Should product liability claims fall within the low value protocol?

Published 16 August 2018

Yes, they should.  Why, therefore, are some Claimant Solicitor firms trying to argue otherwise?

The Jackson Reforms of 2013 saw the extension of the Low Value Protocols into public liability and employer's liability claims, requiring claims to be submitted through the Portal and limiting the costs payable to Claimants' solicitors to the fixed recoverable costs set out in Rule 45.18 and Rule 45.29.

It is not surprising that some firms of solicitors have sought to avoid presenting injury claims through the Portal, as claims falling outside its scope remain subject to standard costs, where the costs recoverable relate to the time spent working on the claim.

A number of Claimant law firms have started to argue that injury claims arising from alleged product liability fall outside the scope of the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims, suggesting that product liability claims do not result from an accident and/or that they are not public liability claims.

The Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims defines public liability claims as claims arising out of a breach of statutory or common law duty of care against a person other than the claimant's employer (para.1.1(18) and, whilst a number of specific types of claim (e.g. mesothelioma claims or claims falling with the RTA protocol) are specifically excluded from the Protocol, product liability claims are not excluded from its scope (para.4.3).

The Pre-Action Protocol makes provision to ensure that claims which are not presented through the Portal, but should have been presented through it, are subject to the fixed costs provisions (para.7.59), and a failure to present claims through the Pre-Action Protocol may see the Courts penalise the Claimants in costs.

The Low Value Protocol applies to product liability claims as it does to other types of public liability claims, and attempts to avoid using it in order to escape the fixed costs rules should be resisted by Defendants and their insurers.

Should Claimants attempt to circumvent the application of fixed costs through avoiding the use of the Low Value Protocol, we recommend alerting them to the application of the Low Value Protocol to the claim, indicating that you will not offer to pay more costs than would have been paid if the claim had been presented through the Portal and stating that arguments will be raised in relation to their conduct at provisional assessment of their claim for costs.

The scope of the Low Value Protocol is clearly set out in its rules and the specific exceptions to its scope.