By Vilma Vodanovic
Last week I went off to the County Court at Newcastle to defend a strike out application made by the Defendant alleging abuse of process. I suspect this won’t be the first time that this factual scenario has arisen where defendants have sought to strike out a claim and where they have been successful, but here the claim was allowed to proceed because it was found that there was no abuse.
The background to this case can very briefly be summarised as follows:
- C involved in accident in August; suffered PI and vehicle damage
- Within 3 days of accident, one firm of solicitors started dealing with vehicle damage and hire claim, and a CNF was sent to D’s insurers (claim 1)
- A response was received from D admitting liability
- In December another CNF sent to same D insurer by another firm of solicitors claiming PI, referring to vehicle losses but no credit hire claim (claim 2)
- Three months later in February, claim 1 was issued because it had exited the MOJ portal due to lack of further response from D insurer; judgment in default entered
- But then D insurer decided to settle the vehicle damage and credit hire in March (end of claim 1)
- Interim payment pack sent in claim 2 in April, still under the portal, but following settlement of credit hire and vehicle damage
- Interim payment made for physiotherapy and general damages in May (but this payment was late so claim left MOJ portal)
- Claim 2 issued in July
- D filed Defence alleging abuse of process stating the claim 1 had been concluded and that was the end of the matter relying on the principle of finality of litigation, but in the alternative alleging that the extent of the personal injuries alleged was not admitted
- D eventually filed an application to strike out just before the allocation hearing It is not clear why the claimant in this case did not bring his PI and credit hire claims together, but the credit hire claim obviously was intimated within 3 days of the accident when perhaps the extent of the personal injury aspect of the claim was not so clear but nothing turns on this as will become clear from the summary of the judgment below. The District Judge hearing the application decided it by having regard to the broad merits-based approach set out in Johnson v Gore-Wood  2 AC 1, HL which essentially states that before a claim is struck out there needs to be a finding of abuse and whether or not there has been abuse depends upon all the circumstances of the case. I argued that there was no abuse here in the first place because D insurer knew at all times that there were two separate CNFs, one claiming vehicle related losses and the other claiming PI; there was no attempted double recovery by C; there was never any abandonment of the PI claim following settlement of the credit hire and vehicle damage claims; D insurer carried on dealing with the PI clam by making the interim payment for physiotherapy and general damages after settling claim 1. Alternatively, even if there was abuse, it was not appropriate to strike out the claim given D’s conduct and the fact that the matter could be addressed by way of an appropriate costs order in due course if it transpired that D did incur additional costs or if C was seeking to recover more costs than entitled to.
- So claim 2 was allowed to proceed further. I wonder if the decision would have been the same had the insurer not made the interim payment for physiotherapy and general damages after the settlement of claim 1 or whether the knowledge of the two separate CNFs having been sent, before claim 1 was issued, would have in fact been sufficient to defeat any allegation of abuse. It is difficult to speculate of course but I can certainly say that my job on the day was made easier by being able to rely on the fact of that interim payment having been made following settlement of claim 1.
- Furthermore, before giving judgment, the District Judge was particularly concerned with any double recovery in relation to costs that there might be given that claim 1 settled with payment of fixed costs but she was ultimately satisfied that any prejudice or adverse effect on D that there might be as to costs by virtue of claim 2 being issued could be dealt with at the conclusion of that claim which was being defended by D on the amount of quantum only. The Court had a power to depart from the usual order that costs follow the event by having regard to the conduct of the parties and also matters which occurred prior to the commencement of proceedings and this could be considered at the conclusion of the case.
- The District Judge dismissed the application based on the arguments raised above that there was no abuse and citing them as reasons for her judgment. She added that there was ‘slippage’ on the part of both C and D in terms of how the claims proceeded and were defended (in particular there being some failure in D’s system of operation to spot that the two CNFs related to the same accident) but ultimately this did not amount to abuse.