Case Alerts

Emelia Bezant-Gahan (Solicitor) and Tom Lambourne (Trainee Solicitor) examine the dangers of relying on the court’s discretion to extend limitation under s7(5) of the Human Rights Act 1998.

Selected extracts:

“The High Court dismissed an application for damages under the Human Rights Act 1998, which had been commenced outside the statutory limitation period.”

“The claimant in this case was a Kurdish Iraqi immigrant who had an application for asylum refused by the defendant, Thurrock Borough Council, in May 2017. After failing the defendant’s review process, the claimant was awarded a final weekly allowance and a travel warrant to go to the Home Office and apply for residual support before returning to Iraq.”

To read the full article on the Solicitors Journal website please click here.

A claimant seeking almost £11,000.00 in credit hire and storage charges has had his action struck out on the basis of defective service, compromise and abuse of process.

The Judge, in a case defended by Plexus Law’s Kevin Perkins and Amelia Highnam of Farrar’s Building, found that the claimant’s failure to serve proceedings on the defendant’s solicitor’s nominated office (they had been served on an alternative branch) amounted to defective service. She also found that an oral application for relief from sanctions made on the day of the hearing itself was insufficient to remedy that defect.

The Judge made specific reference as to the strict applicability of CPR 6.7 which had not been followed in this case. She noted that despite being on notice of the Defendant’s position since the end of June 2021, no formal application had been made by the Claimant’s representatives prior to the hearing so as to remedy the defect.

The Judge proceeded to consider further arguments on abuse of process/compromise, also finding in favour of the defendant. In this regard, the Judge found the facts in Hillier v Southern Rock Insurance Company very persuasive as to the submission that there had been a compromise of the entire claim at Stage 2 of the MOJ Process.

When considering the factual matrix of the case, the defendant was entitled to understand or to consider that the Stage 2 compromise was in respect to the whole claim not just the personal injury element.

The decision will serve as a stark reminder to claimants as to the strict rules on service and the pitfalls associated in circumstances where they are not followed. In addition, whilst compromise and abuse of process arguments very much remain fact specific, in the appropriate circumstances the courts will continue to make robust strike out orders.

For further information on this case please contact:

Kevin Perkins, Partner

T: 0113 223 9739  |   M: 07890 590 187 |   E: kevin.perkins@plexuslaw.co.uk

Whilst we take care to ensure that the material in this Case Alert is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Case Alert do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Case Alert.

The Rugby Football Union v FM Conway & Ors [2022] EWHC 956 (TCC)

In a Judgment handed down in the TCC on Friday 29 April, Paul Reed QC, and Simon Kerry (of Gatehouse Chambers), instructed by Alasdair Dick and Victoria Jordan of Plexus succeeded in securing the dismissal of preliminary issues alleging that the contractors who had worked on the upgrade of Twickenham Stadium in advance of the Rugby World Cup were co-insured under a Contractors’ All Risks policy in respect of their own defective works.

Plexus act for the Rugby Football Union (the RFU) in a claim against the designers and contractors responsible for the installation of allegedly defective ducting, intended to house high-voltage cables providing electricity to the stadium.

The contractor – FM Conway – argued that, regardless of the merits of the claim, the RFU was unable to bring a claim against it as it was co-insured under a Contractors’ All Risks policy.  From the outset, the RFU and its insurers maintained that the Policy, as was intended and as is standard, specifically excluded cover for contractors’ own negligence and that FM Conway was therefore not insured in respect of the damage involved in the current claim.

FM Conway, however, alleged that (i) there was no exclusion in the Policy wording, and as it was a named contractor, the Court was bound to consider the Policy wording in isolation, (ii)  if that was not correct, there had been an intention that the cover would be wider than set out in the JCT contract, and would, notwithstanding the exclusion incorporated into the contract, cover FM Conway for any loss, and (iii) that there was, in any event, a waiver of subrogation which prevented the RFU from recovering the loss.

The TCC rejected each of FM Conway’s arguments. Following a thorough review of the extensive case law on co-insurance, the Court agreed with the RFU and its insurers that the authority to enter into a policy on FM Conway’s behalf was to be found in the contractual documents, and that it was therefore not bound to simply consider the Policy wording in isolation.  That conclusion will doubtless reassure many in the insurance industry – to suggest otherwise would appear to significantly hamper the ability of insurers to issue policies, such as Contractors’ All Risks policies, which are intended to provide different levels of cover to different insured entities.

The Court also dismissed FM Conway’s contention that there had been an intention to provide cover wider than that set out in the JCT contract. It found that, the natural reading of the relevant contractual documents was that cover would not be provided in response to FM Conway’s own negligence and that there would have to be “compelling evidence” to alter that position.  Following a substantial review of documentary and witness evidence, the Court was satisfied that there was “no such evidence”.

Finally, FM Conway’s argued that the waiver of subrogation written into the Policy should extend to any claim against any insured under the Policy, regardless of whether they were insured in relation to that particular risk.  The Court, again dismissed that contention.

Plexus are pleased to have secured a judgment which ensures the continued smooth operation of composite policies, offering different levels of cover to different insured entities.

The Judgment can be viewed here.

Whilst we take care to ensure that the material in this Case Alert is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Case Alert do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Case Alert.

Emelia Bezant-Gahan (Solicitor, Plexus Law) examines the implications of a case law review of Fittschen v Chief Constable of Dorset [2022] EWHC 399 (QB).

“A claimant was entitled to substantial rather than nominal damages in a claim arising out of his arrest contrary to s.52 of the Sexual Offences Act 2003. While the investigating officer had honestly suspected the claimant of committing offences, the decision to arrest was not one which, objectively reviewed afterwards according to the information known to the officer at the time, had been made on reasonable grounds owing to an inadequate briefing.”

To read the full article on the Police Professional website please click here.

Rafiq v Thurrock Borough Council [2022] EWHC 584 (QB)

‘The High Court recently dismissed an application for damages under the Human Rights Act 1998, which had been commenced outside the statutory limitation period. Emelia Bezant-Gahan (Solicitor) and Tom Lambourne (Trainee Solicitor) from Plexus Law report on the outcome of a claim that a council had unlawfully made the claimant street homeless.’

To read the article in full please visit the Local Government Lawyer website here. 

Case Background

Plexus Law were instructed by QBE Insurance UK Ltd to defend a matter following an RTA which occurred on the 12th November 2019 in which the Claimant brought legal proceedings for £23,047.44 worth of credit hire charges, £282.30 for 2 days’ Loss of Use and interest.

Liability was in dispute until the 11th May 2020 when QBE Insurance UK Ltd agreed to deal with the claim on the best possible terms.

The Claimant drove a 2008 Audi Q7 and hired a 2019 BMW 3 Series special edition sport from Accident Exchange for a total period of 101 days over 2 hire agreements. The total hire charges incurred came to a grand total of £34,358.76. Pre-litigation, AX received an interim payment of £11,311.32.

Upon receipt of the Claimant’s witness statement, it was noted that the Claimant had been told this was a non-fault accident, and therefore the credit hire charges would be sought from the at-fault insurer. This was concerning as liability was disputed when the Claimant signed the hire agreement and would remain in dispute for a further 6 months. Accordingly, there were concerns that AX may have made fraudulent misrepresentations to the Claimant.

In reliance upon the reported case of Kadir v Thompson, 25 August 2016, Central London County Court, HHJ Luba QC, a case which was handled by a Plexus handler, consideration was given to the following:

• there was a false representation of fact or law;
• that misrepresentation induced the claimant to enter into the contract; and
• as a result, the Claimant voids the contract.

The burden is on the Defendant is to prove each of these steps which must be explored with the Claimant during the live evidence. Thus, the questions put to the claimant covered what the Claimant was informed (representations) by agents of the credit hire company, the effect of those representations on the Claimant’s decision to enter into the contract, and whether the Claimant believes that she is liable for the credit hire charges.

Claim Outcome

The case proceeded to a hearing at Nottingham County Court on the 21st February 2022.

During cross-examination, the Claimant’s evidence about the AX conversation included the following:

• A representative from AX rang him at home on the evening of the accident and informed him that they (AX) had looked at the paperwork and they would provide a car.
• He was told the car was provided as part of his insurance. The Claimant explained that he paid his insurer an additional premium for a courtesy car.
• He believed he was told it was a free vehicle and that he certainly was not made aware of any hire charges.
• AX told him the accident was not his fault.

The Claimant confirmed that the paragraphs within his witness statement explaining that he was aware it was a credit hire vehicle and that charges would be sought from the at-fault insurer were not correct. He said that he did not know there were any charges until the solicitor asked him to provide evidence for the trial.

During cross-examination, the Claimant confirmed that the only reason the two hire agreements were signed, was because he understood the car was being provided as part of his insurance. He further said: “I do not consider myself bound to pay. I may as well drive with no insurance! I do not consider I entered into a contract with AX. If I was hiring a car, I would not have hired BMW M Sport”.

There was a letter from AX to the Claimant’s Solicitor dated the 4th June 2021, signed by a Director of Sales and Operations, which said that a recorded script was played to avoid uncertainty and that at no point is a customer told the hire car is being provided free of charge.

There was no witness statement from the AX representative who actually spoke with the Claimant. Further, the letter in the trial bundle did not contain a statement of truth. The Judge held that the contents of the letter were contrary to the Claimant’s evidence. Further, the Judge was critical of the fact that the script of the recording cited in the letter did not make any reference to the fact that there was a charge for the vehicle and the primary responsibility for it rests with the Claimant.

The Judge found that there had been fraudulent representations by a representative of AX; that such representations had induced the Claimant to enter into the hire agreements; and as a result the contract was voidable; and the Claimant clearly did not consider himself bound by it such that he had avoided it. The Judge dismissed the entire credit hire claim on the basis of fraudulent misrepresentation by AX.

The additional losses were not awarded.

Learning Outcome

Plexus relied upon the case of  Kadir v Thompson (2016) which also included Accident Exchange as the CHO. The evidence provided in both claims are fairly similar. However, the two cases can be distinguished in that the Claimant in Kadir was aware of the charges but was told he would not be liable, whereas the Claimant in this case was told that the vehicle was provided as part of his existing insurance policy.

Misrepresentations were that vehicle provided was effectively a courtesy car under his insurance and it was therefore, a free vehicle. The Claimant’s evidence was that he entered the hire agreement because he believed that to be correct.

This case does bring into question the validity of the evidence presented by the Claimant to the Defendant throughout the litigation period. It was not until cross-examination that it became apparent the Claimant did not agree with crucial section of his signed witness statement. Where witness statements contain generic paragraphs, therefore, it should be borne in mind that sometimes only under cross-examination does the real truth present itself.

This claim represents a significant saving for the Client and Plexus will continue to challenge all of the hire claims presented.

Plexus Law wish to acknowledge the contribution of Sarah Hopkinson at Ropewalk Chambers for all the counsel provided and for achieving this significant ’win’.

To view/download as a PDF please click here.

For further information on this case please contact:

Anne Chapman, Associate

T: 0113 223 9709   |   E: anne.chapman@plexuslaw.co.uk

James Ormsby, Credit Hire Legal Assistant

T: 0113 468 1638   |   E: james.ormsby@plexuslaw.co.uk

 

Whilst we take care to ensure that the material in this Case Alert is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Case Alert do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Case Alert.