Omissions in portal evidence leads to dismissal of claim
Michael Carr v EUI Ltd [13.09.18]
A recent MOJ portal case has confirmed that where a claimant fails to attach documents at the issue of Stage 3 proceedings in the portal process the claim should be dismissed. On dismissal the damages and costs paid at Stage 1 and 2 are to be repaid.
Admiral (EUI Ltd) received a claim via the MOJ portal for damages arising from a road traffic accident on 5 June 2017. Liability was admitted by Admiral who offered rehabilitation should any be needed, to which no response was received. The claimant chose to instruct a rehabilitation provider related to the claimant law firm.
The Stage 2 settlement pack was submitted and within it contained a claim for physiotherapy. Admiral offered physiotherapy through their network of established independent providers at a lower rate and with no requirement for the claimant to fund the treatment. As the claimant refused to engage in the defendant’s offer of rehabilitation it was argued that this amounted in a failure to mitigate the loss and as such any award should be limited to the defendant offer, pursuant to Copley v Lawn .
Settlement was not reached and the claimant submitted a court proceedings pack (CPP) which failed to include the defendant’s original letter offering rehabilitation. The defendants responded to the CPP requesting that all correspondence must be included within the claim form. The information was not included and Admiral sought the assistance of Kennedys and Kings Chambers to undertake a review of the index case and others and to, in conjunction with senior staff within Admiral, press forward with the matter to obtain a decision that would drive behavioural change within the claimant firms or lead to a decision clarifying the issue.
Initial Stage 3 hearing
At the oral hearing it became apparent that the rehabilitation letter had still not been included in the CPP before the court. The Judge ordered that the hearing be adjourned and that witness statements be filed addressing the omission of the rehabilitation letter.
Witness evidence and defendant’s application
Witness statements were filed by both parties and it followed that the defendant made an application to seek an order compelling the claimant’s solicitors to attend the hearing to be cross-examined as to the reasons for the non-inclusion of the documents. The witness statement of the claimant’s case handler suggested that the error was accidental, however the defendant’s belief was that this required further explanation as the failure to include evidence occurred in a significant number of cases involving the claimant law firm. The defendant arrived at this conclusion, as within a review of 100 cases, 98 were found to have a similar ‘error’ and this information was contained in their served witness statements.
Whilst the application regarding the witness evidence was dismissed, the decision was made with sympathy for the defendant’s position but the court had their hands tied as there was no avenue for redress within the MOJ portal. The rules confirm that a portal claim will be determined by the court on the contents of the CPP and they do not permit applications for oral evidence to be made. The whole point of the protocol being to limit evidence.
The conclusion of DJ Jenkinson was that the only route available was for the claim to be dismissed and for the claimant to start proceedings under Part 7. This had been the outcome sought by the defendant from the outset.
The failure by claimant law firms to attach all relevant information at the issue of MOJ proceedings has long been a frustration to Admiral and others. The approach adopted clarifies the position. Given the dismissal of the claim and the order for the repayment of the damages and costs paid in Stage 1 and 2, it is hoped claimants will now comply with the rules.
Sending claimant’s ‘Copley’ letters and the like are important weapons in a defendant’s pre-litigation strategy. Not to have these before a judge hearing a Stage 3 matter leaves the defendant at a significant disadvantage and provides unfair significant tactical advantage to the claimant.