Bee v Jenson
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CRESSWELL |
| Judgment Date | 21 December 2006 |
| Neutral Citation | [2006] EWHC 2534 (Comm),[2006] EWHC 3359 (Comm) |
| Docket Number | Case No: 2005/720,2005 FOLIO 720 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 21 December 2006 |
[2006] EWHC 2534 (Comm)
Mr Justice Cresswell
2005 FOLIO 720
IN THE HIGH COURT OF JUSTICE
QUEEN's BENCH DIVISION
COMMERCIAL COURT
MR C BUTCHER QC & MR B WILLIAMS (instructed by Messrs Burges Salmon) appeared on behalf of the CLAIMANT
MR J FLAUX QC & MR J HOUGH (instructed by Messrs Badhams) appeared on behalf of the DEFENDANT
Folios: 85
Words: 6,122
There is before the court an application by the claimant for an order that summary judgment be granted to the claimant on the issues raised by the defendant in paragraphs 8 to 12 inclusive of the reamended Defence and/or that paragraphs 8 to 12 inclusive be struck out. The application is made under CPR 3.4 and/or under CPR 24.2.
CPR 3.4 provides:
“(2) The court may strike out a statement of case if it appears to the court—(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings…”
The notes at 3.4(2) state:
“Paragraph 1.6 of the Practice Direction, paragraph 3PD.1, states that a Defence may fall within rule 4.4(2)(a) where it consists of a bare denial or otherwise sets out no coherent statement of facts, or the facts it sets out, while coherent, would not even if true amount in law to a defence to the claim.
“Statements of case which are suitable for striking out on ground (a) include those which raise an unwinnable case where continuance of the proceedings is without any possible benefit to the respondent and would waste resources on both sides … A claim or defence may be struck out as not being a valid claim or defence as a matter of law…”
The notes at 3.4.6 address overlap with Part 24 summary judgment:
“The rules give the court two distinct powers which may be used to achieve the summary disposal of issues which do not need full investigation at trial. Rule 3.4 enables the court to strike out the whole or part of a statement of case which discloses no reasonable grounds for bringing or defending a claim (r.3.4(2)(a)), or which is an abuse of the process of the court or otherwise likely to obstruct the just disposal of the proceedings (r.3.4(2)(b)). Rule 24.2 enables the court to give summary judgment against a claimant or defendant where that party has no real prospect of succeeding on his claim or defence. Both those powers may be exercised on an application by a party or on the court's own initiative; see para. 1.2 of the Practice Direction (Striking Out a Statement of Case). Many cases fall within both r.3.4 and Pt 24 and it is often appropriate for a party to combine a striking out application with an application for summary judgment. Indeed, the court may treat an application under r.3.4(2)(a) as if it was an application under Pt 24; see Taylor v Midland Bank Trust Co Ltd (No 2) [2002] WTLR 95.”
Part 24.2 provides that:
“The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if—(a) it considers that … (ii) the defendant has no real prospect of successfully defending the claim or issue.”
As to “no real prospect of succeeding/successfully defending” the notes at 24.2(3) state:
“In order to defeat the application for summary judgment it is sufficient for the respondent to show some “prospect”, i.e. some chance of success. That prospect must be “real”, i.e. the court will disregard prospects which are false, fanciful or imaginary. The inclusion of the word “real” means that the respondent has to have a case which is better than merely arguable ( International Finance Corp v Utexafrica Sprl [2001] CLC 1361 and ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472). The respondent is not required to show that his case will probably succeed at trial. A case may be held to have a “real prospect” of success even if it is improbable. However, in such a case the court is likely to make a conditional order (as to which, see the commentary to r.24.6).”
In ED & F Man Liquid Products Limited v Patel and Another [2003] EWCA Civ 472 Potter LJ said at paragraph 8 in relation to CPR 24:
“I regard the distinction between a realistic and fanciful prospect of success as appropriately reflecting the observation in the Saudi Eagle that the defence sought to be argued must carry some degree of conviction. Both approaches require the defendant to have a case which is better than merely arguable, as was formerly the case under RSC Order 14.”
The background facts
Pursuant to an order of Aikens J of 31 August 2005 a statement of facts was prepared. I directed yesterday, in advance of today's hearing, that that statement of facts should be extended so far as material to the issues in the present application and further applications before the court. The parties have helpfully provided a revised statement of facts to which I refer. Paragraph 1 states:
“On 8 March 2004, the Claimant was involved in a road traffic accident caused solely by the negligence of the Defendant. The Claimant's vehicle (registration number FX52 RDV) was stationary on Frederick Way in Grimsby when the defendant's vehicle (registration number FV02 NMY) collided into the rear of his vehicle. The defendant has admitted sole liability for the accident.”
At all material times the claimant had the benefit of a motor insurance policy with the Co-operative Insurance Society (the CIS) and DAS. The relevant policy was incepted on 18 July 2003. The defendant was insured at all material times by the Royal & Sun Alliance (the RSA). As part of the claimant's insurance package with the CIS the claimant had legal expenses and assistance insurance provided by DAS Legal Expenses Insurance Company Limited (DAS).
It is necessary to refer to the terms of the motor vehicle policy. The introduction stated:
“We (the Co-operative Insurance Society limited) agree with you (the Policyholder…) that, subject to the General Exclusions and Conditions of this Policy, we will provide the Insurance set out in the Policy Sections and in any Endorsements specified as operative in the Schedule in respect of events occurring during the Period of Insurance shown in the Schedule…”
The defined terms included:
“Vehicle hire costs: means the cost of hiring a replacement motor car or standard commercial vehicle in one continuous period.”
“Section H: Uninsured Loss Recovery and Legal Helpline” provided as follows:
“For the purposes of this Section we, us and our means DAS Legal Expenses Insurance Company Limited who provide the cover and manage all claims under this Section. Please note that any costs incurred without the prior authorisation of DAS are not covered.
“What IS insured. We will … (2) pay Vehicle Hire Costs following an accident involving a collision between the Insured Vehicle and another vehicle where (i) the Insured Vehicle cannot be driven and (ii) the accident was entirely the fault of an identified driver of another vehicle on which there is valid motor insurance …
“(6) Where we agree to pay Vehicle Hire Costs the Insured Person must (a) accept our choice of vehicle hire company, the type of vehicle and the period of hire, (b) comply with any conditions of the vehicle hire company, (c) agree to our attempting to recover Vehicle Hire Costs in the name of the Insured Person and refund to us any Vehicle Hire Costs recovered.
“What is NOT insured … (b) Legal Costs or Vehicle Hire Costs incurred before we agree to pay them … (e) Vehicle Hire Costs where the Insured Person is claiming against a person who cannot be traced.”
Thus the DAS benefits included the provision of a replacement vehicle at no cost to the insured in the event of an accident caused solely by another identified and insured driver and which meant that the insured's own vehicle could not be driven (“insured hire”). The hire transaction had to be approved by DAS in advance. Where DAS provided this service its insured agreed to DAS attempting to recover the hire charges in its name and to account to DAS for the receipts. The claimant says that DAS was entitled to choose the vehicle hire provider and the type of vehicle rented. The defendant says that the claimant was required to accept the choice of DAS as the hire provider if DAS made such a choice.
Paragraphs 2A, 3 and 3A of the statement of facts are as follows:
“The Claimant has been a CIS motor insurance policy holder since 1997 and DAS has provided legal expenses insurance as part of that policy since July 1999.
“The accident of 8 March 2004 rendered the Claimant's vehicle undriveable. Damage was sustained to the rear bumper, hatch tail-gate, rear undercarriage and rear lights. Temporary repairs were not an option.
“From 2001 to 2002, DAS had arranged provision of replacement vehicles through a brokerage, Fair Rent Ltd. It had a business agreement with Fair Rent which provided for that company to source all vehicles for DAS policy-holders. The written agreement provided for “spot hire rates” to be charged to DAS and for those rates to be reviewed by a system of quarterly reviews. DAS says that the terms of the agreement were altered in 2002 to provide that the rates charged would be set by reference to the scale of rates under the ABI GTA, a protocol for settlement of credit hire claims. The Defendant does not accept that, because no documentary evidence of the variation has been provided.”
In early 2003, DAS changed its vehicle supply arrangements by ending its...
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