ADMISSIONS AND THE PORTAL: HOW WILL THE COURTS CONSTRUE PROCEDURAL ISSUES ARISING UNDER THE RTA PROTOCOL?
How significant are admissions made under the MOJ portal and what is their practical significance? A close look at the case of Ullah –v- Jon and its significance in relation to construction of the RTA Protocol.
I am grateful to Dave Toulson of Hill Dickinson LLP for pointing out to me the practical significance of the case of Ullah –v- Jon a case decided by District Judge Parker in the Croydon County Court on the 20th March 2013. This blog does not usually cover developments in the Portal. The Portals are covered comprehensively by Kerry Underwood, see http://kerryunderwood.wordpress.com/2013/07/31/new-portals-and-fixed-recoverable-costs-now-in/
However procedural issues that arise are important in themselves and can have wider practical significance.
Ullah –v- Jon: the facts
The case arose out of a road traffic accident that was covered by the RTA Protocol. Mr Jon instructed solicitors who wrote to Mr Ullah’s insurers. The insurers for Mr Ullah made admissions under the protocol and claims by Mr Jon and his passengers were paid at stage 2 of the RTA Protocol. These admissions were made by Mr Ullah’s insurers despite his solicitors writing to them asking that they do nothing to prejudice his position.
Mr Ullah subsequently issued proceedings claiming that Mr Jon was responsible for the same accident. A defence was filed at a time when Mr Jon’s solicitors did not know about the earlier admission. On finding out about the admission the solicitors representing Mr Jon made an application to amend the defence to rely on those admissions.
The decision of the District Judge
The Judge undertook a comprehensive review of the principles underlying the RTA Protocol. A number of issues had to be decided.
1. Was Mr Ullah bound by the admission made by his insurers?
The Judge found that he was. Further he rejected an argument that the admissions were only binding in relation to the RTA Protocol and the compromise of a specific dispute.
CPR 14 1B applied and the admission could only be withdrawn with permission from the court.
2. Should Mr Ullah be given permission to withdraw from the admission?
The judge was clear in the decision that he should not.
(1) Mr Ullah had given his insurers the contractual right to make admissions on his behalf.
(2) There were real problems in relation to the payments that had been made to Mr Jon and his witnesses. There was uncertainty and potential prejudice to Mr Jon if Mr Ullah was allowed to resile from his admissions.
(3) The prospects of success were completely even.
3.The public interests
The Judge went on to make important observations about the public interest:
“Then looking at the public interests, there has to be a public interest in bringing finality to proceedings, particularly where a rigorous and tightly drawn set of rules and regulations have been set up to enable quick and relatively cheap way of resolving these issues and I find that this is an important element in this case…”
4.The consequence
Given the admission the judge allowed Jon’s application for summary judgment.
PRACTICAL CONSEQUENCES
This case:
1. Highlights the need for clear communication between a litigant and their insurer
2. Demonstrates that an admission by the insurer binds their insured.
3. Shows that subsequent litigation attempting to re-open the case could be fraught with difficulties.
The case also contained important observations on:
Admissions
The judge stated that there could be circumstances where it is appropriate to re-open admissions, however the current case was not one of them.
Construction of the Protocol
| The Judge also found that the Protocol had to be construed as a prescriptive set of rules, akin to the way that Part 36 is construed following Gibbon –v- The Manchester City Council [2010] EWCA Civ 726. |
It was a self- contained code and displaced the rules of common law.
There is a transcript of the judgment in Ullah available at http://www.sarahrobsonbarrister.co.uk/upload/HMC17642-Ullah%20v%20Jon%20-%20Approved%20judgment.pdf