Danielewicz v Cannon and Another
| Jurisdiction | England & Wales |
| Judge | Master Thornett |
| Judgment Date | 26 April 2023 |
| Neutral Citation | [2023] EWHC 948 (KB) |
| Docket Number | Case No: QB-2022-000886 |
| Court | King's Bench Division |
[2023] EWHC 948 (KB)
Master Thornett
Case No: QB-2022-000886
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Gordon Exall (instructed by Morgan Carter) for the Claimant
Mr David White (instructed by Clyde & Co.) for the Second Defendant
No appearance by the First Defendant
Hearing date: 15 March 2023
This is the reserved judgment on the Claimant's Application dated 23 March 2022 for permission to continue with his proceedings. The Claim Form was issued on 17 March 2022, being the third such claim arising from the Claimant's personal injury sustained as a pedestrian in the early hours of 26 June 2015. As such, as he had in the second claim he had previously issued, the Claimant relies upon the permission required under CPR 38.7. That provides:
Discontinuance and subsequent proceedings
38.7 A claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant if –
(a) he discontinued the claim after the defendant filed a defence; and
(b) the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim.
In this claim (“the Third Claim”), the Claimant sues, as a Protected Party, the driver, Ms Jessica Cannon, as First Defendant and the Motor Insurer's Bureau as Second Defendant. The Particulars of Claim asserts that the Claimant had “used all reasonable endeavours to ascertain the identity and liability of an insurer for the First Defendant. Tradex Insurance Company Limited (“Tradex”) insured the Claimant's father but the Claimant has been told by Tradex that they did not insure the vehicle itself nor Miss Cannon. The First Defendant was not insured at the relevant time”. The Particulars of Claim goes on to aver the usual particulars about the liability of the MIB in such circumstances.
As will be discussed, not all of that paragraph is entirely correct.
The Claimant sustained various and significant injuries, in particular a severe head injury. This is therefore by no means an insignificant claim. As a Protected Party, no limitation point arises.
There has been no Acknowledgement of Service or Defence from the First Defendant. In its Defence dated 5 September 2022, the Second Defendant admits that the First Defendant negligently caused the accident and that the First Defendant was convicted in 2016 for driving under the influence of alcohol, but relies upon:
a. Allegations of contributory negligence, in attempting to cross the road in the way he did;
b. Non admission of loss;
c. The feature of this being the third claim brought in respect of the same incident and, as such, permission for which should not be granted pursuant to CPR 38.7.
The Claimant has been and continues to be represented by the same firm of solicitors throughout.
The sequence of events in respect of the previous proceedings is as follows, as drawn from the Witness Statement in support of the Application from the Claimant's solicitor, Mr Nicholas Cowley, dated 23 March 2023. Mr Cowley provides remarkably little detail or amplification about the errors and mistaken steps in respect of the previous proceedings. Nor, more particularly, how and why they ocurred. Having annexed to his statement copies of medical reports in support of the Claim, to present the background to the previous claims Mr Cowley instead principally relies upon (as an exhibit) the Second Defendant's Witness Statement from Ms Gillian Rothwell, dated 1 December 2021 and as prepared in support of the MIB's 1 December 2021 Application to strike out the second issued claim. This means that information about what went wrong in the first two sets of proceedings is largely as presented (and there of no suggestion not objectively) by the MIB in two Witness Statements from Ms Rothwell: that date 1 December 2021 in the second claim and that dated 8 March 2023 in this claim.
Time was offered by me and taken by the Claimant's representation at the commencement of the hearing to check whether more amplified reasoning and underlying explanation could be offered for the sequence of errors directly from the Claimant's representatives. Having taken instructions, Mr Exall returned to inform me that the court was invited to hear the Application as it stood.
“The First Claim”: E92YJ821
7.1 This was issued in the County Court Money Claims Centre on 20 June 2018 by the Claimant in his own right i.e. not as a Protected Party and against only Ms Cannon. The claim was limited to £25,000 and, treating the Claimant then not as a Protected Party, would have been only a few days' before expiration of primary limitation. The date of the accident as at issue was endorsed as “26/06/18” which plainly would be impossible if issue was on 20 June 2018. However, nothing seems to have ever hinged on this. The Claimant's solicitors purported to serve the Defendant with the Claim Form by covering letter dated 17 October 2018 i.e. just before expiration of the Claim Form at an address 136 Wakefield Street, East Ham, London, E6 1NQ. The covering letter refers to the solicitors having “been in correspondence with your insurers TradeEX…to whom you may care to refer these papers straight away”.
7.2 Tradex, as potential insurers of the vehicle, agreed to be added as a Second Defendant in February 2019 but raised various questions about service of documents upon the (now to be treated as) First Defendant.
In the Amended Claim Form adding Tradex as a Defendant, the Statement of Value of the claim was increased to £75,000 and the date of the accident corrected. Amended Particulars of Claim asserted that the Second Defendant insured the First or alternatively that the Second Defendant was “the relevant road traffic insurer pursuant to s.148 and s.152 of the Road Traffic Act 1988”.
7.3 The Defence of the Second Defendant denied that it had issued a policy of insurance to the First Defendant or that it had issued any policy covering the accident vehicle at the time of the accident. It denied, therefore, any cause of action was possible under the (as then applied) European Communities (Rights against Insurers) Regulations 2002. Further, it denied that the Claimant had given it any notice as required under s.152(1) of the 1988 Act and, as such, the Second Defendant could not be found liable as an insurer “whether pursuant to s.151 of that Act or at all”. The Defence expressly sought a direction that there be a split trial on the issue of whether it could be liable under either the 2002 Regulations or the 1988 Act.
7.4 Plainly, the issues then relied upon by the Second Defendant were fundamental and significant. What had led to such issues arising at all is only as can be pieced together from copy correspondence annexed to Ms Rothwell's first statement. In an e-mail dated 9 January 2020 to the Claimant's solicitors, the Second Defendant made clear that, from its viewpoint:
— The 7.6.18 letter produced by the Claimant's solicitors purportedly giving notice to the Second Defendant for the purposes of the 1988 Act had featured no addressee and had been sent to the old registered office for Tradex. That had changed back in November 2017. Whilst Tradex had arranged for correspondence to be forwarded upon changing their address, this particular letter was never received because it was not addressed to anyone (i.e. Tradex or otherwise);
— The address used for the First Defendant for the purposes of service was inapplicable. The Second Defendant was unaware of any evidence of her ever having lived at 136 Wakefield Street, East Ham, London, E6 1NQ and, to the contrary, it appeared that on release from prison in May 2017 the First Defendant had returned to her parent's address at 200 South End Road, Rainham, Essex RM13 7XT.
7.5 The claim proceeded to a hearing on 14 January 2020 when the claim was transferred for hearing of the preliminary issue sought by the Second Defendant to the County Court Hearing Centre at Central London. On 3 March 2020, the Claimant's solicitors asked the Second Defendant's solicitors to “confirm the correct address for Jessica Cannon”. The Second Defendant's Solicitors replied on 13 March 2020 to confirm that “the only address” they held for Jessica Cannon was 200 South End Road, RM13 7XT.
7.6 On 24 March 2020, the Claimant's solicitors e-mailed the Second Defendant's solicitors to state “Upon discussing with Counsel and due to the procedural errors on this case we have decided to discontinue current proceedings and have re issued fresh proceedings. We have served our notice upon Miss Cannon, Tradex and MIB”. A formal Notice of Discontinuance in the County Court at Central London, dated 25 March 2020, appears in Ms Rothwell's first statement.
Quite why the fundamental errors in the first claim arose has never been explained. By this I contemplate material from the Claimant's representatives going beyond admitting the errors in fact but instead any reasonable explanation, if possible, how they arose. Was it, for example, from misunderstanding, misinformation or other reasons that, despite knowledge of the correct procedure, the procedure adopted was incorrect? Mr Cowley's 23 March 2023 statement does not take matters any where near this far. Having at Para 13 again asserted Tradex as being “the insurers of Miss Cannon's father” (a point I don't follow, given the Defence in the First Claim) he remarks at Para 14 how the claim was discontinued “following receipt of the Defence from Tradex due to a procedural issue relating to service upon Miss Cannon. This discontinuance caused significant professional embarrassment to the firm”.
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The Dekagram 15th May 2023
...(A Protected Party Proceeding By His Litigation Friend Miss Justyna Kosinska) v Miss Jessica Cannon, Motor Insurers' Bureau [2023] EWHC 948 (KB) Under CPR 38.7(1) a Claimant who discontinues a claim needs the permission of the Court to make another claim against the same Defendant in certai......