Kerry Underwood

IS A MATTER IN THE PORTAL A CLAIM?

with 2 comments


In September and October I am delivering my new course – Getting the Retainer Right – in 10 cities – details and booking form here.

In Aviva Insurance v Lawrence, Oxford County Court 10 April 2018 Case No. C39YP13O

Her Honour Judge Melissa Clarke had to consider the issue of whether a matter in one of the personal injury portals is a “claim” or whether it is necessary for substantive proceedings to be issued before a matter can be described as a claim.

This arose in the context of section 57 of the Criminal Justice and Courts Act 2015 which reads:

 

“(1) This section applies where, in proceedings on a claim for damages in respect of personal injury (“the primary claim”) —

(a) the court finds that the claimant is entitled to damages in respect of the claim, but

(b) on an application by the defendant for the dismissal of the claim under this section, the court is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the primary claim or a related claim.

(2) The court must dismiss the primary claim, unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed.”

 

Here the issue was whether there had been a “related claim” for the purposes of section 57(1)(b).

 

Section 57(8) defines “claim” and “related claim” as follows:

 

“(8) In this section—

“claim” includes a counter-claim and, accordingly “claimant” includes a counter-claimant and “defendant” includes a defendant to a counter-claim;

“related claim” means a claim for damages in respect of personal injury which is made—

(a) in connection with the same incident or series of incidents in connection with which the primary claim is made, and

(b) by a person other than the person who made the primary claim.”

 

Here the judge set out a question to be answered as follows:

 

“6. What, however, is the position if Claimant B has not issued a claim in relation to the same incident as Claimant A, but has only notified that he has a claim by submission of a Claim Notification Form? Is that a “ related claim” pursuant to the definition in section 57(8), or does the fact that the claim has not been issued by a court take it outside that definition, such that the Court has no power to dismiss Claimant A’s claim on the basis of his fundamentally dishonest support of Claimant B’s claim?”

 

The first instance judge held that in those circumstances there was no related claim.

On appeal Her Honour Judge Clarke held that once a matter has been lodged on the portal it is a claim, and is therefore capable of being a related claim.

The court said that the wording of the portals, as well as Parts III and IIIA of CPR Part 45 make it very clear that in the context of the portals a claim begins pre-issue saying that “ this concept imbues the whole procedure.”

 

For example in CPR 45.29C there is a heading to Table 6B:

 

“Fixed costs where a claim no longer continues under the RTA protocol”

 

Comment

This is a correct and sensible decision, as one would expect from this particular judge.

If it were otherwise, not only would dishonest claimants be able to avoid the consequences of their dishonesty by finalising one claim before the other was issued, as pointed out by the court here, but also defendants would have a strong incentive not to resolve matters in the portal if they had any doubts about the honesty of any aspect of anyone’s claim.

The whole issue of whether a portal matter is a claim is important. It is also important to consider whether a portal claim constitutes “proceedings” which is a different issue from whether there is a claim.

For example when the personal injury small claims limit goes up, it is likely that the key date is the date of issue and not the date of cause of action; in other words whether or not the matter is in the old costs bearing regime, or the new one with the much higher small claims limit, will depend on when the case was issued.

If date of issue is considered to be when substantive Part 7 proceedings are issued then a claim in stage 1 or 2 before the small claims limit goes up will be costs bearing, but will then cease to be costs bearing if it drops out after the small claims limit goes up.

That issue still needs resolving.

There is support for the concept of a matter in the portal being a claim from other parts of the Civil Procedure Rules.

For example CPR 36.7 provides that a Part 36 offer may be made at any time, “including before the commencement of proceedings.”

CPR 36.5(1)(d) provides that a Part 36 offer must state whether it relates to the whole of the claim or to part of it or to an issue that arises in it and if so to which part or issue, and must also state whether it takes into account any counter-claim.

Thus Part 36 clearly envisages there being a claim with a claimant and a defendant before proceedings are issued, and indeed outside the field of the portals, before anything formal is done in relation to a Claim Notification Form or whatever.

It may well be that in such circumstances a claim begins when a party has served a Notice of Claim under the relevant pre-action protocol.

In Gavin Edmondson Solicitors Ltd v Haven Insurance Company Ltd [2018] UKSC 21     

the Supreme Court was considering the issue of a solicitors’ lien in cases a where a defendant’s insurance company sought to cut out the solicitors and to settle direct with the claimants.

These were all portal matters where substantive proceedings were not issued.

In the press summary, and throughout the judgment, the Supreme Court refers to “the claims” and “the claimants”.

Thus it seems clear beyond doubt that a matter on the portal is a claim, but that still leaves open the issue of whether proceedings have been issued by the placing of a matter on the portal.

 

Advertisements

Written by kerryunderwood

September 7, 2018 at 8:10 am

Posted in Uncategorized

2 Responses

Subscribe to comments with RSS.

  1. It was held in 2011 that a portal claim was ‘a claim’ from the date of the CNF but not ‘proceedings’ til Stage 3.

    🙂

    sarahjrobson

    September 7, 2018 at 10:46 am

    • Thanks Sarah

      But see my blog Part 36 – When is a Claim not a Claim? Maybe a good idea if the courts came to a clear and consistent view of the meaning of “claim” and “proceedings”. Not rocket science – not like trying to define infinity.

      Kerry

      kerryunderwood

      September 12, 2018 at 4:27 pm


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: