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Portal claims and contributory negligence: can the argument be raised if the claim's value increases?

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By David Williams, Peter Allchorne & Cassandra Mitchell


Published 27 November 2018


Where liability is admitted in a claim commenced within the Pre-Action Protocols for Low Value Personal Injury Claims, and the claim then exits the Low Value Protocol on the basis its value exceeds £25,000, can the Defendant raise arguments of contributory negligence despite the earlier admission?

The judgments in Maes Finance Ltd v A L Phillips & Co (1997) and Lunnan v Singh (1999), which both pre-date the introduction of the Low Value Protocols provide that contributory negligence may still be argued after judgment has been entered for damages to be assessed or liability has been admitted.  Following the introduction of the Low Value Protocols, in the case of Ireland v Ministry of Defence (2016), HHJ Hughes QC ruled that an admission within the Low Value Protocol did not include an admission that arguments of contributory negligence would not be raised at a later stage.

Whilst Claimants' representatives will often object, and refuse to consent to a Defendant raising arguments of contributory negligence, their refusal does not close the door on the Defendant's arguing the point. Clearly there is merit in indicating an intention to raise the argument as early as possible before pleading contributory negligence in the Defence (when proceedings are served) and then applying for the Court's permission to maintain the argument.

Where the value of the claim increases to exceed the Low Value Protocol's upper limit, the Portal admission does not prevent arguments of contributory negligence  being raised.