Abuse of Process

A very helpful overview by Helen Rutherford of Exchange Chambers

My involvement in this area largely began with the case of Lewis Hillier v Southern Rock Insurance Company in 2019. Since then I’ve found abuse of process arguments in credit hire cases have been a regular battleground. Perhaps when the Court of Appeal refused to allow that matter to be considered further they had not appreciated how many cases could be affected by this issue.

The situation briefly is as follows. After a road traffic accident the injured party hires a car on a credit basis whilst their own is off the road. That may organised via their insurance company or repairing garage, or they may source it themselves. Once their car is repaired or written off (and the pre-accident value cheque received) they will give the hire car back.

In the meantime they may have suffered injury. They instruct solicitors to deal with their personal injury claim, which if a low value claim will proceed on the MOJ Portal.

And it’s there that the problems start. In some cases pre-medical offers are made to resolve the personal injury claim quickly and efficiently. In other cases the matter proceeds further but settles at stage 2.

Of course, there is no requirement to include vehicle related damages at that stage. Paragraphs 7.51-7.54 of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents from 31 July 2013 make that clear.

Paragraph 6.4 of the Protocol is also important:

“A claim for vehicle-related damages will ordinarily be dealt with outside of the provisions of this Protocol under industry agreements between relevant organisations and insurers. Where there is a claim for vehicle-related damages, the Claimant must:

(1) State in the CNF that the claim is being dealt with by a third party; or

(2) (a) Explain that the legal representative is dealing with the recovery of these additional amounts in the CNF; and

(b) attach any relevant invoices and receipts to the CNF or explain when they are likely to be sent to the Defendant.”