Kerry Underwood

UNPAID COSTS AND LIENS

leave a comment »


In Spencer-White v Harding Evans LLP [2017] EWCA Civ 434, 14 June 2017

the Court of Appeal unanimously dismissed an appeal against an order awarding judgment to a firm of solicitors on its claim for unpaid fees.

The Court of Appeal also held that the firm was entitled to a lien over all of the files that it held in connection with that client, and that the lien was not limited to the files that related to matters on which there were outstanding fees.

The Terms of Business and the Client Care letter provided that the solicitors were entitled to retain all of the client’s papers and documents until any outstanding sums had been paid.

Furthermore, the fees were to be charged on a time spent basis and therefore on termination, causing the transaction to be abortive, the client still had to pay all of the solicitor’s charges and expenses up to the date of termination.

Written by kerryunderwood

June 28, 2017 at 9:21 am

Posted in Uncategorized

PART 36 AND RESERVING COSTS TO END OF CASE

leave a comment »


In Interactive Technology Corporation Ltd v Ferster [2017] EWHC 1510 (Ch)

the Chancery Division of the High Court held that the existence of Part 36 offers by the Defendants meant that the issue of costs after a preliminary hearing had to be reserved until the end of the case.

The judge was unaware of terms of the offers but the very fact that they had been made meant that the preliminary trial costs must be reserved, even though there had been a lengthy trial on the preliminary issue.

CPR 36.16 provides:

“36.16.— Restriction on disclosure of a Part 36 offer

(1) A Part 36 offer will be treated as “without prejudice except as to costs”.

(2) The fact that a Part 36 offer has been made and the terms of such offer must not be communicated to the trial judge until the case has been decided.

(3) Paragraph (2) does not apply—

(a) where the defence of tender before claim has been raised;

(b) where the proceedings have been stayed under rule 36.14 following acceptance of a Part 36 offer;

(c) where the offeror and the offeree agree in writing that it should not apply; or

(d) where, although the case has not been decided—

(i) any part of, or issue in, the case has been decided; and

(ii) the Part 36 offer relates only to parts or issues that have been decided.

(4) In a case to which paragraph (3)(d)(i) applies, the trial judge—

(a) may be told whether or not there are Part 36 offers other than those referred to in paragraph (3)(d)(ii); but

(b) must not be told the terms of any such other offers unless any of paragraphs (3)(a) to (c) applies.”

The judge then applied CPR 36.16 to the facts of this case and said:

“Applying CPR 36.16 to this case, the position is as follows:

(1) The case has not “been decided”, for the purposes of rule 36.16(2), because there are issues in the case which remain to be decided; see Beasley v Alexander [2013] 1 WLR 762, a decision on an earlier version of Part 36 but which remains relevant in relation to the current version of Part 36;

(2) Although ITC is content for the court to be told the terms of the three Part 36 offers, the Defendants and, in particular, Jonathan Ferster, do not agree to that and so the case is not within rule 36.16(3)(c);

(3) A part of the case has been decided within rule 36.16(3)(d)(i);

(4) The Part 36 offers do not relate only to parts or issues that have been decided and so the case is not within rule 36.16(3)(d)(ii);

(5) I have been told of the existence of the Part 36 offers, in accordance with rule 36.16(4)(a);

(6) I have not been told the terms of the Part 36 offers, in accordance with rule 36.16(4)(b)”

The judge then explained that he knew that there were Part 36 offers that related not only to the decided issues and he was unaware, and was not entitled to know, whether those offers related only to issues which had not been decided or whether they related both to issues which had been decided and issues which had not been decided.

This follows the decision of the Court of Appeal in

HSS Group plc v BMB Ltd [2005] 1 WLR 3158

which concerned an earlier version of Part 36 but the judge took the view that the relevant reasoning in that case still applied.

I deal extensively with Part 36 in my book Personal Injury Small Claims, Portals and Fixed Costs, which runs to 3 volumes and 1,300 pages and is available for £80.00 from Amazon here or from me here.

Written by kerryunderwood

June 27, 2017 at 8:27 am

Posted in Uncategorized

MCKENZIE ONLINE JUDGES COMING SOON

with 8 comments


Giving the Lord Slynn Memorial Lecture earlier this month the Master of the Rolls spoke about the proposed online court and admitted that the failed Rechtwijzer Dutch Scheme had been inspiration behind the proposals for an online court in England and Wales.

 

That system was set up in 2014 but is to be abandoned next month and is very widely regarded as an absolute disaster with only around one in 100 qualifying disputes actually being dealt with.

 

The concept is logically flawed.

 

The Master of the Rolls referred to three stages:

 

1. The Online Solutions Court will assist individuals to find the right sources of legal advice and help in order to enable them to consider whether they have a viable legal dispute. By helping individuals before who have not yet reached the stage of beginning legal action it will “secure access to preventive justice”.

 

I have not got a clue what “preventive justice” means.

 

If we had a properly funded system of law centres, Citizens Advice Bureaux and legal aid would that not “assist individuals to find the right sources of legal advice and help in order to enable them to consider whether they have a viable legal dispute.“

 

What on earth does an Online Solutions Court bring to the party in terms of advising people as to their legal rights?

 

Furthermore, as any lawyer who has been practicing for more than about two days knows, the law itself is only a small part of our work and the advice that we give to clients.

 

The law is really the background to the potential solutions.

 

Does the client wish to engage in litigation?

 

Does the client wish to maintain a relationship with the proposed opponent?

 

Should the matter be dealt with by negotiation, a settlement and ADR? How obvious is it that it is not the role of the court?

 

2. “Case Officers and Court Administrators exercising judicial functions under the supervision of the judiciary” will assist parties to manage the claim and reach a settlement.

 

“This is a significant departure from the court’s existing role as it will require a Court Officer actively to engage the parties in mediation and conciliation processes.

 

Unqualified and judicially untrained very junior civil servants will be “exercising judicial functions”.

 

That is a paid McKenzie Friend, except that they cannot be a friend to both parties.

 

How obvious is it that it is not the role of the court to assist parties to manage the claim and reach a settlement, rather it is to hear and try the claims.

 

It is the job of lawyers, insurers, ACAS, mediators and a whole host of others to try and reach a settlement.

 

It is not the job of the court!

 

This also ignores the fact, as to all of the “litigation as a last resort” evangelists that the vast majority of claims, well over 90% and in some areas over 99%, are settled without a hearing.

 

In other words the system, as far as resolution and settlement is concerned, works extremely well.

 

3. The claim will be adjudicated by a judge. However “the process will not necessarily take place in a traditional courtroom. It may be carried out online by video link, by telephone or on a paper”.

 

The idea of cross-examination being carried over the telephone is so ludicrous that it beggars belief that anyone with experience of courts should seriously suggest that that is an acceptable or appropriate way for any dispute which has reach a trial to be dealt with.

 

Funny enough this scheme will only be for low value claims and will not be used in the High Court or Commercial Court or whatever.

 

This is yet another attack on ordinary people with ordinary claims.

 

I trust that on the Friday morning when Jeremy Corbyn becomes our Prime Minister this nonsensical idea will be ended forever.

Written by kerryunderwood

June 23, 2017 at 11:18 am

Posted in Uncategorized

FIXED COSTS AND OFFSHORING

with 4 comments


This article first appeared on the Practical Law Dispute Resolution Blog on 22 June 2017.

 

The Master of the Rolls, giving the Lord Slynn Memorial Lecture on 14 June 2017, had this to say about the effect of electronic filing and online courts:

 

“It also means that law firms can offshore work or otherwise structure their businesses to reduce cost while maintaining quality; an offshore office can file a claim online as easily as an office in the same city as the court. Again cost savings are possible. And where international, commercial and business disputes are concerned, ease of filing over the internet enhances global as well as local accessibility of our courts.”(Paragraph 31).

 

Compulsory online filing now exists in all cases in the Rolls Building, that is heavyweight commercial disputes, and with a small number of exceptions all personal injury claims valued at up to £25,000 damages.

 

It is proposed that from October 2018 all civil claims of £10,000 or less be subject to online filing and video or telephone trials. The day when paper filing is impossible in a court or tribunal is but a few years away.

 

As far as I am aware, this is the first time that a senior judge has referred to offshore legal offices enabling firms to operate in England and Wales at lower costs.

 

Underwoods Solicitors have been doing this through our South African office for over 10 years (and in fact, Underwoods Solicitors is a trading name of Law Abroad Limited, whose name reflects this fact). Two other firms have used our facility. Virtually none of the 10,000 plus law firms in England and Wales have given it a thought. It is particularly notable, and surprising, that even the many personal injury firms who do not see clients, and which are subject to fixed recoverable costs, employ paralegals in this country rather than cheaper and better qualified staff abroad.

 

Expect that to change once fixed costs and online filing extend to other areas of work and to claims of higher value. Apart from seeing the client and trial advocacy (and few matters go to trial), everything else can be done abroad.

 

Take experts – ridiculously expensive by any standards. For anything other than a basic medical report, it is cheaper to fly the client to South Africa for an examination and report. Turn that round and pay for a South African expert to travel to England and Wales to examine and report on 30 or 40 clients and the savings are enormous.

 

With non-medical expert reports (where there is no need physically to meet anyone) huge savings can be made by instructing an offshore expert. Why does a forensic accountant need to be based in the jurisdiction? The same is true in relation to costs lawyers: why is it necessary to prepare a bill of costs here when it could be prepared for a fraction of that cost abroad?

 

All of you reading this will have physical goods made abroad and physically imported into the UK, be it a car, television, phone, camera, sound systems, computer, clothes and so on. If it makes economic sense even where the goods have to be physically transported, how much more sense does it make when there is nothing to be transported and thus no cost attached?

 

You may have a view on the rights and wrongs of offshoring, or importing services to give it another description, but it should be on the next partners’ and staff meeting agendas. Decisions about this year’s Christmas party, the fridge not working properly and running out of toilet paper can be delegated.

 

Written by kerryunderwood

June 23, 2017 at 7:59 am

Posted in Uncategorized

DAMAGES-BASED AGREEMENTS: NEW CASE: NEVER USE THEM

with 2 comments


The issues and methods of funding referred to in this post are dealt with in my book – Personal Injury Small Claims, Portals and Fixed Costs – available from me here or from Amazon here.

 

It is in three volumes and runs to over 1,300 pages and costs £80.00.

 

I also deal with this subject in detail in my Personal Injury Reforms course which can be booked here.

 

In Lexlaw Ltd v Shaista Zuberi [2017] EWHC 1350 (Ch)

 

the High Court has ordered a trial of a preliminary issue in a case concerning the enforceability of a Damages-Based Agreement (DBA).

 

The Claimant law firm entered into the agreement in April 2014 with the Defendant client in relation to claims against two banks for alleged mis-selling of interest rate hedging products.

 

The Defendant alleges that the DBA was procured through undue influence and that she was induced to sign the DBA by misrepresentation.

 

She alleges that the firm failed to advise her of the true nature and consequences of the agreement and that the agreement is thus unenforceable because it fails to comply with the requirements of the Courts and Legal Services Act 1990, which is the statute governing DBAs.

 

The Defendant admits that she is liable to pay the firm’s reasonable costs on the hourly rate for the period from April 2014 to May 2015 but disputes her liability under the agreement. It is unclear as to why the Defendant has made that admission, unless it is a tactical ploy to increase the chance of having the DBA set aside.

 

Master Clark, in the Senior Courts Cost Office, considered the warnings of the Court of Appeal over the risks of delay and increased costs in trials of preliminary issues, but accepted that in this case the determination of the enforceability of the DBA was likely to save costs and time as compared with examining the other defences raised.

 

The Master ordered a trial on the following preliminary issue:

 

“Whether the DBA is unenforceable by virtue of section 58AA(2) of the CLSA 1990, by reason of failing to satisfy the conditions in section 58AA(4) CLSA 1990, as pleaded in paragraph 64 to 71 of the Amended Defence dated 22 June 2016.”

 

Essentially the dispute to be tried as a preliminary issue is whether the provision in the DBA allowing the solicitor to charge costs on an hourly rate, together with disbursements, in the event of termination by the client causes there to be a breach of regulation 4(1) and/or regulation 4(3) of the Damages-Based Agreements Regulations 2013, which regulations were made under section 58AA of the Courts and Legal Services Act 1990.

 

As the Master said here at paragraph 9  “the drafting in both is not user-friendly.”

 

Here the parties agree that the meaning and effect of clause 6.2 of the DBA would require the payment of a sum greater than the agreed percentage provided for in the DBA and both parties agreed that the clause did not, in fact, come into effect in this particular case.

 

The client’s argument is that the very existence of the clause invalidates the Damages-Based Agreement.

 

The clause read:

 

“With the exception of the circumstances set out in clause 6.3 (in which you agree not to terminate this Agreement), you may terminate this Agreement at any time. However, you are then liable to pay the Costs and the Expenses incurred up to the date of termination of this Agreement within one month of delivery of our bill to you.”

 

At paragraphs 10 and 11 of the judgment the Master set out, so far as relevant, the relevant parts of Section 58AA and the Damages-Based Regulations:

 

 

 

“10.        Section 58AA(2) of the CLSA 1990 provides, so far as relevant:

 

“(1) A damages-based agreement which satisfies the conditions in subsection (4) is not unenforceable by reason only of its being a damages-based agreement.

 

(2) But … a damages-based agreement which does not satisfy those conditions is unenforceable.

 

(3) For the purposes of this section—

 

(a) a damages-based agreement is an agreement between a person providing advocacy services, litigation services or claims management services and the recipient of those services which provides that—

 

(i) the recipient is to make a payment to the person providing the services if the recipient obtains a specified financial benefit in connection with the matter in relation to which the services are provided, and

 

(ii) the amount of that payment is to be determined by reference to the amount of the financial benefit obtained.

 

(4) The agreement—

 

 

(b) if regulations so provide, must not provide for a payment above a prescribed amount or for a payment above an amount calculated in a prescribed manner.”

 

  1. The Regulations provide, so far as relevant:

 

 

“(2) In these Regulations—

 

“the Act” means the Courts and Legal Services Act 1990;

 

 

“client” means the person who has instructed the representative to provide advocacy services, litigation services (within section 119 of the Act) or claims management services (within the meaning of section 4(2)(b) of the Compensation Act 2006) and is liable to make a payment for those services;

 

“costs” means the total of the representative’s time reasonably spent, in respect of the claim or proceedings, multiplied by the reasonable hourly rate of remuneration of the representative;

 

 

“expenses” means disbursements incurred by the representative, including the expense of obtaining an expert’s report and, in an employment matter only, counsel’s fees;

 

“payment” means that part of the sum recovered in respect of the claim or damages awarded that the client agrees to pay the representative, and excludes expenses but includes, in respect of any claim or proceedings to which these regulations apply other than an employment matter, any disbursements incurred by the representative in respect of counsel’s fees;

 

“representative” means the person providing the advocacy services, litigation services or claims management services to which the damages-based agreement relates.

 

  1. — Payment in respect of claims or proceedings other than an employment matter

 

(1) In respect of any claim or proceedings, other than an employment matter, to which these Regulations apply, a damages-based agreement must not require an amount to be paid by the client other than—

 

(a) the payment, net of—

 

(i) any costs (including fixed costs under Part 45 of the Civil Procedure Rules 1998); and

 

(ii) where relevant, any sum in respect of disbursements incurred by the representative in respect of counsel’s fees,

 

that have been paid or are payable by another party to the proceedings by agreement or order; and

 

(b) any expenses incurred by the representative, net of any amount which has been paid or is payable by another party to the proceedings by agreement or order.

 

 

(3) … in any other claim or proceedings to which this regulation applies, a damages-based agreement must not provide for a payment above an amount which, including VAT, is equal to 50% of the sums ultimately recovered by the client.””

 

 

 

In paragraphs 69 to 71 of the Defendant’s defence she asserts that that clause in the DBA, in providing for payment of “the Costs and Expenses” requires her to make a payment other than “the Payment” as defined in regulation 1(2) and that requirement contravenes regulations 4(1) and/or 4(3).

 

The Claimant denies that that contravenes the regulations and in the alternative states that these sums only became payable by the Defendant upon termination of the DBA and thus cannot be caught by the regulations.

 

In the further alternative the Claimant maintained that in so far as the clause is unenforceable it should be severed from the DBA so as to leave the remaining provisions of the DBA enforceable.

 

The rest of the decision is concerned with the rights and wrongs of ordering a trial of a preliminary issue and I do not consider that issue here.

 

Comment

 

A clause making provision for payment by the client on an hourly rate basis is standard in virtually all Damages-Based Agreements if it is the client who has terminated the agreement or indeed the solicitor has terminated the agreement on the basis of the client’s unreasonableness.

 

The issue here is whether that clause offends against the requirement  

that in a DBA covering a claim other than a personal injury claim or an Employment Tribunal claim, the DBA must not provide for payment of a sum, including VAT, of over 50% of the sums ultimately recovered by the client.

 

If this is held to render the DBA unenforceable then non employment tribunal DBAs are dead, not that they are very much alive anyway.

 

It would enable a client to terminate the agreement and discontinue the claim, which may be a very strong claim for a large sum where the solicitor has done an enormous amount of work, and leave the solicitor with the ability to recover a maximum of 50% “of the sums ultimately recovered by the client”, that is 50% of zero which equals zero.

 

In relation to personal injury claims the principle is the same, but the maximum percentage is 25% and that is achieved by identical wording in regulation 4(2)(b) of the regulations.

 

Regulation 7, dealing with just employment matters, has identical wording but the maximum percentage there is 35%.

 

However regulation 4, the one in dispute here, does not apply to employment matters and regulation 8 provides as follows:

 

Terms and Conditions of Termination in an Employment Matter.

 

“8.-         (1) In an employment matter, the additional requirements prescribed for the purposes of section 58AA(4)(c) of the Act are that the terms and conditions of a damages-based agreement must be in accordance with paragraphs (2), (3) and (4).

 

(2) If the agreement is terminated, the representatives may not charge the client more than the representative’s costs and expenses for the work undertaken in respect of the client’s claim or proceedings.

 

(3) The client may not terminate the agreement—

 

(a) after settlement has been agreed; or

 

(b) within seven days before the start of the tribunal hearing.

 

(4) The representative may not terminate the agreement and charge costs unless the client has behaved or is behaving unreasonably.

 

(5) Paragraphs (3) and (4) are without prejudice to any right of either party under general law of contract to terminate the agreement.”

 

 

 

Thus the regulations specifically provide for the basis of charging when an employment matter is terminated and there is a potential conflict between regulation 7 and regulation 8.

 

Regulation 8 appear to allow the solicitor to charge the full costs and expenses for the work undertaken, but it is not clear whether that is then capped by regulation 7 at 35% of the sums ultimately recovered by the client in the claim or proceedings.

 

It seems fairly obvious that regulation 7 is designed to govern matters where client and solicitor remain together and a result is achieved, whereas regulation 8 is designed to govern the situation where the agreement ends before a result has been achieved.

 

The Explanatory Notes throw no light on any of these matters.

 

My strong advice, along with virtually every other commentator, is that solicitors should never enter into a Damages-Based Agreement outside the field of employment.

 

This is because there is an alternative method available, which is a Section 57 Solicitors Act 1974 Contingency Fee Agreement, combined with a Bridging Agreement and a Conditional Fee Agreement, which achieves the desired arrangement, without the two main problems of DBAs which are:

 

  • the indemnity principle applies, restricting the liability of the other side to the relevant maximum figure under the DBA;

 

  • credit must be given for all costs received from the other side, where as in a Conditional Fee Agreement no credit need be given in respect of the success fee element charged to the client.

 

Outside the field of employment work there is now this third potential problem, although I emphasise that all that the court has done so far is to order a trial of the matter.

 

No decision has been made.

 

The problem in employment matters is that the use of a Damages-Based Agreement is compulsory if the matter is, or could, be before an Employment Tribunal and the fee is contingent upon the outcome.

 

Thus a Section 57 Solicitors Act 1974 Agreement cannot be used because regulation 1(6) says so.

 

As stated above regulation 4 does not apply to employment related Damages-Based Agreements, and consequently there may be no problem.

 

However, as set out above, there is a tension between regulation 7 and regulation 8.

 

As we have seen regulation 8 refers to “the representative’s costs and expenses for the work undertaken in respect of the client’s claim or proceedings.”

 

In relation 1(2) “costs is defined as “the total of the representative’s time reasonably spent, in respect of the claim or proceedings, multiplied by the reasonable hourly rate of remuneration for the representative.”

 

Note the word “total”.

 

There is no reference there to a cap of 35% of damages, which one would expect if regulation 7 applies to the circumstances set out in regulation 8.

 

Thus regulation 8 may seem to be a saving provision governing the position where there is termination of the agreement, but it is not then clear why there is no similar saving provision in relation to personal injury matters and all other civil work apart from personal injury and employment.

 

It may be that the drafters of the regulations assumed that in those circumstances, if the case was won, then the other side would be liable for costs and therefore there would be agreement or assessment on the hourly base in any event, whereas that does not happen in Employment Tribunal matters, as the general rule is that no costs are payable in that jurisdiction.

 

Thus there are four possible outcomes of this trial:

 

  1. That the agreement does not invalidate the DBA;

 

  1. that it invalidates DBAs in relation to personal injury and other civil work, but not in relation to Employment Tribunal work;

 

  1. that it invalidates all DBAs with a similar clause in, including Employment Tribunal DBAs regardless of regulation 8;

 

  1. that it invalidates personal injury and other civil DBAs but that any decision in relation to Employment Tribunal matters would be obiter, because of the different wording, and therefore we have no decision in relation to Employment Tribunal matters.

 

Summary

 

Yet another reason why you should never even think of using a DBA, other than in Employment Tribunal proceedings where they are compulsory if working on a contingent basis.

 

So what to do in Employment Tribunal matters?

 

One option is to leave the standard agreement as it is and work on the assumption that regulation 8 overrides the 35% cap in relation 7 if the agreement has been terminated.

 

The alternative is to keep the standard provision, but to provide that costs shall never exceed a 35% of the sum of the ultimately recovered by the Claimant.

 

The problem, as set out above, is that that may very well be 35% of nothing.

Written by kerryunderwood

June 22, 2017 at 8:21 am

Posted in Uncategorized

PERSONAL INJURY: BAD NEWS IN QUEEN’S SPEECH

leave a comment »


Personal injury reforms, including the whiplash Injury tariff scheme for injuries lasting two years or less,  are to go ahead, assuming the government is not defeated and brought down over the Queen’s Speech.

 

The Queen’s Speech, delivered to Parliament today, laid out proposals for a Civil Liability Bill which will introduce the tariff system and also ban pre-medical offers. These are the proposals which were in the Prisons and Courts Bill.

 

That Bill was lost as a result of the dissolution of Parliament following the calling of the General Election but it had already received an unopposed Second Reading in the House of Commons on 20 March 2017.

 

Albeit that the government fell short of obtaining an overall majority, it received the largest number of votes and seats and therefore is unlikely to face significant opposition in the House of Lords in relation to a policy unopposed in the House of Commons and endorsed by the electorate at a General Election.

 

As the government has now stripped out the issue of compensation for personal injury claims and put it into a separate Civil Liability Bill, rather than it being half a dozen clauses of the very long Prisons and Courts Bill, it makes it more likely that this much shorter and simpler Bill will get through Parliament quickly.

 

This session of Parliament will last two years but there is no reason to think that these reforms will be delayed beyond the original proposed date of 1 October 2018.

 

Indeed the latter part of this session of Parliament is likely to be devoted almost entirely to issues arising out of Brexit, and therefore this legislation is likely to go through Parliament sooner, rather than later.

 

As provided for the original Prisons and Courts Bill, the detail of the Whiplash Tariff will be in Regulations made by Statutory Instrument, but again there is no suggestion that they will be any different from those previously proposed.

 

It is still planned that the increase in the small claims limit for road traffic matters be increased from £1,000.00 to £5,000.00 on 1 October 2018 and for all other personal injury matters the limit be increased from £1,000.00 to £2,000.00.

 

Next month we will see the publication of Lord Justice Jackson’s report on extending fixed recoverable costs and on 20 June 2017 it was announced that the commencement of the Pilot Scheme in relation to claims up to £250,000.00 was “imminent” but will apply only to cases where the trial is two days or less.

 

Again it is proposed that the full extension of fixed recoverable costs be implemented on 1 October 2018, but the upper value may well be £100,000.00, rather than £250,000.00.

 

I deal with all of these issues in detail on my Personal Injury Reforms course. There are three left, in Manchester, Liverpool and Cardiff and they can be booked here.

 

I also deal with all of these matters in my new book Personal Injury Small Claims, Portals and Fixed Costs, which runs to 3 volumes and over 1,300 pages and costs £80.00 and can be ordered from me here, or from Amazon here.

Written by kerryunderwood

June 21, 2017 at 12:45 pm

Posted in Uncategorized

CLAIMANT CAN SUE UNIDENTIFIED DRIVER: INSURER MUST INDEMNIFY

with 2 comments


In Cameron v Hussain [2017] EWCA Civ 366

 

the Court of Appeal held that a claimant could obtain judgment for damages against an unnamed defendant who could only be identified by description, if this furthered the overriding objective under the Civil Procedure Rules.

 

There is no requirement that such a claim must be allowed only in exceptional circumstances, or where there is no other remedy available to the claimant.

 

Here the claim was in relation to a road traffic accident where the claimant was injured by a hit and run driver.

 

The practical significance here was, that as the vehicle was insured, the judgment against the unnamed defendant would be enforceable against the motor insurers under section 51 of the Road Traffic Act 1988.

 

The Court of Appeal held that it was necessary efficacious and just to allow the claim as the policy underlying section 151 was that when a vehicle was insured, the insurers should compensate anyone injured by that vehicle.
This is apparently the first case to hold that it is possible to bring a claim and obtain a judgment for damages alone against an unidentified tortfeasor.

 

Previous cases had involved injunctions or a combination of an injunction and damages.

 

This decision is likely to lead to an increase in claimants pursuing unidentified drivers of insured vehicles, rather than making claims against the Motor Insurers’ Bureau.

 

Here the vehicle that struck the claimant was identified and it was established that a policy of insurance was in place, but the hit and run driver was never identified.

 

The keeper of the vehicle, Mr Hussain, refused to give information about the driver and was convicted of failing to give the identity of the driver.

 

The claimant issued proceedings against Mr Hussain, believing him to be the driver, and against his insurers who denied liability on the ground that Mr Hussain was not covered at the time and that the claimant could not name the driver.

 

The insurer applied for summary judgment and the claimant applied for permission to amend the Particulars of Claim “so as to substitute, for the named First Defendant, a defendant identified only by the following description:

 

“The person unknown driving vehicle registration number Y598SPS who collided with vehicle registration number KGO3ZJZ on 26 May 2013.””

 

A District Judge dismissed the claimant’s application and a Circuit Judge upheld that decision.

 

The Court of Appeal summarised the issues as follows:

 

  1. i) whether it is possible to obtain a judgment in respect of a claim for damages against a defendant identified only by description (“an unnamed defendant”), in the context of a motor claim against an unidentified hit-and-run driver, where the vehicle was identified and an insurance policy had been effected in respect of such vehicle in the name of either a non-existent person or someone who was not traceable;
  2. ii) whether an insurer would be liable to satisfy any unsatisfied judgment against such an unnamed defendant under section 151 of the Road Traffic Act 1988 (“the 1988 Act”);

 

iii) whether the judges below were right to refuse to allow the claimant permission to amend her claim form and particulars of claim so as to substitute, for the named first defendant, a defendant identified only by the following description.

 

By the time of the hearing of the appeal it was common ground that Mr Hussain was not in fact the driver of the vehicle on the relevant date.

 

The Circuit Judge’s decision was based on the premise that it would be unjust to the insurance company to allow the claimant to obtain a judgment enforceable against it, when it could not hope to trace any unknown defendant so as to attempt at recoupment.

 

The Circuit Judge also held that there was no injustice to the claimant, because she could still submit a claim to the Motor Insurers’ Bureau.

 

The Court of Appeal then set out in detail the relevant provisions of the Road Traffic Act 1988 and the Civil Procedure Rules and Practice Directions.

 

The Court of Appeal pointed out that a number of provisions in the Civil Procedure Rules expressly contemplate proceedings and/or orders against unnamed parties. However, it was common ground that none of these provisions related directly to this type of case.

 

Ben Williams QC, representing the claimant, pointed out that the MIB Untraced Drivers’ Agreements (UTDA) was a more limited remedy than provided by section 151 as:

 

  1. a) only limited legal costs were recoverable;

 

  1. b) the collision had to be reported to the police within 14 days of occurrence (if the claim was for personal injury (or five days) if it was for property damage;

 

  1. c) the MIB would not meet subrogated or similar claims; and

 

  1. d) the MIB itself carried out the investigation of the claim and, subject to review by way of arbitration, decided the amount of the compensation.

 

It irrelevant as to the relationship between the insured and its insurance company; the purpose of the act is the protection of people who sustain injury caused by the wrongful acts of other persons who use vehicles on a road.

 

As was said in Hardy v MIB [1964] 2 QB 745 (Ca)

 

“… it was no part of the policy of the Act that the assured’s right to enforce his own contract against the insurers should constitute the sole measure of the third parties’ right against the insurers…”

 

The case of Bloomsbury Publishing Group Limited v News Group Newspapers Limited [2003] 1 WLR 1633 established that cases decided before the introduction of the Civil Procedure Rules were no longer applicable and that under the CPR there was no procedure Rule R to issuing proceedings, and obtaining orders, against persons unknown.

 

The Court of Appeal here rejected the argument that it is only in exceptional circumstances that a claimant would be permitted to join an unnamed defendant.

 

The Court of Appeal also rejected the argument that the existence of an alternative remedy, here a claim against the MIB precluded the joining of an unnamed defendant.

 

Paragraph 56 the Court of Appeal said:

 

“Put another way, in circumstances where the appellant has an undoubted right conferred by statute to payment by the insurer of a vehicle in the event that she obtains a judgment against its negligent driver, it cannot be just to deprive her of the remedy to give effect to that substantive right, simply by the court’s refusal to exercise a procedural power on grounds of the existence of an alternative remedy against the MIB – a remedy which she is not obliged to pursue and the exercise of which is not a precondition to her entitlement under section 151.”

 

Those who are no fans of insurance companies will be particularly interested in paragraph 43 of the judgment which recites how the original concept of an insurance company being liable to a third party even if it was not liable to indemnify its insurers, came about in 1934:
“43. As Mr Williams submitted, the policy of imposing third party liabilities on the insurer of a vehicle irrespective of its obligations to its insured has stood since the Road Traffic Act 1934. The mischief to which that legislation was directed was stated by Goddard LJ in Zurich Insurance Co Ltd v Morrison [1942] 2 KB 53 (CA), 61:

 

“Part II of the Road Traffic Act 1934 was passed to remedy a state of affairs that became apparent soon after the principle of compulsory insurance against third party risks had been established…. That… would naturally have led the public… to believe that if thereafter they were, through no fault of their own, injured or killed by a motor car they or their dependants would be certain of recovering damages, even though the wrong-doer was an impecunious person. How wrong they were quickly appeared. Insurance was left in the hands of companies and underwriters who had imposed what terms and conditions they chose. Nor was there any standard form of policy, and any company… could hedge round the policies with so many warranties and conditions that no one advising an injured person could say with certainty whether… there was a prospect of recovering against the insurers … It is not surprising therefore… that… Parliament interfered, and… they took steps towards remedying a position which to a great extent nullified the protection that compulsory insurance was intended to afford. Generally speaking, [the legislation] was designed to prevent conditions in policies from defeating the rights of third parties, but insurers were still allowed to repudiate policies obtained by misrepresentation or non-disclosure of material facts.”

 

Likewise, in In Hardy v MIB [1964] 2 QB 745 (CA), 769-770, Diplock LJ stated (in relation to the equivalent provisions of the Road Traffic Act 1960):

 

“The whole purpose of this Part of the Act is for the protection of the persons who sustain injury caused by the wrongful acts of other persons who use vehicles on a road, and it was no part of the policy of the Act that the assured’s rights to enforce his own contract against the insurers should constitute the sole measure of the third parties’ rights against the insurers… .””

Written by kerryunderwood

June 12, 2017 at 9:01 am

Posted in Uncategorized

%d bloggers like this: