Alex Poole: Stayed Portal Claims - Abuse of Process - Strike Out

Chronology

• 10 September 2010: Parties in RTA
• 26 October 2010: CNF issued
• 17 May 2012: Claimant intimates intention to instruct orthopaedic surgeon
• 18 August 2013: Claim Form issued
• 2 September 2013: Claim stayed
• Next 14 months: Defendant chases for update c. 17 times without success
• 7 January 2015: Claimant serves orthopaedic report dated 15 July 2014
• 5 April 2018: Claimant serves psychiatric report dated 25 August 2017
• 2 October 2018: Defendant applies to strike claim out
• 22 February 2019 Claimant cross-applies to lift the stay
• 26 February 2019 Claim struck out

This case closely followed the widely circulated judgment of HHJ Pearce in Lyle v Allianz A00CH865 (in which Richard Whitehall of Chambers was successful)

Procedural framework

The court declined to lift a general stay that had been imposed on a claim following the issue of protective proceedings by the Claimant in accordance with paragraph 16 of Practice Direction 8B. Having done so, it brought finality to the litigation by striking out the claim. The value of the claim was thought to be in excess of £100,000.

Practice Direction 8B is concerned with claims where the parties have followed the relevant Protocol (here the RTA Protocol), but are unable to agree damages before limitation expires.

Paragraphs 16 and 17 set out a code relating to limitation. Where compliance with the Protocol is not possible before limitation expires, a claimant can start proceedings under CPR Part 8 stating the stay is required in order to comply with the Protocol. There are obvious costs benefits to the defendant in enabling such claims to continue, as it removes the need for the claim to exit the Protocol and Part 7 proceedings to be issued.

The procedure works well in situations where both parties are committed to dealing with the claim within the Protocol to conclusion. It provides a streamlined system in which low value claims can be resolved without incurring the oversight and demands of the court and the CPR generally. For this reason, it is suitable only for low value claims for which such oversight is disproportionate. High value claims do require the oversight of the court and thus must be identified early, and taken out of the Portal.

The hearing

Before DJ Richmond in Manchester, it was determined that the potential value of the claim had arguably exceeded £10,000 (the applicable Portal limit) since the date of the orthopaedic report at just under 4 years post-accident. Since that time, the Claimant’s solicitors had failed to comply with the duty identified by HHJ Pearce in Lyle to carry out regular reviews of the value of the claim and failed to progress the claim. The claimant had served no Stage 2 Settlement Pack, no medical records and no evidence of pecuniary losses. The defendant could not be criticised for making no offers in the circumstances.

Medical evidence from a clinical psychologist had been obtained without input from the defendant. The passage of time had grossly prejudiced the defendant’s ability to obtain meaningful medical evidence and had in fact exacerbated the claimant’s condition. In the circumstances, the parties could not be put on an equal footing and the case could not be dealt with expeditiously or continued fairly. Accordingly, the right order was to strike the claim out.

Practice Points

• Defendants should seek updates regularly, asking for:
  • The claimant’s position on rehabilitation and interim payment.
  • When the last review of the value of the claim had been carried out.
  • Confirmation that the latest estimate of quantum is under £10,000 or, in the alternative, confirmation of what the latest estimate is and the reasons for it.
  • A full list of medical reports obtained and those intended to be obtained.
  • What consideration has been given to removing the claim from the Portal.
  • Service of all evidence of pecuniary loss.
  • Service of all relevant medical records.
  • A schedule of losses, or:
    • A draft schedule, giving parameters and, e.g. earnings information

• Applications to strike out, or opposition to lifting stays are most likely to succeed where:
  • Chasers by the defendant have addressed the issues above.
  • The process of valuation has itself been compromised by the passage of time.
  • The claimant’s injuries have been aggravated by the dilatory conduct.
  • Claimants have continued to obtain medical evidence after the value of the claim can reasonably be seen to exceed the applicable Portal limit