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If you accept nothing expect nothing

Lubhaya v Stanley (2014)
12/2/14
Bedford County Court

Where a Claimant had included a claim for vehicle related losses within the stage 2 settlement pack, the parties were bound to deal with the same within the Portal. Where a reasoned offer of zero was then made by the Defendant for a credit hire claim, which was supplemented with a request for further evidence, by accepting the offer the Claimant, was bound by offer and acceptance and there was a concluded agreement. Adam Skelland reviews the judgment in his case of Lubhaya v Stanley (2014) which will be of interest to all those dealing with MoJ Portal cases.

Background

The Portal process has been an integral part of the claims arena for sometime and will be familiar to many, but the process still generates a great deal of confusion and friction. When a matter enters stage 2 of the process, the claimants solicitors send a stage 2 settlement pack to the defendant, together with any medical reports and evidence of special damages along with an offer in settlement. The defendant will then submit a reply, either agreeing the heads of claim as claimed or proposing a counter offer, the defendant will make comments on each head of claim to explain any deductions.

Claims for repair costs, the pre-accident value of a vehicle, storage and recovery charges and hire charges are termed Additional Vehicle Claims by paragraph 7.23 of the Pre-Action Protocol for Low Value RTA claims The Pre-Action Protocol also states that these claims may be dealt with outside the portal process, in line with pre-existing agreements and processes e.g. the ABI GTA for credit hire claims.

 In Lubhaya v Stanley, the Defendant, through his insurers admitted liability after a CNF was submitted to them via the MOJ Portal. The matter then proceeded to stage 2 of the process where the Claimant submitted medical evidence, together with claims for the pre-accident value of his vehicle, treatment charges, credit hire charges and storage charges.

Facts

Prior to the stage 2 settlement pack being submitted, the parties had been dealing with the vehicle related claims, outside of the portal. During the course of investigating the hire claim it was discovered that vehicle provided to the Claimant was not insured for use as a hire vehicle. Indeed, the insurance specifically excluded self-drive hire vehicles and the Defendants insurer maintained no offers would be made for hire on the basis of illegality, referring to the case of Agheampong v Allied Manufacturing (London) Ltd (2008). When the stage 2 settlement pack was submitted to the Defendants insurer, the claim for hire charges in the sum of £9,120.00 was included.

When the stage 2 response was sent to the Claimants solicitors, an offer of zero was made in respect of the hire claim and the Defendants insurers maintained their stance regarding recoverability. The other heads of claim were accepted. The Claimant then sent their acceptance of the Defendants insurers offer via the portal. A cheque for the damages, together with the relevant costs and disbursements was then paid by the Defendants insurers.

The Claimants solicitors issued Part 7 proceedings for the hire charges in the sum of £9,120.00 and we were instructed to act for the Defendant. A defence was filed pleading offer and acceptance via the Portal and arguing that the proceedings amounted to an abuse of process. In the alternative, the Defendant argued that the hire claim was ex turpi causa, based on illegality in accordance with Agheampong.

Findings

Dismissing the case, District Judge Falvey sitting in Bedford County Court on 12 February held that there had been a valid concluded agreement within the Portal for the hire charges:

  • The Defendant had made a valid zero offer and had set out the reasons for doing so.

  • The court rejected the Claimant’s submission that the hire claim was running collaterally to the claims submitted in the Portal.

  • The Court accepted the Defendant’s submission that if a claim is brought within the Portal, then it is bound by the Portal rules.

  • The Court rejected the Claimant’s submission that the hire claim fell under the “other vehicle related claims” section of the pre-action protocol as the hire claim was presented within the stage 2 settlement pack.

  • The Judge rejected that there had been a genuine mistake; the Claimant had accepted the Defendant’s offer.

Comment

  • Once a head of loss has been included within the stage 2 settlement pack, then it is subject to the Portal process.

  • Defendants are at liberty to offer zero in respect of a head of loss advanced at stage 2, and that would apply to any head of loss, not just claims for credit hire.

  • An offer made at stage two will usually encapsulate all the heads of loss claimed and subsequent acceptance will mean that there is a concluded agreement in respect of those heads of loss.

  • Readers  dealing with portal claims may also find assistance in the case of Akhtar v Boland (2014) and may want to read our analysis on our recent article The benefit of making admissions. 

Contact

For further information please contact Adam Skelland on 0151 907 3211 or at adam.skelland@dwf.co.uk

By Adam Skelland

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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