Court of Appeal

Abuse of Process: Court of Appeal refuses permission to appeal strike out of credit hire claim - a report from Martin Ferguson of Farrar's Building.


In the third and final round of this claim, the Court of Appeal has refused the Claimant permission to appeal the concurrent conclusions of DDJ Shedden and HHJ Murdoch QC. The acceptance of the offer expressed in the Stage 2 Pack amounted to full and final settlement of the entire claim.


In what was essentially a dispute between the credit hire organisation and the Defendant insurer, Southern Rock Insurance Company Limited, the Court had been required to determine whether an agreement reached at Stage 2 of the Pre-Action Protocol had compromised the claim for credit hire charges.


At first instance, DDJ Shedden agreed that the compromise reached at Stage 2 was capable of compromising the claim for hire charges and that it had in fact done so. The Defendant was entitled to rely upon that compromise as being the end of the matter. The present claim was, therefore, an abuse of process, and was struck out.


The Claimant appealed, arguing among other things that the Protocol rules permitted the hire claim to be brought after settlement of the personal injury claim at Stage 2 and that the hire and personal injury claims had been split. HHJ Murdoch upheld the decision, agreeing with the Defendant that the Protocol rules did not operate in a vacuum, but had to be interpreted contextually, in light of representations made. HHJ Murdoch noted that the Protocol was designed to simplify matters and that a concluded agreement had been reached.  The Judge had made no error of law and the decision was upheld without criticism.


The Claimant appealed further to the Court of Appeal, repeating the argument that the Portal claim could not have compromised the hire claim and arguing that there was a broader point of principle to be considered. Floyd LJ refused permission on the papers. There was no important point of principle or practice to be considered and both judges below had not erred in concluding that the Defendant was entitled to rely upon the plain and ordinary meaning of the compromise at Stage 2.


While each case will be fact specific, this is a timely reminder that parties should take particular care when completing documents within the Portal. It is evident that while Protocol rules may permit a Claimant to bring a separate claim for vehicle related damages, that entitlement is subject to compliance with the rules of the Protocol, the representations made by the parties and, importantly, any compromise reached.

The Defendant’s success was greatly assisted by Southern Rock’s claims handlers, Somerset Bridge Limited, taking a clear stance from the outset and backing the defence of the claim on the above basis throughout. Similarly, DAC Beachcroft’s careful handling of the matter, robust defence and clear communication ensured success for the Defendant at each stage, as well as a positive result on costs.


Martin Ferguson of Farrar’s Building represented the Defendant at first instance and on appeal before HHJ Murdoch, and was led by Jamie Carpenter QC of Hailsham Chambers in drafting the Respondent’s Notice before the Court of Appeal.

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