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Late claims found to be an abuse of process

Renwick and Mitchell v Markerstudy Insurance Co. Ltd.
District Judge Veysey
Portsmouth County Court
18 June 2015

The court struck out two late notified claims as an abuse of process, where the court found that the claimants were not injured. The claimants had attempted to avoid paying defence costs by discontinuing their claims as soon as the strength of the defendant’s case had been revealed to them and after they had failed to disclose witness evidence of their own. The claims had both been brought under the Qualified One-Way Costs Shifting regime.

Acting for Markerstudy, DWF Solicitor Kirsten Reay successfully applied to set aside the notices of discontinuance and obtained an order that both claims were an abuse of process, rendering the claimants liable to meet the defendant’s costs. DWF Director Jewels Chamberlain looks at the case, which will be especially of interest to those dealing with late notified claims.

Background

Lewis Renwick and Luke Mitchell were both passengers in a vehicle driven by Markerstudy’s insured, Lloyd Griffiths, when it was involved in a road traffic accident in April 2013, when Griffiths reversed his car into a parked vehicle.  Renwick and Mitchell both presented claims, seeking damages for personal injury and losses of around £1,600 and £1,250, respectively, together with their costs. Two other claims were also waiting in the background.

Facts

When the insured reported the incident to Markerstudy two days after the accident, there was no report of anyone suffering any injury. Renwick and Mitchell both brought their claims over a year after the accident itself, with both claiming that the injuries they suffered had resolved before they attended upon their medical expert. Neither claimant had attended upon their GP after the accident and neither had had time away from work.

After proceedings were issued, DWF filed a defence denying causation and applied to consolidate the two actions. Although the defendant disclosed their witness evidence in accordance with the court’s directions, neither claimant served a witness statement in support of their claims and both claimants subsequently went on to file notices of discontinuance. DWF then applied to set aside the notices and sought an order under CPR r.44.15, which would then lead to QOCS being suspended and enable the defendant to enforce their costs against the claimants.  

Findings

Sitting in Portsmouth County Court on 22 June and hearing the defendant’s application District Judge Veysey held that:-

  • he had the power under CPR r.38.4 to set aside the notices of discontinuance

  • the court could draw adverse inference from the claimants’ withdrawal after exchange of witness evidence

  • the claimants knew they had not been injured in the accident and had conducted the litigation to the detriment of  the defendant

  • the two claims had been ‘hunted by claims farmers’

  • it could not be right to bring two claims and then drop them once the defendant’s evidence had been disclosed.

  • if there had been a good reason for the discontinuance, the claimants would have said what that was when faced with the application

Striking out the claims as an abuse of process, District Judge Veysey concluded that, whilst the defendant was required to clear a ‘high bar’ in order to convince him that QOCS protection should be lost, he was satisfied that the defendant had established that the claimants’ conduct amounted to an abuse of process for the purpose of CPR r.44.15 and that the claims should never have been brought. The claimants were ordered to pay the defendant’s costs of around £5,400.

Comment

As is usual with cases of this nature, the injuries were said to have resolved by the time the medical expert examined the claimants. There were no objective findings of injury on examination and neither claimant had attended upon their GP after the accident.

The claimants’ strategy here was to only withdraw once the strength of the defendant’s case was known and the claimants were criticised for litigating in that way.

Had the defendant been unable to assemble the evidence against the claims that they did, the claims would have been just as unmeritorious, yet the outcome might have been very different.

For insurers facing late notified claims in the MoJ Portal, the claims appear to be straightforward at first blush, and handlers may be tempted to simply admit liability and then make offers, but through the use of intel and by developing a strategy to deal with them, there are large savings to be made by defending late notified claims.

Most of the analysis there has been around the loss of QOCS protection, tends to focus on fundamental dishonesty but it is worth remembering that QOCS protection can also be lost if the claim is found to be an abuse of process.

Contact

For further information, please contact Jewels Chamberlain, Director on 01772 556677, or jewels.chamberlain@dwf.co.uk or Kirsten Reay, Solicitor on 01772 554162, or kirsten.reay@dwf.co.uk.

Jewels Chamberlain is speaking about late notified claims strategies at a DWF Fraud Conference on 3 December. For further information contact Georgina Smith on 07980 004497 or georgina.smith@dwf.co.uk

By Jewels Chamberlain

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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