10th November 2016
Admission made in MoJ Portal and claim settled – was this binding on insurer’s driver who later wanted to bring her own proceedings – could she apply to withdraw the admission – consideration of conflicting cases of Ullah v John and Malak v Nasim. Held: admission was binding and the admission could not be withdrawn given settlement; case struck out. Paul McGrath appeared for D1. Lionel Stride appeared for D2
Chimel v Chibwana and another, County Court at Brighton, 27 October 2016, HHJ Simpkiss (DCJ Kent & Sussex Courts)
RTA 30 January 2014. C’s case was that she emerged from a minor road with reduced visibility (due to the parked van owned by D2) and was struck by D1’s vehicle. D1 said the RTA was C’s fault. D1 issued a CNF and C’s insurers admitted liability in the response to the CNF without any stated reservation. The claim was later settled. Then C sued D1 and D2 in negligence. D1 applied to strike out the claim on the basis that it was an abuse of process to sue D1 when liability had previously been admitted. D2 also applied to strike out, attempting to rely on the same admission but also seeking summary judgment on the basis that there was no real prospect of success in succeeding on the facts of the case.
The District Judge struck the case out and also gave summary judgment to D2. The Claimant appealed.
The Claimant had not disclosed her insurance policy but argued that whilst the insurer did have actual authority to make an admission in the MoJ Portal, this authority was strictly limited to admitting liability in a claim made against her or her insurers and did not in any way affect any claim that she might have. The Claimant argued that this was so as an insurer had an implied obligation not to prejudice the insured’s rights and, further, the context of the MoJ scheme made it clear that an admission was so limited to the claim made against it in the CNF presented.
The First Defendant argued that in absence of the policy the Court should infer that the insurer had actual authority to make a full admission of liability. In any event, the insurer clearly had ostensible authority to make the admission. The First Defendant also submitted that the reference to ‘defendant’ in the insurer response form was to the insured driver (not the insurer). Further, that such an admission was not confined to one claim made against the insured and / or insurer but was binding in all respects as to the issue of liability just as if the admission was made by the insurer outside the Portal.
The Judge accepted the First Defendant’s submissions and held that (i) the insurer had actual and ostensible authority to make the admission; (ii) the reference to ‘defendant’ in the RTA1 response form was to the insured driver (disagreeing with Malak); (iii) the fact that the admission was made within the Portal was irrelevant, the key question being what was the scope of the admission; and (iv) any admission made under the Portal can be withdrawn pursuant to CPR 14.1B (not 14.1A) unless there has been a settlement based on the admission and thereafter the admission may not be withdrawn because this would be inconsistent with the settlement agreement unless this had been expressly dealt with in the settlement (preferring Ullah over Malak on this point). Accordingly the appeal was dismissed and the claim remained struck out as against the First Defendant.
The Judge held that D2 could not rely on the admission or settlement, his not being a party to it, however, upheld the Judge’s decision on the basis that the claim against a stationary vehicle stood no real prospect of success on the particular facts of the case.