Mr Mohamed Abdullahi Ali v Watford Insurance Company Europe Limited

Judgment was handed down at an application hearing on 6 February 2023 by DJ Kemp in Romford County Court in respect of a claim for credit hire in excess of £20,000 plus associated losses including recovery, administrative charges, engineer’s fee, Covid cleaning and Claimant’s representative costs.

The Judge found that the claim was an abuse of process and should be struck out. Costs were also awarded in favour of the Defendant.

Background and issues

The application was made on behalf of the Defendant following the issue of proceedings for losses suffered in an accident on 27 March 2021, specifically for vehicle damage and more significantly credit hire, the total being in excess of £25,000.

The issue before the Judge at the application hearing was whether settlement had been reached in the MOJ portal by the parties. The Defendant’s position was that Somerset Bridge, acting as claims handling agents for Watford Insurance Company Europe Ltd, had settled the entire claim in the RTA protocol (and payment had been accepted on such terms) and, in their view, all matters had been resolved between the Claimant and the Defendant’s insured. The Defendant had made a stage 2 offer which stated that it was intended to compromise the whole claim. The Claimant had accepted the Defendant’s offer.

Proceedings were then issued by the Claimant to pursue and recover further losses. The Defendant’s application invited the court to strike out the Claimant’s claim pursuant to CPR 3.4(2)(b) because it had been previously compromised.

The Judge’s considerations

At the hearing DJ Kemp considered the contents of the Claimant’s CNF which he considered to be the starting point where disputes of this nature arise. His view was that the CNF was a significant document incorporating a statement of truth and so should be examined in some detail and any inconsistencies addressed. In this particular case, there was no evidence from the Claimant directly and he had not provided a witness statement to address the issues raised by the Defendant. Had the case reached trial, DJ Kemp was in no doubt that the Claimant would have been cross-examined carefully as to the contents and accuracy of the CNF.

The particular concern raised by the Defendant was that at Section E of the CNF it stated that there was no requirement for an alternative vehicle and no use of alternative vehicle. This was very clear.

Prior to completion of the CNF there were negotiations and discussions regarding the possibility of a credit hire claim and the Defendant’s insurers did not dispute this. There were however no negotiations of the credit hire claim once the case was in the MOJ portal and the Claimant failed to confirm that this head of loss was being dealt with separately, rather he positively averred that there was no credit hire claim at all.

At stage 2, the Claimant’s evidential pack made it clear that personal injury and medical expenses were being pursued, but the car hire and repair cost sections were both left blank.

The Judge’s findings

As to the question of whether the claim for credit hire was being dealt with outside the protocol, the Judge found there was no industry agreement here. Therefore the portal rules were applicable and mandatory.

Whilst 7.59 could apply, which would allow for ongoing negotiation to continue outside of the portal, there was no negotiation in the portal and the Judge stated that the Claimant could not have it both ways.

Boxes had been ticked, statements of truth signed and negotiations and compromise reached based on the content of documents fundamental to the process and which have an applicable protocol.

The whole purpose of the MOJ portal was to give certainty to both parties’ positions, to set out clearly at the outset what the issues were to enable parties to resolve matters without having to issue proceedings and entering expensive litigation.

In this case the Claimant had failed to comply with the protocol and procedures and the losses could not be pursued.

As compromise was reached on the back of a clearly stated claim identified in the portal the claim therefore must be struck out on the grounds of abuse of process.

Learning points

Essentially the outcome of this case is a stark reminder for Claimants and/or their representatives to ensure they accurately set out their case and file the correct documents in the CNF as well as in the stage 2 pack.

If you wish to discuss this further, please feel free to get in contact with our Vehicle Hire & Damage Team at DAC Beachcroft Claims Limited.