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15 March 2019


Vicarious Liability – Portal Exemptions

Posted by: Nick Mercer

Briefly – the matter concerned an assault by a patient, under the age of 18, upon a nurse during the course of her employment.

The Claimant proceeded against their employer, as opposed to the patient directly. The claim was forwarded without use of the Ministry of Justice (MoJ) Portal, following the exemption defined under r4.3 (8) of the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims – “for damages in relation to harm, abuse or neglect of or by children or vulnerable adults”.

Throughout the course of the costs negotiations, the Defendant maintained that the cited exemption did not apply, and that there was no reason why the claim should not have been submitted on to the MoJ Portal. Fixed recoverable costs, pursuant to CPR 45.29E, were offered and maintained.

My position was that whilst the Defendant was vicariously liable for the actions of the patient, that patient was a protected party under CPR 21; which triggered a further exemption to the Protocol, as set out at r.4.3 (2) – “where the claimant or defendant is a protected party as defined in rule 21.1(2)”.

The matter proceeded to Provisional Assessment. Narrowing of the issues was not possible in light of the disagreement upon the point of principle.

The decision of the Court was that when the exemption outlined in r4.3 (8), was read in conjunction with the exemption as defined by r4.3 (2), a vicarious liability claim could be exempt from the Protocol. As no specific objections were raised by the Defendant upon the specific items claimed within the bill, the Claimant’s costs were assessed as claimed. Costs of assessment were summarily assessed in full (subject to the usual Lowin v Portsmouthcap).

In addition to the aforementioned costs as assessed, the Claimant was successful as against their protective Part 36 offer. The usual costs consequences followed – a 10% uplift was applied to the costs as assessed, and interest was additionally calculated at the increased rate of 10%.

The Defendant chose not to appeal, citing proportionality; however I suspect that stance was taken to avoid the risk of the decision becoming binding, and therefore affecting a number of vicarious liability claims.

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Nick Mercer - Costs Consultant

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