The Court of Appeal has overturned a decision to strike out a £2.2m personal injury claim which remained in the RTA portal for almost four years before the claimant’s solicitors sought to transfer it to the multi-track.
Lord Justice Coulson said it would not be fair on the claimant, as the delays and errors made in his case were the fault of his solicitors, and a professional negligence claim was not an adequate alternative.
In Cable v Liverpool Victoria Insurance Company  EWCA Civ 1015, Barry Cable was injured in September 2014 following a rear-end shunt.
Silverbeck Rymer, shortly to become Slater & Gordon (S&G), submitted a claim notification form to the defendant’s insurer that month, triggering stage 1 of the RTA portal process.
Mr Cable’s injuries were described as “of the soft tissue variety”. However, a medical report in November 2014 suggested a neurologist should examine him, with the claimant now off work.
The neurologist reported in April 2015 that Mr Cable was still unable to return to work, suffering from headaches and light sensitivity, and recovery might take 15-18 months. Mr Cable, who had been earning £130,000 a year, lost his job in December 2015.
The defendants, who had seen only the original medical report, made a part 36 offer of £10,000 in April 2016.
Coulson LJ said that, by no later than the spring or early summer of 2017, it could be said “with confidence” that S&G knew or ought to have known that the claim was worth far in excess of £25,000.
Nonetheless, in July 2017, S&G issued a part 8 claim, even though it had not even begun stage 2 of the RTA protocol. The solicitors requested a stay because compliance with the protocol was not possible before expiry of the limitation period.
They only sent the claim form to the defendant February 2018, and it was not until 16 August 2018, four days before the expiry of the stay, that the firm said the case was no longer suitable for the portal.
Two days later, S&G applied to lift the stay and to proceed as a part 7 claim. The following month the defendant’s insurers learnt that the case had a potential value of £2.6m.
At first instance, District Judge Campbell held there had been an abuse of process. The defendant insurer had suffered prejudice in various ways, including that, by keeping the case in the RTA protocol, the claimant’s solicitors “have bypassed any obligation to comply with the PI pre-action protocol”.
She said that “never, ever at the time they issued the claim form” could the solicitors have said the claim had a value of £25,000 or less, and it was an abuse of process to use the portal process.
His Honour Judge Wood upheld this decision on appeal.
Coulson LJ found that the district judge had wrongly applied the test for striking out the claim, meaning the court had to consider it afresh.
He agreed there had been abuses of process in issuing the claim under part 8, when S&G knew, or ought to have known, that it should have issued under part 7, and not using the stay for the purposes for which it was sought and granted.
The delay of a year was the “principal consequence”, and the judge said the financial sanction that would usually follow in such circumstances was sufficient.
Coulson LJ said there was no evidence to suggest that “anything significant would have been done differently” had the PI protocol been followed a year earlier.
Striking out was not an appropriate or proportionate sanction, especially given the prejudice to the claimant.
He explained: “The appellant was the victim of an accident for which the defendant had long ago admitted liability. His claim was started in good time under the RTA protocol, and he was not responsible for the catalogue of errors and delays since then.
“His claim form was issued within the prescribed three years. If that claim was struck out now, he would have to start all over again, this time with a professional negligence claim against his current solicitors, with all the risk and uncertainty, not to say cost, that such a claim would involve.
“Moreover, that would be a loss of a chance claim, which is inevitably an inferior type of satellite claim, particularly when compared to the present proceedings, which involves a claim against the primary defendant who has already admitted liability.”
He instead ordered that Mr Cable should pay the defendant’s costs on an indemnity basis, and not recover any interest on his special damages, up to the day of the hearing before the district judge in October 2018.