I attended a Stage 3 hearing where the Defendant had requested an oral hearing in the acknowledgment of service. However, no one appeared on behalf of the Defendant. The hearing consisted solely of myself and the Judge, during which I presented my submissions regarding the quantum of the case.
For those who do not know, the Claimant and Defendant have made offers to each other on each of the heads of loss claimed by the Claimant (Stage 2). It might be that some heads of loss are agreed. If at least one head of loss remains in dispute, then a Court Proceedings Pack complied with the Part A including the agreed heads of loss and the ‘initial’ Stage 2 offers in the pack.
(It is quite the misconception that the parties’ final offers are placed within the Court Proceedings Pack. However, this is not correct because the best offer is, in fact, what goes into the Part B of the Court Proceedings Pack is the final offers, which the Court does not see until it has made the determination).
In this case, it was my view that the Claimant’s Part A offer for PLSA was slightly on the low side and I could make submissions that could increase the value of the PSLA (which would help to beat the Part B figures and entitle the Claimant to Part 36 consequences.
At the closing of my submissions for PSLA, the Judge put the proposition to me that the Claimant was restricted to what was claimed in the Court Proceedings Pack.
I made my submissions (which this post addresses) and the Judge gave a Judgment for the exact sum claimed by the Claimant. He made it clear in his Judgment that he accepted my submission and that he could make an award above the figure in the Court Proceedings Pack, but was of the view that the amount was adequate to compensate the Claimant.
Why could the Judge (in my submission) make an award higher than what was in the Court Proceedings Pack?
Nature of PSLA damages
I submitted that PSLA is an unspecified damage, and therefore, the Claimant was bound by any open non-without prejudice offer in the Court Proceedings Pack.
There is a distinction between general and special damages. General damages are presumed by law to arise from the torts and do not require detailed pleading, although Claimants must still plead that such damages are being claimed. On the other hand, special damages refer to specific losses tied to the unique circumstances of a case and must be explicitly detailed in the pleadings to prevent surprises during the trial.
In usual Part 7 proceedings, PSLA would not be given an actual figure (although the pleaded value of the claim may give an indication of the limitation that the Claimant expects in terms of PSLA. This is important due to the fact PSLA is awarded based on the value at the time of assessment, not the loss. This can be elicited from the introduction of the 17th edition of the JC Guideline, which states the following:-
One of the tasks of the editorial team for each new edition of the Guidelines is to apply an inflationary increase to the figures contained in the previous edition. For that purpose, it has always been the practice to use the Retail Prices Index (RPI) and, for the reasons explained in the Introduction to this seventeenth edition, it is the index which will continue to be used unless and until the Courts decide otherwise.
There is, unfortunately but unavoidably, quite a long gap between the editorial team finalising its work and the Guidelines appearing in print. For example, as explained in the Introduction to the sixteenth edition, the editorial team based the figures in that edition on RPI as it stood in September 2021, but the guidelines were not actually published until April 2022. Thus, even at the date of publication, the figures for every edition of the Guidelines are already somewhat out of date. In times of higher inflation (and particularly when dealing with larger awards), the difference can be significant. To our surprise, the issue of whether to apply inflationary increases between editions still seems to attract some controversy when, in accordance with conventional practice and procedure, it should not. We have noted that in some cases judges have applied inflation only from the date of publication of the Guidelines but in circumstances where it appears the delay between calculation of the figures and publication was not drawn to their attention. For the reason explained above, this is incorrect. For the avoidance of doubt, an inflationary increase to the Guideline figures should be applied to ensure that figures remain up to date.
This situation arose for parties after the introduction of the 17th edition of the JC Guidelines. The value of PSLA increased significantly due to inflation, leading to a devaluation of approximately 22% for these PSLA propositions. To adhere to the guidance that parties should not determine damages and that it is the Court’s responsibility to make this determination, the Court needed to assess the value of PSLA based on the damage amounts as they stood at the time of the hearing. This applied even when the Court chose not to follow the guidelines specifically (after all, they were guidelines and not tramlines).
Rules do not compel parties to be bound by offers
I explained to the Judge there was nothing within the rules that suggested that the parties were bound by their offers.
The RTA and EL/PL Protocols (low-value protocols )were specifically designed to streamline the handling of low-value personal injury claims, aiming to reduce both the time and costs involved in their resolution. Its structure indicates that in these cases,. Unlike other Pre-Action Protocols (save for the RTA Small Claims Protocol, which mimics the other low-value protocols), the low-value Protocols are more prescriptive and function as a largely self-contained system.
The protocol includes specific directions for users, outlining certain actions they must take. If there is no rule indicating that something needs to happen, it can be understood that it is not a requirement.
There are no rules that say that a party’s Part A figure is binding on themselves. However, agreements of individual heads of loss must be binding.Clements-Siddall v Dunbobbin Hotels Ltd [2023] EWCA Civ 1300 is a case where the Court of Appeal determined it was improper for the trial judge to allow an issue to be determined which had, for all intents and purposes, been agreed upon by the parties.
At paragraph 71 of the Judgment, the Court of Appeal reminded itself that in our adversarial justice system, it is essential for parties to clearly define the issues in litigation, allowing each side to respond effectively. Therefore, if the parties agree the head of loss, it is no longer an issue that falls within the jurisdiction. However, if remaining in dispute, the Court can determine it and, as above, it is an unspecified damage for the Court to determine, not the parties.
Therefore, in my view, the Claimant cannot limit their claim for PSLA purely on the basis that their first offer at Stage 2, was a lower figure than what the Could value PSLA to be at the final hearing.
Conclusion
There is a caveat to this point. It works both ways. A defendant could make submissions at a final hearing that PSLA should be a figure lower than what was offered during the stage 2 negotiations. It is quite common in my experience to find that the determination of damages for PSLA usually fits somewhere between the two parties’ valuations in the Court Proceedings Pack.
However, if parties utilised the Stage 2 negotiations more sensibly then the parties would be more likely to obtain Part 36 benefits, as per my previous post.
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.