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1 welcome to Headlight, Dolmans Solicitors motoring news bulletin. In this edition we cover: case summaries costs Churchill Insurance Co Ltd v (1) Fitzgerald (2) Wilkinson : Evans (1) Cockayne (2) Equity Claims Ltd & Secretary of State for Transport [2012] EWCA Civ 1465 Claim on Time Ltd v Mohammadi & Another QBD [2012] deliberate accident EUI Ltd v Bristol Alliance Ltd Partnership [2012] EWCA Civ 1267 fraud Basharat Hussain v (1) Adil Hussain (2) Aviva UK Insurance Ltd [2012] inquest unlawful killing R (on the Application of Sophie Wilkinson) v HM Coroner for Greater Manchester South District & Wendy Livesley [2012] EWHC 2755 Headlight limitation (1) Ioan Daniel Nemeti (2) Adrian Claudiu Cornel Bura (a Child by his Litigation Friend, Ana Bura) (3) Laura Diane Bura v Sabre Insurance Co Ltd [2012] pedestrians John Casey v Mohammed Ali [2012] Knowles v Cullen & Others [2012] QBD trial adjournment Sweet v European Union Insurance Co SA QB [2012] articles winter 2012/2013 edition portal extensions delayed serious injury by dangerous driving the new offence

2 CASE SUMMARIES Churchill Insurance Co Ltd v (1) Fitzgerald (2) Wilkinson : Evans (1) Cockayne (2) Equity Claims Ltd & Secretary of State for Transport [2012] EWCA Civ 1465 This case was covered in the autumn edition of Headlight in relation to the question of interpretation of s.151(8) of the Road Traffic Act 1988 in the context of EU law. This appeal was for a determination of the costs of that case. The first insurer, ( C ), sought all of its costs as against the second respondent, ( W ), on the basis that it had won the appeal on the preliminary issue of interpretation of the statute. W submitted that C should pay all of its costs of the proceedings so far. The second insurer, ( E ), accepted that the respondent, ( X ), had been successful to an extent, but that as it was a qualified success, E should, in fact, be regarded as the overall successful party pursuant to CPR Part The secretary of state, as the intervener, submitted that W and X should pay its costs of the action. The primary question for the Court to consider was who should be considered the successful party. Both insurers had been successful to the extent that their interpretation of s.151(8) had been preferred on appeal, but it still had to be assessed on the individual cases thereafter, whether the insurers were, in fact, entitled to any recovery from W and X. The court ordered that C should pay 50% of W s costs of the preliminary issue, the first appeal and the referral to the CJEU, as it had failed on some of its submissions at all those stages. W was ordered to pay 50% of C s costs of this appeal as W s stance had been adopted only months before. As between E and X, the costs order made at trial was to be left in place and the order in respect of this appeal was the same as for C and W. There was no order as to costs for the secretary of state as the incompatability of the relevant section was neither the fault of the insurers or the insured. Claim on Time Ltd v Mohammadi & Another QBD [2012] This appeal was by a non party against a costs order made against it in its absence. 1

3 The original claim arose out of a claim for vehicle damage following a RTA. The claimant in the proceedings engaged the services of a claims management company who arranged for collection and storage of the car, an engineers report, car hire and referred the claimant to solicitors to assist in bringing a claim. The claims management company had no further involvement in the claim and were not present at the trial. Judgment was given in favour of the claimant, but it was held that the majority of the damage had been caused by the claims management company or someone connected with it. The court made a non party costs order against the claims management company on the basis that but for the additional damage they caused, the claim would have been on the fast track or not litigated at all. The claims management company applied to set aside the order, but that application was dismissed in their absence as they submitted that they only received details of the hearing after it had taken place. A further application was made and, again, dismissed as being without merit as the claims management company s application challenged the findings of fact, but put forward no evidence as to why. On appeal, it was held that the judge had been wrong to make the costs order against the claims management company. Firstly, this case did not fall into any of the recognised categories for a non party costs order to be made and, secondly, there had not been any investigation into any possible connection between the claimant and the claims management company to make such an order just. Furthermore, where a non party costs order is made, the non party must be given an opportunity to be heard. The judge had been wrong in treating the evidence at trial as being evidence against a party who was not present and did not give evidence. The finding that the application was without merit was unfair as it was incorrect to place the burden of persuading the court that the judge had made incorrect findings on the non party who were not aware of all the material that had been considered at the trial. The court had wrongly applied the principles of relief from sanctions to the application as that pre judged the nature of the application. The appeal was allowed and the non party s liability for the defendant s costs was to be decided at a future hearing when they could properly answer the matter. EUI Ltd v Bristol Alliance Ltd Partnership [2012] EWCA Civ 1267 The appellant motor insurer appealed against 2

4 a decision that the insurer of the respondent property owner was entitled to recover following property damage deliberately caused by the driver of a motor vehicle. A driver deliberately crashed his car into a shop causing substantial damage. The insurers of the property brought a subrogated claim against the driver and obtained judgment against him. The driver had motor insurance, but his policy, issued by the appellant, excluded damage caused by a deliberate act. The property insurers contended that on the proper construction of the policy, s.145 of the Road Traffic Act 1988 and the European Directives on motor insurance, the motor insurers had to cover damage to property whether deliberately caused or not. The judge decided, as a preliminary issue, that the property insurer was entitled to recover under the policy of motor insurance. The motor insurers appealed and it was held that under the 1988 Act, not all damage to property had to be covered and exclusions were permitted. Liability for the damage to the shop was not covered by the terms of the policy within the meaning of s.151(2) of the 1988 Act because the terms of the policy expressly excluded damage caused by the deliberate act of the driver. It was held that it could not be right that the only requirement of s.151 was that the liability was on the kind which ought to have been covered by a policy complying with s.145 even if the actual policy did not cover that particular liability. The appeal was allowed. Basharat Hussain v (1) Adil Hussain (2) Aviva UK Insurance Ltd [2012] EWCA Civ 1367 This was an appeal against the dismissal of the claimant s claim for injuries sustained in a RTA and an order to pay the insurer s costs of the action. At first instance, the Judge concluded that the claimant had been complicit in a staged collision as part of campaign of fraudulent claims as alleged by the respondent insurer. The first matter the judge took into account was that the first respondent in the appeal had been involved in a campaign of fraudulent claims and the judge concluded that the fraud only made sense if both drivers were involved. He also placed significant weight upon the claimant s GP records, in which there was an attendance 10 days after the accident, but which made no reference to there having been an accident The judge reached his conclusion that the claimant had been complicit in the fraud base on these two factors only. The court of appeal held that the judge had 3

5 been wrong to make the inferences he had regarding the claimant s attempted fraud in the way he did. The court found that to make a statement that he must have been complicit in the fraud because the fraud did not make sense any other way was going too far. Whilst it was appropriate and proper for the judge to consider the likely or unlikely coincidence, it was putting such evidence too high to use it as a starting point. The judge had also placed too much weight on the contents of the claimant s GP records. Overall, the court found that the judge had failed to carry out a proper balancing exercise by making reference to points that went against the claimant being fraudulent. The two matters the judge had relied upon in reaching his conclusion were not enough. Appeal dismissed. R (on the Application of Sophie Wilkinson) v HM Coroner for Greater Manchester South District & Wendy Livesley [2012] EWHC 2755 The claimant applied for judicial review of a verdict of unlawful killing. Whilst driving on a motorway in bad conditions, the claimant s vehicle spun out of control and struck a stationary vehicle on the hard shoulder, killing a vehicle recovery technician who was working on it. The claimant was not prosecuted as there was no evidence that the accident was caused by her driving, rather than by snow and ice on the carriageway. At the inquest, the coroner directed the jury that they could return a verdict of unlawful killing if they were sure that the offence of causing death by careless driving had been committed. The issue for determination, therefore, was whether driving was capable of justifying a verdict of unlawful killing at an inquest. It was held that there was no statutory definition of unlawful killing. Rule 42 of the Coroners Rules 1984 specified that verdicts were not to be framed in such a way as to appear to determine the question of liability. The essential purpose of an inquest was to ascertain the identity of the deceased and how, when and where he came by his death without seeking to apportion blame or determine liability. Further, murder, manslaughter and infanticide involved a criminal state or mind or negligence of the 4

6 grossest kind, where causing death by dangerous, careless or inconsiderate driving (even when under the influence of alcohol or drugs) were not to be treated as unlawful killing as despite contributory factors, they were still accidents. Therefore, the coroner had been wrong to direct the jury that the offence of careless driving was a possible basis for a verdict of unlawful killing and the verdict of accidental death was substituted. The claimant s application was granted. concrete base of a bridge. The first claimant died in the incident. The vehicle was insured by the defendant in the name of the first claimant s father. The first claimant was uninsured. The claim was initially brought against the defendant insurer on the basis that it was responsible for the actions of its driver pursuant to section 3 of the European Communities (Rights Against Insurers) Regulations The defendant argued that the regulations could not apply given that the accident occurred in Romania and that, in any event, the first claimant was not the defendant s insured. Upon conceding these points, the claimants made an application to the court to include the first claimant s estate as second defendant. Although limitation had expired, this application succeeded pursuant to s.35 (6) of the Limitation Act 1980 and CPR r.19.5 (3)(b) on the basis that it was necessary for the determination of the claimants original action against the defendant. The defendant insurance company appealed. (1) Ioan Daniel Nemeti (2) Adrian Claudiu Cornel Bura (a Child by his Litigation Friend, Ana Bura) (3) Laura Diana Bura v Sabre Insurance Co Ltd [2012] The claimants were passengers in a car being driven, in Romania, by the first claimant, when he lost control of the vehicle, resulting in a collision with a The appeal was upheld on the basis that the test set out by s.35 of the Limitation Act

7 had not been satisfied and the substitution was not necessary for there to be a determination of the original proceedings against the defendant. It was held that whilst the substitution sought may result in effective recovery from the defendant insurer, this was not justification for allowing the substitution to be made outside of the limitation period. John Casey v Mohammed Ali [2012] The claimant, a pedestrian, was hit by the defendant s car whilst crossing a three lane road at a pelican crossing. The lights were in the defendant s favour when the collision occurred, yet the claimant alleged that the defendant should have seen him crossing the road and, therefore, should have braked in time to avoid the collision. The defendant adduced evidence from two other drivers that had been at the scene at the material time confirming that the claimant had appeared suddenly from in front of another car. At first instance, the trial judge found in favour of the defendant. The claimant appealed, arguing that the trial judge had failed to address the main issue of whether or not the defendant could, or should, have seen the claimant crossing the carriageway. In light of the potential cost implications of holding a re trial, it was held that the appeal judge should adjudicate upon the aforementioned issue. It was held that as the claimant was wearing dark clothes at the material time, visibility was poor and as other drivers had also not seen the claimant, the defendant was not at fault and the claimant s appeal was consequently dismissed. Knowles v Cullen & Others [2012] QBD The claimant, a pedestrian, claimed damages for personal injury and loss following a road traffic accident involving three vehicles. She was walking in a car park, when she was struck by a car being driven by the first defendant, ( D1 ), which had entered the car park after having been involved in a collision on the main road. Immediately before striking the claimant, D1 s vehicle had been hit by the second defendant s, ( D2 ), vehicle and the third defendant s, ( D3 ), vehicle had struck D2 s vehicle at the rear. D1 blamed D2 for the accident and D3 claimed that the collision between 6

8 D1 and D2 had already occurred before he collided with the rear of D2. There was an independent witness and there was evidence from three accident reconstruction experts who, in their joint statement, agreed that there was no physical evidence to enable them to distinguish the order of the collisions. The claimant issued proceedings against all three defendants and D2 added further allegations of negligence against D1 and issued part 20 contribution proceedings against D1 and D3. The court held that, based on the evidence of the parties, the independent witness and the expert evidence, the accident was caused by the negligence of D2 in colliding with D1 whilst she was turning and, accordingly, there was no negligence on the part of D1 or D3. Sweet v European Union Insurance Co SA QB [2012] The claim related to a road traffic accident which occurred in Greece when the respondent, ( S ), had been hit by the insurer s driver. At hospital, S had been found to be above the legal alcohol limit and diazepam was found in his blood. Both parties were given permission to instruct a toxicologist and accident reconstruction experts. The insurer s accident reconstruction expert did not speak any English and, therefore, his report required translation. He also wanted to see the toxicologists reports before preparing the joint report. The insurer s toxicologist also claimed that as he was busy with other trials, he would not be able to prepare a joint report in time for the trial. The insurer applied to adjourn the trial, even though it was accepted that the accident had taken place 5 years earlier and adjournment was a last resort. It was held that the insurer s toxicologist could prepare a joint report the week before trial, even if there were several drafts required, it could be done and experts were paid substantial fees for just this purpose. In relation to the accident reconstruction expert, although it was accepted that the language barrier would cause difficulties in preparing the joint report, there was still sufficient time for it to be done. The court did not accept the need for the expert to see the toxicology reports as broad assumptions could be made as to the level of intoxication and a range of opinion provided. This was an appeal against a decision not to adjourn a trial date 3 weeks before the trial to allow time for the expert to prepare a joint report. 7

9 Although it would be difficult to produce the joint report, it was not impossible. Balancing that against the risk of increasing costs if the trial was adjourned, the court found no good reason to alter the trial date that had been fixed. The court had regard to the overriding objective Application refused. ARTICLES Portal Extension Delayed The RTA claims portal was due to be extended in April of this year so as to accommodate RTA claims with an increased value of up to 25, ( 15, more than the current limit), as well as (for the first time) EL and PL claims up to the same value. The MOJ has also proposed a new fixed costs regime for the amended portal. This is set out below: For EL and PL cases up to 10, the proposed fixed costs figure is For EL and PL cases worth between 10, and 25, the proposed fixed costs figure is 1, It is proposed that the current stage 3 fee of for a paper hearing and for an oral hearing will remain, and also apply for EL/PL claims at stage 3. There were serious concerns with the legal profession that the April 2013 deadline was not feasible, not least because the rules that are to underline the new processes have not yet been approved by the Civil Procedure Rules Committee. Those rules should have been completed by 7 December In the absence of the rules, Claims Portal Limited are limited in what they can achieve in having the portal ready for any implementation. Following commencement of judicial review proceedings by the Association of Personal Injury Lawyers (APIL) and Motor Accident Solicitors Society (MASS), the Ministry of Justice (MOJ) has delayed, indefinitely, the implementation of the proposed extensions to the portal. RTA cases worth up to 10, the proposed fixed costs figure will fall from 1, to It is proposed that RTA cases worth between 10, and 25, will attract a fixed costs figure of

10 The challenge by APIL and MASS came not because of an objection, in principle, to the proposed extensions, but because both bodies considered the proposed implementation date to be premature, and one which would mean that full consideration could not be given to the key issues. This, combined with the concerns of Claims Portal Limited, appear to have been persuasive. In addition, it would seem premature to be introducing changes prior to the end of the consultation on whiplash claims, which proposes changes to the small claims limit and the manner in which medical evidence is to be obtained. The MOJ has not yet announced a new date for implementation of the proposed changes. Whilst the concerns over the April 2013 deadline have now been alleviated, there are still concerns amongst many legal practitioners as to the practical benefits of the proposed extensions. There are also concerns that the civil procedure reforms as a whole could be introduced piecemeal, creating confusion and potential satellite litigation. It is to be hoped that practitioners and clients alike will not be faced with a rushed implementation of the proposals as was experienced with the creation of the RTA portal. Serious Injury by Dangerous Driving The New Offence On 3 December 2012, a new offence of causing serious injury by dangerous driving was introduced under section 143 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LAPSO). This offence carries a maximum penalty of 5 years imprisonment, plus a fine. Prior to the introduction of this offence, the only charges that prosecutors could bring against a motorist that had caused serious injury to another were careless driving, dangerous driving or causing bodily harm by wanton or furious driving. The problem with that was that a motorist who had not caused serious injury could also be charged with the first two offences mentioned above. As regards the third mentioned offence, it is suggested that the outdated wording rendered the same ineffective. The offence of careless driving carries a maximum penalty of a 5, fine and the offence of dangerous driving carries a maximum penalty of a 3 year custodial sentence. Again, these maximums applied regardless as to whether any injury had been caused. 9

11 The introduction of the new offence resolves the previous disparity caused by the failure to distinguish between cases of dangerous or careless driving where a person(s) had been seriously injured by a motorist, and those cases in which no one had been injured. The offence of causing serious injury by dangerous driving carries a maximum penalty of 5 years imprisonment (making it a notably more serious offence than simply dangerous driving) and a mandatory period of disqualification from driving of 12 months. If there are any topics you would like us to examine, or if you would like to comment on anything in this bulletin, please the editor: Simon Evans at simone@dolmans.co.uk One Kingsway Cardiff CF10 3DS Tel : Fax : This update is for guidance only and should not be regarded as a substitute for taking legal advice. Dolmans Dangerous driving is classified as that which falls far below what would be expected of a competent and careful driver and poses a danger of injury or property damage. Serious injury is interpreted in the same way as when dealing with offences against the person. Therefore, there needs to have been breaking of the skin (with bleeding), broken bones and/ or any other injury that necessitates long term treatment or surgery. These components must be present for the new offence to apply. 10