Barry Cable v Liverpool Victoria Insurance Company Ltd [05.07.19]
09/10/2019
In this personal injury claim, pleaded in excess of £2 million, a successful strike out application for an abuse of process was upheld on appeal.
The case highlights the risks awaiting any attempts to misuse the automatic stay offered under paragraph 16 of Practice Direction 8B of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents.
By way of a brief summary:
Following a road traffic accident on 1 September 2014, Mr Cable pursued a claim for personal injury, through his solicitors, via the MoJ Portal process.
With settlement not having been reached, and with limitation approaching, Part 8 Proceedings (as modified by Part 8B) were issued on 25 July 2017 and a stay obtained to enable the claimant to comply with the MoJ Portal process. The stay was due to expire on 20 August 2018.
Prior to proceedings being issued, the claimant had obtained various medical reports in support of his claim, which suggested that its value could not reasonably have been said to fall within the MoJ Portal limit. It was, however, only shortly before the stay was due to expire, that evidence commissioned from a neurologist (available in 2016 and 2017), was served on the defendant.
The claimant made an application on the 17 August 2018 to transfer the matter to Part 7, noting the value of the claim, which was approved on a without notice basis by District Judge Doyle.
In response, the defendant made an application to set aside the order of District Judge Doyle, re-imposing the stay, and the striking out of the claimant’s claim. This application was heard by District Judge Campbell on 17 October 2018 and was successful.
The claimant appealed the decision, which was heard by His Honour Judge Wood on 5 July 2019.
The decision of DJ Campbell was upheld and the claimant’s claim remained struck out.
It was commented that DJ Campbell “not only applied the correct test to determine whether or not the claimant should be entitled to proceed with his claim notwithstanding the abuse of process attributable to his solicitors” but also that “it is difficult to contemplate any other outcome in the circumstances with which she was faced”.
In this case, the medical evidence obtained in November 2014 ought to have indicated that the potential value of the claim meant that it was no longer suitable for the MoJ Portal. Further, by December 2015, termination of the claimant’s employment was another significant indication of the potential value of the claim. Notwithstanding that, the subsequent medical evidence obtained and served, left it in no doubt that the claim was unsuitable for the MoJ Portal process.
Naturally, this type of case is likely to be the exception, rather than the norm, as the claimant’s solicitors had ample time and opportunity to realise that the claim was not suitable for the MoJ Portal process. Clearly, not all stayed cases fall into this category and such an assumption ought to be avoided. However, insurers would do well to treat delays with scepticism and routinely seek clarification of the position of the claim.
Defendants should also be mindful that a singular breach may not be sufficient to obtain an abuse of process finding. In the instant case, it is apparent from the judgment that there were several factors throughout the life of the claim, including failures to comply with various court orders, which drew criticism and supported a finding of abuse of process.
It follows that defendants ought to adopt a proactive fact finding approach, placing the claimant’s solicitors on notice of their intention to seek a strike out in the event that a case falls within the ambit of Cable. Such correspondence provides a useful basis for any subsequent application and ought to be drafted with a view to placing them before the court, if necessary.
In response to ‘radio silence’ (a term used by the District Judge in Cable) from the claimant’s solicitors, consideration ought to be given to making an application for an unless Order, to compel service of the Stage 2 Settlement Pack or disclosure of the medical evidence obtained to date.
Such decisions ought to be taken on a case by case basis. A premature application, in light of regular updates as to the progression of the claimant’s claim and clear explanation as to the delay, is unlikely to be successful and lead only to costs penalties.
The option to seek a stay under Part 8 of the Civil Procedure Rules is there to assist the claimant to comply with the MoJ Protocol, as many do. However, where subsequent applications are made to extend these stays, defendants ought to undertake a stock take and evaluate whether the matter is progressing at all. Whilst a rigorous and robust approach should be adopted, this must be against a backdrop of commerciality and common sense.
Not all such claims will constitute an abuse of process and adopting a contrary approach may result in an undesirable financial liability in respect of costs. However, where there is evidence to suggest that the stay is being sought without any indication that the matter is progressing, these ought to be opposed.
Where successful, and the stay remains, the logical consequence is the matter being struck out, as in the instant case. An interim measure is the agreement for an unless Order to submit the Stage 2 Pack or medical evidence obtained to date within a specified period with a strike out in default of compliance.
A useful yardstick against which defendant insurers can measure their approach can be found at paragraphs 34 to 36 of HHJ Wood’s judgment. These highlight the need to demonstrate, for the purposes of a Cable application, that it ought to have been clear, prior to commencing Part 8 Proceedings, that the claim was not suitable for the MoJ Portal process.
