Philip Smikle v Global Logistics [June 2016] - Walsall County Court

Published 1 julio 2016

The case

With MOJ portal and credit hire interaction currently a hot topic for insurers, DAC Beachcroft's market leading credit hire team has successfully defended a credit hire claim in excess of £37,000.00 due to the actions of the Claimant's representatives whilst the claim was in the portal.

The Claimant's claim entered the MOJ portal in June 2015. A claim was submitted for personal injury and associated losses. However in Section E the Claimant answered the questions as follows:-

1. Does the Claimant require the use of an alternative vehicle? – No 
2. Has the Claimant been provided with the use of an alternative vehicle? – No

The Claimant submitted 3 separate CNFs throughout the life of the claim but all confirmed the information in i) and ii) above. Most importantly, all 3 where signed by the Claimant's representatives endorsed with a statement of truth.

In August 2015 the credit hire organisation ('CHO'), Accident Exchange, wrote to DAC Beachcroft to confirm that there was a credit hire claim and the payment pack was disclosed. DAC Beachcroft wrote to the CHO querying the credit hire claim but no response was received.

The Claimant issued their stage 2 pack in August 2015 and confirmed again that there was no claim for credit hire. The claim was therefore settled in full in the portal. The cheque was sent to the Claimant in 'full and final settlement'.

In January 2016, the Claimant under new representation issued a Part 7 claim for special damages including a claim for credit hire.

After the Defence had been filed and served, DAC Beachcroft made an application for summary judgment on the grounds that the issuing of that claim was an abuse of process because: -

(a) The Claimant was unable to prove need;

(b) The matter had settled in full and final; and

(c) The Low Value Pre-Action Protocol had not been followed.

The hearing

At the hearing, DAC Beachcroft's Counsel directed the Judge to the 3 CNFs on file, which were all signed with a statement of truth.

The payment pack from Accident Exchange was in direct conflict with the information received from the Claimant confirming that no vehicle had been provided and/or needed. Counsel submitted that DAC Beachcroft should be entitled to rely upon the CNFs and further rely upon the signatures of the Claimant's representative.

Counsel also argued that the case had settled in "full and final" and that DAC Beachcroft was right to draw this conclusion given the information provided by the Claimant.

Counsel for the Claimant submitted that it was not an abuse as the credit hire was not a "bolt out of the blue" given that the hire charges were set out in Accident Exchange's letter in August 2015.

DAC Beachcroft's Counsel responded by repeating that whilst it was accepted that the letter from Accident Exchange had been received, it was in fact received after the 3 CNFs had been filed. DAC Beachcroft had responded to that letter but no response had been received. On the basis of the information from the CNFs and the stage 2 pack, DAC Beachcroft was entitled to consider the matter closed.

The Judgment

The Judge agreed that DAC Beachcroft had received on the CNFs "the signature on a statement of truth holding out that is what the evidence is, that is what the case is all about". The Judge went on to confirm that "the Defendant is entitled to rely upon that". The Judge also accepted that had DAC Beachcroft been aware of the substantial hire claim then the conduct of the matter would have been very different. 

The Judge went further to confirm that DAC Beachcroft was "entitled to put reliance on a certificate signed by a solicitor indicating that there was no claim for hire".

The Judge accepted as fact that there was no claim for credit hire (according to the 3 CNFs and the stage 2 pack) that DAC Beachcroft had been made aware of. He also confirmed that he had not received any explanation from the Claimant or his new representatives as to why this issue had arisen. 

The Judge concluded that it was an abuse of process to continue the claim. 

Strategy/Practicalities of the Judgment  

The Judge agreed that DAC Beachcroft were entitled to act upon the CNFs that were filed and signed by either the Claimant and/or the Claimant's representatives.

DAC Beachcroft would recommend the following;

1. As with all credit hire claims that have any interaction with the portal, the CNF must be reviewed carefully.
2. Look at Section E – Does the Claimant confirm he had or needed an alternative vehicle? If the answers are no, then there should be no claim for hire from the Claimant.
3. Look at Section D – Does the Claimant confirm a CHO is dealing with the vehicle damage? If they are, then get the information you need from them right away.
4. If a claim for hire is brought, either; during or after the portal, then write to the CHO and ask why Section E confirms that the Claimant did not have or need an alternative vehicle, ask them to explain. 
5. If no response is forthcoming, any credit hire claim should be resisted.

DAC Beachcroft are currently reporting this Judgment however if you would like to discuss further please conduct Daniel Miller or Emma Fuller.