News Category 3
Watson, We Have a Case! MH Site Maintenance Services Limited, Markerstudy Insurance Services Limited v James Watson - Georgina Pressdee, Temple Garden Chambers
21/10/25. On 24 June 2025, the Court of Appeal handed down its judgment in MH Site Maintenance Services Limited, Markerstudy Insurance Services Limited v James Watson [2025] EWCA Civ 775. The lead judgment of Lord Justice Coulson clarifies the extent of the Court’s jurisdiction to intervene and make case management directions in claims progressing under the Pre-Action Protocol for Low Value RTA Claims (“PAP”) when proceedings have been issued under Part 8 due to limitation.
Background
The claim arose from an RTA on the 16 September 2019 involving the First Defendant. The Second Defendant was the insurer. The claim for personal injury was not expected to exceed £10,000.
The Claimant began the PAP process with a CNF dated 17 July 2020. Liability was admitted by the Second Defendant on 30 July 2020, concluding Stage 1. However, the Claim never progressing to Stage 2 because the Claimant failed to produce a Settlement Pack. The first medical examination did not even take place until 11 January 2023.
To protect against limitation, the Claimant issued via Part 8 on 6 September 2022, in line with para 5.7 of the PAP and para 16 of PD49F. The Claim was stayed on 13 September 2022 with an unless order in default of which the Claim would be struck out. Three months before its expiry, the Defendants sought an order to lift the stay and strike out the claim unless the settlement pack was provided within 21 days, pursuant to CPR r3.1(2)(m) (now CPR r3.1(2)(p)). At first instance, DJ Baldwin declined that order, concluding that he lacked the power, as the court was not "managing the case". This decision was upheld by HHJ Wood KC on appeal, who similarly found that the Court only becomes involved at Stage 3 of the PAP. Laing LJ granted permission to appeal to the Court of Appeal.
Ruling: Appeal Allowed
Lord Justice Coulson confirmed that ordinarily the PAP process is self-contained and pre-action. As such, it is not subject to the court’s jurisdiction and parties cannot issue freestanding Court proceedings seeking orders to expedite the process. However, the position changes when the claimant expressly invokes the court’s jurisdiction by issuing the Claim. The Part 8 claim becomes "the case" for the purposes of CPR 3.1(2)(p) and the full suite of powers under r3.1(2) become available. The very granting of a stay involves the Court’s indirect control of the PAP process. It cannot therefore be maintained that more direct control (ordering particular steps to be taken) is outside of the Court’s jurisdiction. Indeed, this is expressly envisaged by paras 13-15 of the Practice Direction on Pre-Action Conduct and Protocols. However, it is only in exceptional cases, where there has been a wholesale failure to take any of the necessary steps under the PAP, that a party may seek directions designed to ensure progress.
Comment
Although the appeal was allowed, the judgment provides a note of caution for practitioners. Resorting to orders directing compliance with the PAP is not to be encouraged and should be reserved for exceptional circumstances. Such orders could, however, prove a useful tool in the arsenal of Defendants faced with Claimants sitting on their hands having secured protection from limitation.
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An offer too good to ignore? ‘Intransigence’ proves a costly defence stragegy - Michael Brooks Reid, Temple Garden Chambers
20/10/25. Michael Brooks Reidcomments on the recent judgment of HHJ Russen KC inLearning Curve (NE) Group Ltd v Lewis & Anor[2025] EWHC 2491 (Comm), a case highlighting the uphill battle faced by a party arguing that it would be unjust for the usual Part 36 consequences to apply.
The Offer
Following trial, the Claimant was awarded £5.2m. The critical factor in this consequential hearing was a Part 36 offer made by the Claimant over a year before trial. The offer was for the precise sum ultimately awarded by the Court, inviting settlement at £5,211,625. The Defendants chose not to engage with the offer, pursuing a 'die-hard' defence and a counterclaim, which ultimately failed.
The Arguments
The Claimant sought to invoke the Part 36 sanctions under CPR 36.17. The Defendants resisted, arguing the offer was ambiguous as it was silent on whether it was in addition to a sum they had already paid on account. They contended it would be unjust to impose the penalties, pointing also to the Claimant’s initially higher pleaded claim as evidence of a shifting case that made the offer’s value impossible to assess.
The Decision
HHJ Russen KC rejected the Defendants’ arguments and enforced the full force of the Part 36 regime. The Judge found the offer was clear and effective; the silence on the earlier payment did not create ambiguity, as the offer was to settle the entire proceedings, including the counterclaim for the return of that sum. The Judge noted the Defendants’ failure to seek clarification at the time – a process specifically provided for under Part 36.
The Court held there was nothing unjust in the outcome. The Defendants had been given a clear opportunity to settle for the correct value of the claim and had instead chosen to incur substantial further costs obtaining a judgment that mirrored the offer. The Claimant’s initial higher valuation was irrelevant; the key was that the offer accurately reflected the claim’s true worth.
Consequently, the Court ordered interest at 8% over base rate, indemnity costs from the date of expiry of the offer as well as an additional £75,000 payment under CPR 36.17(4)(d).
Comment
This judgment is a reminder of the potential peril of a well-judged Part 36 offer. In applying the provisions of Part 36, courts will not readily rescue litigants from the arguably harsh consequences of their tactical decisions, even in cases of a very ‘close call’ such as this. Whilst this may appear harsh, one has to remember that Part 36 is harsh by design – a ‘carrot and a stick’ to encourage settlement. Any offeree arguing that it would be unjust to apply the ‘stick’ provisions after the event will inevitably face an uphill battle, given the Court’s cognisance of the broader aims of the regime.
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The Devil's in the Detail-ed Assessment: XX (a protected party by her husband and litigation friend YY), ZZ v Jordan Young, Aviva Insurance Limited - Georgina Pressdee, Temple Garden Chambers
16/10/25. On 24 September 2025, Costs Judge Nagalingam handed down his judgment in XX (a protected party by her husband and litigation friend YY), ZZ v Jordan Young, Aviva Insurance Limited 2025] EWHC 2443 (SCCO). The case provides important guidance on the limits of detailed assessment, particularly concerning arguments regarding alleged fundamental dishonesty (FD).
The Issues
The central issue was whether the second Claimant’s conduct, exposed by surveillance evidence, warranted a reduction for misconduct per CPR 44.11(1)(b).
The Appeal
The Second Defendant (the RTA insurer) sought permission to appeal the detailed assessment decision (which had already reduced the Claimant's quantum-only costs by 34%) on the basis that the Judge erred by failing to consider –
- The Claimant’s lack of explanation for why she accepted a settlement sum significantly less than pleaded;
- A proportionality reduction for work incurred after a point when the Claimant allegedly should have recovered; and
- A proportionality reduction for the accommodation claim which (the Defendant alleged) had failed.
Background
The second Claimant (aged 62 at the time) was struck by a vehicle while crossing the road. Her injuries included fractures to her pelvis and lower spine, a serious hip socket break, pulmonary bruising, a collapsed lung, and psychiatric injuries. The injuries necessitated surgery and resulted in...
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Too Late to the Party? Not necessarily. Some clarity on adding parties in PI claims after expiry of limitation - Michael Brooks Reid, Temple Garden Chambers
26/09/25. Michael Brooks Reid comments on the recent judgment in the case of Doroudvash v Zurich Insurance Plc [2025] EWCC 10.
The Facts
The claimant police officer was injured in a road traffic accident whilst on duty. He brought a personal injury claim directly against Zurich Insurance plc under the European regulations. Zurich initially admitted liability but withdrew that admission with the court’s permission after the expiry of 3-year limitation. The Claimant sought to add the Commissioner of the Police for the Metropolis as a defendant.
The Law
The CPR draws a distinction between applications to add or substitute a party before and after limitation has expired.
Under r.19.2(2), the court may add a party before the expiry of limitation if it is desirable to do so — a relatively low threshold aimed at ensuring all relevant parties are before the court to resolve the dispute efficiently.
After limitation has expired, however, a party may generally be added only if the addition is necessary: r.19.6(2).
However, in personal injury claims, there is another avenue under r.19.6(4), which provides that the court may add a party where it directs that (a) the special personal injury limitation provisions in sections 11 or 12 of Limitation Act 1980 (“the 1980 Act”) shall not apply; or, (b) that issue of whether they apply should be left to trial.
The case law had left some uncertainty. In Pawley v Whitecross Dental Care Ltd [2021] EWCA Civ 1827, Stuart-Smith LJ raised but did not resolve the question of whether, under an application under r.19.6(4), the necessity test still applied.
The Decision
HHJ Holmes held that necessity did not govern applications under r.19.6(4). He reasoned that Parliament had deliberately provided for a different approach in personal injury claims, reflecting the availability of the discretion to disapply limitation in PI claims under s.33 of the 1980 Act. The Judge considered that r. 19.6(4) was clearly drafted with the s.33 power in mind. To read a necessity test into r.19.6(4) would undermine that structure and create unnecessary duplication, since claimants whose applications under r. 19.6(4) failed would issue fresh proceedings and then invite the court to exercise its s.33 power.
Instead, the correct test under r.19.6(4) is one of desirability and fairness, taking into account the overriding objective. Where a s.33 application was before the court at the same time, the court might determine the issue of limitation finally and therefore allow the addition under r. 19.6(4)(a).
Where such an application is not before the court, and the court is not in a position to consider the merits of a s.33 application, it should go on to consider whether a new party should be added to allow the limitation issue to be litigated. The strength or otherwise of the potential s.33 application should be one of the factors taken into account in determining the desirability of allowing the addition.
In this case, it was desirable to add the Commissioner: he had admitted liability in other proceedings, and it would be unjust for limitation to prevent the claim being pursued against him. The limitation issue itself was left to trial, should the Commissioner raise it.
Comment
This case provides some welcome clarity to the test under r. 19.6(4), which the author has found problematically lacking when dealing with applications under that rule.
However, some uncertainty remains. A usual application under s.33 of the 1980 Act is made on notice to the Defendant, but what about where the merits of a potential s.33 application are being considered under r. 19.6(4), as the Judge suggested they should be? The answer may well be that it is implicit in HHJ Holmes’s judgment, that where the proposed defendant is not on notice of the application under r. 19.6(4), it would only be appropriate to add a party under r. 19.6(4)(b) and direct that the limitation issue be left to trial (or dealt with as a preliminary trial issue). Whereas, it would only be appropriate to add a party under r. 19.6(4)(a) having had the opportunity to fully consider the merits of a s.33 application made alongside, on notice to the proposed new party.
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A Judgment to Remember: WM and EW v Wilkinson [2025] EWHC 2300 (KB) and the Fallibility of Memory - Georgina Pressdee, Temple Garden Chambers
24/09/25. On 9 September 2025, HHJ Howells (sitting as a Deputy High Court Judge in the High Court) handed down judgment in WM v Wilkinson. The decision examines the standard of care owed by motorists driving near schools and the treatment of historic witness evidence.
Issues
The trial dealt with liability only. The principal question was whether the Defendant (D) had driven negligently – specifically, too fast in the circumstances. A secondary issue was whether, if D had driven more slowly, the collision could have been avoided or M’s injuries reduced.
Background
The First Claimant, M (aged 5), suffered life-changing injuries after colliding with the front side bumper/headlight of D’s Ford Ranger pick-up. The Second Claimant, E, M’s twin sister, claimed psychiatric injury from witnessing the accident.
The collision happened outside a primary school shortly after the end of the school day. The legal speed limit was 30mph, but there was an advisory 20mph sign and speed bumps. The Claimants alleged D was driving too fast, arguing that a careful driver would have seen M and slowed to 10–15 mph. D maintained he had been travelling at a reasonable speed and that M ran out from behind parked cars, giving him no time to react. Given M’s age...
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