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Unreasonable non-use of the Portal means fixed costs apply: Harford v Music Store Professional UK/DV247 Ltd [2021] EWHC B17 (Costs). - Rochelle Powell, Temple Garden Chambers

25/08/21. The Claimant brought a claim for damages against his employer following an accident at work. He was initially diagnosed with a potential inguinal hernia. Subsequent investigations revealed that he had also sustained two lumber sacral prolapsed discs in his spine. A letter of claim was sent on his behalf stating that the claim was not suitable for the Portal. Part 8 proceedings were issued in which the stated value of the claim was between £10,000 and £50,000. The Claimant’s solicitors initially concluded that the value of the claim was in excess of £25,000. Once all the evidence was finalised and Counsel’s advice obtained, it was apparent that the claim was no longer worth in excess of the Portal limit. The Claimant accepted an earlier offer made by the Defendant in settlement of his damages in the sum of £11,200.

The sole issue for determination was whether the Claimant acted unreasonably in not using the Protocol for Low Value Personal Injury Claims (Employers Liability and Public Liability Claim (the EL/PL Protocol)) and whether he should be limited to the Portal costs per CPR 45.24(2)(b)(ii).

The arguments

For the Claimant it was submitted that the decision not to use the Portal was a reasonable decision because the claim was felt to be worth above the portal upper limit. That decision was objectively reasonable. It was also submitted that the valuation of a claim is more of an art than a science and is a prediction of what a Court is likely to award and no more. It was also submitted that the Defendant must show that the Claimant’s assessment of the likely value of the claim was so unreasonable that the Court should drastically limit their costs entitlement to Portal costs.

For the Defendant it was submitted that fixed costs apply by virtue of...

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