A recent case for a vessel fleet organisation has highlighted the way accidents at sea fit into the online low value portal. These cases are often assumed to be excluded from the online portal by claimant solicitors, but providing the incident occurred within “England and Wales” (defined below) low value accidents at sea (under £25,000) should generally be submitted via the portal from the outset, with very other limited exemptions.
BLM succeeded with an argument for portal costs where the claimant lost its battle for standard costs. As this case has proven, many accidents at sea have slipped through the net when they should have gone onto the online portal in instances where accidents took place within our jurisdiction. It is our view that any accident at sea that happens within 13.8 miles/22.2 km of the England/Wales coastline (territorial waters) should be covered by the low value EL/PL protocol, be submitted via the portal initially and be subject to portal costs, providing the matter doesn’t exit the portal.
This was an employer’s liability marine case where the claimant suffered from a neck injury during the course of his employment in the catering team. He allegedly suffered the injury whilst attempting to lift a large box of milk out of the fridge whilst on board a vessel. The accident occurred at 2.30pm according to the Safety Officer who was on board at the time and this was precisely the vessel’s departure time from Fishguard in Wales.
Early in the claim, the claimant solicitors were put on notice that the claim should have proceeded on the online portal as the accident happened inside the jurisdiction. The claimant’s solicitors maintained that it was not a portal matter and the matter proceeded outside of the portal. The claimant issued proceedings in the Admiralty Court and the case was transferred to the County Court in our bid to avoid the case being allocated to the multi-track and standard costs being applied.
Settlement was shortly achieved on a without prejudice basis by way of consent, rather than by Part 36 to avoid Part 36 costs consequences. The defendant also avoided the expense of filing a defence.
Following settlement of damages, costs remained in dispute. The claimant claimed standard costs of £9,931.04 and BLM offered £3,500 by way of a Calderbank offer in full and final settlement. Our offer of £3,500 consisted of portal costs and reasonable disbursements and this was accepted by the claimant following our argument that the claim should have proceeded through the portal. We achieved a costs reduction of 35% for our client.
The important points we made were:
1. A protocol exemption does not apply here:
The EL/PL low value protocol section 4.3 (7) exemption does not apply here. This states that the portal will not apply to a claim for personal injury arising from an accident or alleged breach of duty which occurred outside of England and Wales. However, this accident did NOT occur outside England and Wales. Under the Civil Procedure Rule (CPR) 2.3 jurisdiction is to be interpreted as “England and Wales and any part of the territorial waters of the United Kingdom adjoining England and Wales”. ‘Territorial waters’ is defined by the 1982 United Nationals Convention on the Law of the Sea as a belt area of coastal waters extending at most 12 nautical miles (22.2km/13.8 miles) from the baseline. Therefore, the low value protocol/portal covers accidents at sea in our view that happen within 13.8 miles from the coastline of England and Wales essentially. As this accident happened at the departure time it was within this radius.
2. Portal costs apply as the claim should have gone through the portal:
According to CPR 45.24 (c) portal costs apply to cases which should have entered the portal. Despite the case falling within the scope of the low value protocol the claimant did not comply with this, but portal costs were still applicable. In the County Court case of Raifiana v Allytype Scaffolding (2015) the claimant’s costs were restricted to portal costs after the claim did not enter the portal when it should have done.
The only counter argument the claimant had for our contentions was to state that “claims at sea are not subject to the portal/fixed costs” which is incorrect. For this reason the claimant accepted our offer and did not submit a further argument for standard costs.
The outcome of this case will hopefully pave the way for future costs arguments on this point. There is no reason to pay standard costs purely because a case is classed as ‘an accident at sea’.
It is important that defendants make it clear from the outset that claimants must submit such applicable claims through the online portal and are put on notice of the same. Were the claim litigated, consideration should be had by defendants to raise the issue of costs within their defence and allocation questionnaire. The arguments raised here should be put forward early in the case to stop claimants from proceeding outside of the portal. If the claimant does chose to proceed otherwise, the case of Raifiana v Alltype Scaffolding will assist with arguments that despite ignoring the portal, were the claim to fall within the portal, portal costs will apply. We may see a big change in the tide for future claims moving forward.
David Matcham, solicitor, BLM
T: 0117 933 7710
Gemma Pearce, partner, BLM
T: 0117 933 7721