CASE FALLING OUTSIDE THE FIXED COSTS REGIME: ASSAULT BY A VULNERABLE ADULT: REPORT OF A FIRST INSTANCE DECISION: FIXED COSTS DO NOT APPLY
I am grateful to solicitor John McQuater for sending me a copy of the judgment of District Judge Hickinbottom in Gibbons -v- Rotherham Doncaster and South Humber NHS Foundation Trust (o4/06/2019). It concerns the question of whether an assault by a vulnerable adult falls outside the fixed costs regime. A copy of the case is available here Gibbons Judgment. (The judgment also deals with a Part 36 issue and I will deal with that in a second post).
“The regime is a set of rules, sometimes you fall within the fixed costs regime, sometimes you do not, and there are winners and losers in those scenarios: in the fixed costs regime itself; and there are winners and losers in terms of whether or not you fall inside “
In the course of his work the claimant, a healthcare worker, was assaulted by a vulnerable adult. The action was not started using the Protocol but by a letter of claim. The claimant succeeded at trial.
The question was whether the claim fell within the low value EL/PL protocol.
Paragraph 4.3.8 of the Protocol states.
“This protocol does not apply to a claim for damages in relation to harm, abuse or neglect of or by children or vulnerable adults”.
THE DEFENDANT’S ARGUMENTS
The defendant relied on the first instance decision of a District Judge in a similar case, who found that because the claimant did not bring an action directly against the vulnerable adult, then paragraph 4.3.8 did not apply.
THE DECISION OF THE DISTRICT JUDGE
The District Judge did not accept the defendant’s submissions. The judge found that the words “in relation to” did not indicate that there had to be a direct action against the vulnerable adult.
It seems to me, however, that looking at 4.3.8, a literal interpretation of that does not provide that the direct cause of action is the relevant consideration. What it says is: “in relation to”. It seems to me a literal interpretation of, “in relation to” would cause this claim to fall within the meaning of that exception. The claim for damages is clearly related to, connected to, has a relationship with harm caused by a vulnerable adult. That relationship is not at all tenuous and it seems to me that if it had been the intention to limit this exception to circumstances where the cause of action was, for example against the vulnerable adult, then 4.3.8 would have said so. Claims for damages where the cause of action is the employer’s breach and claims for damages in relation to harm caused by a vulnerable adult are not two mutually exclusive sets of cases.
I have also been provided with a further County Court judgment. This is in the case of Master Logan Prescott v The Trustees of the Pencarrow 2012 Maintenance Fund. That was on a slightly different point, but provides some guidance in relation to statutory interpretation, the Defendant’s position being that if I am not satisfied that the meaning of section 4.3.8 is what they say it is, and it does on its ordinary meaning allow for the claim to be excluded, that I should look to the intention of those who drafted it and either say that, looking at it in that way it should be interpreted so that this claim does not fall within the exception, or I should come to the conclusion that there is a clear error and interpret it otherwise.
The case that they have provided, provides some helpful guidance in that respect and there are quotes from Bennion on Statutory Interpretation, Sixth Edition at paragraph 19, where it states that: “The interpreter’s duty is to arrive at the legal meaning of the enactment which is not necessarily the same as its grammatical meaning. The legal meaning is the meaning that correctly conveys the legislative intention. It is thus necessary to adopt an informed interpretation. It is a rule of law in this code called ‘The informed interpretation rule’ that the person who construes an enactment must infer that the legislator, when settling its wording, intended it to be given a fully informed rather than a purely literal interpretation, though the two usually produce the same result”.
“Accordingly, the court does not decide whether or not any real doubt exists as to the meaning of an enactment, and if so, how to resolve it, until the court has first discerned and considered in the light of the guides to the legislative intention, the context of the enactment, including all such matters as may illume the text and make clear the meaning intended by the legislator in the factual situation of the instant case”.
It seems to me that that background of statutory interpretation is relevant, but what I fail to see in this case is any background information (none having been provided to me) as to the intention of the legislators that would suggest that its intention was anything other than what the literal meaning of the words is. It seems to me that there is nothing on the face of it to demonstrate that there is anything inconsistent with what was intended by 4.3.8 and its literal meaning, which it seems to me covers situations where there is not necessarily a direct cause of action against the vulnerable adult.
The exceptions to the fixed costs regime are often put in place to deal with claims that would ordinarily involve additional costs not necessarily incurred in a standard type of case. Whilst I have to say in this particular case I cannot see that there would necessarily have been any further costs incurred as a result of this being a claim in relation to harm caused by a vulnerable adult, that would not necessarily be the case in all scenarios. One can well see the justification for having such claims outside of the fixed costs regime, as a consequence of the fact that it seems to me that both claimants and defendants may incur extra costs in circumstances where a claim is related to harm caused by a vulnerable adult, not least in circumstances (unlike in the present case) where there is no acceptance of the fact that the harm was so caused by the vulnerable adult. That would, it seems to me, potentially create further costs of the litigation.
So, there is nothing fundamentally inconsistent with claims in relation to harm caused by a vulnerable adult (as opposed to say claims against vulnerable adults where they are alleged to have caused harm) being exceptions, notwithstanding the fact that it seems to me in this case it probably has not caused any extra costs. However, that is the nature of the fixed costs regime. The regime is a set of rules, sometimes you fall within the fixed costs regime, sometimes you do not, and there are winners and losers in those scenarios: in the fixed costs regime itself; and there are winners and losers in terms of whether or not you fall inside the regime or outside it, i.e. there are cases that involve additional costs that fall within the fixed costs regime and there are cases not necessarily involving additional costs, that fall outside of it, because they happen to fall within a general exception or they fall within a general category of cases, even though that particular case does not involve additional costs.
It seems to me, therefore, that looking at the literal meaning of 4.3.8, I find that very clearly this case falls within that. It is a claim for damages in relation to harm caused by a vulnerable adult. 3.8 says the claim for damages has to be in relation to harm caused by a vulnerable adult and in the present case there is a very clear relationship between the claim for damages and the harm caused by the vulnerable adult.
It seems to me, for the reasons I have set out above, that I cannot say that the legislators meant anything other than that, I have been provided with no evidence that that is the case and it seems to me that there is nothing illogical or perverse about the wording and the results of the wording as its literal interpretation means, so I do not propose to bend the words to mean anything else.
So, I find that this case does fall within the 4.3.8 exception.