Beyond the portal: child injury case offers critical lessons on valuation and costs

Given the growing scrutiny on claimants accused of portal avoidance, this practice note explores a recent case involving a child claimant with a facial injury. The case resulted in a successful provisional assessment following a dispute over portal suitability. The defendant sought to restrict costs to portal costs, but the court upheld the claimant’s decision to pursue the claim outside the portal.

This endorsement validates the approach taken at the pre-action stage and offers vital insights for legal professionals. In light of this case, it's also important to highlight practical implications for claimant practitioners and address the evidential challenges where valuation decisions are later contested.

Case Background

In this under-reported case, a seven-year-old girl suffered a laceration to her eyebrow while playing on a playground on April 9, 2021.

The injury occurred when a gate swung and struck her face as she was leaving the playground with her mother. The 1.4cm laceration left a visible and permanent scar.

Beyond the physical injury, the child expressed self-consciousness about the scar, raising concerns about its potential psychological impact as she matured.

The child’s mother, acting as a litigation friend, instructed solicitors to pursue a personal injury claim. From the outset, the solicitors believed the claim value would exceed £25,000, the threshold for claims in the MOJ portal under Paragraph 4.1(3) of the Pre-Action Protocol for Low-Value Personal Injury and Employers Liability Claims. This assessment was communicated to the defendant in the letter of claim, and the claim was handled outside the portal.

Liability was later admitted by the defendant, and the case settled for £20,000 before the issue of proceedings. As the claimant was a minor, court approval was sought under Part 8 of the Civil Procedure Rules (CPR). This procedural step ensures settlements on behalf of children are fair and reasonable.

Dispute Over Costs

The defendant disputed the costs claimed by the claimant’s solicitors, arguing that the case was suitable for the MOJ portal from the outset. The defendant’s position was that fixed recoverable costs should apply, citing Williams v. The Secretary of State for Business, Energy & Industrial Strategy [2018] EWCA Civ 852.

In Williams, the Court of Appeal clarified that CPR 45.24, which restricts a claimant to portal costs when unreasonably exiting or failing to utilize the portal, only applies where judgment has been entered, not where a case settles. Despite this distinction, the defendant offered fixed recoverable costs of £6,170.01.

Claimant’s Evidence and Preparation

To counter the defendant’s position, the claimant’s solicitors meticulously prepared evidence to support their valuation. This included a witness statement from the conducting solicitor, detailing the rationale for valuing the claim above the portal threshold. The statement referenced the Judicial College guidelines for facial injuries and outlined potential future claims, including psychiatric harm.

Key pieces of evidence included:

1. Photographic Evidence: Images of the claimant’s facial scarring, highlighting its permanence and visibility.
2. Expert Medical Opinion: A report from a consultant plastic surgeon confirming the severity of the scar and its likely permanence.
3. Psychological Concerns: Testimonies about the claimant’s self-consciousness and potential psychological impact, although no formal psychiatric assessment was pursued at this stage.

These documents were included in the provisional assessment bundle alongside replies to the defendant’s points of dispute.

Court’s Findings

The matter proceeded to provisional assessment due to the defendant’s refusal to adjust their position. The court sided with the claimant, ruling that the decision to avoid the portal was reasonable.

The judge recognised that a permanent facial scar on a young child might have psychological implications, and therefore, the claim’s value could reasonably exceed the portal’s £25,000 threshold.

Affirming the claimant solicitors’ approach, the judge said: “I have no doubt any reasonably competent solicitor would have made the same decision.”

Consequently, the claimant’s bill of costs was assessed at £20,652.20.

Additional Financial Outcomes

The claimant had previously made a Part 36 offer, which they exceeded with the assessed costs. This resulted in:

• A 10% uplift on costs.
• Provisional assessment costs on an indemnity basis.
• Enhanced interest on costs.

The overall recovery for the claimant amounted to £26,468.88. Had the court sided with the defendant, the claimant would have been restricted to portal costs in the sum of £5,082 - a stark contrast

Broader Legal Implications

This case underscores the critical importance of early and accurate valuation in personal injury claims. The decision to avoid the portal must be substantiated by evidence, particularly when psychological or long-term impacts are anticipated. Legal professionals should consider:

1. Judicial College Guidelines: Using these guidelines as a foundation for valuation ensures that claims are anchored in established benchmarks.
2. Expert Opinions: Engaging medical and psychological experts early can provide robust support for valuation decisions.
3. Comprehensive Evidence: Photographic documentation and client testimonies can bolster claims involving subjective impacts like scarring and psychological distress.

Practical Insights for Practitioners

1. Client Communication: Clearly explain to clients the rationale for valuation decisions and the risks associated with both portal and non-portal claims.
2. Record-Keeping: Maintain detailed records of all considerations at the pre-action stage, as these may be scrutinized in cost disputes.
3. Part 36 Offers: Making realistic Part 36 offers can provide strategic advantages, particularly in cases where costs may be contested.

Challenges in Portal Avoidance Cases

While this case highlights a successful outcome, it also illustrates the evidential challenges faced by claimant practitioners. Portal avoidance decisions are often contested by defendants, given the significant difference in recoverable costs. Practitioners must navigate:

• The defendant’s inclination to challenge higher costs.
• The potential for subjective injuries, such as psychological harm, to be undervalued without formal assessments.
• The need to justify decisions retrospectively, sometimes years after the initial valuation.

Conclusion

This case reinforces the principle that reasonable, evidence-backed decisions at the outset of a claim can withstand judicial scrutiny. While the portal system streamlines low-value claims, it is not a one-size-fits-all solution.

Claims involving young children, permanent injuries and potential psychological impacts often warrant a more nuanced approach. By meticulously documenting and justifying valuation decisions, legal professionals can effectively navigate disputes and ensure fair outcomes for their clients.

Going forwards, reasonable belief in value over £25,000 won’t get the claimant out of the new extended Fixed Recoverable Cost tables but will still avoid limiting cost recovery to portal costs on cases that settle early so keeping good attendance notes and records of the valuation remain crucial.    

For claimant practitioners, this case serves as both a cautionary tale and a guidepost. It emphasises the value of diligence, evidence, and strategic foresight in personal injury claims.