Havens of Malta

Easter has now been and gone. I have returned from a very welcome break on the ancient island of Malta. If you have not been, I highly recommend it. The city of Valletta, built as a fortress, five centuries ago and now a World Heritage site, is simply stunning, made out of a warm golden limestone and stuffed with art, culture and good food.

On more prosaic matters, I was interested to see the recent decision in the High Court of Holt v Allianz [2023] EWHC 790 KB has been making waves, in terms of the potential for an application for pre-action disclosure against credit hire claimants, to obtain what might loosely be described as their impecuniousity documents: namely bank and credit card statements, and wage slips or other documentation which evidences their income. The appeal was brought from a decision of a circuit judge in Cardiff, who had made an order for pre-action disclosure. 

The genesis of the decision lies in the fact that although credit hire claims are a billion pound industry, with numerous authorities on mitigation of loss and the calculation of damages in the appellate courts, which has created a corpus of law not dissimilar to the “shipping cases” of the nineteenth century, it remains in the view of some a fairly grubby business. Thus it does not have a dedicated Pre-Action Protocol which applies to vehicle damage only credit hire claims.

This in turn has meant that credit hire claims where there is a whiplash element, proceed rather uneasily under the Pre-Action Protocol for Personal Injury Claims, which has nothing useful to say, or one of the Low Value Protocols, which assumes blithely that all credit hire organisations (CHOs) belong to the General Tariff Agreement (GTA) which is fast becoming a relic of a pre-inflationary world. 

Where there is no personal injury element, the potential parties are thrown back onto the woolly wording of the Practice Direction on Pre-Action Conduct: and the clear steer from the High Court in this case, is that the Practice Direction predicates that sensibly pre-action disclosure should be given of the impecuniousity documentation.

I suspect that the application of this case is going to prove controversial for a number of reasons. The first point is that due to a misfire on the part of the insurers on the jurisdictional point, everything that it says about disclosure, is technically obiter dicta. Having said that, there is obiter dicta, and then there is obiter dicta.

Secondly, the case is not concerned at all, with the curious position whereby insurers pursue applications for pre-action disclosure, notwithstanding that a claim is proceeding through the Ministry of Justice Portal. In such circumstances, there is an interesting clash between the disclosure provisions of the relevant Low Value Protocol (i.e none) and the desire of the insurers to both keep the case in the Portal, and yet to have more information than the Protocol prescribes.

Thirdly, any mooted application for pre-action disclosure can be simply met, by the issue of proceedings. At that point the court’s jurisdiction to make an order for pre-action disclosure falls away, and one consequence of this decision is that there may be more issued claims: doubtless to be met by more premature issue arguments.

Fourthly, the actual provision of the impecuniousity documents, will rarely provide a full or complete picture of a claimant’s means. There will be no context. I recall a case in the recent past, where a claimant had circa £40,000 in her bank account. An ample sum at first blush, to hire, or even buy a new car. But this was her divorce settlement, and earmarked for a deposit on a new house. The judge found she was impecunious accordingly.

And finally, I suspect CHOs and their solicitors will start keeping data of what happens on those cases where disclosure is provided and deploying that data in resistance to future applications for pre-action disclosure which are made: does provision of the documents, prompt reasonable offers meaning whole tranches of cases, settle without the need for proceedings, or is it business as usual, with cases being litigated, and simply another round of costs being layered on top? The use of statistical information as similar fact evidence in litigation, featured in another interesting case, that of Ruta Kerseviciene v Quadri [2022] EWHC 2951 (KB).

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