Category: AJH Advocacy

I have written about the practical approach to deductions regarding success fees and ATE premiums from children’s cases, which are usually subject to criticism from the Judiciary when sought from damages at an Infant Approval Hearing.

Whilst it is not a binding decision, a county court appeal has allowed a Circuit Judge to give some further guidance/clarity that may assist the District Bench in making such a determination.

Duffield v WW Morrison Supermarkets Ltd [2025] EWCC 35

The case concerned a child (Master Brendan Duffield), who was injured at a Morrisons supermarket in April 2022. His mother, Ms. Matuleviciute, served as his litigation friend. The claim commenced with the litigation friend entering into a Conditional Fee Agreement (CFA) with a 100% success fee uplift, along with an After The Event (ATE) insurance policy costing £650 plus IPT (12%).

The Judge approved a damage settlement of £2,250. Whilst the Judge allowed a success fee, they had reduced the success to £225 and refused the ATE Premium, given the following Judgment:-

1. Therefore, there are two separate deductions from the Claimant’s agreed sum of damages that I am asked to consider. The first is a success fee of £450 under a form of conditional fee or damages based agreement. The second is a premium under a costs based insurance policy of £675.

2. Under CPR 21.12, a Litigation Friend who incurs costs or expenses on behalf of a child is entitled to recover the amount of any such cost or expense to the extent that it has been reasonably incurred and is reasonable in amount. In deciding whether any cost or expense was reasonably incurred and reasonable in amount, I am required to have regard to all the circumstances of the case including the factors set out in CPR 44.4(3) and 46.9.

3. However, stepping back and focusing on the broader picture, I am presented with a situation where the Claimant acting through his Litigation Friend has accepted an award of damages of £2,250 and yet I am being asked to approve deductions from those damages which amount to approximately 50% of the total sum of the Claimant’s damages. As mentioned, that is £450 for a success fee and £675 for an ATE premium.

4. In relation to the deduction constituted by the proposed success fee of £450, I have taken into account the requirements of CPR 21.12 (10) which I found are met, although I focussed particularly on the risk assessment form which, as I have said, does not appear to be a particularly comprehensive risk assessment. It seems to say what has not been done rather than what has been considered. However, I am willing to accept that a risk assessment in name, albeit not a particularly helpful or considered one, has been provided for the purposes of CPR 21.12 (10).

5. So, in considering the amount of the success fee that is proposed as a cost deduction, I take into account the general approach of Simmons v Castle [2012] EWCA Civ 1039 and allow the deduction of a success fee, but, in the circumstances, I will limit that success fee to 10% of the agreed damages. That is 10% of damages which will be £225.

6. In relation to the ATE premium, whilst an expense may include all or part of a premium in respect of a costs insurance policy, I do need to consider whether it was an expense that was reasonably incurred and reasonable in amount having regard to all the circumstances and the factors set out in CPR 44.4(3) and 46.9.

7. I am not persuaded that, in the circumstances of this case, it was reasonable to incur a premium of £675 in relation to a costs insurance policy. This issue is not with the amount of the premium but with the fact that it was incurred at all. This was an accident that Brendan unfortunately suffered on the premises of Morrisons when he pulled a loose cabinet on to his foot. This is a personal injury case in which Qualified one-way cost shifting would apply. In the circumstances, it is difficult to see what, if any, risk could arise of the Claimant being required to pay the Defendant’s costs. The Claimant’s solicitors will have separately recovered an agreed amount of their costs from the Defendant. In addition, in a case such as this, it would be reasonable to expect that Morrisons would settle the case, which indeed they have.

8. So, any potential risk to the Claimant that might have been covered by a costs based insurance policy is not a risk that would, in the circumstances of this case, be one for which it would be reasonable to incur a premium for a costs based insurance policy. In the circumstances, there would be no reasonable expectation of the Claimant being at risk of paying the Claimant’s costs and it is therefore, difficult to see how such a deduction from the Claimant’s damages would have been reasonably incurred.

9. Therefore, I will allow the deduction from the Claimant’s damages of a £225 success fee but not a deduction of £675 for the premium for a costs based insurance policy.

The Judge essentially did what many Judges do (and some Solicitors might argue alternatively): reducing the success fee to 10% of the damages because Simmons v Castle increases PSLA to account for the Jackson reforms. The Judge clearly believed the total amount sought was ‘50%’ of the Claimant’s damages and therefore that the deductions were excessive. Whilst the Judge was satisfied there was a risk assessment, they also said it was not helpful for the purposes of CPR 21.12, but did not say in their decision why, just simply focusing on Simmons v Castle.

The Judge boldly stated that this was a case in which it would have been reasonable to expect Morrisons to settle. This, along with the usual QOCS point, led to the ATE premium not being allowed. She also alluded to the fact that the solicitors got paid regardless as a factor for refusing the ATE premium.

The litigation friend appealed and HHJ Monty KC heard the appeal in the County Court at Central London.

Appeal

The litigation friend appealed on the grounds that the judge wrongly reduced the success fee from the agreed contractual terms, the ATE premium was reasonably incurred and should have been allowed, and the appeal was unopposed, which is understandable given the Defendant had no vested interest at all in how the damages were to be utilised. Judge Monty KC allowed the appeal and set aside the first judge’s order.

Judge Monty KC noted that the Judge had clearly found the success fee to be reasonably incurred, but disapproved with the amount. Judge Monty KC correctly stated that the 10% uplift as per Simmons v Castle had nothing to do with the success fee calculations. He also went further and considered CPR 46.9

36.         The court must also have regard to CPR 46.9 and thus the fact that were there to be an assessment between the solicitor and the litigation friend, it would be on an indemnity basis.  This means, in my view, that if the court departs from CPR 46.9, it renders the litigation friend vulnerable to being personally liable for costs which are not permitted under CPR 21.12 but are not open to challenge as between the litigation friend and the solicitor.  In so finding, I am agreeing with, and adopting the words of, HHJ Lethem in Hennes at [13]:

“Thus the effect of that recognition is that the Court is likely to start from a presumption that providing the litigation friend has approved the costs, they have been reasonably incurred and are reasonable in amount. Secondly, the judge is likely to start from the assumption that the costs are proportionate.”    

37.         Returning to the success fee, I really cannot understand how it could be appropriate to quantify the success fee by reference to (a percentage of) the damages.  Even taking into account the “eight pillars of wisdom”, against the background of (a) a contractual arrangement between the solicitors and Ms Matuleviciute (b) which provides for an uplift on costs not damages (c) in circumstances where Ms Matuleviciute entered freely into the contract and understood its terms, it strikes me as wrong in principle to depart from the contractual provisions, which base the uplift on costs not damages.  In any event, the Simmons 10% uplift is to do with damages, not costs as between the litigation friend and the solicitors.

38.         It seems to me that the judge was wrong in principle about the quantum of the success fee.  This is not a disagreement about the exercise of a discretion.  It seems to me that the judge failed to apply the presumptions and assumptions in CPR 46.9.  In particular, there is a presumption that solicitor and own client costs have been reasonably incurred if they were incurred with the express or implied informed approval of the client.  That was the position here, on Ms Matuleviciute’s evidence.  There was nothing to rebut that presumption.  

He then referred to Herbert v HH Law Ltd [2019] EWCA Civ 527 and found that as the litigation friend had inforemed consent, the success fee could be reduced by reference to the 10% uplift.

With respect of the ATE premium, the Judge referred to West v Stockport NHS Foundation Trust [2019] EWCA Civ 1220 and said that ATE premiums’ reasonableness is judged by market norms, not case-by-case assessment. He further went on to say that QOCS does not negate the need for ATE insurance, especially when risks like adverse costs orders remain, and (something I have reiterated time and time again), disbursements which are not indemnified by a CFA. The outcome was the success fee and ATE premium was allowed in full.

48.         In my view the judge was wrong in the reasons given for disallowing the premium.  These are as follows:

(1)          Qualified One-Way Costs Shifting (“QOCS”) applies.  As Ms Crorie says, QOCS relates to enforcement, not the principle, of a costs order.  Even where QOCS applies, a child claimant is at risk of losing their damages if an adverse costs order is made against them.  

(2)          It was difficult to see how there was any risk of the Claimant having to pay costs.  I also agree with Ms Crorie that the risks against which protection is provided by an ATE go further than an adverse costs order, and may include liability for other disbursements such as second opinion medical reports.  I further agree that an adverse costs risk is present notwithstanding QOCS – for example, the effect of any Part 36 offer.  A similar point was made in BXC v DTA [2021] EWHC B27 (Costs)at [87].  This point also seems to me to ignore the general risk inherent in all litigation.

(3)          Express Solicitors have separately recovered their costs.  That is incorrectly looking at matters as at the hearing, rather than at the time the ATE was taken out.

(4)          It would have been reasonable to expect the case to settle.  I am not at all convinced by that.  Liability had been denied.  I do not think it possible to say with certainty that it was bound to settle.

49.         I have no doubt that the ATE was reasonably entered into, and that the judge’s conclusion to the contrary was not just an exercise of discretion with which I disagree, but was wrong.  Having assessed the success fee at 10%, that meant that there was a risk attached to the litigation which meant that the cost of the premium was deductible.  That being so, I have no hesitation in concluding that the premium ought to have been allowed as a deduction in full.

Commentary

While this decision clearly advances beyond my earlier discussions on judges’ refusal to approve ATE premiums or their reductions in success fees, the core principle remains unchanged: success fees are often misunderstood. Many overlook that the 25% deduction is a cap, and that the amount deducted from damages to cover the success fee can be as high as 100%. It could be 30%, for example. However, if these success fees, when applied to the base costs, amount to more than 25% of the damages, then only 25% can be allowed.

When I make submissions, I always begin by explaining how the success fee is calculated and what it could be, since the base costs might be assessed and reduced beforehand. After that, I consider whether the full success fee can be deducted, given that only 25% of the damages can be deducted.

This judge clearly indicated that deducting 50% of the damages overall was inappropriate. They initially held the view that the costs were not proportionate or reasonable. Instead of presuming that costs are reasonable, the presumption is that they are unless evidence suggests otherwise. 

I have always found ATE premiums to be easily justifiable because the main arguments revolve around QOCS issues. Some costs are reasonably incurred with the ATE insurers’ approval and can be indemnified by the policy if damages are awarded or agreed upon, making the order enforceable. However, some costs may be negligently or inappropriately incurred and would not be covered by the ATE. My primary argument for ATE is that the cost of the premium, which the litigation friend would pay if the case is unsuccessful, is usually much lower than the overall disbursement liability. Judge Monty’s reliance on West helps distinguish the premium from a disbursement, since it is an expense directly incurred by the litigation friend and therefore not subject to the same court scrutiny as costs and disbursements.

No doubt, Claimant solicitors and their instructed advocates will be relying on these points going forward.

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.

The Pre-Action Protocol for Personal Injury Claims below the Small Claims Limit in Road Traffic Accidents (‘The RTA SC Protocol’) and Practice Direction 27B (‘PD27B’) are the rules that govern low value whiplash claims which as subject to the Small Claims Track (quite often referred to as OIC, which is the acronym for the Official Injury Claims portal).

Like its elder siblings, the RTA SC Protocol is a self-contained, codified set of rules intended to give certainty to parties. The prescriptive language is clear when steps must be taken or are optional, and the parties may choose to do so.

However, unlike the other low-value personal injury protocols, there is some additional scope for further evidence to be obtained and relied upon when it comes to determining issues at a hearing.

I recently attended a hearing where this was put to the test.

The issue

In this case, liability was denied by the Defendant insurer (and as per the RTA SC Protocol, the matter would proceed to a liability-only determination hearing under PD27B). The Defendant insurer put forward an email ‘witness statement’ which had a statement of truth from an alleged independent witness.

Approximately a year later, the list of documents for the Court was created and the Court Pack was sent to the Defendant insurer. The Claim Form was eventually issued and served. The Defendant insurer then sought permission (in their acknowledgement of service) to obtain witness statements from the driver and a better witness statement from the independent.

A notice of hearing was served on the parties around the 19th May 2025, with the hearing listed for the 30th June 2025. On the 19th June 2025 (a month later and 11 days before the liability hearing) an application was made by the Defendant insurer for permission on witness statements that were annexed to the application.

The Claimant resisted the application. I was instructed to object to the application, which was being heard before the liability hearing.

The Defendant’s argument

The Defendant Solicitors stated in their application that they were instructed to witness statements on the OIC portal, but they had not received copies of them. It then transpired that the defendant insurer did not obtain a statement from the driver and did not seek to obtain a more substantive statement from the independent witness.

They argued they sought permission to rely on additional evidence per PD27B para 2.11. Without permission or reasons for refusal, they decided to apply after obtaining statements. They claimed lack of a statement from the driver prejudiced them, and the witness statement, though endorsed with a statement of truth, was improperly formatted and missing expected details.

They relied heavily on the overriding objective and sought permission to rely on the two statements.

My argument

I had set out various rules form the RTA SC Protocol which I relied on:-

Para 6.2 – The compensator must respond to the claimant about liability within 30 days after the claim is accepted on the Portal

Para 6.6 – (2) Unless the compensator makes an admission of liability in full, the Compensator’s Response on liability must also set out the defendant’s version of events and provide any evidence in support.

Para 6.17 – (1) Paragraph 6.6 provides that unless the compensator makes an admission of liability in full, their response on liability must set out the defendant’s version of events and provide any information in support.

(2) The compensator may upload photographs, sketch plans, witness statements, dashcam or other video clips or other documents or data to the Portal in support of their response on liability.

(3) Uploading under paragraph (2) can be done at any time up to the point where the compensator responds on the contents of the Court Pack created by the claimant under section 12. However, the parties should normally allow at least 10 days for new evidence to be considered before proceedings are started.

(4) The information uploaded under paragraph (2) will be used by the court to determine liability, so it is important that the compensator uploads any evidence on which they want to rely.

Para 6.19 (1) A witness summary may be used in place of the defendant’s version of events in the response, where the compensator has been unable for good reason to obtain a signed version of events from the defendant within the 30 day period for response.

(2) A witness summary is a summary of—

(a) the evidence, if known, which would otherwise be included in the defendant’s version of events; or

(b) if the evidence is not known, the matters about which the compensator wishes to question the defendant.

(3) The compensator must state when using a witness summary the reason why they have been unable to obtain a signed version of events from the defendant.

(4) In these circumstances only, the compensator must sign the statement of truth in the response in support of the matters stated above. The statement of truth must be signed by the person at the compensator with knowledge of the matters stated.

(5) Where the compensator uses a witness summary as provided in paragraph (a), they should still obtain the defendant’s version of events, supported by a statement of truth signed by the defendant and upload this onto the Portal as soon as possible. This step must be taken by the time the compensator responds on the contents of the Court Pack created by the claimant under section 12, failing which the defendant’s evidence will not be included in the Court Pack.

I had submitted that the rules were clear, stating that the Defendant insurer was obligated to provide its evidence in support of its denial and must do so before responding to the Court Pack.

I said this was in keeping with other protocols and the use of compulsory language such as ‘must’.

I submitted that the Defendant had denied and relied on the independent witness’ emailed statement, endorsed with a statement of truth. It had around eleven months to obtain witness statements and chose not to.

I then addressed the issue regarding PD27B para 2.11:-

2.11

(1) Where the defendant seeks to rely on evidence not contained in the relevant Court Pack the defendant must send the evidence to the court with form RTAASL or explain why this is not possible and must include the following in form RTAASL—

(a) a summary and description of the evidence the defendant would like to rely on; and

(b) the reasons why it was not produced as part of the steps taken under the RTA Small Claims Protocol.

I reminded the Judge that the Defendant Solicitors’ application witness statement did not explain why the Defendant did not obtain the witness statements, merely explaining why they wanted them.

I further argued that this was a streamlined system, which was a ‘stack them high, sell them cheap’ system that the insurance industry lobbied for to keep costs down. This was not a new procedure; it was nearly four years old at the time of the hearing and older than three years at the time of the breach. I argued that the streamlined nature meant the Defendant had failed to adduce evidence or explain why they didn’t in a justified manner.

What happened?

Unfortunately, the Judge was not with me. He asked me whether CPR 27.8 gave him the power to adapt the hearing where necessary. I disagreed because I said that was the power to conduct teh hearing as he saw fit, not the power to allow evidence in that should have been filed/served in accordance with the prescriptive rules of the RTA SC Protocol and PD27B.

The Judge still relied on CPR 27.8 and allowed the Defendant to rely on the statements. Fortunately for the Claimant, the Judge still found in favour of the Claimant on liability.

Commentry

I disagree with how the Judge justified the defendant’s ability to rely on late evidence. In my view, the language reflects that of the low-value protocols, where it was determined that late evidence could not be relied upon after the deadline had passed. There are several Court of Appeal authorities on this matter. I accept that there is a ‘second bite of the cherry’, so to speak, when a claimant sends the court pack to seek permission to rely on further evidence not previously uploaded onto the OIC portal. 

The defendant has a similar opportunity when they file their acknowledgement of service. However, the rules are very clear: they require the party to explain why that evidence could not be uploaded at the appropriate time. There may be a valid reason for an exception, and the judge may grant permission. Alternatively, the judge may not be satisfied and refuses permission.

What the defendant did here was fail to do anything in the period prior to the commencement of legal proceedings and to appropriately explain why the evidence had not been obtained. That was the key element and was not taken into consideration by the judge, who simply relied on his ability to control how the hearing was conducted as a means of allowing the statements in.

Imagine if the claimant had been unsuccessful. Had the judge not erred in admitting the evidence, there is a strong possibility that his evidence would have been accepted over the independent witnesses, and an alternative conclusion might have been reached. Could that claimant justify appealing such a decision? The issue is that, as with all small claims matters, there is limited cost recovery. He would have been able to recover the court fee for serving the appellant’s notice and the cost of any transcript. That would have been the extent of what he could recover, unless there was unreasonable conduct, which I do not think would be appropriate in this circumstance.

This is why certainty is essential in the small claims track, and why parties must carefully follow the RTA SC protocol and PD27B to ensure compliance. The Defendant insurer might have been required to convert the Claimant’s case based on an alleged independent witness with a very limited witness statement, of which is not uncommon in OIC liability hearings.

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.

Witness evidence is vital in civil litigation, as it constitutes the witness’s evidence in chief. If it is incorrect, it’s essentially the same as the witness being in the witness box and failing to comply with CPR Part 32, which governs witness statements to ensure they are accurate, truthful, and procedurally sound.

For those involved in litigation, preparing these statements precisely is crucial for maintaining case credibility and ensuring fairness. Poorly drafted or non-compliant statements can lead to adverse inferences, evidence exclusion, wasted costs, or worse, findings of fundamental dishonesty or contempt of court.

A proper understanding and application of CPR Part 32 are essential for practitioners to safeguard clients and uphold justice. More importantly, there are steps that can be taken to ensure the witness statements are accurate and the witness’ best evidence.

Recently, I became aware of a case involving a poor witness statement and its consequences. In a Fast Track trial, including a personal injury claim where a finding of fundamental dishonesty could be disastrous for the Claimant, the Judge deemed the witness statement fundamentally inadequate, with numerous issues and contradictions.

On this occasion, the judge chose to overlook these issues, attributing them to the fee earner’s poor litigation. As a result, the judge ruled in favour of the Claimant, but declined to award costs, apart from the disbursements and trial advocacy fee.

This Claimant was lucky; others would not be so fortunate due to the statement being endorsed by a statement of truth.

Before I move on, if you haven’t guessed, the image is AI-generated. If you can see what is wrong with the client, you’ll see why, for my own amusement, I didn’t ask the AI generator to fix it.

Avoid leading questions when preparing the statement

The art form of non-leading examination in chief (and re-examination) is being able to guide the witness on the appropriate path and eliciting the answers to the question, without the witness (mostly due to not appreciating the purpose of the question) going off on a tangent. Such an example is seen in the 1957 film ‘Brothers In Law’ where a young Richard Attenborough plays a Barrister (Hernry Marshall) attempting to elicit evidence in chief from his client in her divorce claim:-

Mr Marshall: Mrs. Potter, did your husband ever hit you?

Judge: One moment. Please don’t lead on essential matters.

Mr Marshall: As your lordship pleases. Mrs. Potter, did he or did he not hit you?

Mr Marshall: Really, Mr. Marshall, that’s just as bad.

Mr.  Marshall: Very well, my lord. Mrs. Potter, how often did these assaults take place?

Judge : Mr. Marshall! That’s not only a leading question, it is a double question and in my view a most improper one. The witness has not yet said that her husband hit her.

Mr.  Marshall: Well, madam, did he hit you?

Judge : Mr. Marshall, there must be some limit to this.

Mr.  Marshall: Your lordship tells me to ask a question and then when I do, your lordship complains.

Judge : That’s a most improper observation.

Mr.  Marshall: Very well, my lord, I apologise.

Judge : Well, let me suggest that you ask the witness how her husband treated her.

Mr.  Marshall: Thank you, my lord. Mrs. Potter, how did your husband treat you?

Mrs. Potter: Like a slave.

Mr.  Marshall: Yes?… in what way?

Mrs. Potter: Well, in every way.

Mr.  Marshall: Well, uh, could you enumerate some of those ways?

Mrs. Potter: Enumer what?

Mr.  Marshall: Give some examples?

Mrs. Potter: It was always happening.

Mr.  Marshall: What was?

Mrs. Potter: Him treating me like that.

Mr.  Marshall: Like what? How did he treat you?

Mrs. Potter: Something terrible.

Mr.  Marshall: We weren’t there, Mrs. Potter. You must tell us about it.

Mrs. Potter: Well, it was going on all the time.

Mr.  Marshall: What was?

Mrs. Potter: What he did.

Mr.  Marshall: Just tell us one thing he did.

Mrs. Potter: So many.

Mr.  Marshall: It should be easy to think of one. Can you not tell his lordship one simple thing your husband did?

Mrs. Potter: …Well, there was that time at Christmas.

Mr.  Marshall: Yes?

Mrs. Potter: …or was it at Easter?

Mr.  Marshall: Well, what happened at Easter then, Mrs. Potter?

Mrs. Potter: Well… what was you saying again?

Mr.  Marshall: Something happened at Easter.

Mrs. Potter: Well, I don’t think I’d like to tell the judge that.

Developing a method to gather information from witnesses effectively when preparing a witness statement requires a certain skill. However, approaching it in the same way as an advocate conducting an examination in chief will genuinely capture the witness’s own words from their own knowledge.

This approach helps prevent the issue where a witness’s statement contains only what they don’t truly know, which might be someone else’s interpretation of the facts. When challenged during cross-examination, this discrepancy becomes clear and can undermine the witness’s credibility. 

Questions being asked of a witness with the appropriate need to interject and guide the witness down the correct path will always elicit good clear and concise evidence in that witnesses own words.

The best (albeit not most practical) approach is to have a live interview

Building on my previous point, a better witness statement is created if someone speaks directly to the witness rather than relying on a standardised (or even personalised) questionnaire. The responses might lack specificity, be poorly interpreted, and often the drafter of the witness statement will record their interpretation of what was written. There is no chance to ask for clarification on points or to include additional questions that could improve the response.

I appreciate that, with high-volume litigation, this is almost an unlikely option, especially in a small claims track venue where costs are essentially nonexistent.

Capture your client’s evidence in their own words

Whilst I touched on this previously, it is so important. A red flag that a witness statement is not in the witness’ own words is when the witness does not understand the content. Those who are a fan of the TV show ‘Friends’ will know the following when Joey uses a thesaurus in his letter to an adoption agency on behalf of Chandler and Monica:-

Monica: Alright, what was this sentence originally? (shows the sentence to Joey)

Joey: Oh, ‘They are warm, nice, people with big hearts’.

Chandler: And that became ‘they are humid prepossessing Homo Sapiens with full sized aortic pumps…?

Joey: Yeah, yeah and hey, I really mean it, dude.

Monica: Hey Joey, I don’t think we can use this.

Joey: Why not?

Monica: Well, because you signed it baby kangaroo Tribbiani

If the witness does not understand what is said in their own witness statement, it is very unlikely to be their own evidence. It adds further doubt as to whether the Court accept the Claimant’s evidence.

Make sure they can actually read their own witness statement

I will put my hand up and accept that I had an issue with this once. When I was employed fee earner, my assistant called the Claimant and took his evidence, prepared a witness statement.

That witness statement was sent to the Claimant with a covering letter explaining the importance of the statement being correct and a clear explanation of fundamental dishonesty with the consequences. The Claimant signed the statement and returned it.

It was a month before the trial that the client asked if someone would be able to read things to him as he could not read. This was a fault on my part that I did not check that he able to.

His statement was invalid because he endorsed something he could not read. However, my opposite was very helpful in that she allowed me to take the steps to retrosepctively remedy,.

CPR 22.1(9) sets out what needs to be done to ensure someone who cannot read the statement (other than language alone) can endorse their witness statement.

(9) Where a document containing a statement of truth is to be signed by a person who is unable to read or sign the document other than by reason of language alone—

(a) it must contain a certificate made by an authorised person (who is able to administer oaths and take affidavits but need not be independent of the parties or their representatives); and

(b) the authorised person must certify that—

(i) the document has been read to the person approving it;

(ii) that person appeared to understand it and approved its content as accurate;

(iii) the declaration of truth has been read to that person;

(iv) that person appeared to understand the declaration and the consequences of making a false declaration; and

(v) that person signed or made their mark in the presence of the authorised person.

Although this point may not be the most ideal statement, it guarantees that (a) it’s the witness’s evidence, and (b) reading it aloud often allows the witness to catch an error and correct it.

Make sure continuity occurs not just within the contents of the witness statement.

It’s also crucial that consistency isn’t limited to the facts and content within the witness statement, but extends to all other evidence. Any inconsistencies with objective evidence can erode the witness’s credibility. For instance, photographs and plans might contradict the witness’s evidence. By cross-checking evidence and asking the witness non-leading questions, we can hopefully gather the necessary evidence or identify potential issues that may arise at trial.

Concluding remarks

While I understand that for high-volume litigation cases with limited or no recoverable legal costs, my recommended approaches may not always be practical, there are ways to make them work. For instance, having dedicated assistants who can use this opportunity to develop skills that can be applied if they choose to become fee earners could help streamline the process. 

It is, however, one of the most important pieces of evidence in a party’s arsenal for litigation, and it should be crafted correctly so as not to prejudice the client’s claim. 

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.

Low-value personal injury cases involving children and their management are a crucial yet often misunderstood aspect of personal injury law and litigation.

While these proceedings may appear straightforward, they involve specific protections designed to safeguard the best interests of the child. Unfortunately, the nuances of these hearings can be easily overlooked by those unfamiliar or learn the process by following rote.

This article addresses points that may be unknown, misunderstood or helpfully affirm what practitioners may already know.

Defendant’s require the sealed Order to pay into the Court Funds Office

It was said by my opponent at a contested infant stage 3 hearing that asking the Court for the payment to be 14 days of service of the Order as ‘unnecesarily complicating things’ because a payement into the CFO would simply ‘marry up with the CFO 320 settings’. I asked for this because I had advised the Court that the Defendant cannot pay the money into the Court

My opponent had erred because the CFO 100 (the fom used to pay money into Court) contained the following statement:-

Has the court ordered you to pay money into court? If Yes, give the date of the order and attach a sealed copy of the order to this form. If you do not have a sealed copy of the order, then you must get the court to seal this form

Therefore, Orders which are not printed quickly (due to back logs) could lead to a unintentional breach of an Order because the Defendant simply cannot comply with the Order. Please bear in mind that Defendant is not being facitious, the request for payment into Court within x days of service of the Order is for a particualr reason.

Children’s whiplash cases cannot go into the Small Claims Track

Practitioners will know that a claim cannot go into the OIC portal if it concerns a child, because para 4.3(f) of the Pre-Action Protocol for Personal Injury Claims below the Small Claims Limit in Road Traffic Accidents (‘The RTA Small Claims Protocol’). It therefore goes into the MOJ portal under the usual Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (‘RTA Protocol’).

It is more than that. If Part 7 proceedings are issued, the claim is expressly excluded from the Small Claims Track as per CPR 26.11:-

26.11.

(1) The fast track is the normal track where a claim—

(a)is for personal injuries arising from a road traffic accident which occurs on or after 31st May 2021;

(b)is made by—

(i)a child or a protected party; or

(ii)a person who, on the date the claim was first presented via the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents, was a child; and

(c)consists of, or includes, a claim for a whiplash injury.

(2) Where this rule applies, the claim must not be allocated to the small claims track.

(3) ‘Whiplash injury’ has the meaning ascribed to it by paragraph 1.2(38) of the Pre-Action Protocol for Personal Injury Claims Below the Small Claims Limit in Road Traffic Accidents.

It doesn’t matter if the damages being sought are £240 for a three-month whiplash injury with no psychological symptoms; it would be allocated to the Fast Track. Another key point is that if a child is under 18 and the claim was first submitted on the MOJ Portal whilst they were a child before turning 18, then it would not matter if the Claimant was an adult at the time of issuing proceedings, CPR 26.11(2) prevents Small Claims Track allocation.

The whiplash tariff does apply to children

I was previously instructed to prepare a skeleton argument for an approval hearing because the Court was not satisfied that the advocate, solicitors, and counsel (who drafted the advice on quantum) were correct in asserting that children were subject to the whiplash regime.

Section 1(4) explains the circumstances where a whiplash injury would apply:-

(4)     For the purposes of this Part a person suffers a whiplash injury because of driver negligence if—

(a)       when the person suffers the injury, the person—

(i)        is using a motor vehicle other than a motor cycle on a road or other public place in England or Wales, 

or

(ii)       is being carried in or on a motor vehicle other than a motor cycle while another uses the vehicle on a road or other public place in England or Wales,

(b)       the injury is caused—

(i)        by the negligence of one or more other persons,

or

(ii)       partly by the negligence of one or more other persons and partly by the negligence of the person who suffers the injury, and

(c)         the negligence of the other person or persons consists in an act or acts done by the person or persons while using a motor vehicle on a road or other public place in England or Wales.

(5)     The fact that the act or acts constituting the negligence of the other person or persons is or are also sufficient to establish another cause of action does not prevent subsection (4)(b) being satisfied.

(6)     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.

(7)     In this section—

• “act” includes omission; 
• “motor cycle” has the meaning given by section 185(1) of the Road Traffic Act 1988; 
• “motor vehicle” means a mechanically propelled vehicle intended or adapted for use on roads; 
• “road” means a highway or other road to which the public has access, and includes bridges over which a road passes. 

If a child is in a vehicle and sustains whiplash injuries, it will fall within the scope of the whiplash regime. The usual caveats, such as two years maximum duration, etc. apply but does not exclude children.

The fact that children are excluded from the small claims track and the OIC protocol does not mean that children are excluded from the whiplash regime. They are not mutually exclusive.

If the child sustains injury on a bicycle, pillion, motorcyclist (moped), or sustains injury as a pedestrian, then they are excluded from the regime because they are ‘vulnerable road users’.

Approval hearings can be conducted by District level Judges

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Practice Direction 21 states the following:-

5.6 Applications for the approval of a settlement or compromise will normally be heard by –

(1) a Master or a district judge in proceedings involving a child; and

(2) a Master, designated civil judge or his nominee in proceedings involving a protected party.

(For information about provisional damages claims see Part 41 and Practice Direction 41A.)

It is quite often the case that the Court staff in the County Court are not aware of the need for protective parties to be approved by the Designated Civil Judge or their nominee. It will often be the case a District Judge will hear it, but prior arrangements need to be made.

No additional steps are necessary for children, but if you do have a protected party, it is worth drawing attention to the Court staff about this to avoid any potential issues.

Contested infant Stage 3 hearings have investment hearings, not approval hearings

At several infant Stage 3 hearings, I find that advocates are asking for the Court to approve the sum that the Court had just determined. This is procedurally flawed.

CPR 21.10 says the following:-

Compromise etc. by or on behalf of a child or protected party

21.10

(1) Where a claim is made –

(a) by or on behalf of a child or protected party; or

(b) against a child or protected party,

no settlement, compromise or payment (including any voluntary interim payment) and no acceptance of money paid into court shall be valid, so far as it relates to the claim by, on behalf of or against the child or protected party, without the approval of the court.

The Court needs to approve compromises, settlements and payments regarding those settlements and compromises. A Court making a final determination is not a compromise, it is not a settlement and does not require approval.

The purpose of the approval is the safeguard regarding settlements between parties for which the child claimant has no role in. The Supreme Court discussed the issue recently in Dunhill v Burgin [2014] UKSC 18, where it was said:-

33.  Policy arguments do not answer legal questions. But to the extent that they are at all relevant to the issues before us, the policy underlying the CPR is clear: that children and protected parties require and deserve protection, not only from themselves but also from their legal advisers. The notes to Order 80 in the last (1999) edition of the Supreme Court Practice stated that among the objects of the compromise rule was “to protect minors and patients from any lack of skill or experience of their legal advisers which might lead to a settlement of a money claim for far less than it is worth”, a sentiment which has been carried forward into the current edition of Civil Procedure.

A determination by the Court is not a decision by the legal advisors or the litigation friends. It seems that it won’t be approved. Sometimes I find Claimant bundles for contested stage 3 hearings contain an advice on quantum (very bad) or contained within the envelope with the Part B (less bad, but still not good – it is a privileged document and the court need only consider it when it is a compromise).

Whilst an agreement can be made at the door of the Court, and the advocate could either make oral submissions about why such an amount should be approved or then furnish the Judge with advice on quantum, one should not include a copy to the Court.

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 have been instances where claims for losses were made, likely occurred, but were not legally recoverable.. For example:-

• A claim for the stress and inconvenience caused by the negligence and the subsequent litigation. Such damages are usually only awarded where there was a contractual liability to avoid such stress and inconvenience, i.e. where the very object of the contract was to provide pleasure – see para 101 of Farley v Skinner [2001] UKHL 49
• Travel expenses to the medico-legal appointment, which flows as a result of the litigation and not the negligence – see para 82 of Tagg v Countess of Chester Hospital Foundation NHS Trust [2007] EWHC 509 (QB)
• Time spent by family members or friends sat with the Claimant in hospital, which does not go beyond – see para 85 of Tagg

However, it is wholly different when Claimants include losses that may not have been incurred, and most likely included at the whim of the fee earner. Quite often, I see pleadings include a head of loss alongs the line of the following:-

“The Claimant claims £10 for undocumented ‘out of pocket’ expenses such as telephone calls, postage costs and other miscellaneous expenses”.

The problem for the Claimant is that they have not incurred these expenses and signed a statement of truth saying they have. Usually because they have not incurred direct telephone costs, postage and, most importantly, those costs (if they were incurred) were most likely to be a result of the litigation (i.e. communicating with their Solicitors) and not the accident.

The Courts take signed statements of truth very seriously, irrespective of whether it is signed by the Claimant themselves or their legal representatives (see Molodi v Cambridge Vibration Maintenance Service [2018] EWHC 1288 (QB)).

I once represented a Claimant at an RTA where LVI was alleged. I took instructions and the Claimant agreed to not pursue the claim for telephone and postage costs, after he confirmed he did not incur these because he had unlimited minutes on his phone and never posted a single document.

My opponent chose not to cross-examine him on the point, but the Judge did question it. I did remind the Judge that the head of loss was not being pursued, but the Judge still wanted to ask him about it. Naturally, the Claimant explained these were not losses he was aware of and said that his Solicitors had included them. The Judge was extremely critical of both the Solicitors’ conduct, but also of the Claimant for signing a statement of truth about something he knew not to be true.

It does not matter even if, by the time of the trial, the Claimant has abandoned the head of loss. This principle has been seen in Roberts v Kesson [2020] EWHC 521 (QB). The Defendant insurer appealed a decision of the Recorder’s first instance decision to allow damages and not make a finding of fundamental dishonesty. 

The Claimant sought damages for his car’s value, storage costs, and high taxi hire charges. Initially, he claimed he sold his car for salvage but later admitted it was untrue, revealing the car was roadworthy. The Recorder awarded general damages for PSLA, rejected special damages due to insufficient evidence. Counsel for the Defendant insurer had argued that the Claimant was intentionally hiding documents, warranting an adverse inference against him. 

Jay J found that no proper explanation has been given for the falsities in his evidence. He disagreed with the Recorder’s assessment of dishonesty and found that the evidence indicated that the Claimant would have continued his false claims if not for the Insurers’ intervention. He therefore found that there was dishonesty that fundamentally went to the roots of the claim and set aside QOCS. 

Signing a statement of truth in civil proceedings while knowingly including false content carries a significant risk due to the consequences that follow. There is simply no reason to include generic losses which the Claimant may not have incurred. The simple fix is to stop doing it. Do not place your client in any unnecessary jepody.

Information 

Alec Hancock is a CILEX Advocate and Litigator in Civil Proceedings. CILEX Regulation is his regulator. He can appear in open Court in all County Court matters save for family proceedings. 

Alec Hancock conducts his advocacy through AJH Advocacy Limited. The Bar Standards Board is the regulator. Alec will attend any Court in England and Wales. He does not charge extra for:-

• Truro County Court
• Bodmin County Court
• Plymouth County Court
• Exeter County Court
• Torquay & Newton Abbot County Court
• Taunton County Court
• Barnstaple County Court

Contact Alec Hancock

Alec Hancock cannot accept instructions from the general public. He can receive instructions from any law firm or entity subject to professional availability and conflict checks.

alec@ajh-advocacy.co.uk

07480 063747

The Workbox

30 Ferris Town

Truro, TR1 3JJ

The fixed trial advocacy fees for fast-track trials now vary, resulting in three different sets based on various factors.

I created the above flow chart to help practitioners, litigators, and advocates determine the appropriate trial advocacy fee for the type of fast track trial being heard.

Here is a quick guide to the type of fixed trial advocacy fees.

Part 45x.29 trial advocacy fees.

The fixed trial advocacy fees for personal injury cases, applicable to incidents occurring between 31^st July 2013, and 1^st October 2023, remain consistent across various types of claims. This includes road traffic accidents, employers’ liability, public liability, and holiday sickness cases governed by the Package Travel Regulations. Regardless of the specific category, the fees for trial advocacy will be the same.

They can be found in Tables 6B, 6C and 6D in CPR 45x.29. The ‘x’ is how it is represented in the white book for the version of part 45 that existed prior to the 1^st October 2023.

Part 45x.38 trial advocacy fees

Before the 1^st October 2023, if a case did not fall under the fixed recoverable costs regime for personal injury matters (such as non-personal injury road traffic accidents), fixed trial advocacy costs were awarded according to Table 9 of CPR 45.38. 

These costs were slightly lower than the fixed trial advocacy fees. Additionally, there were specific rules that allowed the court to adjust these amounts, either by limiting or increasing them. In contrast, the trial advocacy fees under the personal injury fixed recoverable costs regime were not subject to such adjustments.

PD 45 Table 12 trial advocacy fees

The updated fixed recoverable cost regime now includes new trial advocacy fees that have been adjusted for inflation. These costs apply to cases where legal proceedings were initiated on or after 1^st October 2023. However, there is an exception for personal injury cases, for which the new fixed cost regime applies to matters with a cause of action occurring on or after 1^st October 2023.

Additionally, the rules now feature an abated fee scheme. Under this scheme, a party is entitled to receive 100% of the applicable trial advocacy fee if the case is settled or removed from the trial list the day before the trial. If the case is settled or removed from the list more than one day but no more than two days before the trial, the party will receive 75% of the applicable trial advocacy fee.

Alec Hancock is a CILEX Higher Rights Advocate and Litigator in Civil Proceedings. CILEX Regulation is his regulator. He can appear in open Court in all County Court matters, save for family proceedings, and the Senior Courts.

Alec Hancock conducts his advocacy through AJH Advocacy Limited. The Bar Standards Board is the regulator. Alec will attend any Court in England and Wales. He does not charge extra for:-

• Truro County Court
• Bodmin County Court
• Plymouth County Court
• Exeter County Court
• Torquay & Newton Abbot County Court
• Taunton County Court
• Barnstaple County Court

Contact Alec Hancock

Alec Hancock cannot accept instructions from the general public. He can receive instructions from any law firm or entity subject to professional availability and conflict checks.

alec@ajh-advocacy.co.uk

07480 063747

The Workbox

30 Ferris Town

Truro, TR1 3JJ

After four years, the amount awarded for soft tissue whiplash of the neck, back and shoulder is increasing. The Whiplash Injury (Amendment) Regulations 2025, comes into force on the 31st May 2025, introducing a 15% increase in the fixed compensation tariffs for whiplash injuries sustained in road traffic accidents occurring on or after that date (i.e. not retrospective). This adjustment is said to account for inflation since the original tariffs a buffer for anticipated inflation up to 2027.

The Regulation amends the Whiplash Injury Regulations 2021 to provide two tables. The first table relates to accidents that occur on and after the 31st May 2021 and up to 30th May 2025. The second table will relate to accidents on hte 31st May 2025 and onwards.

Straightforward, no formulas. One table applies depending on when the accident happened. Interesting how close the 18-25 months with minor psychological symptoms is to the fast track threshold.

What would have been helpful is for the 2021 Regulation to have given a statutory definition of minor injuries. At best, the Statutory Review of the whiplash tariff would suggest the consideration of the JC Guidelines and as per Chapter 4, anything that does not meet a formal diagnosis or disorder and would normally be treated under Chapter 14.

Given that an appeal would be free of any real cost recovery, it is unlikely that it would provide judicial guidance on the interpretation of what constitutes a minor psychological injury.

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.

Whiplash claims can often be simple, but complexity arises in cases involving multiple injuries and conflicting reports. This complexity can complicate the claims process significantly. Additionally, low-value road traffic accident claims tend to be inefficient to manage, especially when they fall under the small claim claims track.

Fee earners often juggle multiple tasks in their efforts to progress matters efficiently. However, certain essential actions must be prioritised to optimise both success and potential damages in their work.

Clear instructions from the outset

Quite often, whether it is at Stage 3 hearings, OIC quantum hearings or Fast Track trials, the CNF is relied on to show the inconsistency between what injuries the Claimant has told the Defendant they sustained and the medical evidence.

There are various authorities, such as Richards & Another v Morris [2018] EWHC 1289 (QB), which highlights the seriousness of the CNF endorsed with a Statement of Truth. As we know, the legal representatives usually sign the CNF when it is submitted on the MOJ or OIC portal. Practice Direction 22 is very clear:-

3.7 Where a legal representative has signed a statement of truth, their signature will be taken by the court as their statement that:

(1) the client on whose behalf they have signed had authorised them to do so,

(2)  before signing they had explained to the client (through an interpreter where necessary) that in signing the statement of truth they would be confirming the client’s belief that the facts stated in the document were true, and

(3) before signing they had informed the client of the possible consequences to the client if it should later appear that the client did not have an honest belief in the truth of those facts (see rule 32.14).

Incorrect injuries can and will be used against the Claimant. In Stage 3 and OIC disposal hearings, where there is no evidence, the Court will quite often accept that if an injury wasn’t reported in the CNF then it won’t be considered, even if reported in the medical reports (the exception might be where medical records show that the injuries were report contemporneously to physcians prior to the CNF).

Some solicitors have argued that in OIC PI claims, according to paragraph 5.12(2) of the Pre-Action Protocol for Personal Injury Claims below the Small Claims Limit in Road Traffic Accidents (referred to as “the RTA Small Claims Protocol”), the Claimant has the opportunity to provide additional details about their injuries during the medical examination. They are only required to include the best information they can about their injuries.

However, while some Judges may accept that there can be some flexibility with the information provided, the purpose of this rule was to clarify for litigants in person (LIPs), for whom the protocol was specifically drafted, that they can elaborate on their injuries to the medical experts. It was not intended to serve as a way to correct any omissions from the CNF.

If matters get allocated to the Fast Track, then there is the risk inconsistencies will be relied on to challenge credibility or worse, alleged fundamental dishonesty.

• Get clear instructions
• Send the draft CNF to the Claimant to sign (even if the fee earner will sign the copy sent to the Defendant.
• Make it clear to the Claimant that any omissions will most likely impact any ability to claim for injuries and can impact credibility

Medical records check?

It is not typical to obtain medical records for an initial medical evaluation, except in cases involving orthopaedic assessments, particularly for non-soft tissue injury road traffic accident claims.

A common issue arises when an initial report suggests consulting a different expert, leading to the acquisition of medical records that might be reviewed by this new expert. These records may contradict the initial findings or, in some instances, reveal pre-existing conditions that should have been disclosed earlier.

While the Claimant might not intentionally withhold this information, possibly forgetting its relevance, it can create significant challenges, especially in personal injury claims. The sudden emergence of a pre-existing condition casts doubt on the Claimant’s credibility and may lead to misinterpretations of medical reports or assumptions made in the absence of this critical health history.

Obtaining medical records at the start can help avoid potential issues later on. It is not necessary to use a medical agency for this process, as most GP surgeries will release a reasonable amount of medical records without charge. However, it’s important to note that acquiring these records may take about a month. If you need updated records in the future, there is a possibility that the GP surgery might impose a fee for further records, even though ideally, you should only be requesting the records from the last date you received them to the present.

The timing of the initial report

In my experience at stage 3 hearings, I often emphasise that medical examinations are conducted soon after an accident, sometimes within four weeks. While I can’t dispute the injury’s duration, these early assessments can cast doubt on the true severity of the injury. For instance, a claimant may present severe symptoms shortly after the accident but might experience significant recovery later, resulting in milder, intermittent symptoms over time. As the expert sees the claimant so early in the prognosis. There is insufficient evidence before the court to say otherwise.

Many solicitors I speak to argue that clients may lose patience if they don’t see prompt progress, leading them to consider other options. There’s also a concern that delays could make insurers question the legitimacy of the claim, suggesting it isn’t genuine due to the time elapsed since the accident. From my experience, waiting more than two to three months for an initial report is usually unnecessary, whereas a month may be too soon for the reasons mentioned.

Address special damages in the insturction letter to the expert

werfsdfsdfsdCertain special damages can be effectively addressed through the standard points raised by the medical expert in their report. However, there may be financial losses that need to be justified but are not mentioned to the expert prior to the examination and preparation of the medical report. This oversight can lead to complications, especially if medical evidence is required to support a loss. For example, if a particular item is purchased to assist in recovery or pain management, a supplementary report may be necessary to address this issue. However, this process could put the claimant at risk of not being able to recover the additional disbursement associated with the addendum.

While it is not always possible to identify certain losses before the examination, it is generally expected that claimants should indicate any anticipated financial losses. These should be discussed during preliminary conversations with the claimant and specifically addressed by the expert. If any relevant points are overlooked in the instructions, you have sufficient grounds to request an amendment to the report without incurring additional costs. This does not need to be a time-consuming task. Special damages should be identified from the outset to assess whether the financial value of the claim warrants a different response protocol.

Initial report check

Most issues with medical evidence arise when the medical report is not properly reviewed by the client or the fee earner. While clients are responsible for checking the report, their varying abilities may lead to missed issues. If the fee earner thoroughly reviews the report and summarises it for the client, this can address concerns more effectively. This practice should be standard, as it ensures the initial report is compared to the CNF and instructions, improving clarity and understanding.

Claimant representatives would benefit significantly from ensuring that their client’s medical evidence is well-organised. The more consistent the evidence is, the more likely it will lead to a better offer. If a compromise cannot be reached, it will also result in a stronger position at any final hearing. Inconsistencies between the initial medical report and subsequent reports will rarely favour the claimant. Typically, if an initial report omits certain injuries that are included in later assessments, or if the first report indicates a recovery while the second suggests ongoing symptoms, the court will tend to favour the initial report.

Address ambiguity

Ambiguity in medical reports often leads to misunderstandings, as experts may not have the opportunity to clarify their statements. It is crucial for fee earners to read these reports from a layperson’s perspective to ensure the meaning is clear and accurately conveys what the expert intends. While experts may be trained to write medico-legal reports, they are not legal professionals and may not fully grasp how their words will be interpreted by a judge. Effective communication requires using clear and easily understandable language to avoid confusion.

“In my expert opinion, this is a non-whiplash injury and is excluded under s1(3)”

Defendants increasingly challenge whether injuries are excluded from the whiplash tariff under the Civil Liability Act 2018. Judges emphasise  often that it’s the court’s role, not the experts’, to determine these exclusions. Medical experts often use standardised phrases, leaning towards legal conclusions rather than assisting the court in understanding the specifics. While certain injuries, like those to the foot or knee, are unlikely to fall under the whiplash tariff, injuries to the upper arms or hips can be connected or associated with a whiplash injury and therefore would be included. 

Some medical experts may claim that an injury is excluded if it results from an external event, such as contact with the interior of a vehicle. However, this is not a formal definition under the relevant act. It is important to note that if a soft tissue injury is associated with another soft tissue injury in the neck, back, or shoulder (specifically involving the muscles, tendons, or ligaments connected to these areas) it can be classified within the whiplash regime.

The medical expert’s role is to clarify, from a medical standpoint, why a specific injury is not linked to the neck, back, or shoulder due to the involvement of a muscle, tendon, or ligament. This explanation would also help eliminate any ambiguity and decrease the likelihood of proceeding to a final hearing, which is particularly important in the context of an OIC claim.

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.

I recently attended a case involving a small claim track RTA trial where my client only succeeded because he referred to a video he had taken during his cross examination. The video clearly shows how close the Defendant’s vehicle was parked next to my client’s parked car before it drove away. It was only after the Judge heard from the the Defendant (who referred to photographs that she wanted to disclose but her Solicitors advised could not be relied on so late in the proceedings) that she decided to see the footage and the photographs.

In other words, but for the Judge’s decision to accept late evidence from both sides, we would have lost.

Why was this footage not obtained? It is primarily because the client did not appreciate the need to provide it at an early stage. He is a lay invidiual, he does not have the understanding. However, his Solicitors did and should have.

This is a revisited article of something i’ve previously wrote and I think needs to be said again.

Clients do not have a ‘scooby’ about what evidence the need to provide

I represented a client at a small claims trial who, on they day in question, returned to the car park to find damage to her car. There was also a note from a bystander who says they saw the damage and wrote down the VRN of the car (which was parked next to the client’s car in the car park).

The insurer/solicitors didn’t request a copy of the note, which was left in the car before it was sold. It wasn’t until just before the trial that the solicitors shared the Defendant driver’s statement with my client, who observed that the Defendant claimed his car was unlikely to be in the car park due to his house being only a 10-minute walk to the city centre.

During the proceedings, my client informed the solicitors that she had a photograph of the defendant’s car next to hers on the day of the accident. Unfortunately, no one asked about this evidence initially. Fortunately, the Judge allowed it to be presented, and it significantly challenged the defendant’s credibility. This situation underscores the importance of asking the right questions early on. A simple phone call could have revealed this crucial evidence. Given the heavy workloads, a concise questionnaire could effectively gather important information that might strengthen a case.

It cannot always be something that can be identified early. Last week I represented a Defendant who was reversing out of her courtyard when a neighbour collided into the rear of her Range Rover. The neighbour claimed that she was going 10mph. The Defendant had Ring but could not access it and said so in her statement. However, they were eventually about to retrieve the footage. In Fast Track and beyond, that would have probably fallen within the realms of McTear & Anor v Engelhard & Ors (Rev 1) [2016] EWCA Civ 487.

If you use a Particulars of Claim template, ensure you amend it correctly

Judges quite often are annoyed with significant errors with the Particulars of Claim, with many:-

• omitting the correct accident circumstances,

• failing to explain vehicle positions,

• failing to explain what the third party did that caused the accident, and

• failing to plead any negligence allegations. 

Many judges adopt a broad approach to small claims track litigation, acknowledging its imperfections and emphasising justice based on value. However, some judges view failures by professionals as the ‘authors of their client’s misfortune.’ While this may not result in strikeouts, it can affect the credibility of parties, especially if there are inconsistent statements.

Using templates and precedents is essential in volume litigation, but taking a few minutes to review them can help avoid issues. It’s evident from some defective Particulars that someone used a precedent and made changes, including the removal of parts that may not have needed alteration. This revised document was then used as a precedent for another case, which led to further modifications. Eventually, critical information was lost, and the fee earner likely did not realise it was missing, resulting in defective pleadings.

To prevent these problems, having a straightforward formula can be very helpful:-

Who, when, where, what and how?

• Who are the parties (make sure your client was the driver or, if they weren’t the drive, state who the driver was)?

• When did the accident (make sure the date coincides with the information you have bene provided)?

• Where did the accident happen (check it against google maps and information provided and make sure it is explained a clear and concise manner that another person can identify the location easily)?

• What happened (so often the explanation doesn’t actually explain what happened and says “the Claimant was proceeding when the Defendant collided into them”. How? From where?)?

• How was the Defendant at fault (it should be clear what the Claimant said the Defendant caused the accident, but quite often it is not explained, not even in the negligent particulars)?

Addressing those five key points will help clarify accident circumstances in the Particulars, preventing future issues and costs like application fees. This process won’t take much time—simply jotting down the points will guide the drafter in amending the precedent particulars effectively.

Getting a witness on the phone for a 2-3 minute conversation can make all the difference

Volume litigation litigators cannot spend hours calling every client because they would never be able to get anything done. However someone calling the witness/party and having a 2-3 minute conversation about their witness statement will almost certainly reduce the errors that commonly arise. Advocates will always have a conference with the party/witness before trial and usually ask them to confirm the accident circumstances and more often than it should, the accident circumstances are wrong (and substantially wrong where it will impact submissions and prospects).

Whilst blame cannot be removed from a witness signing a statement to say it is factually correct when it is not, I often get told by witnesses that they were only contacted at the last minute and are pestered to sign a statement quickly because the deadline is later that day etc. We know that this is because nobody wants to incur the time of preparing a statement unless absolutely necessary. This is likely why witnesses panic and do not spend time reading the statement.Nevertheless, I have worked with firms and worked in employed litigation where a paralegal assistant would call the witness and summarise the accident circumstance, etc, in a very brief summary. So for example:-

“I undestand you were driving the blue fiesta and you were proceeding along Westbury Road. You were in the left hand lane and you intended to go ahead at the roundabout toward Blobby Avenue. When you were almost at the roundabout the Defendant overtook you in the middle lane, the attempted to pull in front of you but they misjudged the distance and the back passenger door collided into the front drive side corner of your vehicle as the pulled over from their lane to yours. That’s what happened broadly speaking?“

The person isn’t going through the statement line by line, but the process allows the witness to be able to easily identify any errors that can then be remedied if need be. Then they are told they are going to be sent the statement, the must read it carefully and it is vital they let someone know urgently if there are any errors. These will usually be very tiny errors, rather than something substantial which the above process will identify. I have had many tell me “yes but client like to chat and can be difficulty”. That’s normal for some individuals and realistically, those in litigation who talk to clients must have the skill to control a conversation. You don’t have to be rude but you can assertive:-

“Sorry, I do need to stop you. We have very little time and for the purpose of this call in Order to ensure you provide your statement in time I need you only to answer the questions I ask. You can of course email any additional questions to [inset name] who has conduct of your case”

I know from experience that initially, you feel very awful cutting up a client or witness when they may want to express their feelings or frustrations but they do not know what you know (that you are going to be very busy and have more things to do in the day that you have time). Control the conversation, you will cut down the time and the paralegal assistant can get through a substantial number of calls and revert to the fee earner to let them know that the circumstances appear to be correct, subject to the witness’ approval or whether there is a substantial issue which the fee earner needs to consider. This approach culls a large number of significant errors.

It’s not infallible because witnesses can still skim read, not notice errors, and then raise the trial when it’s too late. That cannot be helped, but it is then not your fault. You may not be able to get the witness on the phone. It can happen due to the witness’ working hours. In some cases, you have no choice but to send the statement and hope they identify any major errors. Many will say that the 2-3 minute phone call is duplication. It is intended to identify significant errors early so the fee earner can decide how to approach the issue. If the accident circumstances are so different from what was pleaded, it gives the fee earner an opportunity to decide whether the statement is amended or whether authority is needed to consider settling/compromising. 

Exhibit every document you intend to rely on

Whilst it should be the standard approach to disclosure within RTA SCT, quite often, documents get overlooked or, more importantly, do not get filed/served. Whereas when witness statements are exhibited with each document tend not to have any omissions.Have a list of party’s documents you can tick off as you exhibit them in the statement reduces the risk of something being overlooked. A further point is that if it’s referred to in the witness statement, but omitted from the exhibits in error, there is a stronger argument for relief because the other party would have been aware/on notice of the document. It may even prompt them to ask for it. 

When referring to an exhibit, including a line in the statement indicating the purpose of the document and why it is being relied upon is beneficial. This will help the Court, the other party, and the advocates understand its significance. In many small claims trials, advocates are asked by the Judge to clarify the purpose of a document because it’s not always clear on the face of it. Such reference should be identified in the trial brief to avoid confusion. More importantly, it may highlight that to the other side and may lead to a compromise. 

Are these tips too burdensome for the benefits they may provide?

I understand that there have been concerns about the effectiveness of my suggestions and the potential for duplication of work. I want to clarify that my recommendations are aimed at streamlining administrative tasks by involving paralegal assistants in the process, which ultimately allows the fee earner to focus on more critical tasks without getting bogged down in administrative elements.I’ve used this system before during my time in full-time litigation. I know of others who have successfully reduced the number of errors significantly by following these steps.

Although this is just a guide and not a blueprint for the actual system, introducing these steps can improve litigation with minimal expenditure of time and resources, but will make a difference.Some people may argue that these suggestions might not solve the problem because lay clients and witnesses might not read statements, or they might not understand or be able to express the issues accurately. This could be true, and it may result in their claim being dismissed because they are not effective witnesses, and their evidence is not accepted.

It’s not a one-size-fits-all solution. However, the minimal extra effort required is small in the grand scheme of things and could significantly reduce errors. Since many cases now rely on deductions from damages, a case’s success is even more crucial. These tips aim to help improve small claim RTA claims with very little additional effort. 

More importantly, you don’t want to go to trial in an SCT matter because the advocacy costs are not recoverable. Any steps that can help to do this ought to be considered. 

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.

I wish I had saved the link because it was a fantastic image from someone who was studying to enter the legal sector (or at least I think I remember). This image contained a map of all the Courts and Tribunals of England and Wales. It was really impressive. What caught my eye was that the County Court was listed as having the “Small Claims Track”, the “Fast Track” and the “Intermediate Track”.

I looked for the reference to the “Multi-Track” and found it attached to the High Court. I thought to myself, ‘Is this wrong? Has the illustrator made a mistake?”. It then clicked. The recently created Intermediate Track generally covered the value of claims between £25,000-£100,000. Claims that generally exceed £100,000 would be issued in the High Court.

Does this mean the end of County Court Multi-Track matters?

The Intermediate Track

On 1st October 2023, the Civil Procedure Rules were updated to introduce a new track designed to serve as a middle ground between the Fast Track and Multi-Track systems. This change aimed to incorporate cases that previously fell into the lower spectrum of the Multi-Track and to apply a fixed cost regime to them.

The new fixed costs regime for the Fast Track incorporates complexity bands, indicating that there isn’t a single fixed cost applicable to all cases. Instead, during case management, the appropriate complexity band is determined, particularly when disputed.

The complexity bands for the interimediate track are below:-

Complexity band 1	Complexity band 2	Complexity band 3	Complexity band 4
Any claim where—(a) only one issue is in dispute; and	Any less complex claim where more than one issue is in dispute, including personal injury accident claims where liability and quantum are in dispute.	Any more complex claim where more than one issue is in dispute, but which is unsuitable for assignment to complexity band 2, including noise induced hearing loss and other employer’s liability disease claims.	Any claim which would normally be allocated to the intermediate track, but which is unsuitable for assignment to complexity bands 1 to 3, including any personal injury claim where there are serious issues of fact or law.
(b) the trial is not expected to last longer than one day, including—
(i) personal injury claims where liability or quantum is in dispute;
(ii) road traffic accident related, non-personal injury claims; and
(iii) defended debt claims

Of course, each complexity band has a specific staged fixed fee:-

Complexity Band	1	2	3	4
S1From pre-issue up to and including the date of service of the defence	£1,652 + an amount equivalent to 3% of the damages	£5,162 + an amount equivalent to 6% of the damages	£6,607 + an amount equivalent to 6% of the damages	£9,601 + an amount equivalent to 8% of the damages
S2Specialist legal representative providing post-issue advice in writing or in conference or drafting a statement of case	£2,065	£2,065	(a) £2,374; or (b) £3,613 if counsel is also instructed to draft a defence to a counterclaim	(a) £2,374; or (b) £3,613 if counsel is also instructed to draft a defence to a counterclaim
S3From the date of service of the defence up to the earlier of the date set for CMC or the order giving directions under 28.2	£4,129 + an amount equivalent to 10% of the damages	£7,949 + an amount equivalent to 12% of the damages	£9,394 + an amount equivalent to 12% of the damages	£13,420 + an amount equivalent to 14% of the damages
S4 From the end of Stage 3 up to and including the date set by the court for inspection of documents	£4,749 + an amount equivalent to 12% of the damages	£9,704 + an amount equivalent to 14% of the damages	£11,356 + an amount equivalent to 14% of the damages	£16,517 + an amount equivalent to 16% of the damages
S5From the end of Stage 4 up to and including the later of the dates set by the court for service of witness statements or expert reports	£5,368 + an amount equivalent to 12% of the damages	£11,356 + an amount equivalent to 16% of the damages	£12,388 + an amount equivalent to 16% of the damages	£20,647 + an amount equivalent to 18% of the damages
S6From the end of Stage 5 up to and including the date set for the pre-trial review or up to 14 days before the trial date, whichever is earlier	£6,091 + an amount equivalent to 15% of the damages	£15,485 + an amount equivalent to 16% of the damages	£16,517 + an amount equivalent to 16% of the damages	£24,776 + an amount equivalent to 18% of the damages
S7Specialist legal representative advising in writing or in conference following the filing of a defence	£1,445	£1,755	£2,374	£2,994
S8From the end of Stage 6 up to the date of the trial	£6,813 + an amount equivalent to 15% of the damages, less £599 if that party did not prepare the trial bundle	£17,550 + an amount equivalent to 20% of the damages, less £898 if that party did not prepare the trial bundle	£19,614 + an amount equivalent to 20% of the damages, less £1,239 if that party did not prepare the trial bundle	£29,938 + an amount equivalent to 22% of the damages, less £1,445 if that party did not prepare the trial bundle
S9Attendance of a legal representative (other than the trial advocate) at trial per day, less an amount equivalent to 50% per day where, on any day, the trial lasts no more than half a day	£599	£898	£1,239	£1,445
S10Advocacy fee: day 1	£3,303	£3,613	£4,129	£5,988
S11Advocacy fees for subsequent days, less an amount equivalent to 50% per day where, on any subsequent day, the trial lasts no more than half a day	£1,445	£1,755	£2,065	£2,994
S12Handing down of a reserved judgment and consequential matters, where dealt with separately from the trial	£599	£599	£599	£599
S13Alternative Dispute Resolution: additional fee payable once only where a mediation or joint settlement meeting takes place	£1,239	£1,239	£1,239	£1,239
S14Alternative Dispute Resolution: additional fee payable once only for specialist legal representative attendance at a mediation or joint settlement meeting covered by S13	£1,445	£1,755	£2,065	£2,374
S15Approval of settlement for child, unless the settlement is approved at trial	£1,239	£1,445	£1,755	£2,065
S16 Advocacy fee—(a) where the claim is listed for trial, but is removed from the list or settled—(i) on the day of trial; ornot more than 1 day before the date listed for trial;	100% of the applicable advocacy fee in S10
(b) where the claim is listed for trial, but is removed from the list or settled more than 1 day, but not more than 5 days, before the date listed for trial	75% of the applicable advocacy fee in S10

High Court Threshold

In terms of value, a civil claim should only be issued in the High Court if it exceeds £50,000 for Personal Injury and £100,000 for everything else. Alternatively, if the matter is complex, it can be issued in the High Court, even if the value would not justify it.

There are some circumstances where a claim will be issued in the High Court regardless. For example, claim for libel would be issued in the High Court save for where the parties agree.

Will there be any Multi Track allocation in the County Court follwoing 1st October 2023?

I do not expect there to be a complete loss of Multi-Track cases in the County Court. Firstly, there will be many personal injury cases that are not subject to the Intermediate Track because only cases where the cause of action post dates 1st October 2023. Therefore any cases that are above £25,000 could be allocated to the Multi-Track.

However, as above, value is not the absolute determining factor for allocation. I refer to CPR 26.13:-

26.13.—(1) When deciding the track for a claim, the matters to which the court shall have regard include—

(a)the financial value, if any, of the claim;

(b)the nature of the remedy sought;

(c)the likely complexity of the facts, law or evidence;

(d)the number of parties or likely parties;

(e)the value of any counterclaim or additional claim and the complexity of any matters relating to it;

(f)the amount of oral evidence which may be required;

(g)the importance of the claim to persons who are not parties to the proceedings;

(h)the views expressed by the parties; and

(i)the circumstances of the parties.

(2) It is for the court to assess the financial value of a claim and in doing so it shall disregard—

(a)any amount not in dispute;

(b)any claim for interest;

(c)costs;

(d)any contributory negligence; and

(e)where the claim is, or includes a claim for non-monetary relief, any amount prescribed by rule 45.45(1)(a)(ii) and rule 45.50(2)(b)(ii).

There are a range of different cases that are allocated on factors that have nothing to do with value. For example, there are plenty of credit hire cases where the value would place them in the Fast Track being allocated to the Small Claims Track. There are also cases which would be valued at Multi-Track being allocated to the Fast Track.

So, no. There is no reason that Multi-Track will not continue in the County Court, regardless of the introduction of the Intermediate Track. However, it is the case that there will be fewer cases as a result of the Intermediate Track. Therefore, it was wrong for the illustrator to suggest that Multi-Track would only exist in the High Court

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.