Plexus reflect on the recent case of Dowling v Higgins (Stoke-on-Trent County Court 20th March 2019) and explore the implications for the motor volume claims market along with practical action steps that can be taken.
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The Defendant was successful in an application to strike out the Claimant’s claim as an abuse of process.
The proceedings concerned a claim for personal injury arising from a road traffic accident that occurred on 11 July 2013.
The Claimant submitted a Claim Notification Form (CNF) on 14 March 2014, under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents, with an upper limit of £10,000.
The Claimant’s medical evidence was not complete before the expiry of primary limitation and in July 2016 the Claimant issued a Part 8 claim. At the time the Claimant’s solicitor had already obtained a report from a Consultant Orthopaedic Surgeon which lead them to value the claim in a sum in excess of £10,000. The Claimant’s solicitors had mistakenly proceeded on the assumption that the Protocol upper limit was £25,000. This was a mistake as the Protocol upper limit of £25,000 was only in respect of accidents that occurred after 31 July 2013, the Claimant’s accident occurred on 11 July 2013!
On 3 August 2016 a District Judge made an order on paper that a general stay of proceedings be granted. The Claimant would have to apply to exit the stay on complying with the RTA protocol.
In November 2016 the Claimant’s solicitors disclosed reports from a Clinical Psychologist and Consultant Orthopaedic Surgeon. On 12 December 2016 they also served a schedule of special damages in excess of £17,000.
In June 2017 the Claimant submitted a Stage 2 Settlement Pack offering to settle the matter for £25,000. The Defendant’s insurers made a counter offer that was not accepted and on the 6 November 2017 the Claimant withdrew the offer of £25,000 in open correspondence.
In open correspondence the Claimant’s solicitors then indicated their intentions to seek further medical evidence from a pain management specialist.
After 6 months of no correspondence from the Claimant’s solicitors the Defendant’s solicitors applied to strike out the claim. Shortly before the hearing of the Defendant’s application the Claimant applied to lift the stay and transfer the claim to Part 7.
Decision of District Judge Isles
The applications came before DJ Isles at Stoke on Trent County Court on 20 March 2019. DJ Isles concluded the following:
- The applicable Protocol upper limit was £10,000.
- In July 2016 when the Claimant issued Part 8 proceedings, they were already in possession of medical evidence and valued the claim in excess of £10,000.
- The claim was wrongly issued as a Part 8 claim as the Protocol no longer applied as the claim was valued at more than £10,000.
- On 6 November 2017 it was clear that when the Claimant withdrew their Stage 2 offer the claim no longer proceeded under the Protocol, even if they were going by the wrong upper limit of £25,000. Therefore, the Claimant’s solicitors should have applied for directions.
- On 12 December 2016 when the Claimant valued special damages in excess of £17,000, it would have been reasonable then to have know the matter would exceed £25,000. Significantly this was before the Claimant submitted their Stage 2 pack so even on the misapprehension that the £25,000 upper protocol limit applied, it was clear the matter was not suitable for the portal.
- The Defendant’s enquiry as to whether the Claimant was going to transfer matters to Part 7 was met with “radio silence”.
From the above DJ Isles was satisfied that the Claimant had been in breach of the Protocol, and that the breaches did cross the high threshold to amount to an abuse of process. The Claimant’s application was refused, and DJ Isles granted the Defendant’s application with an order for costs in favour of the Defendant and on the express basis that the effect of her order was to disapply Qualified One Way Costs Shifting.
Relevant Case Law
Lyle v Allianz Insurance PLC 21 December 2017 – this case bears a striking resemblance to the above matter.
In Lyle His Honour Judge Pearce found amongst other things that the stay was obtained under a false pretext. The delay as in the above case had not only not allowed the Defendant to be involved, but also had caused the court not to be involved.
If the court were to lift the stay, then the Defendant would be left with a state of affairs that an award of costs could not justly alleviate.
The Claimant employed a tactic that circumnavigated the Defendant and the court to build a claim for damages unopposed and without any case management, under the guise of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents.
The Claimant’s solicitors clearly knew or ought to have known that the case had increased in value and thus exited the protocol. In not applying to lift the stay whilst gathering further evidence which clearly increased the value of the claim the decisions in Dowling and Lyle demonstrate that the courts do not take kindly to such tactics.
Notwithstanding the potential value of a claim to a genuinely injured Claimant, when a Claimant’s solicitors conduct does amount to an abuse of process then the court will strike out a claim.
Following the above it is recommended that when considering your book of volume motor claims the following actions are commenced:
- Review all Portal claims that are currently stayed
- Select the cases that have been stayed the longest say over 1 year
- Review those cases in a case clinic to establish whether any would be suitable to make a strike out application
f you would like to know more about this matter, please speak to your contacts at Plexus:
Sally Richmond, Partner
T: 0113 2229 090 | M: 07557 391 646 | E: email@example.com
Jo Pizzala, Partner
T: 0207 618 0780 | M: 07957 726 576 | E: firstname.lastname@example.org