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Shannon Eastwood successful in a Court of Appeal case

Shannon Eastwood successfully appeared on behalf of the Respondent in the Court of Appeal case of Davis v Yousaf [2022] EWCA Civ 1242 lead by Benjamin Williams QC. A full copy of the judgment is available here. The Court confirm three important points of principle that will affect thousands of stage 3 cases every year:

  • At a stage 3 hearing a defendant cannot object to a particular head of damages except on grounds raised in the Stage 2 settlement pack [see paragraph 7.66 of the RTA Protocol and paragraph 147 of the judgment]. So, for example, if the defendant makes an offer in respect of hire charges and fails to challenge the claimant’s ’need’ for hire then it is equivalent to saying that the claimant does not have to formally prove need.
  • A claimant who alleges that they are impecunious in support of a claim for credit hire charges does not have to give standard disclosure of all their financial documents as you would expect in Part 7 proceedings [see paragraph 151 of the judgment]. It is simply not feasible to do so in the Stage 3 process and if the Defendant wishes to investigate the point further then it is incumbent upon them to seek a transfer to Part 7 proceedings at an appropriate time before the hearing.
  • Any request by the Defendant to exit the Stage 3 procedure should be made promptly upon receipt of the stage 3 proceedings before a stage 3 hearing in accordance with paragraph 7.2 of PD 8B or CPR 8.1(3). Although the commentary of the White Book about the case of Phillips v Willis [2019] EWCA Civ is incorrect [Jackson LJ did not say, or imply, that transfer into Part 7 was for rare and exceptional cases only] the reasoning of that decision still remains valid; the District Judge’s decision in Phillips to transfer the case to Part 7 for further evidence was ‘irrational’ in the circumstances of that case and that the Judge did not have power to unilaterally transfer the case from the RTA Protocol to Part 7 on the court’s own initiative. From the case of Phillips, however, the Court of Appeal also reiterated ten general points about the RTA Protocol which may be significant to any request to transfer to Part 7 proceedings [see paragraph 42 of this judgment]:
  1. Stage 2 leads, or should lead, to a narrowing of the issues;
  2. PD 8B ‘substantially modifies the Part 8 procedure so as to make it suitable for low value RTA claims where only quantum is in dispute’;
  3. That procedure is designed to minimise costs;
  4. It delivers ‘fairly rough justice’;
  5. That is justified because the sums are small and a ‘full-blown trial’ is not appropriate;
  6. The evidence the parties can rely on at Stage 3 is limited to what is in the Court Proceedings Pack;
  7. The RTA Protocol has ‘an inexorable character’. If a case is in it, the parties ‘follow the designated steps or accept the consequences’;
  8. The rules specify when a claim stays in the RTA Protocol and when it may or must drop out;
  9. The costs which District Judge imposed on the parties were ‘totally disproportionate to the sum at stake’; and
  10. The RTA Protocol is ‘carefully designed to whittle down the disputes between the parties as the case passes through the various stages. By Stage 3, the amount in dispute should be much smaller than it is at Stage 1.

In practice, the circumstances in which cases may be transferred out of the Protocol process to Part 7 proceedings will be of increasing significance in the future following the introduction of the Official Injury Claim Portal as part of the whiplash reforms contained in the Civil Liability Act 2018 and Whiplash Injury Regulations 2021. As ever, members of Atlantic Chambers will continue to be available to help navigate solicitors through these reforms and deal with any points of law that arise from their implementation. ”

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