Bluebell time in Kent

It happened on April 19, 1964. It was bluebell time in Kent.

Hinz v Berry [1970] 2 Q.B. 40, Lord Denning MR

If there was a prize for the most turgid judgment of the year, a strong contender for the trophy would be the  judgment in the conjoined credit hire appeals of Yousaf v Davis and another appeal [2022] EWCA Civ 1242. The judgment starts unpromisingly enough

2. Both Appellants suggest that their appeals raise points of wide importance about the scope and interpretation of the RTA Protocol. For the reasons I give below I disagree.  I consider, on the contrary, that each appeal turns on what, in the framework of the RTA Protocol, was actually in issue in each claim at the Stage 3 hearing before the Deputy District Judges and before the Circuit Judges who heard the appeals from decisions of the Deputy District Judges

As the Court of Appeal observed the case established no wide principles or statements of practice guidance. However it has some interest in terms of the jurisprudential approach to be taken to the way that cases are decided at stage 3 of  and in particular, the granularity of the sieve that is to be used when deciding questions of proof and evidence. 

The appeals could be used as an exercise in legal “cake-ism”: having kept the claims within the confines of the Protocol for Low Value Personal Injury Claims in Road Traffic Accidents, once the cases reached a stage 3 hearing, the insurers wished to deploy forensic arguments and legal authorities at the stage 3 hearing. Thus on the one hand, to maintain a favourable costs regime within the confines of the Protocol, and on the other hand, to treat a stage 3 hearing as akin to a traditional common law trial. The notion that this could be done within the scope of a 10 or 20 minute hearing, was firmly rejected by the Court of Appeal. In particular the Court emphasised that although the substantive law does not change, the extent to which it can be invoked, may be curtailed by the procedure used:

45. This Court was referred to many cases about car hire charges and about credit hire charges. Some were cases in which a claim was brought under the RTA Protocol, and others were not. For obvious reasons, cases which were not brought under the RTA Protocol cast no light on that process at all. Statements in such cases, on which Mr Bright, in particular, relied, about what claimants have to plead and prove in such cases are not directly relevant to the issues in these appeals. The principles of substantive and procedural law which apply to all cases are the same, but their significance for the progress of a case will depend, crucially, on the formality of the process under which a claim is brought. In particular, it will depend both on the precise extent of the opportunities which that process gives the parties to rely on those principles, and on whether the parties take the opportunities which are available. As a result, it is not necessary for me to refer to all the cases to which the parties cited.

The prospect of restricting a defendant’s ability to make arguments, or challenge evidence, by reference to the limitations of a process, that a defendant has consented to, did not discombobulate the Court of Appeal:

143. Defendants in these cases are almost always insurers, as they are in these two appeals. There are hundreds of thousands of these claims every year, and they are routine for insurers. Insurers can be assumed to be familiar with the provisions of the RTA Protocol and to have ready access to legal advice if an unusual or difficult issue arises in one of these cases. I have summarised the relevant provisions of the RTA Protocol and the decision in Phillips v Willis. The themes which emerge from both are that the RTA Protocol is intended to be a quick and cheap procedure to enable the parties to settle at a cost which is proportionate both to the sums at stake, and to the run of the mill legal issues which arise, and in a way which does not place an undue burden on the courts. The RTA Protocol is designed to enable the parties to narrow and limit the issues in dispute, so that if a decision by the court is necessary at Stage 3, that decision will only concern the narrow issue which the parties’ exchanges under the RTA Protocol will already have defined for the court. As Jackson LJ observed, the RTA Protocol has ‘an inexorable character’. If the parties do not observe its provisions, they bear the consequences: for example, if an issue is not raised, or evidence is not served when it should have been, it can (in general) not be raised later

In particular the Court of Appeal was alive to the economies of scale approach that justified a robust approach being taken on stage 3: noting that it was open to the insurers to take a case out of the Protocol:

152. I am not impressed by A2’s argument that this approach is anomalous or unjust. Insurers must be taken to know about both the purpose and the detailed provisions of the RTA Protocol, and how it differs from other methods of deciding civil claims. The sheer number of these claims means that they are a form of bulk business. Insurers can take advantage of the economies of scale and cost created by the RTA Protocol for these claims. Insurers are not locked into the RTA Protocol. First, they can take advantage of the ‘industry agreements’ dealing with vehicle-related damages which are referred to in paragraphs 6.4 and 17.23 (see paragraphs 12 and 18, above). Second, there are many opportunities for a defendant to take a claim out the RTA Protocol (see paragraph 23, above) if a defendant considers that it is better suited to investigation and determination under Part 7 (with the costs risk which that entails).

The judgment also has some value, even if only by analogy, when considering the current enthusiasm for belt-and-braces applications for pre-action disclosure in credit hire claims by insurers, which are at stage 1 or stage 2, within the Ministry of Justice Portal process. Put bluntly, if the parties are following a Protocol which sets standards for the provision of information and evidence, that will constitute the “Gold Standard” of what should be provided and when.

As pre-action disclosure applications are principally to support compliance with a Protocol, compliance with a Protocol supports a discretionary refusal by the court to order further and more extensive pre-action disclosure. This means that in a Protocol case, the insurer will never see key documents such as bank statements and wage slips, as there is no provision for there disclosure. The alternative is for the insurer to take the case out of the Protocol, but that lends itself to the thorny problem, that whatever they might save on damages, by a more extensive evaluation of the claim, they may end up paying out anyway in increased costs.


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