape the fixed costs regime (or at least until October when it become entirely moot)?
It cannot fit in either protocol
It may seem complicated but it was relatively straight forward.
I considered the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents and within it is the scope of the protocol, namely:-
4.5 This Protocol does not apply to a claim—
(1) in respect of a breach of duty owed to a road user by a person who is not a road user;
Seems easy enough. The Claimant, in the scenario, is not owed a duty of care by the highway authority as a road uses, but under Section 41 Highways Act 1980. Whomp there it is… the claim is not an RTA.
The issue was that I turned to the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims and the scope rejected the accident circumstances:-
4.3 This Protocol does not apply to a claim—
(11) for damages arising out of a road traffic accident (as defined in paragraph 1.1(16) of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents).
The key was that it was referring to the definition of what a road traffic accident was from the RTA protocol, which was:-
(16) ‘road traffic accident’ means an accident resulting in bodily injury to any person caused by, or arising out of, the use of a motor vehicle on a road or other public place in England and Wales unless the injury was caused wholly or in part by a breach by the defendant of one or more of the relevant statutory provisions1 as defined by section 53 of the Health and Safety at Work etc Act 1974;
So unless the accident was caused by a breach of the H&S regulations, a road traffic accident meant injury caused by, or arising out of the use of a motor vehicle. I relied on Schneider v Door2door PTS Limited [2011] 7 WLUK 505 which determined that for a ‘road traffic accident’ the vehicle did not even have to be used to be arising out of the use of a motor vehicle.
Consequently, if it fit in neither (because it would keep going back and forward) it must be exempt from the fixed cost regime.
New Years Eve 2015
The Judge had refused my application on paper saying it was ‘misguided. Tom appeared before the Judge who was still adamant that if it wasn’t an RTA, it had to be an EL/PL.
The outcome was ‘I have worked for many years with you and with you appearing before me Mr McLaughlin and for once I have to say that you and I are wrong. The key is that the EL/PL does not apply when it involves an RTA which is accident that as Mr Challacombe has put succinctly is something that arises out of the use of a motor vehicle.’
This very angry Judge agreed with us. If neither the RTA not the EL/PL applied (like this circumstances) then it was subjected to standard costs and followed the usual Pre-Action Action Protocol for Personal Injury Claims.
Two years later
It was two years later that the issue was considered again by District Judge Richards (as he was then) sitting in the County Court at Plymouth in the matter of Prescott (A Child) v Trustees of the Pencarrow 2012 Maintenance Fund [2017] 6 WLUK 166. The Judge considered the above submission (which had been previously successful) and the Defendant’s submission that a drafting of the protocols led to an unintended consequence and the interpretation
“To take a literal interpretation of the interaction between the protocols results in my judgment, in a perverse result that was clearly not the intention of the protocols. In effect the claimant solicitors would have the windfall of significantly increased (and therefore disproportionate) costs in this case as opposed to the claimant having been for example a pedestrian. There is no good reason for that. There are, in my judgment no increased risks of such litigation. Further there are no public policy reasons such as solicitors being unwilling to undertake this claim under the FCR regime”
The Judge had taken what he thought was a sensible approach to the intended interpretation that all fast track personal injury cases would fall within the fixed cost regime save for exceptional cases. There was significant weight attached to that reasoning that despite the Judge giving permission to appeal (to a Circuit Judge in the County Court) no appeal was pursued.
Does that end the issues with exclusions?
Not necessarily. Although no binding authority exists, there are circumstances were a matter is deemed to be appropriately excluded.
One of the other exclusions I was regularly asked to run during my employed litigation time was whether either the Claimant or tortfeasor was someone who was vulnerable as per para 4.3(8) of the EL/PL Protocol, which specifically stated the protocol did not apply to claims:-
for damages in relation to harm, abuse or neglect of or by children or vulnerable adults
Applying Prescott (A Child) to the protocol could lead to a conclusion that harm, abuse or neglect of vulnerable adults was the intended interpretation and that to be harmed by a vulnerable adult, during the course of employment for example, was not the intended outcome.
Gibbons v Rotherham
In 2019 District Judge Hickinbottom (who has since retired) considered the above in Gibbons v Rotherham, Doncaster & South Humber NHS Foundation Trust [2019] 6 WLUK 677.
This case involved a Claimant who had been assaulted by a vulnerable adult and the claim commenced via the usual Protocol rather than the low value EL/PL protocol. In considering Prescott (A Child), the Judge applied the same principles of statutory interpretation to consider what the drafters intended:-
So, there is nothing fundamentally inconsistent with claims in relation to harm caused by a vulnerable adult (as opposed to say claims against vulnerable adults where they are alleged to have caused harm) being exceptions, notwithstanding the fact that it seems to me in this case it probably has not caused any extra costs. However, that is the nature of the fixed costs regime. The regime is a set of rules, sometimes you fall within the fixed costs regime, sometimes you do not, and there are winners and losers in those scenarios: in the fixed costs regime itself; and there are winners and losers in terms of whether or not you fall inside the regime or outside it, i.e. there are cases that involve additional costs that fall within the fixed costs regime and there are cases not necessarily involving additional costs, that fall outside of it, because they happen to fall within a general exception or they fall within a general category of cases, even though that particular case does not involve additional costs.
The Judge found the exceptions were intended to be read as such.
A different interpretation
Interestingly Deputy Master Friston (as in Friston on Costs) found that the exception was not to be interpreted in that manner when considering the case of Scott v Ministry of Justice [2019] EWHC B13 (Costs).
The case involved a prison officer who sustained injury from a prisoner who was being restrained. Mr Fletcher for the Claimant (Cost Lawyer and CILEX Litigator and Advocate) made the points that ‘of and by’ intended the exclusion to capture both injury caused by or of vulnerable adults. It was held that the prison officer was injured by a vulnerable adult.
The Deputy Master found that a restrained adult whose state of mind was affected by the loss of his son was not a vulnerable adult, notwithstanding the absence of evidence to support this. Further the definition of harm (which was relied on in isolation) could not mean what the Claimant intended as to imply that would lead to the suggestion that personal injury to children would be excluded (and the definition did not include the term vulnerable children). As the EL/PL protocol clearly dealt with child Claimants that interpretation was not correct.
One could argue the correct interpretation was vulnerable children, rather than children.
Interpretation of exclusions remains difficult. The upcoming extension of fixed recoverable costs in October may very well remove doubt save for exceptional circumstances. I intend to review the new rules once a final copy has landed.
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.
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