Strike Out Of Incubated Portal Claim Overturned Despite Abuse Of Process

• Published date: 07 August 2020
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury, Professional Negligence
• Law Firm: Clyde & Co
• Author: Mr Mark Hemsted

Cable v Liverpool Victoria Insurance [2020] EWCA Civ 1015

In a decision which will impact insurers' and defendant strategies where there has been a potential abuse of the Practice Direction 8B process, the Court of Appeal has overturned the decision in Cable v Liverpool Victoria.

The Court of Appeal held that striking out the Claimant's claim was not the appropriate or proportionate sanction in this instance, albeit the Court accepted that a strike out may be appropriate in certain circumstances for similar claims.

The Court found that whilst the Claimant's solicitors had abused the court process by issuing a Part 8 claim form when the claim should have been issued under Part 7, this had not prejudiced the Defendant. Similarly, the Claimant's failure to change from the RTA Protocol to the Personal Injury protocol due to the value of the claim did not affect the Claimant's treatment or possible rehabilitation.

Background

The Claimant was injured in a road traffic accident in September 2014. Following the submission of a Claim Notification Form, liability was admitted in October 2014. The claim did not progress to Stage 2 of the Claims Portal, and despite requests, the Claimant's solicitors failed to update the Defendant.

Unbeknownst to the Defendant the Claimant issued a Part 8 claim form on 25 July 2017 requesting a stay of proceedings as compliance was not possible with the RTA Protocol before limitation expired. At this point the Claimant's loss of earnings claim was in excess of '200,000, meaning the claim was not suitable for the RTA Protocol or Part 8. The stay was granted until August 2018, although the Defendant was not sent the claim form until February 2018.

On 16 August 2018, the Defendant was informed about the Claimant's substantial loss of earnings, and was then served medical evidence describing as being in a "severe neurological state".

On 18 August 2018, two days before the stay expired, the Claimant made an application to lift the stay and for the matter to proceed as a Part 7 claim. The Claimant's claim was now valued at '2.2 million. District Judge Doyle lifted the stay and required the documents to be served by 4 September 2018. The Claimant did not serve until 26 September 2018. The Defendant issued an application to keep the stay in place and to strike out the claim.

District Judge Campbell heard the Defendant's application and ordered that the Claimant's claim be struck out. On appeal, Judge Wood QC refused the Claimant's appeal and...