21 November, 2019
Barry Cable v Liverpool Victoria Insurance Company Limited - Case number D34BI037
On Appeal, the Court has endorsed a decision striking out a claim worth £2.6 million for abuse of process.
The Claimant was involved in a road traffic accident on 1st September 2014. On 24th September 2014 a claims notification form was submitted referring to soft tissue injuries to the neck, back and shoulder. The Defendant made an admission of liability on 2nd October 2014, anticipating that the matter would be would be capable of an early and easy resolution.
On 28th November 2014, a medical report suggested for the first time that the Claimant was off work, and recommended without giving a definitive prognosis that the Claimant should be examined by a neurologist.
In January 2015, the service of the interim settlement pack led to an interim payment of £1000. It was shortly after this that the Defendant's representative started asking questions of the Claimant's advisers as to the progress of the claim, seeking information such as whether the Claimant was still off work, and whether there was a loss of earnings claim. The Claimant did not respond to the enquiries. The Defendant made a Part 36 offer on 19 April 2016 in the sum of £10,000. This was based on the original report and on the belief that the Claimant was still off work, and to be examined by a neurologist.
Unbeknown to the Defendant, the Claimant had been examined by a neurologist but the report had not been disclosed and his employment had been terminated. The Claimant had been earning approximately £130,000 per annum. A further neurological report had been commissioned and was available in January 2017. This suggested an ongoing and probably permanent problem attributable to the accident but the report was not disclosed to the Defendant.
Despite the Claimant having loss of earnings claim alone standing at over £200,000. In July 2017, the Claimant's solicitors issued a Part 8 claim on the basis that the claim was still suitable for the portal and obtained a 12-month stay.
In August 2018, the Claimant's representative indicated that the Claimant was still suffering from significant neurological problems and had not returned to work having lost his £130,000 per annum job. It was suggested that the claim was no longer suitable for the MOJ portal and a consensual transfer to Part 7 was sought. Shortly before the stay was due to expire; the two neurological medical reports were served on the Defendant. The Defendant opposed the application and sought the strike out of the claim.
District Judge Campbell held that the portal process had clearly been abused and the claim was struck out. She remarked
"… in a case that never, ever at the time they issued the claim form could it be said would have a value of £25,000 or less. That to me is an abuse of process and the abuse comes from using the procedure that is available to portal claims in a case that could not be said, on any stretch of the imagination, to be a portal claim…."
On appeal, HHJ Wood upheld DJ Campbell's decision noting that the Claimant had acted unfairly. They had bypassed the requirements of the personal injury protocol and had avoided the operation of the Limitation Act.
The misuse of the MOJ portal for a high value claim resulted in the strike out a claim worth over £2.6 million. The MOJ portal and the Part 8 procedure was devised to provide a mechanism for low value claims to be resolved quickly and without significant court involvement. Claims that are worth more than £25,000 are subject to the PI protocol. The PI protocol adopts a different approach from the outset. If the claim had followed the PI protocol, the Defendant would have had the opportunity to provide rehabilitation, to participate in case management and the selection of experts, and crucially to set an appropriate reserve.
Without a doubt, this case this case sends out a clear message that the Courts will not shy away from striking out claims where there has been a clear abuse of the MOJ portal process. It is hoped that the case will discourage Claimant solicitors from using the portal to incubate claims in the future.
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