Motor Brief: latest decisions August 2018
A round up of recent court decisions raising issues relating to exaggerated claims, permission for care practitioners evidence, Part 36 fixed costs, and equitable liens.
Catastrophic injury claim dismissed for fundamental dishonesty
Pinkus v Direct Line [27.07.18]
The claimant was found to have knowingly exaggerated a claim for serious personal injuries following a road traffic accident. The claim was dismissed in its entirety for fundamental dishonesty pursuant to Section 57 of the Criminal Justice and Courts Act 2015. The Judge ordered the claimant to pay the defendant’s costs on an indemnity basis.
Despite fundamental dishonesty being pleaded quite late in the proceedings, the claimant failed in his attempt to debar the defendants from pursuing it at trial. It was sufficient that the claimant's credibility had clearly been in issue from the start of the claim. The defendant denied the accident had occurred as claimed and disputed causation and quantum.
Disclosure was key in this case. Independent witnesses helped establish the finding of dishonesty, as did the claimant’s own Facebook account which the defendants successfully obtained further disclosure of after the privacy settings were changed. Also, having been found fundamentally dishonest the claimant could no longer rely upon contemporaneous medical evidence.
Contact: Richard West
Fixed costs will trump unless there are exceptional circumstances
Hislop v Perde [23.07.18]
The Court of Appeal has ruled that fixed costs apply where the defendant accepts a claimant’s Part 36 offer late. There is no discretion under Part 36 to award standard or indemnity basis costs.
The claimant brought a claim through the Portal following a road traffic accident. Liability was disputed and the claim was subsequently removed from the Portal. The claimant made a Part 36 offer and issued proceedings. The defendant then made her own Part 36 offer and the claimant responded with a second, reduced Part 36 offer. A week before the trial the defendant accepted the claimant’s second Part 36 offer – some 19 months after it was originally made. The claimant sought indemnity costs from the expiry of the Part 36 offer, which was rejected by the court. The Court of Appeal concluded that fixed costs should be applied unless there were ‘exceptional circumstances’. In this case they did not consider the delay exceptional.
Contact: Ian Davies
Related item: Fixed costs: two un-appealing decisions for defendants
Third party capture – remedy for solicitors to recover costs
Edmondson v Haven Insurance Co Ltd [18.04.18]
The Supreme Court has confirmed that solicitors have a remedy to recover costs when an insurer goes to the claimant directly.
The case involved six claims for compensation after road traffic accidents in which the claimants had entered into conditional fee agreements (CFAs) with a law firm. Solicitors submitted the claims into the online claims portal, but the defendant insurer made offers to settle directly to the claimants which were accepted. The claimants then cancelled their CFA’s – depriving the solicitors approximately £12,500 in fixed costs had the claims proceeded through the Portal.
The Supreme Court agreed the solicitors were entitled to recover their costs. Lord Briggs said the RTA protocol was designed to provide security for the solicitor’s charges and fix the costs that are recoverable, thereby reflecting the balance struck by the ‘voluntary nature’ of the protocol.
Contact: Niall Edwards
Non-disclosure and Part 36 – costs consequences preserved
Tuson v Murphy [22.06.18]
The Court of Appeal has overturned a decision to punish a claimant who had been accused of dishonesty, yet accepted the defendant’s Part 36 offer. The court held the offer made in the knowledge of the claimant’s material non-disclosure did not change the costs consequences.
The claimant did not disclose pertinent information about her employment until her third witness statement, by which time the defendant had knowledge. The claimant admitted that she should have mentioned her employment details earlier but denied that she had been deceitful about her health. She accepted the defendant’s Part 36 offer, which she argued had been made in full knowledge of her non-disclosure and the costs consequences of Part 36. The court agreed, highlighting the difference between making an offer based on facts which do not change significantly during the period of acceptance. The claimant was ordered to pay just the extra costs by her delayed acceptance of the Part 36 offer, and not for her non-disclosure.
Contact: Jennifer Harris