A reminder of the application of the Part 36 rules – Judicial reading time does not indicate the start of a trial.

Mate v Mate & Ors [2023] EWHC 806 (Ch)

Several issues in respect of Part 36 rules were considered in the judgment of Andrew Sutcliffe KC. The judgment deals with valid service of a Part 36 offer, the timing when an offer is deemed to be made, and the application of the cost consequences.

The first issue in the case was whether the offer made was a valid one, given that the offer was not served on all Defendants. The judge said the following:

“There is nothing in CPR Part 36 which requires a claimant to serve a Part 36 offer on all the defendants. There was nothing to prevent D2 and D3 from accepting the Claimant’s Offer in full and final settlement of her claim and thereafter seeking a contribution from D1 (if they considered themselves so entitled) in respect of the judgment sum and/or costs.”

The second issue was whether or not the offer was made in time for the provisions of r.36.17(4) to apply. This all depended on whether the trial date was deemed to have started on the first day that the case was listed for judicial reading, or whether it in fact started the following day. The judge decided the following:

“In my view the trial started on the day all parties were required by the notice to attend court. The fact that, in advance of the trial, trial bundles and skeleton arguments were prepared and lodged and that provision was made for a day’s judicial reading does not override the clear terms of the notice given to the parties.”

Lastly, it was the position of D2 and D3 that none of the consequences of r.36.17(4) should be visited upon them on the basis that it would be unjust for the court to do so. They cited a number of reasons for this, including the time the offer was made, ambiguity of terms, and the potential difficulties in considering the offer. The judge was not satisfied with any of the points raised by D2 and D3 and made an award of enhanced interest of 8% over base, and the Judge considers the arguments put forward in paragraph 55 of the judgment.

The full judgment can be accessed here.

Pre-action disclosure in potential credit hire claims – application dismissed on this occasion, but a potential routes for insurers to succeed.

Holt v Allianz Insurance Plc [2023] EWHC 790 (KB)

This judgment deals with an application for pre-action disclosure in relation to the issues of impecuniosity in a potential credit hire claim.

The credit hire company used by the Mr Holt presented a written claim to Allianz with a demand for payment in respect of its credit hire charge for that hire period. Proceedings were threatened if payment in full was not received “by return“.

Allianz responded with evidence that it said showed a going rate at the time, to hire an equivalent car on ordinary rental terms (not credit hire terms), that was lower than the rate charge by the credit hire company.

Having in mind the prima facie irrecoverability of credit hire costs incurred in excess of an ordinary going car hire rate, under Dimond v Lovell [2002] 1 AC 384, Lagden v O’Connor [2003] UKHL 64, [2004] 1 AC 1067, and the cases that have developed the law since, Allianz asked the hire company (i) to say whether the case for the appellant was one of impecuniosity, and (ii) if it was, to disclose some basic documentation for that case.

The credit hire company refused to do this, and insisted on payment. Consequently, an application was made by Allianz for (i) pre-action disclosure of bank, credit card and savings account statements of a covering the period of hire and three months prior to it; and (ii) wage slips or other proof of income covering the same period. The application was granted, and the decision was appealed by the Mr Holt.

The appeal was successful on the basis that the Allianz was unlikely to be a party to proceedings. The judgment said:

“§95; Pre-action disclosure should not have been ordered in this case because it was sought only by Allianz. On the evidence before the court, it should not have been concluded that Allianz was likely to be party to any proceedings that the appellant might commence in respect of the substantive claim. I consider that HHJ Harrison’s approach to that requirement of a pre-action disclosure order, being part of s.52(2) of the County Courts Act 1984 and then also CPR 31.16(3)(b), was flawed.”

 The more interesting point was what the judge said next, whereby he indicated that had the insurance company made the application for pre-action disclosure in their insured’s name, then the appeal would have been dismissed, and the granting of the pre-action disclosure upheld. The judge commented as follows:

 “§96; This appeal must therefore be allowed, although but for that first conclusion, possibly a technicality if Allianz could have caused the application to be made in the name of their insured instead, I would have dismissed the appeal and endorsed every aspect of HHJ Harrison’s decision to grant the pre-action disclosure sought.”

The full judgment can be accessed here.

 For any other enquiries, or to discuss instructing the Civil Team at Atlantic Chambers, please contact clerks@atlanticchambers.co.uk.