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Corporate Claims Bulletin September 2017

  • United Kingdom
  • Personal injury claims litigation

26-10-2017

Liability

Whyatt -v- Powell [2017] EWHC 484 (QBD)

This case involved a claim for personal injuries against the driver of a car following a road traffic accident where the passengers of the car were injured.

The appellants were passengers in a car driven by the first defendant. They had been together at the house of a mutual friend prior to the accident. Each claimant brought an action in negligence against the first defendant. Judgment was entered against the first defendant.

As the first defendant was uninsured, the Motor Insurers’ Bureau (MIB) was joined as second defendant. The MIB argued it was not liable citing the exception under section 6 (e) (ii) of the Uninsured Driver’s Agreement 1999. In summary, section 6 (e) (ii) provides that where a claimant voluntarily allowed himself to be carried in a vehicle that he knew or ought to have known was being driven without a contract of insurance in place then the MIB’s obligation to satisfy compensation claims does not apply. In support of this contention the MIB claimed the first defendant had previous driving disqualifications for driving offences and the appellants had turned a blind eye to the issue of whether the defendant was insured.

At first instance the judge concluded that he had not been given a full account of the evening in issue, or the relationship between the people involved. He determined that the appellants ought to have known that the vehicle was being driven without insurance because they knew more than enough to arouse suspicion and did not ask.

The appellants brought an appeal submitting that there was no material on which the judge could properly have made the finding he did.

The appeal was allowed.

The issue in question was whether, given the finding of fact, the judge had properly addressed the question of whether each claimant knew or ought to have known that the vehicle was uninsured when they got into it.

In his conclusions the appeal judge cited the fact the judge at first instance was influenced by the belief that the driver had convictions for driving offences and had been sentenced to imprisonment for those offences. The judge also drew on the fact the people involved lived in a small community and therefore the appellants would have known more about the driver than they were admitting to. He had been provided with no evidence of the driver’s alleged convictions and appeared to have simply assumed such evidence existed.

It was found that on the evidence recorded there was no basis for any inference that the appellants had information that the driver had been convicted of driving offences or that he might therefore not be insured to drive the vehicle. Case law establishes that a failure to make enquiries that a reasonable passenger might have made, with knowledge of that information, would not be sufficient to fall within the exception.  Therefore, even if one of the appellants had believed that the driver had been convicted of driving offences, and even if that would have caused a reasonable person to make enquiries, it would not have been sufficient to enable the MIB to rely on the exception if, in fact, the appellant genuinely but negligently failed to make enquires and simply assumed that the driver must have been insured.

Accordingly, it was determined that there had been a procedural shortcoming in the trial which meant that it would be unjust to allow the finding to stand on the evidence and the appeals were allowed.

Practice and Procedure

Higgins and others -v- (1) ERC Accountants and Business Advisers Ltd and (2) Granite Tax Ltd [2017] EWH 2190 (Ch)

The claimant brought an action against the first and second defendants alleging negligence amongst other breaches in relation to a tax mitigation scheme.

The claimants’ solicitors issued protective proceedings on 19 May 2016 as it was nearing limitation. On 20 July 2016, they wrote to the first and second defendants’ solicitors explaining this, enclosing a copy of the issued claim form and inviting mediation. The copy provided was merely a copy of the claim form and not a court sealed copy. The parties then agreed an extended period for service to 19 March 2017. On 15 March 2017 the claimant’s solicitors enquired whether the defendant’s solicitors were instructed to accept service. On 17 March 2017, having not heard from the defendant’s as to whether they could accept service, the claimant’s solicitors served the particulars of claim on the defendant’s solicitors regardless. The defendant’s solicitors subsequently asserted that proceedings had not been validly served within time.

The court concluded that the claimant’s solicitors could have properly served the claim form well within time and that their “negligence or incompetent error” was not “good reason” to grant relief under CPR 6.15. The claimant’s solicitors alleged that the defendant’s solicitors had deliberately taken advantage of an obvious error and should have informed the claimant’s solicitors of this. The court found that the defendant’s solicitor had not deliberately taken advantage in the way alleged and, in any event, a party to proceedings was under no obligation to prevent or highlight their opponent’s mistakes. 

Jones -v- Chichester Harbour Conservancy and Others [2017] EWHC 2270

This claim concerned a 14-year-old girl who was rendered paraplegic following a fall from an oak tree. An action was brought against the defendant on the basis the tree was unsafe and the claimant was owed a duty of care in relation to the state of the tree.

The claim was issued on 1 July 2016. It follows that the claim form needed to be served by 1 November 2016. On 18 October the claimant applied for an extension for service of the claim form and such extension was granted to 17 January 2017.

The claimant emailed the defendant the claim form at 16:27 on 17 January 2017. The claimant placed a hard copy in the post first class of the same day. The hard copy was received by the defendant on 18 January 2017. The defendant had not indicated a willingness to accept service by email. 

The defendant made an application on 2 February 2017 seeking an order that the service of the claim form was invalid and therefore the court lacked jurisdiction to hear the claim.

The issue before the court was whether the claimant had validly served the claim form under the rules of the CPR.

CPR 6.14 states "A claim form served within the United Kingdom in accordance with this Part is deemed to be served on the second business say after completion of the relevant step under rule 7.5(1)"

CPR 7.5 reads "Where the claim for is served within the jurisdiction, the claimant must complete the step required by the following table in relation to the particular method chosen, before 12.00 midnight on the calendar day four months after the issue of the claim form... First class post, document exchange: Posting, leaving with, delivering to or collection by the relevant service provider".

It is noteworthy that CPR 7.6 states "The claimant may apply for an order extending the period for compliance with rule 7.5".

The defendant asserted that the required step under CPR 7.5 was to be taken on 13 January 2017, this being the last date the step could be carried out to ensure that the claim form was deemed served two business days later. The claimant asserted that the requirement is merely that the claimant must complete the step specified in CPR 7.5 by midnight on the specified deadline, in this case 17 January 2017.

Master McCloud held that a claim form is validly served if it has been posted within the period of its validity, as extended by court order if applicable, in accordance with CPR 7.5. The deemed date of service, which in this case fell outside the period of validity of the claim form, did not determine when service was actually effected.

It was held that the claim form was validly served and the defendant's application was dismissed.

Costs

Parsa -v- Smith (Unreported)

This case involved a settlement where the defendants had accepted an offer out of time. 

This is an unreported case held in the County Court but proves useful in terms of understand how the County Courts are viewing such cases in a time when there is clear misunderstanding as to the interrelationship between CPR 36.13 and the portal-specific CPR 36.20.

It was held that, where a defendant accepted a Part 36 offer out of time in a fast track case which was subject to the fixed costs regime in Section IIIA of CPR 45, his liability for the claimant's costs fell to be determined under the RTA portal-specific rule in CPR 36.20, rather than under the general rule regarding costs on acceptance of a Part 36 offer in CPR 36.13. Accordingly, the Court ordered the defendant to pay the claimant's fixed costs as quantified under CPR 45.29C, Table 6B, including the costs for the period during which the judge found the defendant had unreasonably delayed in accepting the Part 36 offer.

Other news

HMCTS has published details of processing reply times at the CCMCC and the CCBC 

It is estimated that 40% of all calls made to the CCMCC and the CCBC concern processing and reply times. To combat this, the HMCTS have now published a table of the processing and reply times, to be updated every Monday. Parties can now refer to these, rather than contacting the CCMCC and CCBC directly, which should free up the phone lines for more urgent queries. 

The implementation of further fixed fees for high value and more complex PI work has been pushed back 

Solicitor Kerry Underwood, who assisted Jackson LJ with the fixed costs review, states "Lord Justice Jackson's fixed costs proposals are more detailed than they might have been, and are clearly capable of being taken forward into the multi-track in due course.  Whilst I fully support the concept of different complexity bands, this does make the job of the Civil Procedure Rule Committee rather lengthier".

14th Edition of the JC Guidelines

The 14th Edition of the Judicial College Guidelines was published this month, with a general increase in the brackets for awards of pain, suffering and loss of amenity (PSLA) of 4.8%.

For more information contact

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