The Court of Appeal has ruled that a claimant cannot avoid the requirements of the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims by seeking to rely at Stage 3 on evidence not disclosed at Stage 2 of the Claims Portal procedure.
In Wickes Building Supplies v William Blair  EWCA Civ 1934, an employee made a claim for an injury sustained at work by submitting a claim notification form under the Protocol. The claim was not resolved at Stage 2, so it proceeded to a Stage 3 hearing. The claimant relied on a statement that was not disclosed at Stage 2, and the defendant objected under para. 7.1 of Practice Direction 8B, which sets out the Stage 3 procedure. The court excluded the statement from evidence and went on to award the claimant damages of £2,000 and fixed costs.
The claimant appealed on the basis that, under para.9.1 of the Practice Direction, the filing of new evidence should have led to the claim being dismissed from the Protocol and re-started under Part 7 of the Civil Procedure Rules (CPR) as a normal claim outside the Protocol, even though this was likely to mean costs sanctions under CPR 45.24.
The Court of Appeal dismissed the appeal, finding that paras. 7.1 and 9.1 were not intrinsically linked, and therefore 9.1 was not triggered by objecting to evidence under 7.1.A defendant could object to a claimant relying on evidence not provided under the Protocol under 7.1 without opposing the entire claim under 9.1. The court noted that if 9.1 was triggered by objecting to evidence under 7.1, it would undermine the aims and purpose of the Protocol and unfairly disadvantage the defendant. The District Judge had been correct to deal with the Stage 3 hearing without reference to the Claimant’s late statement.
This decision removes a potential escape route whereby claimants seeking to escape the Protocol could have simply served evidence after Stage 2 with the aim of removing the claim from the Portal. The defendant would then have been obliged to incur the higher costs of defending a Part 7 claim, which would be unrecoverable under qualified one-way costs shifting. The costs sanctions under CPR 45.24 are discretionary and therefore would not necessarily have provided an answer to this problem.
CMS took a similar claim to the Court of Appeal (Williams v Secretary of State for Business, Energy and Industrial Strategy  EWCA Civ 852) which confirmed that fixed costs can apply to claims that were not submitted under the Protocol or illegitimately removed from the Portal with the aim of avoiding the fixed costs. regime This latest decision confirms that the Court of Appeal will apply the Protocol in word and spirit despite attempts to circumvent it or the application of fixed costs.