A long shadow

Summer’s lease has now  expired and in recent weeks I have been alternating the roles of common law barrister and Minister for Leaves, sweeping up fallen autumnal glories and composting them.

One of the flurries of litigation that has absorbed me in the last month or so, relates to attempts to set aside judgments in credit hire claims alleging that the judgment must be set aside as of right, due to improper service.

Such an argument would neatly avoid the strictures of the Denton/Gentry line of authority. It will be recalled that the case law emphasises promptness, efficiency and proportionality and the need to comply with rules, practice directions and court orders.

One line of argument has been that an insurance company through its panel solicitors, can give a general notification to firms of solicitors representing claimants, in respect of anticipated credit hire claims (where the accident has not yet happened and the parties are not identified) that service should not be made on a named defendant, but rather on the panel solicitors.

Rule 6.7 CPR provides as follows:

(1) Solicitor within the jurisdiction: Subject to rule 6.5(1), where –(a) the defendant has given in writing the business address within the jurisdiction of a solicitor as an address at which the defendant may be served with the claim form; or

(b) a solicitor acting for the defendant has notified the claimant in writing that the solicitor is instructed by the defendant to accept service of the claim form on behalf of the defendant at a business address within the jurisdiction,

the claim form must be served at the business address of that solicitor.

One can see the benefit of such a general nomination to an insurance company: at a stroke it does not have to engage with individual claims nor worry about its insured being slow to forward served proceedings. The difficulty of such a general nomination, is that it reads very much like an attempt to “opt out” of the service requirements of the Civil Procedure Rules, with the emphasis on a solicitor acting for the defendant giving notice in respect of an individual claim.

The validity of a general nomination has been consistently rejected at District Judge level in at least three cases now. I have argued two of them. They have not been appealed.

A reserved judgment handed down on 5th October 2018 illustrates the points: Kalp v Griffiths County Court at Liverpool 5th October 2018 Deputy District Judge Bates and in particular the practical difficulties of a general nomination, which might cause problems for solicitors who have to undertake conflict checks, for insurers who may not be indemnifying their driver and for defendants who may wish to nominate their own solicitors, to pursue a counterclaim.

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