THE PROTOCOLS: OFFERS AND RAISING NEW POINTS AT THE HEARING
The 4 New Square website has a copy of an interesting judgment of His Honour Judge Freedman in Mulholland -v- Hughes (18th September 2015).
“I regard it as inequitable and unfair for a defendant, for the first time, to raise the issue of need at the Stage 3 hearing. It seems to me that it is tantamount to trial ‘by ambush’. It hardly needs to be said that to litigate in that way runs entirely contrary to the spirit of the Protocol, the expected behaviour of the parties and the intended collaborative approach.”
- A defendant cannot raise an issue at a Stage 3 hearing that was not set out in the response pack at stage 2.
- The court can order a claimant to repay money if, at the stage 3 hearing, it is found that the damages due are less than the sums already paid.
The judge was hearing four appeals in relation to the interpretation of the Pre-Action Protocol for Low Value Injury Claims in Road Traffic Accidents.
- In three of the cases the defendant had not raised a point in relation to “need” for a hire vehicle at Stage 2. However the point was raised at a stage 3 hearing.
CONSTRUCTION OF THE PROTOCOL
65. There can be no doubt but that the aims and objectives of the Protocol are laudable and, wherever possible, they are to be achieved. In summary, early resolution of low value RTA claims for personal injuries with prompt payment of damages and costs and if settlement without court proceedings is not possible, then, at least, a narrowing and defining of the issues. In addition, the Protocol has the distinct advantage of a fixed costs regime so that there is rarely, if ever, any scope for argument about costs; and recovery of costs is proportionate to the low value of the claims. It is also plain that the Protocol encourages cooperation between the parties in order to achieve a sensible and a prompt settlement: this is evidenced, for example, by the Preamble at paragraph 21 which talks in terms of the behaviour the court expects of the parties.
66. It is not unreasonable, therefore, to seek to apply the Protocol in a way which best serves the furtherance of its objectives. That said, it is not open to this court (or, indeed, any court) in any way to re-draft the Protocol because that might assist in the efficient or effective resolution of claims. This court must interpret the Protocol without changing the express words which have been used by those who drafted it
STAGE 2 OFFERS ARE NOT ADMISSIONS
The judge rejected an argument that offers made by a defendant at the Stage 2 stage had to be regarded as admissions.
IT IS NOT OPEN TO A DEFENDANT TO RAISE SOMETHING AT A STAGE 3 HEARING THAT WAS NOT RAISED AT STAGE 2
The judge stated that:
- The Settlement Pack and Response are not pleadings. However they do require each party to set out their case.
- It is incumbent on a defendant to set out, with clarity, the precise nature of his defence: what is agreed, what is disputed and why.
“It is instructive (again) to look at what is said at paragraph 7.41 of the Protocol:
“The defendant must also explain in the counter-offer why a particular head of damage has been reduced. The explanation will assist the claimant when negotiating a settlement and will allow both parties to focus on those areas of the claim that remain in dispute.“
It follows that it is the intention of the Protocol that if a defendant wishes to raise an issue such as the need for hire, that is to be done at the time of the making of the counter-offer. To allow a defendant to raise the issue of need at Stage 3 runs entirely contrary to the notion that at the end of Stage 2 the parties should have clarity as to what remains in dispute”
DEFENDANT’S CONDUCT INEQUITABLE AND UNFAIR
- Requiring the claimant to prove need for car hire in every case does not sit easily with paragraph 7.11 which states that in most cases witness statements will not be required.
- This indicates that witness statements will only be needed where hire or (for example) the need for care is formally raised by the defendant at stage 2.
“ Irrespective of the above, I regard it as inequitable and unfair for a defendant, for the first time, to raise the issue of need at the Stage 3 hearing. It seems to me that it is tantamount to trial ‘by ambush’. It hardly needs to be said that to litigate in that way runs entirely contrary to the spirit of the Protocol, the expected behaviour of the parties and the intended collaborative approach.”
“Finally, in relation to this ground of appeal, even if it were permissible for a defendant to raise the question of need at a Part 8 hearing, given the absence of any forewarning, in my judgment, the proper course would have been to adjourn to enable the claimant to file evidence to demonstrate need: this is permitted by paragraph 7.1(3) and paragraph 7.2 of the practice direction. As I have made clear, however, in my opinion, the defendant should be estopped from raising need at this very late stage”
REPAYMENT OF SUMS PAID
The judge held that there was nothing to prevent the court ordering repayment of moneys already paid under the Protocol. In the fourth case the judge awarded less than had been offered and paid by the defendant under the Protocol. There was nothing to prevent the court ordering that the claimant pay the money back.
THE RESULT IN THE CARE HIRE CASES
In the car hire cases the issue of need had only been raised by the defendant at the stage 2 Protocol stage but only at the Part 8 hearing before the judge. The claims for hire were allowed in full in the three appeals on this issue. The claimant was ordered to repay general damages in the fourth.