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Editorial: No Information - Aidan Ellis, Temple Garden Chambers

29/10/14. In claims arising from road traffic accidents, where the Insurer has concerns about the claim presented, it is becoming increasingly difficult to advise the Claimant about the merits of their claim pre-action. The reason is that Insurers commonly send a letter repudiating the claim but not setting out the nature of their concerns in any detail. At the moment the Claimant decides whether to issue or not, such a stance makes it impossible accurately to assess the merits of the claim. Without knowing, for example, whether it is alleged that the parties were known to each other and the nature of the alleged connection, even the most detailed conference with the client is futile because it is hardly possible to anticipate every possible connection between individuals.

The Pre-Action Protocol applicable to Personal Injury cases provides that if liability is denied, the Defendant should give “reasons for their denial of liability including any alternative version of events relied on”. If the Insurer’s case is that an accident was induced or staged, this would presumably be an alternative version of events which should be set out. Further the Defendant should disclose “documents in his possession which are material to the issues … and which would be likely to be ordered to be disclosed by the Court”. A letter simply repudiating the claim on the basis of unexplained concerns may not comply with these provisions.

There is no obvious way for Claimants to take advantage. An application for pre-action disclosure is unlikely to succeed because the documents that the claimant would most like to see – database searches, accident report forms and witness statements – are likely to be covered by privilege. In any event CPR 31.16 is not an expansive jurisdiction. Disclosure is within the Court’s discretion only if pre-action disclosure is “desirable” in order to “dispose fairly of proceedings, assist the dispute to be resolved without proceedings or save costs”. This is not an easy threshold to cross.

Claimants may apply pre-action for an order allowing inspection of the Defendant’s vehicle (or any other relevant property) pursuant to CPR 25.5. But it is likely to be a minority of cases in which inspection facilities are refused and pre-action inspection is thought worth pursuing for a Claimant. Again the Court’s discretion is limited so that the merit of an application must be carefully considered; the applicant must show that inspection pre-action is urgent or necessary in the interests of justice in order to satisfy CPR 25.2(2)(b).

Claimants might seek to elicit information about the nature of the Defendant’s concerns through specific questions, but pre-action there seems to be no way to compel the Defendant to respond. Though the Court may make an order under Part 18 “at any time” (CPR 18.1), it is a stretch to say that this applies pre-action, especially in circumstances where, outside certain limited contexts, the provision of further information pre-action is not an interim remedy listed in Part 25.

In the absence of an alternative remedy, in appropriate cases, Claimants may consider pleading in the Particulars of Claim that the Defendant has not complied with the Pre-Action Protocol. After all, it is not uncommon for Defendants to identify in their pleadings allegations that the Claimant has not complied with the relevant Protocol (allegations of premature issue are one example). Claimants could adopt the same approach. There are two potential advantages. First, it allows the Claimant to take a costs point about the Defendant’s conduct at the end of the case. Second, in some cases the fact that allegation is made late in the day may cast doubt on its credibility. Whilst this hardly resolves the underlying problem – assessing merits at an early stage - these advantages may make it worthwhile to identify any complaint about the Defendant’s compliance with the Pre-Action Protocol in a pleading.

Aidan Ellis
Temple Garden Chambers

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