Case Alerts

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.

To view/download as a PDF please click here.

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

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.

A taxi driver who was claiming over £16,500 in credit hire charges has had his credit hire claim dismissed as he could not confirm that he had read or received the agreement’s terms and conditions.

In a case defended by Plexus Law’s Credit Hire Team the Claimant was unable to point out where the terms and conditions were, when the agreement referred to further terms and conditions “overleaf”, when he was cross-examined by Robert Golin, of Farrar’s Building Chambers on behalf of the Defendant.

As a result, the judge found that the Claimant had not proved the agreement was enforceable and dismissed the hire claim in full. The Claimant had been in hire for 84 days at a daily rate charged of £199. However, the Claimant had failed to prove his case on impecuniousity and applying the Hussain v EUI principles, the judge found that if the hire agreement had been enforceable, he would have only awarded £1,791.08.

In addition to the hire claim, the Claimant had also brought a claim for PSLA. However, he accepted that he had not read the medical report on which he relied and had not read his witness statement before he signed it.

Whilst the expert had offered a prognosis of around 8 – 10 months in respect of reported soft tissue injuries, the Claimant was awarded just £1,000. In a case which was pleaded in excess of £20,000 the Claimant was awarded in total just £1,034.85 inclusive of interest.

As the Claimant had failed to beat the Defendant’s Part 36 offer, his costs were reduced and the Defendant given an enforceable order in respect of their own costs.

This outcome represents another success for the Plexus Law Credit Hire Team whose strategy of robustly challenging hire claims has led to a significant saving for the client in this case.

For any further information regarding this matter please speak to your contact at Plexus law:

Chris Dibb, Associate

T: 01422 394 280

M: 07970 282 901

E: christopher.dibb@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.

 

Credit hire – Personal injury – Fundamental Dishonesty – Liability dispute – Dash cam footage

Peterborough County Court (9 Nov 21)/HHJ Duddridge

Following a road traffic accident which occurred on the 20 July 2017, the Claimant issued Court Proceedings for personal injury, repair costs and credit hire charges amounting to £11,952.50.

The circumstances of the accident were that the Claimant alleged that the Defendant driver veered into her lane on a roundabout which caused the collision.

The accident was caught on the Defendant’s dash cam footage.

On cross-examination the Claimant refused to accept that she was in the wrong lane for her intended exit. She also had to contend that the Defendant’s vehicle did not veer as he was stopped and she also had to contend that she did not get out of the vehicle as she claimed.

The Claimant eventually agreed that the Defendant was in the correct lane and that the Defendant’s vehicle was stationary. It was the Claimant cutting in front of the Defendant’s vehicle to take her exit which caused the accident. The Claimant lost her case on liability.

Turning to quantum, the Claimant gave evidence that she agreed with the medical report which had been served. Her Claim Notification Form (CNF) was silent on any report of a neck injury but the Claimant gave evidence that the injury started two weeks post accident. She did not inform Dr Iqbal, the medical expert of this.

So far as her middle back injury was concerned this was immediate onset where she described her pain as 8 out of 10 “pretty serious pain” which continued for 6-8 months. Despite this the Claimant did not seek any medical treatment, time off work or suffered any other difficulties. When asked about this given the seriousness of her alleged ongoing pain, she said she did not feel the need for it.

The Claimant was then shown the dash cam footage but did not agree that the slight impact would have caused the injuries she alleged. The Claimant had no cogent explanation for the discrepancies in her medical evidence.

Turning to the credit hire claim, the Claimant accepted that she had fully comprehensive insurance but could not remember whether her Insurers offered her a replacement car.  She also recalled a telephone call with Hilton Coachworks who repaired her vehicle and were also associated with her place of work. It was suggested by them that she contact Auxillis. All of these telephone discussion took place on the morning of the accident.

The Claimant then went on to say that Auxillis told her that they would cover the cost of the hire car. She said otherwise she would not have taken it. She was clear in her evidence that she only signed the contact because of the statements made by Auxillis about lack of cost to her. Counsel for the Defendant referred the Judge to the case of Kadir v Thompson which was the authority on a voidable contract.

In summary given the inconsistencies noted above Counsel for the Defendant Mr Peter Savory opened his submissions and stated the Claimant was dishonest and her whole case was tainted and was therefore seeking a finding of fundamental dishonesty.

At the outset of the trial Counsel for the Claimant sought to make an oral application for permission to rely on further financial disclosure. This raised the further concerns regarding dishonesty in view of Haider v DSM Demolition (2019) insofar as the Claimant did not give full and frank disclosure of her financial position despite signing pleadings and the Reply to the Defence.

The Judge also found the Claimant was fundamentally dishonest in relation to her personal injury claim. The inconsistencies being when she developed neck pain, day of accident or 2 weeks later. Not mentioned in CNF.  How long did injuries last? Six to eight months or 18 months as she told Dr Iqbal? The Claimant scaled her injuries as 8/10 yet sought no medical assistance nor time off work

The Defendant’s costs were assessed on an indemnity basis.

Plexus Handling

It is important to note that the Defendant driver had left the Defendant’s employment. It was discussed with the Defendant’s brokers in some detail that the dash cam footage was good enough to standalone as evidence.

The footage was disclosed to the Claimant’s Solicitors pre-litigation where they were invited to withdraw their claim. It was argued that our interpretation was not the same as there own and litigation shortly followed.

The Claimant’s Solicitors served the further financial disclosure on the morning of trial. This was the first notification we had that there was further financial disclosure. The case of Haider v DSM was discussed with Counsel and it was agreed that this would be raised as an issue at the trial.

Plexus Law remain committed in defending credit hire claims and to seek out dishonest and fraudulent to the full max of the law.

To view/download as a PDF please click here.

If you would like to know more about this matter, please speak to your contact at Plexus Law:

Anne Chapman, Associate 

T: 0113 223 9709   |    E: anne.chapman@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 High Court handed down judgment in this case which has provided welcome guidance for practitioners and data controllers on the approach that the High Court will take in claims concerning a one-off data breach.

The Defendant obtained summary judgment and was awarded indemnity costs. This was because there was no credible case that distress or damage, over a de minimis threshold, would likely be proved.

Background

The Rolfes brought a claim against Veale Wasbrough Vizards LLP, a firm of solicitors (Veales) for damages for misuse of private information, breach of confidence, negligence, damages under Article 82 of the GDPR and section 169 of the Data Protection Act 2018.

The Rolfes owed school fees to Moon Hall Schools Educational Trust, their daughter’s school. The school instructed Veales to write to Mr and Mrs Rolfe demanding payment. Veales intended to send the letter of demand and a copy of a statement of account to Mrs Rolfe via email. However, owing to a typographical error, Veales email was sent to the wrong e-mail address. The incorrect recipient responded promptly and identified that they did not think the email was intended for them. Veales responded asking them to delete the message and the recipient confirmed that they had done so.

The only private information sent within the email included the names and home address of the Claimants, the amount of school fees owed together with a statement of account for the previous 5 years. No phone numbers, bank details or details of the state of the Claimants’ finances were included in the letter.

The Rolfes claimed that as a result of the breach they had “lost sleep worrying about the possible consequences”, and that the disclosure had made them feel ill.

The Defendant applied for summary judgment on the basis that the claim had no real prospect of success.

Decision

The Defendant’s application was granted because there was no credible case that distress or damage over a de minimis threshold would be proved and a remedy should not be granted where no harm has credibly been shown to exist.

The court recognised that damages could be recovered for breaches of data protection regulations and misuse of private information, including for distress absent specific pecuniary loss. However, Master McCloud emphasised that the complainant must have suffered actual damage and that “one cannot succeed in a claim where any possible loss or distress is not made out or is trivial”.

The court appeared to rely heavily on the decision of Sir Geoffrey Vos’ in Lloyd v Google [2020] QB 747 regarding a threshold of seriousness being applicable to misuse of private information claims. Sir Geoffrey said that damages should not be awarded for “an accidental one-off data breach that was quickly remedied”.

Given the “minimally significant” nature of the information disclosed and the circumstances of the breach (including the rapid recovery by Veales,  the almost immediate deletion of the data, and the absence of any evidence of onwards transmission or misuse), the Master did not consider that damage, over the de minimis threshold, could be proved.

The Master questioned the level of harm that had been done to the Claimants and found it an “inherently implausible suggestion that the minimal breach caused significant distress and worry or even made them ‘feel ill’”.

The Master also said that in the 21^st century “no person of ordinary fortitude” could suffer the distress claimed in circumstances where a single data breach was quickly remedied, and that it was not appropriate for similar “trivial” claims to be brought, “especially in the High Court”.

The Claimants were ordered to pay the Defendant’s costs on the indemnity basis, with an interim payment on account of £11,000!

 Conclusion

Practitioners acting for data controllers will welcome this sensible robust decision from the High Court challenging an opportunistic claim arising out of a one-off data incident.

The decision shows the High Court’s recent lack of appetite to encourage data breach claims, which do not pass the necessary threshold of seriousness. It is hoped that the order of indemnity costs against these unsuccessful claimants will help stem the tide of other low value data claims being issued in the High Court.

To view/download as a PDF please click here.

If you would like to know more about this matter, please speak to your contact at Plexus Law:

Nicola Skeldon, Partner

T: 0161 245 7927   |   M: 07584 147 893   |    E: nicola.skeldon@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.

 

‘Emelia Bezant-Gahan, Solicitor, Plexus Law Public Sector Team, reviews the case of Altaf & Ors v Close Brothers and other recent decisions involving Litigants in Person, which is often an issue in police law cases.’

Emelia’s article is available to view on the Police Professional website (subscription required) here, alternatively a PDF copy can be supplied via request to marketing@plexuslaw.co.uk

Facts

The Claimant was a 91 year old gentleman who travelled to Turkey for a 28 night holiday on 3 May 2018. He was travelling with his son. The Claimant arrived at approximately 11pm and the porter showed the Claimant and his son a double room on the first floor. As a twin room on the ground floor was preferred the threesome descended back down stairs down to the ground floor. With the porter and the Claimant’s son walking on ahead, it was alleged that the Claimant fell down the set of stairs which were unlit and absent a handrail. The Claimant alleged throughout that he was unaware the stairs were there as it was dark. The Claimant fractured the top of his femur and the following day was taken to hospital for an operation where he remained until 21 May. He ultimately returned home early on the 24 May (rather than the original 31 May).

Pleadings were issued in December 2019 and the Claimant’s original schedule of loss sought £134,000 in special damages which included over £5,000 in taxi fares for life as he alleged he was no longer able to use public transport and over £50,000 in care for life. It was alleged he was no longer able to manage stairs and unable to leave home unaccompanied. The special damages also included a refund of £30,000 paid for the medical treatment he received in Turkey as he had no insurance on account of his age.

Suspicions were raised at the outset as a result of an apparent deterioration, rather than improvement, in the Claimant’s health between the date of the assessment by the Claimant’s orthopaedic expert in November 2018 and the date of the assessment by the Claimant’s care expert in May 2019. Four periods of surveillance were undertaken in January and February 2020 and the Claimant was seen exiting his first floor property alone and without a walking aid one day. On another day he was seen going for a 1km walk alone with a walking aid and on the third occasion he was seen getting on a bus into the town centre with his son and walking around the shops for about an hour.

Following the exchange of witness evidence in January 2021 and upon receipt of the Part 18 Replies in August 2021, the surveillance was disclosed. The Claimant did not consent to the Defendant’s application to rely upon the surveillance and therefore an application hearing was listed and permission was obtained and the Defendant was awarded its costs of the application; unfortunately in an unenforceable costs order.

The matter was set down for a two day trial to commence on 22 November 2021. The Defendant was due to call four hotel witnesses to give evidence from Turkey and local standards experts instructed by each party were also permitted to give oral evidence. The local standards experts had been unable to reach an agreement as to whether the stairs in question complied with local Turkish standards.

Orthopaedic experts were not called to give oral evidence on account of the experts reaching an agreement during the preparation of the joint statement. They agreed that the Claimant only suffered from the injury for a maximum of 12 months; until May 2019. The Claimants remaining issues were due to his age and not due to the fracture. Following service of the joint statement from the orthopaedic experts the Claimant’s updated schedule of loss was greatly reduced down to just over £52,000

Trial

The Claimant’s case collapsed quite quickly during cross-examination. It was clear that the Claimant could not recall any significant details at all. The facts he could recall, and adamantly repeated, differed wildly from the written evidence in so far as the Claimant could not recall any stairs at all. The Claimant appeared clear in his recollection that he fell, on the flat, hurrying to catch up with his son, whilst making their way to the second room. The only consistency was that he maintained it was dark.

Judgment

Before the lunch break on day one, the judge, who clearly had some sympathy with the Claimant, raised the possibility that the Defendant may wish to elect that there was no case to answer and left counsels to have a discussion. In making such an election, the Defendant would effectively be standing down all its evidence and requesting that the judge make a finding based solely on the Claimant’s evidence. If the judge did not agree with the submission, and if the Claimant held the Defendant to its election, the case would continue without any evidence from the Defendant.  Defendant counsel was not prepared to risk being unable to call the four Turkish witnesses.

Defendant counsel did manage to give the judge the surveillance evidence to watch during lunch with the intention that the judge’s sympathy might waiver. Which it possibly did. After lunch the Court, of its own motion pursuant to CPR 3.3 (1), invited the parties to make submissions as to whether the Claimant had adduced sufficient evidence in support of his pleaded claim to demonstrate a prima facie case for the Defendant to answer.

After hearing the submissions the judge held that the Claimant’s case was dismissed. The judge, who had developed a respect and admiration for the Claimant, on account of his stoic and amiable nature, would not entertain the Defendant’s submissions in regard to wasted costs and/or fundamental dishonesty. The judge considered that the Claimant was trying his best to be honest. Oral evidence from a now 94 year old Claimant which differed from his written statement was not a ground for wasted costs.

Whilst costs in an enforceable order would have been the cherry on the cake, this was a great result for the client who was facing a claim of significant damages and a Claimant costs budget of just over £143,000.

To view/download as a PDF please click here.

If you would like to know more about this matter, please speak to your contact at Plexus Law:

Claire Scargill, Associate Partner

T: 020 7220 5930   |    E: claire.scargill@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