Court of Appeal rules that credit hire claim should remain within the RTA Protocol

The Court of appeal has handed down its judgment in the case of Sean Phillips -v- Carol Willis [2016] EWCA Civ 401.

The case involves a low value RTA claim, including claims for personal injury, credit hire charges (covering a period of 32 days) and other losses.

A claim was submitted to the Defendant’s insurers through the MOJ Portal on 01 July 2013, in accordance with Stage 1 of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (‘RTA Protocol’).

Liability was admitted through the Portal by the insurers on 15 July 2013. On 10 September 2013, the Claimant submitted a Stage 2 settlement pack detailing all heads of claim. The Defendant’s insurers agreed the Claimant’s claims in respect of PSLA and physiotherapy charges; however, settlement could not be reached in relation to the credit hire charges.

The Claimant subsequently issued a Part 8 Claim Form in accordance with Stage 3 of the RTA Protocol, and the matter was listed for a hearing on 09 April 2014 for the assessment of damages.

At the hearing, the only issue in dispute between the parties was the rate of hire; the Claimant had not alleged impecuniosity, and there was agreement as to need and the period of hire.

The district judge indicated that, as the only outstanding issue in dispute related to credit hire charges, the claim should be transferred to CPR Part 7, and would proceed on the small claims track. He also gave directions requiring the parties to exchange evidence relating to the credit hire claim.

The Claimant’s initial appeal was refused by a circuit judge; the matter then proceeded to the Court of Appeal.

Lord Justice Jackson, delivering the leading judgment, observed that ‘Once a case is within the RTA protocol, it does not automatically exit when the personal injury claim is settled. On the contrary, the RTA process is carefully designed to whittle down the disputes between the parties as the case passes through the various stages. It is to be expected that the sum in issue between the parties will be much smaller when the case reaches Stage 3 than it was back in Stage 1. The mere fact that the personal injury claim has been resolved is not specified as being a reason to exit from the RTA process.

The Court of Appeal noted that the dispute concerning hire rates led to a difference in the parties’ respective positions of only £462. Neither party sought an adjournment to adduce further evidence, which the Court in any event considered ‘would be a grossly disproportionate step to take’.

The costs which would have been incurred by the parties in complying with the directions of the District Judge, together with the costs of the additional hearing, were not proportionate to the amount in dispute. There was therefore no justification for the claim to exit the RTA Protocol under CPR PD 8B para 7.2. The Court did concede that there may be cases involving very high car hire charges which might involve complex issues of law or fact which are not suitable for resolution at a Stage 3 hearing, however this was not such a case.

The Court accepted that CPR 8.1(3) provides a wider discretion for the Courts to transfer claims to Part 7, Jackson LJ commented that this ‘cannot be used to subvert the protocol process’.

This case illustrates the importance for insurers, when dealing with ‘modest’ credit hire claims, of raising all issues regarding the hire claim at Stage 2, and being prepared to deal with the same at the Stage 3 hearing. Only in claims where there is a substantial dispute – for example a dispute regarding need or impecuniosity which requires oral evidence to be given – will the Court be minded to transfer the claim to Part 7. Such a decision will still remain subject to the question of proportionality, a key element in Jackson LJ’s judgment.

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