I appeared for a Claimant at a Fast Track RTA trial in Bristol last week. Breach of duty had been conceded but it had been alleged that there was no causation between the collision and the injuries claimed (low velocity collision). Fortunately my client succeeded.
An interesting point arose during the brief opening I made. It wasn’t a major issue, but I set out that primary liability had been agreed but causation remained in dispute. The judge questioned why I described it as primary liability when the only admission was a breach of duty. I always understood primarily liability to mean that a breach of duty had occurred, then the Defendant could frame to what extent causation was not admitted (factual, medical or both)
In this case, there was an admission by the Defendants insured that there was a collision and contact with my client’s vehicle. I, of course, understood why it would have been preferred that I use the term breach of duty – to avoid any potential confusion.
It had me wondering about other misconceptions and misunderstandings occur within personal injury.
Wasted costs
This is a term that is misconstrued quite often.
Your client has to make an application for whatever reason. It is your client or your firm’s error and it needs to be remedied. The other party responded and say“ we will consent if you pay our clients wasted costs”.
What they actually mean, of course, is costs incurred of an associated with the application (or conduct of your client). Wasted costs is an order made against a legal representative under CPR 46.8, rather than the party.
Parties cannot consent to relief
They technically can but like with any consent order, the Court must approve the same. A party may confirm they do not object to an application, but that is not as strong as someone agreeing or consenting. Not objecting is akin to putting the applicant to proof.
That being said, it is no good filing a content order and paying the reduced fee. You still need to demonstrate to the court relief should be granted. The solution is to prepare your application as you normally would, provide a consent order to the Defendant and if they sign it, attached it to your application. They parties consenting would be an influential point – especially when Denton & Ors v TH White Ltd & Ors [2014] EWCA Civ 906 makes it clear a respondent should only be objecting where absolutely necessary.
I have seen consent Order rejected and a hearing listed to hear the application.
Limitation is a compulsory defence
As you may have seen in a previous post, limitation is a Defence that is open to a Defendant to rely on if they so wish. If they do not plead the statutory defence, they cannot rely on it .
So many times I have come across (either in my own cases or others) where there has been an issue that led to limitation being missed and the Defendant talks as if they are compelled to rely on the Statutory Defence. I’ve seen some go so far as to say that they cannot ‘consent to relief from sanction’. Of course it is not a sanction, but a Defence that which the Defendant can rely on to defend the claim. S33 Limitation Act 1980, which allows the Court to disapply the effects of the limitation defence is only applicable in personal injury (and not in Montreal and Athens Conventions).
Applicants to a pre-action disclosure application are entitled to their costs
Pre-Action Disclosure applications are probably now few and far because QOCS does not apply to such applications (yet fixed costs apply because such an application is deemed to have taken place after the commencement of the claim – see Sharp v Leeds City Council [2017] EWCA Civ 33).
The common mistake by litigators was the presumption that costs followed the event. In fact, the presumption is that a Respondent is entitled to their cost of the application and complying with the Order (CPR 46.1(2)). There is, however, a presumption rebuttal if in all the circumstances (whilst taking compliance with relevant protocol and reasonableness for objecting to the application into consideration).
Children are exempt from the small claims RTA protocol not the whiplash tariff
Children are caught by the ‘whiplash reforms’ when they are an occupant being carried in a motor vehicle. This excludes motorcycles and bicycles for obvious reasons.
There has been some confusion on the topic because children are exempt from the small claims track and can recover fixed cost as per the usual RTA low value protocol. Children’s claims are exempt from the Pre-Action Protocol for Personal Injury Claims below the Small Claims Limited in Road Traffic Accidents as per paragraph 4.3(f). However I do see that most RTA personal injury law firm are on this. It has been some members of the Judiciary at an Infant Approval Hearing who have doubt it.
Strict liability
There are few and far between cases where strict liability applies (since s69 Enterprise & Regulatory Reform Act 2013). For example, claims under the Consumer Protection Act 1987 or claims for food poisoning under s9 Consumer Rights Act 2015.
It’s the latter that I see much confusion in the holiday sickness litigation realm (something I am no longer in). Just because something is strict liability means it is easy to win, it merely means that once the factual elements are established there is no need to prove fault or negligence.
With s2 Consumer Protection Act 1987, it is the need to establish that the injury was caused by a ‘defect’ was not what people are generally entitled to expect. With holiday sickness s9 Consumer Rights Act 2015, it is the need to establish that food provided under contract was contaminated with food poisoning pathogens and the consumption of said food caused the illness.
Some Defendants try to play down the fact it is strict liability as if referring to the same is some form of concession. Some Claimants make it out as if strict liability is the easiest of claims. Neither is correct.
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.