London Borough of Islington v Said Bourous
| Jurisdiction | England & Wales |
| Judge | Lady Justice Elisabeth Laing,Nicola Davies LJ,Sir Andrew McFarlane P |
| Judgment Date | 16 September 2022 |
| Neutral Citation | [2022] EWCA Civ 1242 |
| Docket Number | Case Nos: CA-2021-000483 and CA-2021-000614 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 1242
Sir Andrew McFarlane, PRESIDENT OF THE FAMILY DIVISION
Lady Justice Nicola Davies
and
Lady Justice Elisabeth Laing
Case Nos: CA-2021-000483 and CA-2021-000614
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM:
HHJ Hellman in Case No: G00ED857; and
HHJ Sykes in Case No: F05BI456
Royal Courts of Justice
Strand, London, WC2A 2LL
Dominic Bright (instructed by Islington Legal Services) for the (1) Appellant
Montclare Campbell (instructed by Advantage Solicitors Limited) for the (1) Respondent and
Jamie Carpenter QC and David Fardy (instructed by DAC Beachcroft Claims Ltd) for the (2) Appellant
Benjamin Williams QC and Shannon Eastwood (instructed by Bond Turner) for the (2) Respondent
Hearing dates: 21 and 22 June 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and released to The National Archives. The date and time for hand-down is deemed to be 10.30am on 16 September 2022.
Introduction
These two appeals have been joined because they raise similar issues. The claimant in each case is a taxi driver who was injured in a traffic accident. Each made a claim under the Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (‘the RTA Protocol’). Each succeeded in the county court. The issue concerns the circumstances in which a claimant who makes a claim under the RTA Protocol for personal injuries can recover for damages to reflect the losses he suffers because the vehicle he uses to earn his living was damaged or written off, and he could not use it until it had been repaired or replaced. The Appellants in both cases (who were the defendants in the county court) are, in effect, the insurers.
Both Appellants suggest that their appeals raise points of wide importance about the scope and interpretation of the RTA Protocol. For the reasons I give below I disagree. I consider, on the contrary, that each appeal turns on what, in the framework of the RTA Protocol, was actually in issue in each claim at the Stage 3 hearing before the Deputy District Judges and before the Circuit Judges who heard the appeals from decisions of the Deputy District Judges.
I will refer to London Borough of Islington v Bourous as ‘appeal 1’. I will refer to the parties in appeal 1 as ‘A1’ (London Borough of Islington) and ‘R1’ (Mr Bourous). I will refer to Davis v Yousaf as ‘appeal 2’. I will refer to the parties in appeal 2 as ‘A2’ (Ms Davis) and ‘R2’ (Mr Yousaf).
In appeal 1, A1 was represented by Mr Bright, and R1 by Mr Campbell. In appeal 2, A2 was represented by Mr Carpenter QC and Mr Fardy. R2 was represented by Mr Williams QC and Mr Eastwood. I thank counsel for their written and oral submissions.
Paragraph references are to the RTA Protocol, the relevant judgment below, or to the relevant authority, unless I say otherwise.
It may be easier for the reader to understand the issues and the arguments if I start by summarising the RTA Protocol and the relevant authorities. I will then summarise the litigation in each case which has led to these appeals. I will then consider the issues on these appeals in order to decide, in each case, whether the appeal should succeed or not.
A summary of the relevant provisions of the RTA Protocol as it applied at the relevant times
The version of the RTA Protocol which applied in these cases applied to all relevant claims issued on or after 31 July 2013. It had to be used in all claims which arose from a road traffic accident, and which included a claim for damages for personal injury, and which the claimant valued at less than £25,000, and for which the small claims track would not have been the normal track if proceedings were issued (paragraphs 1.2(1) and 4.1). Damages claimed in relation to a vehicle (including credit hire charges) did not count towards the £25,000 total (paragraphs 1.1(18) and 1.4 of the RTA Protocol).
At the relevant times, the most a claimant could claim in the small claims track as damages for personal injury was £1000, with an overall limit of £10, 000 (CPR 26.6(1)(a)). The claim limit for the fast track was £25, 000 (CPR 26.6(4)(b)(i)). The RTA Protocol therefore covered what would otherwise have been fast-track claims. Paragraph 6.4 (see paragraph 12, below) acknowledges an expectation that claims for vehicle-related damages will be deal with outside the RTA Protocol; but claimants were entitled to bring them under the RTA Protocol. In the rest of this section of the judgment I will use the present tense when describing the relevant provisions of the RTA Protocol, but the reader must bear in mind that I am not describing its current provisions.
Paragraph 3.1 of the RTA Protocol states its aims. They are to ensure that the defendant pays damages and costs without the need for a claimant to start proceedings, to ensure damages are paid within a reasonable time, and to limit the claimant's recoverable costs to the costs fixed for each stage. R2 submits, further, that the process is designed to deal with a large volume of low value cases quickly, at proportionate cost, and with limited court resources, in accordance with the overriding objective.
Paragraph 5.1 provides that where the RTA Protocol requires information to be sent to a party, it must be sent via the relevant Portal, and that communications not required by the RTA Protocol should be by email.
Section III of the RTA Protocol is headed ‘The Stages of the Process’. Paragraphs 6.1–6.19B deal with Stage 1. Stage 1 begins when the claimant sends a completed Claim Notification Form (‘CNF’) to the defendant's insurer and a ‘Defendant Only CNF’ to the defendant. The claimant must complete all the boxes marked ‘Mandatory’ before sending the CNF. The claimant must also make a ‘reasonable attempt to complete the other boxes’ (paragraph 6.3).
Paragraph 6.4 provides that a claim for ‘vehicle-related damages will ordinarily be dealt with outside the provisions of [the RTA Protocol] under industry agreements between relevant organisations and insurers’. ‘Vehicle-related damages’ are defined in paragraph 1.1(18) as including damages for vehicle hire. Where there is a claim for such damages, the claimant must state in the CNF that the claim is being dealt with by a third party, or explain in the CNF that the legal representative is dealing with their recovery and attach any relevant invoices and receipts to the CNF, or explain when they are likely to be sent to the defendant.
If the defendant decides that inadequate mandatory information has been provided in the CNF, that is a valid reason for the defendant to decide that the claim should no longer continue in the RTA Protocol (paragraph 6.8(1)).
The defendant must complete the ‘Insurer Response’ section of the CNF within 15 days (paragraph 6.12). Paragraph 6.15 provides for other circumstances in which the claim will not proceed in the RTA Protocol. They include where the defendant makes an admission of liability but alleges contributory negligence (other than a failure to wear a seatbelt), the defendant does not complete or send a CNF response, the defendant does not admit liability, or notifies the claimant of its view that there is inadequate mandatory information in the CNF or that if proceedings were issued, the small claims track would be the right track for the claim.
The defendant must, in general, pay the Stage 1 fixed costs where it admits liability (or alleges contributory negligence, but only in relation to a failure to wear a seatbelt) (paragraph 6.18).
Paragraphs 7.1–7.76 are headed ‘Stage 2’. Paragraphs 7.1–7.8B make prescriptive provision about medical reports, and paragraph 7.9 for other expert reports. Paragraph 7.10 deals with specialist legal advice, where that is ‘reasonably required to value the claim’.
In general, claimants are not expected to prepare a witness statement. ‘One or more statements may, however, be provided where reasonably necessary to value the claim’ (paragraph 7.11).
Paragraphs 7.13–7.23 deal with interim payments. Paragraph 7.23 repeats that claims for vehicle-related damages ‘will ordinarily be dealt with outside the provisions of [the RTA Protocol] under industry agreements between relevant organisations and insurers. However, where the claimant has paid for the vehicle-related damages, the sum may be included in a request for an interim payment under paragraph 7.16’. The defendant must pay something, in accordance with paragraph 7.19(1), ( 2), or (3), within 15 days of receiving the Interim Payment Settlement Pack. Paragraphs 7.28–7.30 deal with disputes about interim payments.
Paragraph 7.32 prescribes the contents of the ‘Stage 2 Settlement Pack Form’ (‘the SP’) which paragraph 7.33 requires the claimant to send to the defendant. It must contain ‘evidence of pecuniary losses’. Paragraph 7.32 does not say expressly that the SP must contain an offer by the claimant, but this is clearly implied by paragraphs 7.34 and 7.38.
Paragraph 7.35 gives the defendant 35 days to consider the SP, made up of 15 days in which the defendant considers the SP and makes an offer (‘the initial consideration period’ – ‘period 1’) and 20 days for negotiation (‘period 2’). The parties can extend both periods by agreement. Paragraph 7.37 provides in certain circumstances for the 35-day period to be extended by five days, referred to as the ‘further consideration period’ (‘period 3’).
In period 1, the defendant must either accept the offer made by the claimant in the SP form, or make a counter-offer using that form (paragraph 7.38). In the counter-offer, the defendant must...
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