I was recently instructed to attend an OIC quantum hearing on behalf of a Defendant insurer where the tariff award was agreed at £260 but the Claimant had put forward a non-tariff injury proposal of £1,237.60. The twist was that this was not a claim for non-tariff PSLA; it was a claim for company sick pay which the Claimant was required to claim and repay to his employer.
My client had said the following on the portal:-
As per the Pre Action Protocol 8.3 List of Losses (3) The claimant will not be able to add further items on the Portal, once they indicate they are ready to settle the claim. This was not set out in your clients list of losses and you also provided a signed list of losses without the loss of earnings. therefore we have no offers to make
Where as the Claimant’s solicitors said:-
Employers RSP – evidence uploaded.
Submitted under non-tariff section as portal does not have field to enter employers recoverable sick pay.
My instructions were that the Claimant indicated that they were to settle and then, upon realising their mistake, had decided to utilise the non-tariff section to get around para 8.3 of the Pre-Action Protocol for Personal Injury Claims below the Small Claims Limit in Road Traffic Accidents (‘the RTA SC Protocol’).
The evidence
There was a schedule that had been prepared by the Claimant’s Solicitors that replicated the list of losses and Court Valuation Form. This included the medical report fee but no other losses. It was signed with a statement of truth by the Claimant himself.
There was a letter from the Claimant’s employer. It predated the aforementioned schedule and gave information of a breakdown of what was said to have been paid by the employer to the Claimant during his absence.
I argued that the signed schedule, with no reference to the loss was indicative of not trying to find an appropriate section for the loss to be pleaded under, but that it was overlooked and not pleaded at the relevant time before indicating the willness to settle as per para 8.3
The law
I argued that, similar to previous low-value protocols, the RTA SC Protocol is a self-contained set of rules designed to provide certainty to parties. The prescriptive language clearly indicates when steps must be taken or are optional, allowing parties to decide whether to proceed.
Para 8.2 explained that “the Claimant must also ensure that all items of other protocol damages have been included in the online “List of Losses” on the Portal and that this is verified with a statement of truth, as set out in paragraph 8.3 below” and that the Claimant had the option to indicate they were not ready to settle even if they choose upload the medical report (which they were not obligated to do so).
I draw an analogous comparison to the prescriptive nature of Part 36, using Gibson v Manchester City Council [2010] EWCA Civ 726 as an example where Part 36 is described as a standalone code, explaining how to make offers and what happens afterwards. Its rules aim for clear, predictable outcomes, especially since many people handle their own cases. It should be read as written, without adding other legal rules unless clearly intended.
The hearing
The Judge indicated she had read my skeleton argument. It was agreed that the issue should be dealt with as a preliminary issue. I also agreed that, as we were asserting, I would make submissions first
My opponent maintained the proposition that the Claimant could not put the loss in any of the prescribed heads of loss. The Judge was very much of the view that “injury – other losses’ head was appropriate as a ‘capture all other’ losses that would fit into any other category. My opponent submitted that it was not analogous with Part 36 and in fact, there was no good reason why the Court could not accept the head of loss. She then indicated that if the Judge was not with her then she would be making a relief from sanction application.
In response, I agreed with the judge that there was a catch-all heading for losses. I reiterated that it would appear from the signed schedule that they simply either did not notice it or forgot about the company sick pay claim, and then when they went to submit it, they realised that error and attempted to circumvent it by adding it as a non-tariff injury.
I disagreed with my opponent’s suggestion that it was not analogous with Part 36. For example, I pointed out that counteroffers did not reject previous offers as would be expected in the common law of contract. That’s because Part 36 was self-contained. I said the same type of rules applied in the OIC portal. I submitted that the court did not have the jurisdiction to consider the head of loss.
The Judge found in my favour. She found the Claimant had fallen into error when initiating its intention to settle by not including the employer company sick pay claim (which, of course, was not disputed to be a legitimate head of loss) in any of the possible heads of loss and, in any doubt the ‘other loss’ catagory. In failing to do so, the Claimant was in breach of para 8.3. The Claimant could not just insert it under non-tariff injury.
Relief from sanctions application
Understandably, my opponent did her best to try and salvage the situation and made a relief application. She argued that in all the circumstances, this was a slight misunderstanding with severe consequences, that if relief wasn’t granted, then the whiplash award would be given to the employers under the T&Cs of his employment contract and would be out of pocket. She also argued that there was no prejudice to the Defendant as it had the evidence for many months.
I attempted to argue that the relief application had no jurisdiction because it was in respect of a CPR rule, PD or Court Order. This was a pre-action protocol which, whilst self-contained and enforced compliance, was not subject to CPR 3.9. The Judge disagreed with this, as I had just argued that there was a rule that had been breached and therefore the Court did have jurisdiction. I went on to argue the application was made late, no evidence and that the Court cannot hand out relief like smarties simply because there is no prejudice. The Claimant’s Solicitors could be subject to a claim by teh Claimant so there was some redress.
The application was refused, the issue fee and solicitors’ costs on issue were not allowed, but also, my application for my costs of attending was not allowed as it didn’t meet the threshold of CPR 27.14(2)(g).
Remarks
Some might argue that this outcome is overly harsh and that, regardless of the specific loss category, there was a claim for the employer’s company sick pay in the court valuation form with supporting evidence. However, the payslips did not indicate any use of company sick pay to cover the Claimant’s income during the relevant months, and the only evidence was a letter from the employer confirming they had paid sick pay. Clearly, the Claimant did not adhere to the protocol’s rules in this claim.
The Claimant’s solicitors could have demonstrated that they had already included this type of loss in the non-tariff injury section before expressing their willingness to settle on the OIC portal. I believe the result might have been entirely different if the schedule prepared by the solicitors had listed the company sick pay, as this would suggest an intention to include that loss before negotiations began.
Instead, it showed the markings of solicitors who clearly made a mistake but tried to correct it by listing it as a non-tariff injury. I find this approach absurd, especially since there was a broad category of loss, and often special damages can be misclassified under incorrect headings for special damages.
As with any county court decision, this is non-binding and not reported or a copy obtained, but it reiterates the same approach to other protocols and rules. If a rule tells you to do something, you must do it. If it does not, you cannot. do it.
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.