Key facts
Our client received Part 8 proceedings that were issued to preserve limitation and for a stay of proceedings, keeping the claim to Stage 2 of the MoJ portal.
The claimant’s solicitor signed the Claim Form and summary Particulars of Claim with a statement of truth, confirming medical evidence had not yet been finalised and that the claim would be limited to £20,000.
The Court granted the claimant’s request for a stay, pursuant to their powers to due so under CPR PD 8B.
A year later, our client received no less than eight medical reports and a provisional schedule of loss, paired with a consent order requesting that our client consent to the transfer of proceedings to Part 7 and the claim stay be lifted as the matter fell out of the MoJ portal parameters.
An increase in claim value was also proposed to the sum of £80,000. Notably, all of the substantive medical evidence was finalised prior to the issue of Part 8 proceedings (some 18 months prior to service of the medical evidence).
Defendant's position
In view of the above key facts, it was clear the claimant’s Solicitor knew or ought to have known their client’s claim was unsuitable for the MoJ portal prior to the issue of Part 8 proceeding, such that there had been clear and separate abuses of Court proceedings and an abuse of protocol pursuant to Cable v Liverpool Victoria Insurance (2020) ECWA Civ 1015.
The defendant was left in a position of the evidential ambush which was deemed unacceptable to our client.
Outcome
We challenged the claimant’s Solicitor and presented a consent order which allowed transfer of proceedings to Part 7 on the basis they paid the defendant’s costs on an indemnity basis from the point which their client’s medical evidence crystallised (an 18 month period). The terms of the order also debarred the claimant from claiming interest on special damages for the relevant period and the position was reserved on the potential overvaluation of the claimant’s claim. The Claimant accepted these terms, including payment of indemnity costs, given the conduct issues noted.
Lessons learned
This outcome evidences that a robust stance should be taken where there is a clear abuse of process/protocol.
Pre-litigation handlers should ensure they keep the pressure on claimants to update them on the evidential trajectory throughout, as failure to do so can (and should) have consequences for the claimant (as in this case).
Crawford Legal Services Specialty Risk Team are subject matter experts in the defence of all issues relating to casualty, travel, motor and fraud defence litigation. Please do not hesitate contact us for more information on our service offering.
For additional information please contact:
Andrew Higham
Associate Solicitor, Crawford Legal Services
andrew.higham@crawco.co.uk
