Eui Ltd (t/a Admiral) v Vaughn Smith

Hearing date: 14 October 2024

Approved Judgment

This is an appeal against the refusal of an application to strike out a Part 20 claim or to enter reverse summary judgment against the Part 20 claimant under CPR Part 24. There is also an application by the respondent for permission to re-amend the Part 20 Particulars of Claim.

The appellant is Mr Vaughn Smith (“Mr Smith”), who prepared a report dated 29 August 2018 (“the Report”) which stated, among other things, that a motorcycle (“the Motorcycle”), which had been involved in an accident on 17 August 2018, was “Beyond Economical Repair”. The Motorcycle was a Honda SH125 model, with a relatively small 125cc engine. Photographs in the papers show that it was shaped like a scooter, with a floorboard for the driver's feet to rest on.

The motorcyclist (Mr de Souza) in September 2019 sued the driver said to be responsible for the accident (Mr Claydon). Mr Claydon was the First Defendant. The motorcyclist also sued the insurers of the Mr Claydon's car (the Second and Third Defendants). Of those, the only one I am concerned with is the Third Defendant, EUI Ltd, which was successful in resisting the applications in the court below and is now the respondent to this appeal (“EUI”).

EUI brought a Part 20 claim against Mr Smith in March 2022. The Part 20 Claim Form said that the Report was “dishonest”. The case was pleaded in a single document entitled “Amended Counterclaim / Part 20 Particulars of Claim” dated 8 March 2022 (“the Part 20 Particulars of Claim”). The Part 20 Particulars of Claim allege that the contact between the driver and the Motorcycle and its rider was “benign and glancing in nature”, the driver “remaining upright and in control” after the car had pulled out from a parked position. They say that the Motorcycle “suffered no significant damage” and remained “driveable”. They allege that the Report was “created dishonestly, with the intention that the scooter be declared undriveable even though it was driveable”. They claim against Mr Smith for “the tort of deceit” and for “the tort of unlawful means conspiracy” with the motorcyclist.

Mr Smith applied on 21 June 2022 to strike out the Part 20 claim against him pursuant to CPR 3.4 and further or alternatively for summary judgment against EUI under CPR Part 24. That application was heard by His Honour Judge Saunders in the County Court at Central London on 7 December 2022. In a reserved judgment on 20 April 2023 (“the Judgment”), he dismissed both applications. By an Appellant's Notice dated 6 June 2023, Mr Smith appealed. On 18 January 2024, Mr Justice Martin Spencer refused permission to appeal, giving detailed reasons. Mr Smith renewed his application for permission at an oral hearing before Mr Justice Mould who granted the application and gave permission to appeal on 20 March 2024. On 12 August 2024, EUI filed an application to amend the Part 20 Particulars of Claim which, like the appeal, has come before me.

Mr Smith's efforts (so far unsuccessful) to get rid of the claims against him at the outset have meant that there has been no progress beyond the pleadings stage. There has been no mutual or full disclosure and no exchange of witness statements. No directions have been given towards a trial of the Part 20 proceedings, which are now the only proceedings in this matter.

The Report

Mr Smith's Report was on a two-page form, which he had completed with various details in order to constitute the Report.

The Report was headed: “Evans Harding Engineers (CG) Ltd”, and subtitled “Consulting engineers & claims assessors”, “Theft & claims investigation service”. It was signed by Mr Smith in his own name.

On an additional sheet which went with the Report, Mr Smith completed an “Expert's declaration” which said that he understood that his duty “in providing written reports and giving evidence is to help the Court” and that he understood that “My report will form evidence to be given under oath or affirmation”. It referred to the “Protocol for Instruction of Experts to give Evidence in Civil Claims” in CPR Part 35.

The Report was addressed to “Professional and Legal Services Ltd” (“PALS”).

The Report stated as follows:

i) The “Accident Date” was given as 17 August 2018. The “Inspection Date” was given as 29 August 2018 (and the Report was typed the same day).

ii) Mr de Souza (the driver of the Motorcycle) was identified as the “Insured” and his Motorcycle (the subject of the Report) was identified by make, model, registration number, colour and other details.

iii) “General Condition” was entered as “Beyond Economical Repair”.

iv) Pre-Accident Value was given as £615. This was based on Glass's Guide and took account of three incidents of “Total Loss”, dated in 2013, 2016 and 2017 respectively.

v) “Pre-Accident Damage” was noted as “Scratches Off Side”.

vi) “Impact Severity” was noted as “Moderate”. “Impact Location” was noted as “To The Near Side”. A birds-eye view of a generic motorcycle showed four diagonal arrows pointing to that side, along the whole length of the saddle (about two thirds of the length of the generic motorcycle illustrated).

vii) Static checks were recorded as: steering “Satisfactory”, brakes “Satisfactory” and “Roadworthy: Undriveable”.

viii) The Report form included space for the listing of “New Materials”, “Repairs” and “Specialist Charges”. The only section completed was for “New Materials” into which Mr Smith had inserted seven items, as follows:

a) Centre Stand.

b) NS Belly Pan (i.e. near-side belly pan).

c) NSR Seat Fairing (i.e. near-side rear seat fairing).

d) NS Engine Case (i.e. near-side engine case).

e) Engine Case Gaskets.

f) NS Pannier (i.e. near-side pannier).

g) Air Box.

ix) Under the heading “Estimated costs”, Mr Smith entered £315 for “Estimated Labour” and £470 for “Estimated Parts”, making an “Estimated Total” of £785, and leading to a figure for “Repair Inc. Vat” of £942.

x) The Report then stated “This vehicle has been found to be: Beyond Economical Repair.”

xi) The Report, finally, stated a Pre-Accident Value (PAV) of £615, a salvage value of £10 and a settlement figure of £605.

xii) Mr Smith signed the Report with his name and the post-nominal letters Aff.I.M.I. (Affiliate Member of the Institute of the Motor Industry) which I was told in argument is a form of membership open to all-comers, regardless of qualifications.

The original proceedings

The motorcyclist's claim against the driver began with a Claim Form dated 12 November 2019. An order of the court on 29 July 2020 both joined EUI to the proceedings as Third Defendant and gave leave to the motorcyclist to amend his Particulars of Claim.

His Amended Particulars of Claim dated 12 August 2020 referred to the accident on 17 August 2018, and claimed:

“for damage sustained to their vehicle as particularised in the engineering evidence attached hereto”.

The evidence attached was the Report. The Amended Particulars of Claim continued:

“The damage to the Claimant's vehicle was estimated at £942.00 and the vehicle was unroadworthy as a result. The Claimant's vehicle was deemed to be uneconomical to repair and so was written off with a net pre-accident value of £605.000”.

Those details were supported, as summarised above, by the Report.

The Amended Particulars of Claim then claimed special damages. The lion's share of these consisted of credit-hire charges of over £89,000, which continued indefinitely because of the motorcyclist's position (supported by the Report) that the Motorcycle was undriveable and beyond economic repair. The motorcyclist's case was that he could not afford to do without a motorcycle (because he worked as a courier) and was “impecunious as to the payment of the cost of repair or replacement of his motorcycle”. His claim for special damages was as follows:

“PARTICULARS OF SPECIAL DAMAGES

Hire £89,876.72

Recovery and Storage £923.00

Pre-accident value £605.00

Damaged top box £50.00

Miscellaneous Expenses £50.00

Please see attached Engineers report dated 29 August 2018.”

The attached “Engineers report dated 29 August 2018” was the Report of Mr Smith already referred to.

The claimant was given leave to rely on Mr Smith's expert evidence, in the form of his Report, by order dated 2 October 2020.

Having been newly joined as Third Defendant, EUI filed a Defence and Counterclaim on 1 September 2020. It did not admit Mr Smith's Report and added “The Claimant is required to disclose all photographs of the moped”. Those photographs were eventually disclosed on 14 January 2021.

On 29 January 2021, the motorcyclist updated his Schedule of Loss, dropping the claim for “Recovery and Storage £923”, but maintaining the claims for hire (£89,876.72), Pre-accident value (£605), Damaged top box (£50) and Miscellaneous Expenses (£50).

On 12 February 2021, EUI served a Counter Schedule which accused both the motorcyclist and Mr Smith of fraud. At paras 3–7, the Counter Schedule said:

“3. As set out herein, the Claimant's claim is a fraud – committed either by the Claimant, or his instructed expert, or both. There is no...