CONFLICTS OF INTEREST IN ROAD TRAFFIC CLAIMS: DRIVERS AND PASSENGERS

mark_henley_ By Mark Henley

  1. A number of my recent cases have highlighted the perennial problem of claimants’ solicitors in road traffic cases failing to identify conflicts of interest at an early stage between drivers and passengers in the same vehicle.
  2. It is common for both a driver and one or more of that driver’s passengers all to go to the same firm of solicitors, and all to give the same broad account of an accident, which places blame for an accident entirely on the driver of another vehicle, and so on its face raises no conflict of interest.
  3. As soon as primary liability is disputed, however, the solicitor needs to ask whether there is a conflict of interest in continuing to represent both the driver and the passengers in the same vehicle.
  4. Often, the account given by the other driver would, if accepted by the court, exonerate the other driver completely, and move blame to the passenger’s own driver: although if primary liability is admitted (and only some contributory negligence is alleged), then there should be no conflict of interest between claimant driver and claimant passenger.
  5. The key question which the solicitor has to ask at this early stage is whether there is any conceivable chance (however slight) that a passenger could fail to establish any liability against the driver of the other vehicle, and, at the same time, that the court could find that some element of blame rests with the driver of the passenger’s own vehicle.
  6. If there is any such chance, then the passenger cannot rely solely on a claim against the other driver.
  7. Under these circumstances, the passenger needs to bring claims, in the alternative, not only against the driver of the other vehicle, as First Defendant, but also against the driver of their own vehicle, as Second Defendant: in order to ensure that the passenger is not left in a position at the end of a trial of having failed to bring a claim against the only driver found to bear any blame for the accident (and so of being unable to recover any damages or costs).
  8. Under these circumstances the same firm of solicitors cannot continue to act for both the driver and the passenger in the same vehicle: as this firm would then have to bring a claim, by its passenger client, against its own (driver) client.
  9. By way of example from my own recent cases, I have had to reassure one solicitor that there was no conflict of interest involved in continuing to act for both driver and passengers where primary liability is admitted and the only allegation made is that the alleged passengers were not present in the vehicle: and to point out to another solicitor that there is a conflict of interest involved in continuing to act for both driver and passengers where it is alleged that the driver had deliberately caused the accident by braking sharply and without any reason.
  10. There are still strong economic motives encouraging claimant road traffic solicitors to remain reluctant to admit conflicts of interest which require them to “let go” claimant passengers, in vehicles where they also represent the driver: even if referral fees have no longer changed hands, the structure of “fixed” costs, for road traffic cases which exit the Portal, make claims with multiple claimants unusually lucrative (as every claimant is entitled to the sum of fixed costs).
  11. Solicitors also sometimes fail to ensure that all potential defendants are added to a claim because they believe, wrongly, that this will damage a passenger’s credibility: but a passenger’s credibility need not be compromised by adding all potential defendants, provided this is pleaded carefully.
  12. There need be no damage to credibility in a passenger signing a statement of truth on Particulars of Claim making 2 contradictory sets of allegations against 2 different drivers, provided that these claims are pleaded as follows: the passenger’s primary case is that the driver of the other vehicle is entirely to blame for the accident; but the passenger is aware that this driver has made allegations of negligence placing blame for the accident entirely on the driver of the passenger’s own vehicle; and so, without prejudice to the passenger’s primary case, the passenger is obliged to repeat these allegations, and will rely on them should the court accept them in preference to the passenger’s primary case.
  13. Such wording can potentially be adopted to allow claims to be brought against all potential defendants even in a “multiple shunt” case, in which it may not be clear whether there have been one or more separate impacts: by repeating, in the alternative, the accounts given by each of the defendants.
  14. A reluctance to “grasp the nettle” where there is a conflict of interest can leave solicitors being sued by their own clients, as innocent passengers who have failed to bring a claim against the only driver found at trial to be to blame for an accident.
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