Growing old

One of the pleasures of growing old, is the realisation that time is circular and one returns to moment after moment that appeared to be past and gone. Thus this year, I think I have drafted three skeleton arguments on the comprehensive insurance point, which refuses to die, despite having been ventilated at various points before the County Court bench for the last 20 years.

Another old chestnut has resurfaced in terms of disclosure of documents. In recent months there has been a surge of applications for pre-action disclosure by insurance companies.

I remember an interest in such applications for pre-action disclosure was extant some 10 or 15 years ago and arguing the points many times, but they largely came to an end with the case of OCS Group v Wells [2008] EWHC 919 (QB). Of course the decision by Mr Justice Nelson, was concerned with the provision of a claimant’s medical records at the pre-action stage, rather than with credit hire.

The current zeitgeist is to obtain a claimant’s impecuniousity documents at the pre-action stage. Cardiff has emerged as a hotbed of activity, not least because of the decision of the Designated Civil Judge HH Judge Harrison in the case of EUI Limited v Charles and Others HHJ Harrison County Court at Cardiff 21st September 2018.

The purpose behind such applications is to be able to assess the value of a claim for credit hire and to make a properly targeted part 36 offer at an early stage. It can also be observed that where such applications are made where there is also a claim for personal injuries intimated there is an argument, that the costs of the application are fixed by the rules.

Such applications can be of limited utility: last week I got one thrown out, on the basis that it had not been properly served. The solicitors for the claimant and the defendant had been happily corresponding for months, and the defendant’s solicitor simply served the application on her counterpart. This was a mistake. Such an application is a form of originating process. Rule 6.2 CPR provides:

(c) ‘claim’ includes petition and any application made before action or to commence proceedings and ‘claim form’, ‘claimant’ and ‘defendant’ are to be construed accordingly;

Given the deeming effect of the interpretation, an application for pre-action disclosure is treated as a claim form, and is subject to the restrictions of service on solicitors in the latter part of the rules accordingly. Rule 6.7 CPR provides:

(1) 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.

It is unlikely that a claimant’s solicitor will volunteer to accept service of the application. Otherwise the application notice must be served directly on the putative claimant. If service has not taken place, then the court has no jurisdiction to make an order against the unserved party, unless the various alternative courses such as dispensing with service etc can be employed. But there is a lot of law on those provisions.

More generally, it is clear law that if proceedings are issued, after an application for pre-action disclosure has been made, the court has no jurisdiction to make an order for pre-action disclosure, though it will remain seised of costs.

The real issue it seems to me, however, is that whilst some credit hire claims will proceed under the auspices of the MOJ Portal, and the relevant Pre-Action Protocol, which prescribes standards for the exchange of information and documents in a very prescriptive way, and with tight timetables, for vehicle damage only claims, there is no specific set of provisions which govern the exchange of information pre-action. There is no Protocol for Credit Hire.

This is a material and somewhat surprising omission, given the sheer volume of credit hire claims that are brought on an annual basis. There are, as far as I know, no proposals to draft and implement such a protocol. It follows that in its absence, although the current enthusiasm for pre-action disclosure applications may wane, the information gulf will remain. In the short term, I look forward to other trips to Cardiff.

Suggestions for good restaurants gratefully received.


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