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Do not stand on ceremony, else time will become the Claimant’s enemy: Durkan -v- Schmidt - James Devenny, Horwich Farrelly

03/04/20. This case relates to an accident that occurred in 2011; the Claimant conducted the claim through the portal process, which at that point had an upper limit of £10,000. Very little progress was made and eventually, proceedings were issued under the Part 8B procedure, and the Claimant applied for a stay of proceedings.

Despite both EUI and Horwich Farrelly's claims handlers chasing the Claimant's Solicitors for updates over the course of the stay, very little information was forthcoming.

In order to break the impasse, it was agreed between the parties to lift the stay and have the claim transferred to part 7 proceedings. Surprisingly, with the proceedings, the Claimant served evidence that strongly indicated that the claim never was suitable for the Part 8B procedure, and no progress had been made for over 4 years.

Horwich Farrelly immediately entered a Defence arguing that the Claimant had abused the process of the Court. No satisfactory response was given to that, so Horwich Farrelly issued an application to have the claim struck out in its entirety.

The matter came before Deputy District Judge White at the Bromley County Court. Although the hearing was listed for 4 hours, Judge White did not take more than a couple of hours to find in favour of the application. She made a finding of fact that the Claimant's Solicitors were in receipt of evidence that suggested the case was worth far more than the upper portal limit, even prior to their application to stay the proceedings, and arguably that application was misleading.

Moreover, Judge White was highly critical that the Claimant had let the proceedings go stale, in that they had not completed some of the most basic steps of litigation, ie. Writing to an employer to obtain earnings information or updated the medical evidence and therefore, the matter should have had a Trial years ago. Although the Claimant's barrister argued that there could still be a fair trial, Judge White rejected that submission, struck the claim out and ordered the Claimant to pay the Defendant's costs amounting to £7,500.

Those costs have now been paid and a complete reserve release has been achieved. The case is a cautionary tale to Claimants who risk invoking draconian sanctions if they let matters drag on without progress. The courts and insurers will not give Claimants a free pass where there is evidence of foul play or procrastination.

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