Abuse of Process

I reported some time ago about several cases where Validus were engaged in negating hire charges of behalf of D, whilst a solicitor acting for D dealt with the PI claim through the Portal. Validus declined to settle the hire charges after the PI claim was settled because the settlement was final. The CHO failed at first instance and sought leave to appeal the refusal of the court to make an award in relation to the outstanding hire charges. The judge held the first hearing was an abuse of process and leave to appeal was refused.


Richard Milner of True Solicitors reported a contrary outcome in a similar case where they acted for the Claimant:


"On Monday a judgment was handed down by DJ Hickinbottom in Bradford County Court in one of our credit hire cases. It followed a hearing to determine the defendant’s application to strike out the claim for abuse of process.


Our client’s previous solicitors settled the client’s personal injury claim within Stage 2 of the RTA PI Protocol. TRUE then issued Part 7 proceedings for credit hire, and the strike out application followed.


In the injury claim the Claim Notification Form (CNF) was submitted to the portal on 25/01/19, but the client didn’t hire a vehicle until 07/02/19. Unsurprisingly therefore section E of the CNF stayed silent in respect of the client’s need for/provision of a replacement vehicle.


On 07/02/19 the defendant’s insurers made a pre-medical offer for “general damages”. The solicitors generated a Stage 2 settlement pack within which the offer was accepted “without prejudice to our client’s insurers own right of recovery against you and of any outstanding claim for hire charges being or to be made, by the credit hire company.” The defendant’s insurers responded with “yes” within their Stage 2 response, and ticked the box to confirm an agreement had been reached. They then sent a cheque stated to be “in full and final settlement” of the claim.


Within the strike out application 2 arguments were advanced by the defendant, 1) the entire claim had been settled by the payment made “in full and final settlement” of the claim, and 2) the claimant should have brought all claims together, and it would be an abuse if the claimant was given a second bite of the cherry.


The judge dismissed the 1st argument on the basis that the claimant’s conditional acceptance was a counter offer which the defendant accepted. The payment “in full and final settlement” did not affect the position as the agreement had already been made.

In relation to the 2nd argument, the judge noted the absence of information in section E of the CNF but stated that that was unsurprising given that no sure hire charges had been incurred at that stage. The defendant’s complaint that they had no knowledge of the potential claim for hire charges was described by the judge as “somewhat disingenuous”, given there had been communications between the hire company and defendant’s insurers almost as soon as hire started, some 5 weeks before the PI claim settled.


HELD – merely because the hire claim could have been included at the outset does not mean the subsequent proceedings are an abuse. The claimant had preserved his entitlement to pursue a credit hire claim and the defendant cannot be said to have been lulled into a false sense of security. In considering the broad merits based approach as to whether the claimant’s conduct was in all the circumstances abusive, as endorsed in Dexter –v- Vlieland-Boddy (2003) EWCA Civ 14, the defendant had not discharged the burden of proving abuse.


The application was dismissed with the defendant paying the claimant’s costs of the application.


The case highlights that abuse of process strike out applications are invariably fact sensitive. Ensuring the judge has all relevant facts to hand (and a chronology if appropriate) is vital." True's note probably tells you all you need to know but Canford Law have put out a more generic note on their website. It is accessible at the following link and explains the process that CHOs should follow.


https://www.dropbox.com/s/pjih4lhv83gb2kz/Abuse%20of%20Process%20-%20Canford%20Law.pdf?dl=0


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