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Claimant's unreasonable use of Part 8 procedure leads to claim being struck out

04 November 2019
A claimant who utilised the Part 8b procedure and stayed proceedings for a year acted unreasonably in a claim which was not suitable for the MOJ portal. The Court struck out the claim and the decision was upheld on appeal.

At a glance

  • Following an RTA, the Claimant submitted a claim on the MOJ Portal. Liability was admitted within the portal.  Claimant served a GP report which indicated whiplash injury with some dizziness and was referred to a neurologist. 
  • Following this, the Defendant's insurer sought more information, however the Claimant engaged in radio silence and no further information was received. 
  • As limitation was due to expire, the Claimant issued a Part 8 Claim Form and sought a 1-year stay on the case.  As the stay was due to expire, the Claimant served 2 reports from a neurologist and indicated that the value of the claim would be significant. 
  • The Claimant attempted to transfer the case to Part 7. In response, the Defendant applied to have the claim struck out. 
  • The Court struck out the Claimant's claim due to their unreasonable conduct. The Claimant, subsequently appealed, however the first instance decision was upheld. 

Background

The Claimant in the matter of Barry Cable v Liverpool Victoria Insurance Company Ltd, was involved in a minor road traffic accident on 1 September 2014.The Claimant's vehicle was struck from behind by the Defendant. The Claimant instructed Solicitors to bring a claim against the Defendant and a CNF was submitted to the Defendant's insurers. 

In the CNF, the Claimant reported to suffering soft tissue injuries to the neck, back and shoulder. It was also reported that no time was taken off work and there was no medical consultation. Upon receipt of the CNF, insurers for the Defendant subsequently admitted liability and requested medical evidence to conclude the claim. 

The Claimant served a medical report from a GP on 24 November 2014. This report indicated that the Claimant was off work and presented symptoms that would require prognosis from a Neurologist.  The Defendant's insurers attempted to make contact with the Claimant's Solicitor on numerous occasions in order to elicit more information, namely whether the Claimant was still off work and whether there was a claim for loss of earnings. 

Instead of responding to the Defendant's enquiries, the Claimant proceeded to obtain further expert evidence and not disclose the reports. In April 2015, Dr Kidd reported that the Claimant had continuing symptoms and was unable to return to work. Dr Kidd's prognosis was such that a full recovery will be made in 15-18 months. 

The Defendant's insurer continued to chase the Claimant for a response; however, the Claimant's employment had been terminated in the interim. The Defendant's insurer made a Part 36 offer of £10,000 based on the information it had on 19 April 2016. The first report of the Neurologist instructed by the Claimant had been prepared, but not served on the Defendant. 

While the Defendant's insurer continued to chase, the Claimant sought to obtain additional expert evidence and failed to notify the Defendant that these steps have been taken. The Claimant's Solicitors then proceeded to issue a Part 8 Claim on 25 July 2017 and sought that the case be stayed in order to comply with the RTA Protocol. 

The Defendant's Solicitor continued to chase the Claimant for further information. It was only when the stay was nearing expiry that the Claimant served two neurology reports on the Defendant. The Defendant's Solicitor in turn responded such that they considered the Claimant's conduct a concern, as it left the Defendant in a 'very difficult position'.  

The Claimant prepared an application to lift the stay and the matter to proceed as a Part 7 claim. DJ Doyle granted this application without notice. The Defendant in response prepared an application seeking strike out of the Claim. DJ Campbell set aside the previous order and struck out the claim, stating: 

“66. So when I look at the totality of what has gone on I find that this was an abuse of the court process. It is one thing to use the portal procedure and seek a stay and then sit on a case for a year, do nothing and ask for a further stay and delay and delay. Those sorts of cases come before this court regularly with Defendants arguing that they are an abuse, BUT I have never had an application before me where it is so obvious on the evidence that this was never a portal case and yet the Claimant’s solicitors have decided to use that procedure when it did not apply to this case and when it bought them a further 12 months. I cannot even see that during those 12 months they were doing anything constructive whatsoever, because I am told this afternoon that the first time anyone valued that case was August 2018 at the very end of that stay.”

“67. For those reasons I find that there is an abuse of process. On that basis, therefore, I am going to set aside District Judge Doyle’s order……”

The Claimant proceeded to appeal the decision, however the judgment of DJ Campbell was upheld on the basis that DJ Campbell had applied the correct test to the determine whether the Claimant should proceed with his claim. 

Comment 

This case will be of particular relevance to insurers who are often grappling with cases where the true valuation is unknown when it is first presented. It is not uncommon for Claimant practitioners to submit CNFs into the portal to elicit an admission of liability from Defendant insurers even though the valuation might be in excess of £25,000.00.. 

This case provides useful ammunition in order to challenge the conduct of Claimants who utilise such a practice and may be able to seek strike out for an abuse of process. The Court will look at all relevant factors when considering how to exercise its discretion. Based upon these facts, this was a clear case where the conduct of the Claimant was dilatory, such that the Defendant has no real indication of what the likely value may be until days before the stay on Part 8 proceedings was due to expire. 

Had the Court found in favour of the Claimant, the Defendant would have been subject to a significant costs liability through no fault of its own. Given that the Claimant had actively chose to ignore the Defendant and continue with the litigation, the Court felt it had no alternative but to strike the Claimant's claim out. 

On the back of this judgment solicitors and insurers might want to review their long-standing cases which might be similar and consider whether an application might be warranted.

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