News & Resources

Claim struck out for abuse of the MOJ/Part 8 process

29th July 2020

James Arney, instructed by Tony McLoughlin of Horwich Farrelly and Admiral Insurance, succeeded in striking out a claim which had been wrongly retained in the MOJ Portal process, 8 years after a liability-admitted accident.  See Tandara v EUI LTD t/a Admiral Insurance [2020].

The case started life unexceptionally, with seemingly modest injuries and entry into the Portal process at a time when the maximum value limit was £10,000.  In due course medical evidence indicated that the claim’s value was likely to exceed the £10,000 limit, yet the claim was retained within the Portal with the usual stay of proceedings, thereby preventing the defendant insurers from actively participating in the litigation or obtaining information about the progress of the claim.

In early 2019 the claimant successfully applied to transfer the proceedings to Part 7, a step that will often end any complaint a defendant may have about improper use of the Portal process.  However, the claimant then served a schedule alleging chronic pain and pleading the claim at over £760,000, fuelled largely by a future loss of earnings claim about which the Court and defendant knew nothing when the order to transfer to Part 7 had been made.  After the defendant’s call in its defence for an explanation went unanswered, the defendant applied to strike out the claim.

The Application was hard fought between two members of TGC at a 4-hour remote video hearing before DJ Avent at Central London CC.  The defendant relied on the previous decisions of Lyle v Alliance Insurance plc [2017] and Cable v Liverpool Victoria Insurance Company [2019] in which defendants had successfully challenged claims that had been improperly “parked” in the Portal.

In a carefully considered and thorough 69 page judgment, DJ Avent considered the specifics of Mrs. Tandara’s case, previous decisions and the more wide-reaching principles that the application engaged.  He concluded that the abuse in this case was worse than that of either Lyle or Cable, and struck out the claim, notwithstanding both the admission of liability and the potential value of the recently pleaded case.  The defendant’s legitimate calls for information and action had been ignored or evaded, causing significant prejudice.  The defendant’s warnings in correspondence as to the consequences of inaction went unheeded.

Given the detail of the reasoning, the judgment makes for essential reading for anyone considering, or engaged in, an application to strike out claims for abuse of the Portal process.

Link to judgment can be found here.

Related Barristers

James Arney QC

James Arney QC
Year of Call: 1992
Year of Silk: 2021

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