Mr Joshua Parker v Skyfire Insurance Company Ltd
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Dias DBE |
| Judgment Date | 03 May 2024 |
| Neutral Citation | [2024] EWHC 1060 (KB) |
| Court | King's Bench Division |
| Docket Number | Claim No: 031DC643 |
and
[2024] EWHC 1060 (KB)
Mrs Justice Dias
Claim No: 031DC643
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
LIVERPOOL DISTRICT REGISTRY
ON APPEAL FROM THE COUNTY COURT
Mr Mark Roberts (instructed by DWF Law LLP) for the Appellant
Mr Stuart Nicol (instructed on a direct access basis) for the 1 st Respondent
Mr Marc Willems KC (instructed by DGM Solicitors) for the 2 nd Respondent
Hearing date: 30 April 2024
The Honourable
This is an appeal from an order of Mr Recorder Michael Smith sitting in the County Court at Liverpool on 25 September 2023 refusing an application by the Defendant (“Skyfire”) for non-party disclosure under CPR Part 31.17.
Background
The facts giving rise to the application are as follows.
The underlying claim arises out of a road traffic accident which occurred on 5 December 2021. It is one of what I understand to be many cases involving what insurers have labelled as “Google-spoofing”. Following the accident, the Claimant, Mr Parker, immediately attempted to notify his insurers, Hastings, of the accident. He Googled their name and rang the first number in the list of search results. Unbeknownst to him, he was in fact speaking to a claims management company which told him that he would be put in touch with a hire company who would arrange for his car to be repaired. His car was then collected from his home later that same day. On the following Monday, he was called by the First Respondent (“Spectra”) who told him that they could provide him with a hire car and also sort out the damage to his own car.
In due course he was sent a number of documents by Spectra. These included:
i) A short-term rental agreement for a maximum of 89 days on Spectra's letterhead and displaying its contact details and company registration. There was an express acknowledgement in the signature box that the hirer was agreeing to hire the vehicle on the terms and conditions contained in the agreement. Clause 5 of those conditions (which applied where the hire was necessitated by damage to the hirer's own car in a road traffic accident) contained an undertaking by the hirer to pay the hire charges either at the conclusion of any action against the third party alleged responsible for the accident or in any event within 11 months of the date of the agreement;
ii) A Form of Authority authorising Spectra to recover all uninsured losses arising from the accident and to appoint a solicitor on behalf of the hirer;
iii) A Mitigation Questionnaire in which the hirer acknowledged that the hire vehicle was not free, and that it was being provided on a credit hire basis;
iv) A sheet of FAQs identifying the hire company as Spectra Drive Limited and expressly clarifying that Spectra was not the hirer's insurance company or part of or acting on behalf of the hirer's insurers. It also stated that the hirer was legally liable for the charges incurred in hiring the vehicle but that Spectra would recover these from the third party. It continued, “We will not ask you to pay the charges provided you have complied with the terms of the agreement and cooperated with us or any solicitor you instruct, throughout your claim.”
Mr Parker signed all these documents by Docusign on 7 December 2021. He also signed a series of further hire agreements at roughly three month intervals but no separate point arises in relation to those subsequent agreements.
In this action Mr Parker seeks to recover his losses arising out of the accident, including the credit hire charges and other storage and recovery fees incurred under the agreements with Spectra. Other aspects of his claim have now been settled by Skyfire with the result that these are the only outstanding matters.
Skyfire objects to the claim for credit hire charges on a number of grounds, which for present purposes include enforceability of the credit hire contract. Skyfire strongly suspects that in the course of Spectra's discussions with Mr Parker, some misrepresentation was made, whether as to any association between Spectra and Mr Parker's own insurers, or as to the circumstances in which Mr Parker might or might not himself be called upon to pay the charges under the agreement. Its argument is that if any misrepresentation were made, the agreement would be voidable for misrepresentation and that if Mr Parker were to avoid it, he would not be under any subsisting liability to pay the credit hire charges and would not have suffered any corresponding loss. Skyfire would accordingly be relieved pro tanto of any obligation to indemnify him.
However, it is unable to advance any positive case to this effect without sight of the recordings of the conversations between Mr Parker and Spectra. It has accordingly brought this application against Spectra for non-party disclosure of “the recordings of all calls between Mr Joshua Parker and Spectra in relation to the accident, vehicle damage and replacement vehicle…” Meanwhile, its Defence and Counter Schedule of Loss simply puts Mr Parker to proof that he signed an enforceable agreement with Spectra and as to the representations made to him regarding the terms of payment.
Part 31.17
CPR Part 31.17 provides in material part as follows:
“(1) This rule applies where an application is made to the court under any Act for disclosure by a person who is not a party to the proceedings.
(2) The application must be supported by evidence.
(3) The court may make an order under this rule only where—
(a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and
(b) disclosure is necessary in order to dispose fairly of the claim or to save costs. …”
It is common ground that Part 31.17(3) sets out the threshold conditions which must be satisfied before any order can be made but that even if those conditions are met, the court has an overarching discretion whether to grant the order or not. In other words, satisfying Part 31.17(3) is a necessary but not sufficient condition of obtaining relief.
It was also not seriously in dispute that an order for non-party disclosure is to be regarded as the exception rather than the rule: see Rowe v Fryers, [2003] EWCA Civ. 655 at [10].
The judgment under appeal
The application for non-party disclosure came before the Recorder on 25 September 2023 and was opposed by both Spectra and Mr Parker on the grounds that:
i) Disclosure was not necessary in the circumstances of the case;
ii) There had been delay in bringing the application;
iii) It would be disproportionate to require Spectra to search for all recordings over the entire lifetime of its relationship with Mr Parker;
iv) On a proper analysis of the law, no useful purpose would be served by ordering the disclosure because it would take Skyfire nowhere.
In his judgment, the Recorder correctly recognised that he was required to consider first whether the threshold conditions in Part 31.17 had been satisfied before proceeding to exercise his discretion based on a consideration of all the circumstances in the case.
His conclusions were as follows:
i) He accepted that the question of enforceability and misrepresentation was a pleaded issue to which the disclosure was relevant.
ii) With some hesitation, he also accepted that the documents were necessary in order for Skyfire properly and fairly to advance the case it wished to make since, without the disclosure, its counsel would only be able to cross-examine Mr Parker on a purely speculative basis.
iii) It would not be unduly difficult to search for the recordings and it would not therefore be disproportionate to require disclosure to be made.
iv) Skyfire could justifiably be criticised for having delayed in bringing the application, with the result that granting the order would inevitably lead to vacation of the trial date. However, the credit hire charges were the key issue remaining in the case and the sum at stake was substantial. If disclosure was otherwise justified on the grounds of necessity, delay would not itself be a reason to refuse an order. There was no real prejudice to Mr Parker in vacating the trial since he had not been called upon to pay the charges himself and was not being kept out of any other damages to which he was entitled.
v) However, even if the disclosure demonstrated unequivocally that there had been a misrepresentation, Skyfire's defence could still not succeed because the contract between Mr Parker and Spectra remained valid and enforceable until such time as Mr Parker chose to avoid it. There was no indication that he intended to do so and on the authority of Irving v Morgan Sindall plc, [2018] EWHC 1147 (QB) he would be entitled to recover even if his liability under the contract was contingent upon his recovering damages from Skyfire. Accordingly no useful purpose would be served by making an order.
Grounds of appeal
In its Appeal Notice, Skyfire asserts that the Recorder's reasoning discloses an error of law and/or that his conclusion was perverse. More specifically, it asserts that:
i) The Recorder wrongly interpreted Irving v Morgan Sindall plc (supra) as precluding Skyfire from raising an argument as to misrepresentation;
ii) It was inconsistent for the Recorder to suggest that, despite satisfying the threshold provisions of Part 31.17, disclosure would nonetheless serve no useful purpose;
iii) The conclusion that no useful purpose would be served was in any event perverse since it was based on an assumption that the contract with Spectra would be confirmed by Mr Parker when there was no direct evidence from him to this effect, only indirect hearsay...
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