In Javed v Southern Rock Insurance Company, Deputy District Judge Trigger sitting at Croydon County Court on 23 September 2022 found that:

• The Claimant had committed an abuse of process in dropping the matter from the MOJ Portal in an attempt to avoid the sanctions of 7.8(b) of the Pre Action Protocol;
• The Claimant was debarred from recovering the costs of the subsequently obtained reports;
• The Defendant was at liberty to apply for further cost sanctions at the conclusion of the claim;
• The Claimant was ordered to pay the Defendant’s costs of the Application.

The claim related to a road traffic accident that occurred on 3 February 2019, which started life in the MOJ Portal: at Stage 1 of the process liability was admitted. On 3 March 2021, the Claimant submitted his Stage 2 settlement pack in which both GP and orthopaedic reports were served. Somerset Bridge, claims handlers for the Defendant, noted that this was a breach of CPR 7.8(b) and that the Claimant was unable to rely on the orthopaedic report – as was understood at the time, prior to the decision in Greyson. The Claimant proceeded to drop the matter from the MOJ Portal and bring Part 7 Proceedings.

DAC Beachcroft and David Fardy of 8 Beachcroft Buildings (8DB) issued an application to strike out the Claimant’s claim for abuse of process, on the basis that the Claimant dropping the matter from the MOJ Portal was an abuse of that process, having done so deliberately to avoid the sanction of non-reliance on the orthopaedic report, as was understood at the time.

DJ Trigger handed down a very thorough judgment in which he clearly set out his reasoning for the decision. In considering his decision, DJ Trigger stated that when considering abuse of process applications, there was a two-stage process. Firstly, whether there is an abuse; and secondly what the appropriate sanction is; DJ Trigger held that the Protocol is self-contained, it enables proportionate settlement in absence of good reason, the parties are expected to follow it, and he, therefore, held that there was an abuse of process in the matter before him.

In respect of the first limb, DJ Trigger was not satisfied that the reason that the Claimant’s claim was dropped from the portal was due to complexity of the conflicting Mason and Greyson judgments, as the Claimant contended. DJ Trigger was satisfied that the claim was issued pursuant to CPR Part 7 because the Claimant was concerned that the Defendant was not going to make a settlement offer taking into account evidence over and above the GP report and that the inadmissibility of the orthopaedic report would be accepted at Stage 3.

DJ Trigger agreed with the Defendant’s application that there was abuse of process, however, considered that strike out would be too draconian as liability was admitted and the Claimant had a genuine injury claim. Instead, DJ Trigger, in this instance, held that the Claimant could not recover costs of subsequent reports, and that the Defendant was able to apply for further cost sanctions at the conclusion of the claim.

The conclusion of the Court in finding that the Claimant had committed an abuse of process is a significant success in the continuing 7.8(b) abuse strategy, it continues to give rise to the importance of compliance with 7.8(b) beyond the issue of costs, and that even post-Greyson a finding of abuse of process may be made.

If you wish to discuss this further, please feel free to get in contact with our Motor Injury Team at DAC Beachcroft Claims Limited.