Mr Sean Phillips (Appellant/Claimant) v Miss Carol Willis (Respondent/Defendant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice Floyd,Lady Justice Macur |
| Judgment Date | 22 March 2016 |
| Neutral Citation | [2016] EWCA Civ 401 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B3/2014/2997 |
| Date | 22 March 2016 |
[2016] EWCA Civ 401
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWCASTLE-UPON-TYNE COMBINED COURT CENTRE
(HIS HONOUR JUDGE FREEDMAN)
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Jackson
Lord Justice Floyd
Lady Justice Macur
B3/2014/2997
Mr Nicholas Bacon QC & Mr Timothy Chelmick (instructed by Winns Solicitors) appeared on behalf of the Appellant
Mr Steven Turner (instructed by Keoghs LLP) appeared on behalf of the Respondent
(Draft for approval)
This judgment is in three parts, namely:
Part 1. Introduction,
Part 2. The facts,
Part 3. The appeal to the Court of Appeal.
Part 1. Introduction
This is an appeal by a claimant against a case management decision in an action where the sum claimed was only £3,486. Despite that circumstance, there is an important issue of principle at stake, which merits an appeal to the Court of Appeal. Approximately 800,000 cases per year are dealt with under the rules which we are being asked to construe.
The issue in this appeal is how the court should deal with low value road traffic accident claims where the personal injury element has been resolved and only a modest dispute about car hire charges remains.
In this judgment, I shall use the following abbreviations: "CPR" means Civil Procedure Rules, "PD" means practice direction, "RTA" means road traffic accident, "CNF" means claim notification form. I shall use the phrase "RTA Protocol" to describe the Pre-action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents, which was in force during the period leading up to 30 July 2013. On 31 July 2013, a different version of that protocol came into force, which does not apply to the present claim.
I must at the outset say something about the changes which were effected at the end of July 2013. The earlier and the later versions of the protocol had important similarities and important differences. The main similarity was that both prescribed fixed costs for cases within their ambit. The important difference was this. Cases which dropped out of the earlier version fell under the general provisions of the small claims track or the multi track or fast track. Cases which dropped out of the later version fell into a newly created fixed costs regime.
The RTA Protocol with which we are concerned sets out the procedure to be followed for all RTA claims involving personal injury, where the damages sought are within specified limits. The procedure comprises three stages. At Stage 1, the claimant submits a CNF with supporting documents and the defendant's insurers respond. If the defendant admits full liability, the case stays within the protocol and proceeds to Stage 2.
The claimant submits a Stage 2 settlement pack, comprising: (1), the Stage 2 settlement pack form; (2), a medical report or reports; (3), evidence of pecuniary losses;(4), evidence of disbursements (for example the cost of any medical report). The defendant then either accepts the claimant's offer or submits a counter-offer by setting out his proposed figures on the Stage 2 settlement pack form. The settlement pack may go back and forth between the parties as each side puts forward revised figures. The Stage 2 process leads, or should lead, to a narrowing of issues. Individual heads of claim may be agreed. Indeed, all heads of claim may be agreed.
Thus it can be seen that the case may settle during either Stage 1 or Stage 2. If the case does settle, the defendant must pay to the claimant the fixed costs figures prescribed. The defendant is not allowed to settle on terms which exclude the fixed costs.
In the absence of any settlement, at the end of Stage 2, the claimant sends to the defendant a court proceedings pack. This pack sets out the claimant's claimed losses, the defendant's responses, and the final offers of both sides. It also includes the evidence that both sides have submitted during Stage 2. The defendant then pays to the claimant the amount of the defendant's final offer together with all fixed costs due up to the end of Stage 2. The case then proceeds to Stage 3, which is litigation.
At this point, Practice Direction 8B takes centre stage. PD 8B requires the claimant to issue proceedings in the County Court under CPR Part 8. The practice direction substantially modifies the Part 8 procedure so as to make it suitable for low value RTA claims where only quantum is in dispute. This modified procedure is designed to minimise the expenditure of further costs and in the process to deliver fairly rough justice. This is justified because the sums in issue are usually small, and it is not appropriate to hold a full blown trial. The evidence which the parties can rely upon at Stage 3 is limited to that which is contained in the court proceedings pack. A court assesses the items of damages which remain in dispute, either on paper or at a single "Stage 3 hearing".
I shall refer to the entire process established by the RTA Protocol and PD 8B as "the RTA process". In the summary which I have given of the RTA process I have omitted reference to the problems which arise if the claimant is a child or if the end of the limitation period is approaching. There are special provisions dealing with those complications, but those provisions are not relevant to the present case. There are provisions dealing with other complications in the protocol, which also are not relevant to the present case and which I pass over.
For present purposes, I shall refer collectively to the provisions of the RTA Protocol, PD 8B and CPR Part 8 as modified by PD 8B as "the rules". It is important to note that the RTA process has an inexorable character. If a case falls within the parameters of the RTA process, the parties must take the designated steps or accept the consequences. The rules specify what those consequences are. The rules also specify when a case must remain in the RTA process, when it must drop out of the process, and when it may drop out of the process.
The provision which is of particular importance to the present case is section 7 of PD 8B. This relates to Stage 3 of the process. It provides:
"7.1. The parties may not rely upon evidence unless —
(1) it has been served in accordance with paragraph 6.4;
(2) it has been filed in accordance with paragraph 8.2 and 11.3; or
(3) (where the court considers that it cannot properly determine the claim without it), the court orders otherwise and gives directions.
7.2. Where the court considers that —
(1) further evidence must be provided by any party; and
(2) the claim is not suitable to continue under the Stage 3 procedure,
the court will order that the claim will continue under Part 7, allocate the claim to a track and give directions.
7.3. Where paragraph 7.2 applies the court will not allow stage 3 fixed costs."
Having summarised the relevant rules, I must now turn to the facts.
Part 2. The facts
On 28 June 2013, a car driven by the defendant pulled out of a side road and collided with a Vauxhall Astra car driven by the claimant. The Astra was damaged beyond repair and the claimant sustained personal injuries, principally whiplash. If the claimant wished to make a claim in respect of these matters, he was obliged to, and did, proceed under the RTA Protocol.
On 29 June 2013, the claimant hired an alternative car, namely a Vauxhall Corsa, from a company called On Hire Limited. On 1 July 2013, the claimant's solicitors submitted a CNF to the defendant's insurers, claiming both general and special damages. On 15 July 2013, the defendant's insurers acknowledged the claim and admitted liability. On 23 July, the defendant's insurer paid to claimant the full value of the Astra which had been written off. The claimant then terminated his car hire arrangement with effect from 30 July 2013.
On 10 September 2013, the claimant submitted the Stage 2 settlement pack to the defendant's insurers. The three specified heads of damages were as follows. Hire charges £3,486; physiotherapy treatment £571; general damages £2,500. Details of the period of hire, the rate of hire and all associated costs were attached to the Stage 2 settlement pack. On 24 September 2013, the defendant's insurers responded to the Stage 2 settlement pack. The claims for treatment and general damages for personal injury were agreed. An offer of £2,334 was made in respect of car hire. Thereafter, exchanges continued between the parties in accordance with Stage 2 of the RTA process, but no settlement was achieved.
On 29 January 2014, the claimant moved to Stage 3 of the process by issuing a claim form under CPR Part 8 in the Gateshead County Court. The claim form stated that the claimant required an oral hearing, rather than a paper determination of quantum of damages. On 7 March 2014 the court notified the parties that the hearing of the assessment of damages would be on 9 April 2014.
On 9 April 2014, counsel for both parties duly attended court, ready to argue the quantum issues. Events then took an unexpected course. District Judge Howard was presiding. He informed the parties that since the only issue between them was the proper amount of car hire charges, the action would proceed under CPR Part 7 on the small claims track. He made an order to that effect and fixed a fresh hearing date of 12 June 2014. He also gave directions, to which I shall return later in this...
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...Book as constituting a “special and limited court procedure”. The judge noted the description by Jackson LJ in Phillips v Willis [2016] EWCA Civ. 401 that this “modified procedure is designed to minimise the expenditure of further costs and in the process deliver fairly rough justice. This......
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