Blackpool County Court (10 December 2021)/DJ Woosnam
An RTA occurred on the 5 January 2016 following which the Claimant brought legal proceedings for PSLA in excess of £1,000.00, vehicle damage which was ‘TBC’ and miscellaneous expenses in the sum of £50.00.
Plexus Law were instructed to defend the matter in June 2017.
After querying the vehicle damage sum, Plexus were informed that a second set of solicitors were instructed to deal with the vehicle damage. An updated schedule of loss filed by the first solicitors subsequently dropped the vehicle damage and the matter eventually settled by way of a Part 36 in the sum of £1,000.00 and fixed recoverable costs on the 2 March 2018.
A second set of proceedings was later issued by the second solicitors on the 8 July 2021 for losses which included credit hire and the vehicle damage.
The Claimant’s CNFs dated 17 May 2016 and 1 September 2016 confirmed in ‘Section E’ that the Claimant did not require the use of an alternate vehicle and had not been provided with an alternate vehicle.
If the Defendant’s insurers had been made aware of the hire claim within the CNF, the hire claim would likely have been a recoverable loss, however, the Defendant’s insurers were not made aware of the hire claim until 18 February 2021 (almost 3 years after the PI settled). This particular fact alone could have been enough to issue an application to ensure the claim was struck out.
Nevertheless, this was a matter which now had two sets of proceedings. Therefore, we had to consider if this was an abuse of process. An ‘Abuse of Process’ is defined as ‘’a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process” Attorney General v Barker [2000] EWHC 453 (Admin). An example of this would be the Claimant issuing a second set of proceedings on the same claim which should have already been decided.
This case appeared to a prime example of the above definition.
An application was filed with the Court, requesting the Court strike out the Claimant’s claim pursuant to CPR 3.4 (2)(b) and/or (c) and the Claimant do pay the Defendant’s costs.
The Claimant’s second firm of solicitors filed a witness statement in which they argued that the second set of proceedings was not an abuse of process. They relied upon the first solicitors not being instructed to recover the losses outlined within the second set of proceedings and that the Defendant, as a professional litigant, should be aware that different claims from a single accident are often pursued separately.
Claim Outcome
The Court determined that this was a claim that could and should have been brought with the original proceedings and in all the circumstances it was an abuse and proportionate to strike out.
Further factors noted by the Court was:
- The extraordinary delay in bringing the hire claim.
- The failure to set out the hire need in the CNF or original claim even though the Claimant plainly knew of it.
- The expectation that the Claimant Solicitors should have liaised for the two claims.
- The Defendant did not know of the hire until 5 years after the accident and 3 years after settlement of the PI claim.
- The consideration of court resources and overriding objective for this modest claim were also a feature.
- The Claim was struck out as an abuse of process.
Learning Points
To consider if a case is an abuse of process, it is important to consider all the circumstance of the case and apply where appropriate the Aldi Principles (Aldi Stores v WSP Group plc).
Simply, if the matter has already had one set of Part 7 or Part 8 proceedings issued which has settled and the Claimant seeks to issue further proceedings, this may well constitute an abuse of process. If a loss remains outstanding when the Claimant is on the verge of litigation, only one set of proceedings should be issued upon the Defendant with all of the losses included. This ensures only one set of costs are incurred and does not waste the Court’s valuable time.
Plexus Law will continue to take a robust stand in such circumstances which invariably involves credit hire claims been issued sometimes long after the injury claim has concluded.
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For any further information regarding this matter please speak to your contact at Plexus law:
James Ormsby, Credit Hire Legal Assistant
T: 0113 468 1638 | E: james.ormsby@plexuslaw.co.uk
