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Failure to follow OIC Protocol leads to Strike Out

05 July 2023

Mr Habibullah MD v Mr Paul Perterkin

The OIC process requires a claimant pursing a claim to seek liablity  determination, before simply dropping a matter for the portal. In this case they failed to do so and simply issued part 7 proceedings. DWF successfully applied to strike out the claim on grounds of abuse of process leading to savings in excess of £25,000 with costs to be paid on the standard basis.

The Claimant submitted a claim in the OIC portal for personal injury, credit hire in excess of £20,000 and consequential losses arising from an incident in July 2021. Liability was disputed by the Defendant in the OIC, however, the Claimant went on to issue Part 7 proceedings.

The Defence was filed highlighting the procedural issues and requesting that the Claimant's claim be struck out due to the Claimant's failure to seek a liability determination at a Small Claims hearing as prescribed by s6.12(5) of the Pre-Action Protocol for Personal Injury Claims Below the Small Claims Limit in Road Traffic Accidents (the Protocol) and Practice Direction 27B.

This was followed up with an application to strike out the Claimant's claim pursuant to CPR 3.4(2)(b) on the grounds that the pleadings were an abuse of the court's process.

The Claimant opposed the application on the grounds that the protocol was vague and as the losses claimed exceeded £10,000, the matter had correctly exited the OIC process per s11 of the Protocol. 

The Defendant's position was because the claim for injury itself did not exceed £5,000.00, this in turn, meant the Claimant was obliged to seek a liability determination in line with section 6.12 of the Protocol. This argument was upheld. 

The judge made the following interesting comments in his Judgment:

"It seems to me it is a matter of common sense that whilst it may be that protocols are a guide for best practice and should not necessarily be followed slavishly, we are going to end up in a difficult and unattractive position if people are able to make their own minds up as to how it should operate. I set out briefly in beginning the way in which it ought to operate, so there are good public policy reasons as to why it should be followed.

I take the view that the Protocol takes priority over everything else and what it does is break up the way in which litigation may previously have been dealt with. So what section 6 does it takes the PI and Protocol vehicle costs and requires a liability decision. If the parties cannot agree that then the notional Claimant comes to court to obtain a decision. It is only once that decision has been made in Claimant’s favour in whole or in part that it reverts to the portal to negotiate a settlement on quantum, which is where NVC comes into question. At that stage the court is invited to make a determination once again. 

I don’t consider there’s anything particularly complicated in that. Effect needs to be given to the protocol overall, not to cherry pick as the Claimant has done, they cannot be looked at in isolation. Its unhelpful and not what was intended."

The Claimant's solicitors conduct in this case was an attempt to ignore the step by step process prescribed by the Protocol, and what heads of claim are relevant to the issue of value, and at what point. Solicitors do that at their peril. Insurers have the benefit of being able to challenge the issue of liability in a no cost environment, only if successful to any extent can the Claimant proceed further in the process.

This is a welcome and very useful decision which clearly sets out the requisite procedures to be followed when claims are submitted via the OIC portal, but also highlights the significant risks of not doing so, in this instance leading to a significant tactical advantage of the Defendant.     

Please contact us for further details. 

Further Reading