A judge has upheld the striking out of a £2.6m personal injury claim which remained in the RTA portal for almost four years before the claimants admitted it should be transferred.
His Honour Judge Graham Wood said District Judge Campbell, who struck out the claim for abuse of process, had considered the prejudice caused to the claimant.
“On several occasions the learned judge has referred to the draconian nature of a sanction of striking out, and to wracking her brains to consider an alternative which would mark the manner in which the process had been abused, and the defendant had been prejudiced.
“This implies to me an awareness on her part that the claimant was losing the direct and obvious route to compensation for his injuries as a result of his solicitors’ failures.
“Invariably when a claim is struck out in such circumstances, a claimant has the additional burden of pursuing a professional negligence action; he is not shut out of damages altogether.
“I do not believe in the circumstances it was necessary for the learned judge to analyse difficulties which the claimant would face in any subsequent professional negligence proceedings.”
HHJ Wood said the categories of abuse of process, which were not defined in the rules, were “many and various and not closed”, and the essential question was whether the party accused of abuse had acted in a way unfair to the other.
“It is not simply a question of prejudice, which implies a negative effect on another party, but also the way in which the claimant’s advisers have been able to bypass the requirements of the PI protocol, which clearly applied, and of course to avoid the operation of the Limitation Act.”
Liverpool County Court heard in Cable v Liverpool Victoria Insurance Company that Barry Cable was injured in September 2014, when his car was hit from behind in a “relatively straightforward road traffic accident”.
Silverbeck Rymer, shortly to become Slater & Gordon, submitted a claims 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”, with no time taken off work. However, a medical report was received in November 2014, which suggested a neurologist’s report was needed and the claimant was 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.
It was not until July 2017 that Slater & Gordon issued a part 8 claim; however, it did asked for a stay in the proceedings to comply with the RTA protocol rather than a part 8 resolution. A district judge granted the stay until August 2018, but ordered the claim form to be sent to the defendants in August 2017. It was not sent until February 2018.
Judge Wood said: “On 16 August 2018, the claimant’s solicitor, by the fee-earner then acting, seized the initiative in the litigation, seemingly for the first time, and e-mailed the defendant indicating that the claimant was still suffering from significant neurological problems (migraines, tinnitus, light sensitivity etc) and had not returned to work having lost his £130,000 per annum job.
“It was suggested that the claim was no longer suitable for the MoJ portal and a consensual transfer to part 7 was sought.”
It was not until late September 2018 that the defendant’s insurers learnt that the case had a potential value of £2.6m.
Judge Wood said that by a “rather convoluted and long drawn-out process” the matter was eventually heard by District Judge Campbell in October 2018.
DJ Campbell held that “never, ever at the time they issued the claim form” could the case be said to have a value of £25,000 or less, and the abuse of process came from “using the procedure that is available to portal claims in a case that could not be said, on any stretch of the imagination, to be a portal claim.”
HHJ Wood concluded that DJ Campbell applied the correct test “to determine whether or not the claimant should be entitled to proceed with his claim notwithstanding the abuse of process attributable to his solicitors, but also came to a conclusion which was within the reasonable and generous ambit of her discretion”.
The judge added: “In fact, it is difficult to contemplate any other outcome in the circumstances with which she was faced.”