Category: AJH Advocacy

A law firm receives instructions from a Claimant to pursue a personal injury claim. Suddenly and unexpectedly, the firm is informed by a family member that their client has sadly passed away.

The next issue is that the limitation period is approaching, and the firm issues a protective claim form to preserve the Claimant’s claim whilst they scramble to secure an appropriate personal representative to continue with the claim.

However, as many firms do, a fatal error has occurred. Unfortunately, the firm did not have the appropriate instructions or an appropriate standing to issue the proceedings. What is worse is that, on occasion, when a personal representative was not identified, the firm issued as the Claimant, intending to amend the proceedings once a personal representative was identified and a retainer had been engaged.

These are, unfortunately, rather fatal errors that can end proceedings before they begin.

Millburn-Snell v Evans

A well-known authority on the point is Millburn-Snell & Others v Evans [2011] EWCA Civ 577, which demonstrates the point well.

The Claimants appealed a decision to strike out their claim against the Defendant. Before his death, the Claimant’s father was claiming against the Defendant but had not started legal proceedings. The father died intestate, and the Claimants filed a claim as his personal representatives, stating they had the right to do so. Five days before the trial, the Defendant asked to have the claim struck out because the Claimants did not have the legal authority to sue without letters of administration. The Claimants admitted this but asked the Court to allow the claim to continue under CPR 19.8(1). The Judge ruled the claim was invalid and could not be validated later by letters. He also said CPR 19.8(1) was not enough to make the claim suitable for trial. 

The Claimants’ appeal to the Court of Appeal was dismissed. It was decided that a party incorrectly claiming to be an administrator cannot bring a claim because they lack the authority. CPR 19.8(1) did not apply, as it only guides proceedings when a death requires a trial. Usually, someone with a genuine interest in an estate must first obtain a grant of administration to sue. CPR 19(8)(1) does not allow this step to be skipped or replaced.

Practical approach in personal injury claims

When I was a litigator, I came across the issue quite often, and fortunately, I was in a position where limitation was not an issue. However, I could not make any progress until I had a retainer with an appropriate personal representative. It was straightforward when a valid will was in place, because the executives had automatic powers as personal representatives.

As with many clients, those without wills caused difficulties, especially when the client had no assets and no reason for a family member to apply for letters of administration. In some cases, the person who might be able to apply for letters of administration will not benefit from the damages sought, due to the intestacy rules.

I successfully recovered the costs of obtaining the Letters of Administration. Strictly speaking, it is a disbursement because it is a cost arising out of the litigation rather than the action. However, especially in the fixed cost regime, the need for the letters of administration is arguably a ‘particular feature of the dispute’, especially after MIB v Santiago [2023] EWCA Civ 838.

It is important that if a client passes away, you keep an eye on the revised limitation period and ensure your ducks are in order to avoid any issues.

Information 

Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.

Late service of a claim form raises issues far more serious than might initially be viewed. Since serving the claim form is how the court gains jurisdiction over a Defendant, failing to serve on time can trigger a challenge under CPR Part 11.

This allows a Defendant to argue that the Court has no jurisdiction or should not exercise any jurisdiction. Understanding how CPR 11 operates is critical because Defendants can easily lose the right to challenge jurisdiction if the strict procedural rules are not followed.

When must a claim form be served?

The claim form must be served, in accordance with CPR 7.5, within four months (or six months if being served outside of the geographical jurisdiction) or an application is made to extend the time for service. If it is not:

• Service is ineffective;
• The Court’s jurisdiction over the Defendant is not engaged; and
• Any subsequent steps taken by the Claimant (including late service without a valid extension) are vulnerable to challenge.

Where service is late, the Defendant may argue (in accordance with CPR 11(1)) either:

• That the Court has no jurisdiction because the claim form was never validly served; or
• That, even if jurisdiction exists, the Court should not exercise it, for example, because an extension of time for service was wrongly granted or should not be granted retrospectively.

How does the Defendant challenge jurisdiction?

A Defendant who wishes to rely on late service must, in accordance with CPR 11(2):-

1. File an acknowledgement of service, and
2. Make an application) within 14 days of filing the acknowledgement of service.

If the Defendant does not do the above within the requisite time, the Defendant is treated as having accepted jurisdiction and cannot challenge it under CPR 11(5).

An example is Hoddinott v Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203. The Claimants owned land on which the Defendant had rights under a deed to enter, install a sewer, and restore the land. They alleged that the Defendant failed to do so correctly and sued for breach of the deed, trespass, nuisance, and negligence.

A claim form was issued but not served within four months. Before it expired, the claimants received a two-month extension to serve the claim, citing the need for clarification and settlement. A copy was sent to the defendant for information.

The Defendant sought to set aside the extension, claiming no good reason. After being served, they acknowledged they would defend but did not contest jurisdiction. The Judge initially overturned the extension and struck out the claim, noting the Defendant had already challenged service and didn’t need to apply under CPR 11.

The Court of Appeal allowed the appeal and overturned the strike out. The Defendant failed to apply within fourteen days as per CPR 11, and that was fatal, because it was deemed to have accepted jurisdiction. The Claimant risked making an application to extend without giving the Defendant notice and whilst there was found to be no good reason for not servign in time, because a copy was sent within the four months (albeit not ‘served’) and the claim was not statute barred, the Court of Appeal found that the extension should not have been set aside.

What relief is available to a successful Defendant under CPR 11?

On a successful CPR 11 application, the Court may, in accordance with CPR 11(6), also order, in addition to declaring that it has no jurisdiction or won’t exercise its jurisdiction:-

• set aside the claim form;
• set aside service of the claim form;
• discharge any order extending the validity of the claim form; or
• stay the proceedings.

The opportunities for CPR 11 to be evoked

Claimants often attempt to rescue late service by seeking retrospective extensions under CPR 7.6. This is either an extension sought before the claim form expires (even if the application is heard at a time after the claim form has expired) or retrosepctively.

The latter situation presents greater challenges for Claimants because the Court has even less discretion if the application is made retrospectively. In such cases, the Claimant must demonstrate that all reasonable steps to comply with CPR 7.5 were taken and that they were unable to do so, in addition to making the application promptly.

I once acted for a Claimant where the Solicitors sent the Claim Form for issue. Six months later, the Claimant’s Solicitors began chasing the Civil National Business Centre (‘CNBC’) after being accustomed to long delays in processing new claims. However, the Claim Form had been issued, returned, but had not been received by the Solicitors. An application was made (at the same time of service) under CPR 7.6(3) and was granted on paper. The Defendant (after having made an application under CPR 11 and noting the contesting of jurisdiction in the acknowledgement of service) applied to set aside the Order, arguing that the Court was wrong to have granted the application on paper.

At the hearing, I attempted to argue that the Claimant Solicitors, having experienced significant delays with the CNBC, were reasonable in only beginning to chase the Court after six months. On this basis, they had done all that was reasonable. The Court agreed that the Claimant had failed to take all reasonable steps (such as chasing the CNBC much earlier, even if it led to no response), set aside the Order retrospectively extending the time for service, and made an Order that there was no jurisdiction.

Challenging jurisdiction is not the only remedy available in certain circumstances. In the case of Shiblaq v Sadikloglu (No.1) [2003] EWHC 2128 (Comm) the Defendant sought to set aside a default judgment, alleging improper service. The Claimant had sued for $1,035,000, claiming the Defendant owed money and had agreed to rebuild a yacht at a Turkish boatyard owned by his company. The Claimant stated the Defendant failed to repair and deliver the yacht. Although permission was granted for service in Turkey and notice was posted on the boatyard’s door, the Defendant did not acknowledge receipt. Consequently, the Claimant obtained a default judgment, which they attempted to enforce in Dubai. The Defendant contested the validity of service under Turkish law and sought to set aside the judgment under the CPR, also arguing there was no agreement to refit the yacht, potentially providing a defence.

In this case, the Defendant was unable to rely on CPR 11 because the time had passed to be able to dispute jurisdiction. Instead, the Default Judgment was set aside under CPR 13.2 because service was defective. Interestingly, the Claimant attempted to remedy the defective service with CPR 3.10, CPR 6.8 and CPR 6.9. 

CPR 3.10 is not an appropriate avenue

CPR 3.10 says the following:-

3.10 Where there has been an error of procedure such as a failure to

comply with a rule or practice direction—

(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and

(b) the court may make an order to remedy the error.

What this means is the rules will protect proceedings from nulity and can allow matter to proceed even if there was a technical error, subject to the Court’s discretion.

For example, in Pitalia v NHS England [2023] EWCA Civ 657, CPR 3.10 could be used to remedy the application to challenge jurisdiction because the Defendant had failed to tick the appropriate box in the acknowledgement of service, and the application was not explicitly made under CPR 11 to challenge jurisdiction. The Court of Appeal found that the application made could be treated as an application to challenge jurisdiction as CPR 3.10 allowed the procedural error to be overlooked.

However, that did not mean that CPR 3.10 could be used to remedy a failure to serve the claim form. However, there can be specific examples where it can apply. For example, Bank of Baroda, GCC Operations v Nawany Marine Shipping FZE [2016] EWHC 3089 (Comm), the Claimant failed to serve more than one copy of the Claim Form for each of the Defendants. The High Court found the step taken to serve was defective but not completely omitted. Therefore, the defect could be remedied under CPR 3.10.

Avoid jursidiction issues overall

CPR 11 highlights to civil litigators that the biggest risk is failing to serve the claim form at all, which allows a Defendant to challenge jurisdiction with limited recourse for the Claimant. Neglecting proper service can be costly and should be avoided whenever possible. Although minor service defects can sometimes be corrected under CPR 3.10, especially if the service was generally proper and the defect does not invalidate it, this should not be relied upon as a fallback.

In personal injury cases where the claim form was not validly served, it may be better to issue and serve a new claim form, even if the limitation period has expired. This approach could strengthen the claimant’s position to seek relief under section 33 of the Limitation Act 1980 should time limitations become an issue. Ultimately, careful and correct service is the best way to prevent jurisdictional challenges under CPR 11.

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.

If you are a CILEX Advocate, Solicitor or authorised advocate who undertakes advocacy and you don’t have a court gown, then this could be the chance to get one.

As per the Practice Directions for Court Dress (nos. 3 and 4), CILEX Advocates, Solicitors and other authorised advocates (such as Cost Lawyers, Trade Mark Attorneys and Patent Attorneys) will wear a Solicitors’ gown (rather than a barrister’s gown). For the avoidance of doubt, the one on the right is a Solicitor’s gown.

As of the 12th January 2026, I will no longer require my Solicitor’s gown for being a CILEX Advocate, and therefore I would like it to be passed on to someone. I appreciate, especially with the increase of CILEX Advocates, that there may be an influx of prospective recipients.

I intend to pick a name out of a hat if there is more than one donation. All you need to do is make a donation to St Luke’s Hospice for Plymouth, a minimum of £5 (although you can make a larger donation if you want). I will pick out a name at random and I will cover the cost of delivery.

If you are interested, please screenshot your St Luke’s donation and send it to alec@ajh-advocacy.co.uk. Draw ends 9pm 31st January 2026, any donations after this time will not be accepted in the draw (but thank you anyway for donating to an important charity).

For your information, I am 5 ft 8 (172 cm) and it is an appropriate length gown.

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.

In civil litigation, especially in personal injury, the credibility of a Claimant is crucial when much turns on the Court accepting the oral evidence of the Claimant. Whether the injury cannot be measured with objective evidence or whether there is doubt about the validity of the accident, the Claimant’s evidence must be strong and reliable to ensure it is accepted, especially with scrutiny under cross-examination.

The Claimant will present evidnece as part of their claim in the form of witness statements, medical reports, medical records and other documents. A Defendant advocate’s dream case is finding the Claimant’s evidence entirely inconsistent throughout, making their ability to controvert the Claimant easier. In contrast, a Claimant presenting evidence where the narrative remains consistent throughout makes it more challenging (and more likely to lead to a settlement prior to trial).

The human condition

Human beings are faillble and the possibility of the Claimant misremembering matters is entirely possible without the overall credibility of the Claimant being compromised.

Courts often recognise that human memory is reconstructive. Memories can be distorted over time. Interaction with others can unintentionally manipulate recall of events. The stress of litigation can have an impact. In civil cases, the process of litigation can often commence months or even years after the event.

Humans may believe their memories are accurate but be unaware that they are misremembering. This can be seen in cases where controverting evidence is put to a witness, and you can see the genuine look on the witness’s face as they try to reconcile the evidence with their recall.

Even this can be problematic for witnesses: if they misremember one point, could they also misremember others? Can any of their evidence be accepted?

Medico-legal reports

Medical evidence is very important for providing a claim for personal injury, but it is also another opportunity for inconsistency to be utilised by the Defendant. I previously wrote about how reporting to doctors (whether treating doctors reported in records or medico-legal experts reported in reports) would amount to an inconsistent statement and can be used to challenge credibility.

Whilst there can be explanations for errors on part of the maker of the record or report, the Claimant may need to resort to finding a way to establish that this was an erroneous reporting (Denton Hall Legal Services v Fifield [2006] EWCA Civ 169). It is inherently more problematic for a Claimant when their own medico-legal reports (which were privileged until instructions were given to disclose these) have inconsistencies compared with medical notes which are completed by someone whose main focus is on treatment, rather than the presentation of reports for the purposes of litigation.

Witness statements

The difficulty for Claimants, when it comes to witness statements, is that, being their evidence in chief, it can be fatal if they include or omit information. What many litigators often forget is that a witness statement replaces the step of the witness going into the witness box and giving live oral evidence before cross-examination.

Advocates can see that litigators can forget this because the witness statement usually ends with “I am willing to attend Court to give evidence”, which is nonsensical because if the witness was giving live oral evidence, they would have been asked by their advocate “anything else to add?” and the witness (in Court, in the witness box) would say “I am willing to attend Court to give evidence”.

Witness statements are sometimes used to address issues with medical evidence, but this is usually done by the advocate during cross-examination. 

Case example

The point is that the evidence should all tie in together. While evidence is rarely perfect, there is a significant difference between a few errors and inconsistency that threatens the credibility.

An example was a case where I acted for a Part 20 Claimant. The Part 20 Defendant’s claim was that she had sustained injury when driving her motorcyle along side traffic when the Part 20 Claimant pulled out in front of her. The Part 20 Claimant argued that following the collision, the Part 20 Defendant injured her when she tried to leave the scene of the accident.

Since my Part 20 Claimant client’s accident details were largely unrelated to the personal injury case pleaded by the Part 20 Defendant, it was up to the Claimant to establish her case. Unfortunately, the medical reports lacked consistency, and the claimed losses, like loss of earnings, were not supported by evidence or considered by the medical experts. Although the Claimant attempted to clarify everything during her oral testimony, her credibility was compromised, making it difficult for the Court to rely solely on her evidence.

Conclusion

Courts will recognise that human memory is fallible, but consistency is key to ensuring and maintaining credibility in civil cases. Small errors usually will not matter too much, but contradictions across witness statements, medical records, reports, and pleadings can be fatal. Once credibility is damaged, it’s hard to restore it fully with oral evidence. Explaining discrepancies late in the process often makes things worse and highlights the problems. Even if a Claimant genuinely believes their account, a lack of coherence in the evidence can prevent the Court from trusting their evidence.

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.

To all of AJH Advocacy’s clients.

Thank you for your instructions!

I write to inform you that, with effect from 12th January 2026, AJH Advocacy Limited will no longer be accepting instructions. This is because I will be joining Magdalen Chambers as a tenant/Barrister.

From 12th January 2026, I may be instructed through Magdalen Chambers, Exeter.

Please note that any drafting instructions received before this date will be completed on a first-come, first-served basis. Where I am unable to complete or accept an instruction by 12th January 2026, the instruction will be cancelled and any time spent will be waived.

I will contact you individually regarding any outstanding invoices and how these will be dealt with going forward. 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.

See you in 2026!

An interesting issue of costs arose out of a Fast Track Trial that I was instructed on behalf of the Claimant, where liability had been admitted, but quantum remained in dispute. The central dispute concerned whether the Claimant’s costs, following success at trial, should be restricted to portal-level fixed recoverable costs.

The Defendant argued that CPR 45.35 gave the Court discretion to limit the Claimant to Stage 1 and 2 portal costs because the Claimant had exited the RTA Protocol unreasonably. The Claimant accepted that the exit was erroneous; it exited even though an interim payment had in fact been made, but argued that the Defendant’s subsequent conduct ultimately caused the Claimant no alternative to issue Part 7 proceedings.

For clarity, this was a post 1st October 2023 claim.

CPR 45

Three potential gateways under CPR 45.35 were considered:

• 45.35(2)(a) – insufficient information in the CNF (not applicable).
• 45.35(2)(b) – unreasonable conduct causing the protocol to discontinue (potentially applicable). One of the three subsections could be utilised (i) by discontinuing the process set out in the relevant Protocol and starting proceedings under Part 7 (ii)by valuing the claim at more than £25,000, so that the claimant did not need to comply with the relevant Protocol or (iii) xcept for paragraph (2)(a), in any other way that caused the process in the relevant Protocol to be discontinued.
• 45.35(2)(c) – failure to comply with the Protocol at all (not applicable; the claim began in the portal).

Parties’ Positions

The Defendant argued that:-

• The Claimant’s exit from the portal was unreasonable and irreversible under paragraph 5.11 of the RTA protocol (Claims which no longer continue under this Protocol cannot subsequently re-enter the process).
• The Defendant was an insurer and not a legal representative, so the Claimant should have done more to explain to the Defendant why not providing a breakdown was contrary to the rules.
• The Claimant could and should have asked the Court to transfer the claim to a Part 8 in accordance with para 4.1 PD49F (The court may at any stage order a claim that has been started under Part 7 to continue under the Part 8 procedure as modified by this Practice Direction)
• The Fast Track Trial, in any event, resembled a Stage 3 hearing

The Judge then questioned whether, if he rejected CPR 45.35, he should (instead) exercise the power to reduce the Claimant’s costs by 50% under CPR 45.13. The Defendant argued that the Court should, alleging unreasonable conduct akin to the Dammerman test. They argued there was no permissible explanation for exiting the portal.

Claimant

The Claimant argued that-

• Although the portal exit was a mistake, the real cause of Part 7 proceedings was the Defendant’s refusal to provide a breakdown to comply with para 7.41 (When making a counter-offer the defendant must propose an amount for each head of damage and may, in addition, make an offer that is higher than the total of the amounts proposed for all heads of damage. The defendant must also explain in the counter-offer why a particular head of damage has been reduced.)
• Had the Defendant provided the breakdown, the matter likely would have settled at Stage 2 or proceeded to a Stage 3 hearing under Part 8.
• The Defendant was encouraging the informal Stage 2, but chose not provide the break down because it was necessary to move to Stage 3.

The Claimant argued CPR 45.13 should not be engaged because there was no causative link between the Claimant’s portal exit and any increased costs as a result of Part 7. Both the Judge and the Defendant noted that CPR 45.13 did not appear to require causation to be established. There was a question of whether there was a threshold for unreasonable conduct that needed to be met. The Claimant argued that even conduct such as a breach of the Court rules (failure to upload the witness statement, requiring relief from sanciton, which was granted at the start of the trial) wouldn’t have been sufficient.

This was argued because the Defendant had not suffered any incurred costs and even if it did, it would be compensated by the costs allowed under CPR 45.8 (£250+VAT). The Claimant also submitted that CPR 45.13 did not cover the MOJ portal costs and only started when the fast track costs regime started, arguing that the breach led to exiting the MOJ portal, but did not take place after it.

Judge’s decision

The judge found:

1. The Claimant did exit the portal unreasonably, as the interim payment had clearly been received.
2. However, the Defendant had effectively attempted to run a “shadow Stage 2” process, encouraged continuation under the protocol, but then refused to provide the necessary breakdown to progress the claim through to Stage 3.
3. The Defendant should have known how to replicate or continue the process, and could have facilitated a Stage 3-type disposal even outside the portal. The Defendant, as an insurer, was regularly conducting Stage 2 proceedings on the portal
4. The Defendant’s refusal to engage properly was a main cause of the claim escalating to Part 7, and no application was ever made by the Defendant to have it transferred to Part 8 under paa 4.1 PD49F
5. The hearing was not a Stage 3 disposal; it was properly a fast-track trial with oral evidence.
6. CPR 45.35 discretion should therefore be exercised in the Claimant’s favour, meaning costs would not be reduced to portal rates.

CPR 45.13 (50% Reduction of Fixed Costs)

Although CPR 45.13 covers unreasonable conduct even before litigation, the judge held:

• The Claimant’s unreasonable exit from the portal did not cause the claim to become a Part 7 dispute.
• Other errors (such as failure to upload a witness statement or errors in an application) were minor, did not cause additional costs, and did not justify a punitive reduction.
• Ultimately, the Defendant’s conduct was equally, if not more, responsible for the matter reaching trial.

Commentary

Trials subject to the Post 1st October 2023 fixed costs regime are going to be come more commonplace. Different facts and circumstances will mean that some arguments raised the Defendant will succeed. The CPR 45.13 ‘50% rule’ (which also allows for the increase of costs) can be ulitised by the Claimant as well as the Defendant.

This is just one example but all cases will be fact sensitive. In this case, the real battleground was costs; the trial was a fast-track trial, but the dispute on damages was always going to be the warm-up act.

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.

When seeking special damages, there is often an issue that is raised by the compensating Defendants, putting the Claimant back into the position but for the accident and avoiding a windfall (aka betterment).

Betterment occurs when remedying a damaged chattel leaves the owner in a better position than before the incident that caused the damage. Quite often, a Defendant will argue that there needs to be a reduction of value to account for wear and tear and appreciate the value of the chattel at the time of the loss to account for the general diminution of value over time. This is often seen in road traffic accidents, where engineer reports determine the pre-accident value.

However, in a recent case of mine, it was seen that it is not always the case and in fact, even if there was a betterment, a reduction was inappropriate.

Avid cyclist

In a recent stage 3 hearing, the claimant was seeking the replacement cost of his high-spec bicycle, which he originally paid £4,100 for. It was accepted that the Defendant’s negligence could have caused the damage, but the claimant was now seeking a sum in excess of £5000 for a new spec bicycle, as it was the claimant’s position that the original bicycle was no longer available. Understandably, the Defendant argued that it was betterment and that if this were a car, then the Claimant would be accepting that the value was only as much as the pre accident value was at the time of the collision.

I argued that there was no other marketplace like that of motor vehicles where there wouldn’t be an option for a second-hand dealership to provide the reassurances under the Consumer Rights Act 2015 that were available for motor vehicles.

The judge accepted my argument but elaborated further by referring to a case within McGregor on Damages called ‘The Gazelle’.

The Gazelle

The admiralty case that the Judge referred, The Gazelle [1844] 2 E Rob (Adm) 279, established a key principle. Dr Lushington said that even if a Claimant (or Plantiff as they were called then) benefits more than just compensation, full recovery of costs is still allowed if the benefit is unavoidable. If repairs or replacements are necessary for proper indemnity and incidentally benefit the claimant, no deduction is needed. The Court also refused to use the marine insurance rule of deducting “one-third new for old” because it would unfairly impose a loss on the Claimant.

Other cases

In the case of Harbutt’s Plasticine Ltd v Wayne Tank & Pump Co Ltd [1970] 1 Q.B. 447, the following was said:-

The destruction of a building is different from the destruction of a chattel. If a second-hand car is destroyed, the owner only gets its value; because he can go into the market and get another second-hand car to replace it. He cannot charge the other party with the cost of replacing it with a new car. But when this mill was destroyed, the plasticine company had no choice. They were bound to replace it as soon as they could, not only to keep their business going, but also to mitigate the loss of profit (for which they would be able to charge the defendants). They replaced it in the only possible way, without adding any extras. I think they should be allowed the cost of replacement. True it is that they got new for old; but I do not think the wrongdoer can diminish the claim on that account.

In another case of Bacon v Cooper (Metals) [1982] 1 All ER 397, the Court noted that:-

“if a secondhand car is destroyed, the owner only gets its value; because he can go into the market and get another secondhand car to replace it”:

This is why the Judge accepted that the Claimant had not had a betterment, because there was no second-hand market (or a sufficient professional second-hand market), which put the Claimant at a disadvantage and should not have been put out as a result.

Whilst the principle was what I argued, the case law that the Judge took note of himself was crucial in making that point.

Further example

I was able to further argue the same principle on behalf of another cyclist whose clothing was damaged. The Judge accepted the points above that there was no secondhand market and quite simply allowed the sums claimed as they were, with no reductions.

In fact, the Judge had already anticipated my argument when I quoted the Gazelle.

Concluding thoughts

Of course, this does not apply to a situation where it is cost-efficient to repair the chattel. In that case, it is a diminution of value. In that situation, it would be that the diminution of value is measured by the cost of repair as per Coles v Hetherton [2013] EWCA Civ 1704.

There may be a situation where the cost of repair far exceeds the value of the chattel, but the chattel is so rare or irreplaceable that the cost of the repair is justified.

It ultimately depends on individual factors and possessions. Comparing the second-hand market for motorcars to that for bicycles and bicycle equipment is not straightforward, as they are very different. While you can buy these items second-hand, you won’t have the same assurances typically provided by professional dealers for motorcars.

The key evidence for the Claimant is that there is no professional second-hand market, and for the Defendants to demonstrate to the contrary.

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.

CPR 45.62 (previously CPR 45.29i in the pre-1st October 2023 rules) states that where a claim arises from a road traffic accident and is either (a) a soft-tissue injury claim or (b) a claim that consists of, or includes, whiplash, the rule fixes and limits the recoverable disbursements for medical evidence and records.  A similar rule exists for RTA cases in the MOJ and OIC Portal.

The question that usually arises is whether a pedestrian or a motorcyclist is subject to the soft tissue injury fixed disbursment rule. CPR 45.62(5) specifically says “In this rule, ‘accredited medical expert’, ‘associate’, ‘associated with’, ‘fixed cost medical report’ ‘MedCo’, ‘soft tissue injury claim’ and ‘whiplash injury’ have the same meaning as in paragraph 1.1(A1), (1A), (10A), (12A), and (16A) and (20), respectively, of the RTA Protocol.”

The definitions, found in Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents, include the following:-

(16A) ‘soft tissue injury claim’ means a claim brought by an occupant of a motor vehicle where the significant physical injury caused is a soft tissue injury and includes claims where there is a minor psychological injury secondary in significance to the physical injury, but excludes any claim which consists of or includes a whiplash injury;

(20) ‘whiplash injury’ or ‘whiplash injuries’ means an injury or injuries of soft tissue in the neck, back or shoulder suffered because of driver negligence as defined in section 1 of the Civil Liability Act 2018 and as further applied by section 3 of that Act to claims where the duration of the whiplash injury or any of the whiplash injuries—

(a) does not exceed, or is not likely to exceed, two years; or

(b) would not have exceeded, or would not be likely to exceed, two years but for the claimant’s failure to take reasonable steps to mitigate its effect.

The Civil Liability Act 2018 classifies a whiplash injury as someone who sustains a soft tissue injury whilst using or being carried in a motorvehicle other than a motorcycle.

It is quite clear that the overarching point is that a soft tissue injury for the purposes of CPR 45.62 is an occupant of a motorvehicle. However, when does on stop or start being an occupant of a motorvehicle? At what size does a coaster start becoming a place mat?

This was a question that arose (outside of Court and not pursued regarding a Claimant I was acting for at an RTA fast track trial.

In or out of the motor vehicle?

In my case, the Claimant had alleged that she opened the door of the Defendant’s vehicle and was leaning in to hug her granddaughter, who was in the front passenger seat. The Defendant was alleged to have driven off with the Claimant still half way in the car, causing her to sustain injury.

The Judge accepted the Claimant’s version of events, acknowledging that the relationship between the Claimant and Defendant was fraught and most likely the situation was so intense that the Defendant simply panicked and drove off without realising the Claimant was still halfway in the car.

We were invited to step outside and attempt to resolve costs. In our discussions, my opponent wondered whether it could be argued that the fixed medical report disbursement, which applies to whiplash claims, would apply to this situation. My opponent concluded it was not a sustainable argument.

It did make me contemplate if it was sustainable.

The definition of ‘occupant’

There is no real definition of occupant anywhere, but there are many indications of what an occupant of a motor vehicle.

In s1(4) of the 2018 Act, the use of ‘using’ and ‘being carried in’ a vehicle suggests one has to be in a vehicle to be an occupant.

However, Jake Cullen of Express Solicitors has pointed out (after the publication of this article) that s1(6) says “For the purposes of this section references to a person being carried in or on a vehicle include references to a person entering or getting on to, or alighting from, the vehicle.” I am concerned about the extent to which a person needs to be involved in the alighting process for s1(6) to take place.

This is in contrast to the definition of what a road traffic accident is as per Dunthorne v Bentley [1996] R.T.R. 428, where it was determined that a person crossing a road to her car was an act so closely and causally connected to the use of her car that it met the criteria of s145(3) Road Traffic Act 1988 (an insurance policy needs to cover the liability which may be incurred by a person in respect of the death of or bodily injury to any person or damage to property caused by, or arising out of, the use of the vehicle on a road).

That is, of course, a completely different proposition because a broader scope of coverage is required for a motor insurance policy, rather than only covering someone in a motor vehicle. The question of who is an occupant of a motor vehicle needs to be more confined compared with the question of what is considered to be the use of a motor vehicle.

Throughout the Road Traffic Act 1988, the use of ‘occupant of a seat’, especially for matters such as seatbelt use.

The real question, to determine what is meant by occupant of a motor vehicle, would be to consider the intended purpose. That is to reduce the cost of dealing with whiplash claims. That returns to the RTA Protocol and, subsequently, the 2018 Act. In that situation, it has to be someone using or being carried in a motor vehicle. Whilst it seems a bit circular, it has to be the case that in order for someone to have whiplash, they must be sitting in the vehicle. However, if one looks at the explanatory notes, it says “Subsection (4) provides that these provisions will apply in those cases where, a person, because of their negligence while using a motor vehicle on a road or other public place in England and Wales, causes another person, whether a driver, or a passenger riding in or on a motor vehicle, to suffer a whiplash injury.”

The question, the real question is how far along the alighting process does someone need to be to be considered being ‘carried in’.

Could leaning into a car be deemed to be an occupant of a vehicle?

I believe my opponent made the right choice by not arguing whether the fixed disbursement applied in this case. While it could have been interesting to argue that point in Court, overall, considering all factors, it seems reasonable that leaning against a car during the accident does not qualify as occupying a motor vehicle, even without a formal definition or authority.

It is interesting that no clear definition appears within Part 45, RTA protocol or the 2018 Act. Whilst probably one of the less contentious issues that remain undefined, it would resolve a lot of debates if the definition lists were more extensive.

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.

There is a provision within the MOJ portal to allow an adult to request an interim payment from the Defendant compensator. They send an inteirm payment pack via the MOJ portal and the Defendant compensator can decide to pay it (with the amount being credited against the final settlement or judgment) or refuse. If it is £1,000, it is compulsory and if it is more than £1,000, the Defendant must at least pay that sum and then set out why the full amount cannot be agreed.

The Claimant can exit the process and issue Part 7 proceedings if they are content that the interim payment was reasonable, but can be limited to MOJ portal costs if the interim payment awarded is not more than what was offered by the Defendant.

When a child Claimant brings a personal injury claim, the process for securing interim payments, in particular with regards to the cost of medical treatment such as Cognitive Behavioural Therapy (CBT), is governed by specific procedural safeguards. These rules ensure that any payment made to or on behalf of a child is properly approved by the Court.

I was due to appear on behalf of a Defendant in respect of Part 7 proceedings that had been issued because the Claimant said the Defendant had refusd the interim payment for CBT in the sum of £2,090.

I was substituted out of the case at the last minute to cover a hearing that a previous advocate could not attend due to illness. I had already filed a skeleton argument, explaining that while the Defendant had no objections to the interim payment, it believed the Claimant had mistakenly exited the MOJ portal and failed to properly communicate a request for an interim payment. The Defendant wanted to resever its position about costs.

The application had raised an important procedural question for me about how interim payments are handled in child injury claims in the MOJ.

The Defendant’s Position

As above, the Defendant did not oppose the interim payment in principle. Realistically, they could not. However, the Defendant disputed the procedural approach taken; namely, the Claimant’s alleged interim payment request, which was said to justify exiting the portal and seeking an interim payment.

Under CPR 21.10, any payment or settlement involving a child must be approved by the Court unless it is made directly to a treatment provider. The rule states:

“No settlement, compromise or payment (including any voluntary interim payment) and no acceptance of money paid into court shall be valid… without the approval of the court.”

This safeguard ensures that any funds awarded genuinely serve the child’s best interests.

Part 7 Proceedings and the MOJ Portal

The Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (“the Protocol’) sets out clear provisions regarding child Claimants: Paragraph 7.26 and 7.27 says the following:-

Request for an interim payment where the claimant is a child

7.26  The interim payment provisions in this Protocol do not apply where the claimant is a child.  Where the claimant is a child and an interim payment is reasonably required proceedings must be started under Part 7 of the CPR and an application for an interim payment can be made within those proceedings.

(Rule 21.10 provides that no payment, which relates to a claim by a child, is valid without the approval of the court.)

7.27 Paragraph 7.26 does not prevent a defendant from making a payment direct to a treatment provider.

The must be read to mean that the process for requesting an interim payment is not going to be the same process utlisied by adults on the MOJ portal. It must be the case that requests must be communicated outside the portal and if not agreed, then Part 7 proceedings can be jsutifie and the matter must exit the portal.

Payments must still obtain approval from the Court under CPR 21, so how can that happen if the matter is in the portal? The simple answer must be this; Part 8 proceedings are issued, an approval hearing is listed and once approved, the matter is stayed. That way, either a final approval hearing or stage 3 contested can be listed once the stay is lifted. However, if the inteirm was in respect of treatment (as above), then the Defendant could evade the same by paying the treatment provider directly.

The Defendant’s Submissions

I had drafted a skeleton argument on behalf of the Defendant with the following submissions.

1. The MOJ portal cannot be used for interim payments in child cases (per paragraph 7.26).
2. If the Defendant refuses an interim payment, the Claimant may exit the MOJ portal and issue Part 7 proceedings.
3. If a voluntary interim payment is agreed, the claim may remain in the MOJ portal, with the Claimant issuing Part 8 proceedings to seek the Court’s approval. Once approved, the claim can be stayed.
4. Under Part 45, the Court has discretion to award more than one Stage 3 Type B fee if an initial approval is refused but later granted.
5. Alternatively, the Defendant may pay the treatment provider directly, removing the need for approval altogether.

In the case referred to above, it was speculated that the Claimant Solicitors believed they made a request, it was recorded on file that there was a request via the MOJ portal and that as this is unlikley to have been allowed for the reasons above, there was doubt as to whethe the Claimant correctly exited the MOJ portal and issued Part 7 proceedings.

Discussion

It is a very interesting point, sadly not one I was privy to hear the outcome of and, more importantly, would have heard even if I attended that hearing as the position by the Defendant was to not object to the interim payment but reserve the position on costs to the conclusion of the claim (either the final approval hearing or trial) where the parties could make substantive submissions on that point.

It will be interesting to see if my approach is deemed correct by the judiciary.

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.

For over twenty years, karate played a big role in my life. Back then (especially when I was a fussy eater, unlike now), pasta was my favourite, fuel-comforting, satisfying meal. It was the best just right before long training, gradings and tournaments. Even though I no longer do karate, I still enjoy pasta. I’ve recently started making fresh egg pasta from scratch. A delightful new ritual that blends precision with creativity….and it’s far more meaningful than the pasta I consumed in my karate days.

Ingredients

Simple ingredients are as follows (for two portions:-

• 100g 00 pizza/pasta flour
• 20g semolina
• 3 eggs

Method

Using a large bowl, mix the 00 flour and semolina together. Form the mixture into a mound and use your hands or a spoon to create a deep well in the center.

Crack the eggs and carefully separate the yolk from the egg whites. Insert the yolks into the well. Gently whisk the eggs, gradually drawing in a little flour from the inner edges of the well as you mix. Keep going until the mixture thickens and starts to come together. Add a tablespoon of cold water to ensure it remains moist. You can add a tiny bit of olive oil if you wish to stop the dough from drying out.

Once the dough becomes too thick to mix with a fork, use your hands to combine it into a rough ball. If it feels sticky, dust lightly with more 00 flour; if it’s too dry, wet your fingertips and knead in a few drops of water.

Knead the dough on a lightly floured surface for about 8–10 minutes, until it’s smooth, elastic, and slightly tacky but not sticky. Wrap the dough tightly in cling film. Let it rest at room temperature for 30 minutes.

After resting, divide the dough into smaller portions. Roll each piece through a pasta machine, starting with the thickest setting and slowly working your way down to the desired thickness, dusting the machine lightly with semolina (or flour) to prevent sticking.

Now before you judge me for using a clothes horse, you need to allow your pasta to dry out before cooking. Jamie Oliver uses a clothesline or even a coat hanger.

Like with any fresh pasta, it only needs boiling for a few minutes. You just need to wait for it to start floating to know it is ready to eat.

You will also be left with lots of spare egg whites. You can make merangue if you want (unless you are me and completely mess up the recipe), whip some cream and add strawberries to make an eton mess.

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.