On track

In between the Covid pandemic, the war in Ukraine and now the smouldering fires of a Europe wide heatwave, the Judicial Review and Courts Act 2022 passed quietly into law a month or two ago. Procedural statutes rarely have an enthusiastic readership and the full ramifications of this statute will only slowly permeate into the legal profession.

I intend to write a great deal more about this statute and how it will affect credithire, but also access to justice more generally, in the months to come. But, in short, what it does is to create the statutory framework for a true online court, and ancillary steps which will take place wholly in the digital space.

Imagine a situation where a claimant with a credit hire claim, answers a number of questions posed by a computer about her claim, uploads her bank statements, engineers report and medical report and an online system then contacts a defendant insurance company, seeks resolution digitally, communicates offers or denials, moves the parties through into an online mediation, blind bidding or early neutral evaluation, and then if matters continue to be contentious ports all that information through to a digital decision making process, taking place without a hearing, or a hearing that takes place by video link.

Such a process is no longer the stuff of fantasy: the broad rule making powers to permit such a process to become the norm are now on the statute book. What role then in this Brave New World for claims management companies, loss adjusters, solicitors, and dare I say it, barristers? The brutal truth is that the old roles will disappear and new roles need to be found. Digitisation is an oncoming tide: all industries will be affected by this Fourth Industrial Revolution and the legal and insurance industries will have no exception and no unique status.

However, these developments are not imminent. There is no set timeframe, and in the meantime the credit hire claims process rumbles on. There is not even a pre-action protocol which applies to credit hire claims which appear as something of an afterthought to the personal injury processes. Indeed, I have seen the view expressed that claims for credit hire must be brought in the Official Injury Claim Portal, or independently pursued claims outside that Portal, are an abuse of process. Never mind that a cause of action for personal injury and a cause of action for property damage, are separate causes of action, with different limitation periods, and all too commonly different claimants.

One issue that has been bubbling away, is whether claimants should be giving pre-action disclosure of their financial documentation. In the case of Allianz-v-Holt-Approved-Judgment an insurance company sought pre-action disclosure of a number of documents, including statements in respect of all bank, credit card and savings accounts covering the period of hire and 3 months before, and wage slips or other proof of income covering the period of hire and 3 months before. The application was heard before His Honour Judge Harrison in the County Court at Cardiff who made the order noting in his conclusions:

It is not suggested that the provisions of CPR 25.1 prevent an order being made, but they are a reminder of the unusual nature of such applications. If it is necessary to say so I take the view that this is one of those occasions when an order should be made. Having reminded myself of the same I am for the reasons set out above satisfied that the jurisdictional requirements for the making of a PAD order are established. I have stood back and asked myself whether nevertheless an order should be made and having done so I am satisfied that I should do so. This, in my judgment, is not an attempt to engineer a pre-action protocol for credit hire cases that does not exist, rather it is an attempt to apply the principles of the overriding objective to the use of the relevant practice direction.

This approach, is as yet, far from common. But I suspect that sooner or later the rule makers will obtain the statistics on how many credit hire claims are brought, how many are litigated, and how many of those claims will proceed on the Small Claims track, the £10,000 limit of which is now largely illusory. When they consider how much judicial time is devoted to box work, small claims hearing and Fast Track trials, the pace of procedural change to deflect these cases away from being litigated through the court process, may move from glacial to swift.

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