Plexus Law were instructed to defend a Fast Track credit hire claim, which was not subject to RTA fixed costs.
Pre-litigation the Claimant’s insurers, Aviva admitted liability and settled the Defendant’s subrogated loss claim in full. Aviva’s correspondence specifically stated “…our insured has accepted liability for this incident.”
When the Claimant issued proceedings the defence drew this admission to the court’s attention and both parties issued an application. The Claimant sought permission to resile/a determination that they would not be bound by their insurers admission and the Defendant sought the claim was struck out as an abuse of process.
The index accident occurred on 8 August 2017. On 22 December 2017 Aviva wrote to the Defendant stating “I can confirm that our insured has accepted liability for this incident.” Aviva settled the Defendant’s outlay shortly afterwards.
The Claimant however, instructed their solicitors Bond Turner to issue proceedings which they did on 9 November 2018.
The Claimant pursued various heads of loss which the Claimant pleaded as being valued between £10,000 – £25,000. In reality, the claim was valued at £10,900. There was no Personal Injury involved.
The Claimant pleaded that they were simply proceeding along the road when the Defendant pulled out from a parked position into a collision with the Claimant’s motor cycle. The Defendant and an independent witness however stated the Claimant was weaving in and out of traffic and drove into a collision with the Defendant’s correctly proceeding vehicle.
The difficulty the Defendant had was that due to the admission they ceased all further liability investigations and by the time the Claimant issued proceedings they had lost contact with the independent witness.
Nevertheless, the Defendant firmly denied liability.
Shortly after service of the defence, the Claimant issued an application for permission to resile/a determination that they would not be bound by their insurers admission. The Defendant cross applied to the claim struck out as an abuse of process.
The court handed down directions for the claim to proceed whilst listing the applications for a hearing. On account of both parties filing witness statements in opposition to each other’s applications, the complex arguments and the hearing being listed for only 30 minutes, the hearing was adjourned and re-listed for an hour and a half with 30 minutes reading time.
The second/re-listed application hearing was heard on 22 November 2019.
The Claimant raised arguments to the effect that his insurer did not have actual or ostensible authority to bind the Claimant with this admission and as such the Claimant should be granted permission to resile.
The Defendant’s submissions were that Aviva’s admission is crystal clear and unambiguous. They had spoken with their insured who admitted liability. The Defendant’s defence would be prejudiced if the Claimant was granted permission to resile as such the claim should stand as being struck out. The Defendant relied upon Chimel v Chibwana & Williams (2016) in support of this argument.
At the hearing, the Claimant effectively abandoned his application. They accepted that the insurer had a power to bind and that the admission would be a pre-commencement admission, which does not fall within CPR 14 and which does not therefore require permission to be withdrawn. The correct analysis is that the question is whether or not the claim should be struck out because of the admission that was made.
The first issue was whether or not it was an admission at all. The Judge accepted the Defendant’s submissions that it had to be, as it was a clear admission of liability.
The second issue was whether the claim should be struck out. The Judge went back and forth on this for a while but eventually found in the Defendant’s favour. One of the examples in the authorities cited by the Defendant was prejudice where a witness was no longer contactable, which of course the Defendant had here.
The claim was therefore struck out pursuant to CPR 3.4(2)(b).
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Richard Greenhough, Solicitor
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