Unsplash+In collaboration with Getty ImagesI loved the Crystal Maze as a child (as no doubt many 90s children and adults did) and whilst I’ve not been to either of the live events (despite having a crystal from the crowdfunding of the original project in London) I would happily do it. Although I can almost certainly imagine myself getting locked in an event and my team saying “sorry, but we would prefer the additional five seconds in the Crystal Dome, rather than unlock you from the game”.
This may seem like a very strange segue (or justification for the Crystal Maze reference) but being locked in is exactly the topic of today’s posts. It is more commonplace for there to be a determination of PLSA at a Stage 3 hearing which includes a mixture of tariff and non-tariff injuries. For those who do not know, the Civil Liability Act 2018 and other legislation restricted whiplash injuries to a very low tariff award (where a three-month whiplash could attract an award between £1,680-£2,990, the tariff award is £240) and kindly increased the Small Claims Track limit in RTA claims (save for some exceptions) from £1,000 to £5,000.This applied to accidents that occurred on and after the 31st May 2021.
I will receive briefs to attend Stage 3 hearings where the parties’ views on PSLA are above and below the Small Claims Track limit. The increase of PSLA with inflation following the publication of the 17th edition of the JC Guidelines led to most valuations of the non-tariff injury pushing the total PSLA award above the £5,000 with ease. The question that follows is what happens if the final award for PSLA is below £5,000 (and the remaining heads of loss are not enough to get the total figure above £10,000)? Does the Claimant get its Stage 3 costs or will it be treated as if it was in the Pre-Action Protocol for Personal Injury Claims below the Small Claims Limited in Road Traffic Accidents (“the RTA SC Protocol”)?
When will a mixed injury claim appear in the MOJ process?
A Claimant’s claim is likely to end up in the MOJ process if they believe from the outset that the PSLA is going to exceed the threshold of £5,000 or the total claim (subject to the RTA SC Protocol caveat) will exceed £10,000. Most mixed injury claims actually start in the RTA SC Protocol. Para 4.5 states that either party can give notice that they reasonably believe the claim for PSLA now exceeds £5,000 or the overall total exceeds £10,000. In that circumstance, the matter must leave the Official Injury Claims portal and the RTA SC Protocol process. If the total claim is unlikely to exceed £25,000 then the Claimant sends an MOJ CNF on the MOJ portal (if there is an admission under the RTA SC Protocol) or if likely to exceed £25,000, proceed as if the SCNF was the letter of claim.
Of course, the point I made early is there is a caveat in terms of total value. It excludes non-protocol vehicle damages from this total. Non-protocol vehicle damage is a claim for any loss related to a vehicle that is not a loss directly held by the Claimant. For example, if the Claimant enters into a hire agreement for a car, this is considered to be a non-protocol loss as it is a third-party debt the Claimant owes. However, if the Claimant has paid for hire directly and wishes to recoup their loss, then this is considered to be protocol vehicle damage. The latter is taken into consideration when determining if the total value exceeds £10,000, the former is not. The rule makes clear wanted to avoid the proposition that a Claimant could escape the RTA SC Protocol by adding on hire charges.
So in those circumstances, the claim enters the MOJ portal and it proceeds to a Stage 3 hearing because there has been an admission of liability but damages have not been agreed.
When the mixed injury claim proceeds at the Stage 3 hearing
Subject to Part 36 (which applies when the overall Judgment is either more or less favourable than the relevant Part B offers) a Claimant, who is awarded PSLA in excess of £5,000 but not an appropriate £10,000 total claim limit, will receive the relevant Stage 1, 2 and 3 costs (with credit given to any sums already paid under the MOJ portal process. This is governed by Part 45 and Part 36. For this example, we shall be looking at the pre-Ocotber 2024 rules that apply to any PI accident that occurred before 1st October 2024.
Where the claimant obtains judgment for an amount more than the defendant’s relevant Protocol offer
45.20
Where rule 36.29(1)(b) or (c) applies, the court will order the defendant to pay – (a) where not already paid by the defendant, the Stage 1 and 2 fixed costs;
(b) where the claim is determined –
(i) on the papers, Stage 3 Type A fixed costs;
(ii) at a Stage 3 hearing, Stage 3 Type A and B fixed costs; or
(iii) at a Stage 3 hearing and the claimant is a child, Type A, B and C fixed costs; and
(c) disbursements allowed in accordance with rule 45.19.
Costs consequences following judgment
36.29
(1) This rule applies where, on any determination by the court, the claimant obtains judgment against the defendant for an amount of damages that is—
(a) less than or equal to the amount of the defendant’s Protocol offer;
(b) more than the defendant’s Protocol offer but less than the claimant’s Protocol offer; or
(c) equal to or more than the claimant’s Protocol offer.
(2) Where paragraph (1)(a) applies, the court must order the claimant to pay—
(a) the fixed costs in rule 45.26; and
(b) interest on those fixed costs from the first business day after the deemed date of the Protocol offer under rule 36.26.
(3) Where paragraph (1)(b) applies, the court must order the defendant to pay the fixed costs in rule 45.20.
(4) Where paragraph (1)(c) applies, the court must order the defendant to pay—
(a) interest on the whole of the damages awarded at a rate not exceeding 10% above base rate for some or all of the period starting with the date specified in rule 36.26;
(b) the fixed costs in rule 45.20;
(c) interest on those fixed costs at a rate not exceeding 10% above base rate; and
(d) an additional amount calculated in accordance with rule 36.17(4)(d).
However, there is no express rule to say if judgment is less than the £5,000/£10,000 limit as per the RTA SC Protocol. So how does one potentially consider this?
There is a rule in the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents from 31 July 2013 (‘the RTA LV Protocol’) that does address this point:-
Claimant’s reasonable belief of the value of the claim
5.9
(1) Where the claimant reasonably believes that the claim is valued at above the limit in paragraph (2) but at no more than the Protocol upper limit, but it subsequently becomes apparent that the value of the claim is below the limit in paragraph (2), the claimant is entitled to the Stage 1 and (where relevant) the Stage 2 fixed costs.
(2) The limit referred to in paragraph (1) above is £5,000 for damages for personal injury and £10,000 in total and is limited to claims where the claimant is not a child.
This does address the very point, but not necessarily in the manner that you may think. This rule is intended to ensure that where the Claimant truly believed PSLA would exceed £5,000, but the evidence eventually did not support the same, they would still get their Stage 1 and 2 costs.
The question is whether this rule applies if the matter proceeds to a Stage 3 hearing and the Court determines that PSLA is less than £5,000?
“I am sorry, but you are now locked in”
My opinion is that once part 8 proceedings commence and the Defendant completes the Acknowledgment of Service and does not object to the use of the process, the Defendant gets ‘locked in’ to the Stage 3 process and unless something leads to a dismissal of the Part 8 proceedings, the usual costs rules apply. So as long as the Claimant beats the Defendant’s Part B offer, they will be entitled to Stage 1, 2, 3 Type A and Type B costs.
The reason I believe this to be the case (and that para 5.9 of the RTA LV Protocol does not apply) is because Paragraph 8.1 of the RTA LV Protocol essentially delegates the Stage 3 process to Practice Direction 49F (‘PD49F’). Essentially it transfers from one self-contained set of rules to another. Therefore, paragraph 5.9 does not apply. That does not prevent the Defendant from exercising their right under PD49F para 8.3(d) and arguing that the process is not appropriate because the value of the claim could never be appropriate for the RTA LV Protocol process and therefore not appropriate for Stage 3. In that circumstance, the Court is likely to list it for a case management conference to determine whether it is appropriate to do so.
However, every time I’ve had an opportunity to test the theory as the Claimant, I have obtained damages in excess of £5,000 for PSLA, or my opponent has not raised it. We shall have to see if such a situation actually occurs.
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.