The devil is in the detail: a cautionary tale of falling short

Jamie Moon v Katie Catley [11.01.17]

Jamie Moon v Katie Catley provides a further reminder to defendant insurers of the need to fully set out their position within Stage 2 of the claims process, ensuring that they detail their position and provide supporting evidence. This is to help prevent themselves falling short, as the matter proceeds to Stage 3.

Background

The claimant was injured in a road traffic accident on 4 November 2014 and subsequently presented a claim for personal injury and related damages via the Ministry of Justice (MoJ) claims portal, including a claim for credit hire charges.

Quantum was agreed for pain, suffering and loss of amenity (PSLA).

However, damages for the:

  • Credit hire charges
  • Medical expenses
  • Recovery/storage charges

…remained outstanding.

With an agreement not being reached, the matter proceeded to a Stage 3 hearing.

The defendant, within its acknowledgement of service, argued (with initial success) that the credit hire matter precluded the claim from being disposed of within the MoJ Stage 3 process. On 16 December 2016, the matter was allocated to the fast track and directions were provided.

The claimant applied to set aside the order and have the matter listed for a Stage 3 oral hearing. At the application hearing, His Honour Judge Mark Gargan, found for the claimant and the order of the 16 December 2016 was set aside. The matter was set down for a Stage 3 hearing.

Relevant factors

In providing his decision, HHJ Gargan made reference to two key decisions which insurers would do well to keep in mind.

The first is the Court of Appeal decision in Phillips v Willis [2016], in which it was concluded that a portal claim does not automatically exit the MoJ process when damages for PSLA are agreed, leaving other damages outstanding.

Moreover, the entire Stage 3 process is designed to minimise the incurrence of further costs and reduce unnecessary utilisation of court resources.

Accordingly, whilst there are instances where the MoJ Stage 3 process may be unsuitable to dispose of a claim — due to complex issues of law or fact — these will be the exception rather than the norm.

The second is the decision in Mulholland v Hughes [2015] which precludes a party from raising an issue that was not specifically raised within the Stage 2 pack, as to do so would be tantamount to trial by ambush.

Practical perspective

On the back of these two decisions, it is clear to see why the claimant’s application was successful. It provides useful guidance as to how such claims should be approached on a practical level.

In the first instance, it is essential to take a clear and pragmatic approach when providing an initial Stage 2 pack response. HHJ Gargan makes clear, in his commentary, that it is necessary for a defendant to set out, specifically, what objections it has to any specific head of loss and why.

One would not expect chapter and verse, but in the context of credit hire at least, issues pertaining to:

  • Enforceability
  • Need
  • Impecuniosity
  • Period
  • Rate

…should be detailed, with the defendant’s position made clear.

Further, in respect of evidence relating to rate, insurers are well advised to attach supporting documentation as to what they consider the basic hire rate to be.

Comment

It is clear from the Court of Appeal hearings of McBride v UKI and Clayton V EUI [15.03.17], that the utilisation of Google (or other search engine) results, as to the basic hire rate in the claimant’s local area are not only admissible, but welcomed, as is evidence of third party excess waivers.

If these are presented at an early stage, there can be no sustainable argument that the defendant has failed to:

Raise all their objections within the Stage 2 process.
Provide evidence in the event that the objections are carried forward to the Stage 3 hearing.
The basic principle is to top-load the claims process, ensuring that evidence is gathered early and comprehensively.

Related item: Last call for prestige credit hire: another nail in an ever-closing coffin?

Read other items in the Motor Brief - August 2017