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Sarah Robson Barrister
0800 634 9650
The original Black Belt Barrister
email@sarahrobsonbarrister.co.uk
Fixed Costs Specialist
Exception for Claims for damages in relation to harm, abuse or neglect of or by children or vulnerable adults
Both the Portal and the new Fixed Costs regime exclude certain claims.
Para 4.3(8) of the EL/PL Portal Protocol excludes the following claims from the MOJ Portal protocol:
[claims] ‘for damages in relation to harm, abuse or neglect of or by children or vulnerable adults;’.
This is the same form of words as used for the new expanded Fixed Costs regime, where CPR 26.9(1) (c) excludes:
“a claim for damages in relation to harm, abuse or neglect of or by children or vulnerable adults;”
However, the Portal protocol has a very different definition of 'vulnerable'.
Whilst in the CPRs, the definition of vulnerable is:
“A person should be considered as vulnerable when a factor—which could be personal or situational, permanent or temporary—may adversely affect their participation in proceedings or the giving of evidence”
Conversely, in the MOJ Portal, para 1.1(20) of the EL/PL Portal protocol defines 'vulnerable adult' as has the same meaning as in paragraph 3(5) of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, namely:
“a person aged 18 or over whose ability to protect himself or herself from abuse is significantly impaired through physical or mental disability or illness, through old age or otherwise.”
Examples of the sorts of issues the court should consider when determining 'vulnerability' in Fixed Costs are set out in PD1A ss(4):
“4. Factors which may cause vulnerability in a party or witness include (but are not limited to) –
(a) Age, immaturity or lack of understanding;
(b) Communication or language difficulties (including literacy);
(c) Physical disability or impairment, or health condition;
(d) Mental health condition or significant impairment of any aspect of their intelligence or social functioning (including learning difficulties);
(e) The impact on them of the subject matter of, or facts relevant to, the case (an example being having witnessed a traumatic event relating to the case);
(f) Their relationship with a party or witness (examples being sexual assault, domestic abuse or intimidation (actual or perceived));
(g) Social, domestic or cultural circumstances.”
Portal case law on 'harm, abuse or neglect' - Vulnerable exception
[2019] EWHC B13 (Costs)
(Prisoner was not a vulnerable adult.)
HHJ Hedley, Leicester CC, 24.06.21
(Teacher injured by a pupil during a First Aid course - pupil intended to harm teacher)
At [53] on appeal the court held:
“53. As to paragraph 4.3(8) itself, in my judgment a. …. paragraph 4.3(8) does not refer to a child or vulnerable adult as a party but simply claims for damages “in relation to” harm abuse or neglect of or by children or vulnerable adults. In my judgment this clear distinction makes it clear that the exception does not apply only where a child or vulnerable person is a party, but is of wider application where the claim relates to such abuse. It is not necessary for the child or protected party to be a party to the claim in order for the exception to arise. Any other meaning would be to re-write the EL/PL Protocol.” In other words, the mere involvement of a child or vulnerable adult triggers the exception, and ‘harm’ includes personal injury.
Lawal v London Borough of Southwark
Dr Friston, SCCO, 16.12.22
(If the injury had been intentional then the protocol would be disapplied. If it was wholly unintended then Portal would apply.)
Exception did not apply.
(C was pushed by E who was vulnerable. The push was not harmful, and E had no intention to harm C, nor had any awareness that the push would harm C.)