Home Knowledge Base Martin Ferguson successful in strike out of £289,000 claim deemed an abuse of process for failure to follow the RTA Small Claims Protocol.

Martin Ferguson successful in strike out of £289,000 claim deemed an abuse of process for failure to follow the RTA Small Claims Protocol.

Published: 25/09/2024 | News

In January 2022 the Claimant had an accident when driving his Ferrari FF. His insurer handled the repairs which cost over £60,000 and the Claimant hired a succession of supercars on credit, including a Lamborghini, Mercedes and numerous Ferraris, costing over £220,000. As he claimed to have suffered minor whiplash injuries, his solicitors commenced a claim, as required, in the Online Injury Claims (OIC) Portal.

The RTA Small Claims Protocol contains a strict set of rules for the progression of claims which include low value whiplash injuries. Since 31/05/2021, the OIC Portal has operated as the claims platform through which such claims must be progressed.

The Portal has an upper value limit of £10,000. However, various losses are not considered towards that limit, including vehicle repairs being handled by the Claimant’s insurer, and vehicle hire charges owed to a third party (non-protocol vehicle costs, or NPVC).

Where a claim is commenced in the OIC Portal and the Defendant disputes liability, the rules mandate that the matter must proceed to a small claims hearing to determine liability, before returning to the Portal. A medical report can then be sought, negotiations must take place and if they are unsuccessful the Claimant can commence court proceedings by following the Portal steps. At that stage any unresolved NPVC losses are ‘added’ to the claim and if the total value of all losses exceeds £10,000, the Claimant may drop the matter from the Portal and commence a Part 7 claim. Whilst the steps in the Portal are being followed, it is expected that NPVC will be negotiated separately between the third parties and insurers.

In this matter, following the Defendant’s denial of liability in the Portal, the Claimant’s solicitors promptly dropped the matter from the Portal, simply citing that the value exceeded £10,000. In February 2024 the Claimant’s solicitors commenced Part 7 proceedings to recover damages for personal injury, various minor other losses, and the substantial NPVCs. The Defendant filed a focussed Defence citing non-compliance with the Protocol rules and seeking that the Claim be struck out, followed by an Application on the same basis.

The Claimant opposed the Application, arguing that the rules were unclear, that at most there had been mistake or misuse in respect of the rules, and that strike out would be disproportionate.

It was argued on behalf of the Defendant that the rules were undeniably clear and that any attempt to suggest they were not amounted to disingenuous obfuscation. The breach was of both the letter and spirit of the Protocol and compliance was mandated irrespective of the value of NPVC. This was a stark example of claims for which the rules were intended to, potentially at least, facilitate resolution without the need for court time and wasted costs.

Accordingly, the court was invited to find that the Claimant’s actions were an abuse of the court’s process in dropping the claim from the portal inappropriately, failing to proceed to a small claims liability hearing and commencing Part 7 proceedings. The court agreed on all fronts, criticising the non-compliance and deeming the rules clear in both their prescriptive language and intention to channel precisely this kind of claim.

The court was further persuaded that the appropriate sanction for the abuse was to strike out the claim. Other less draconian sanctions were considered but deemed inadequate, with the sanction being required to fit the breach (Cable v LV being applied properly). As a result of the breach the careful process of the Protocol was now incapable of being followed (a claim cannot re-enter the Portal) and strike out was the only appropriate outcome.

The decision is a powerful reminder to all parties that breaches of Protocol rules, specifically those designed to avoid court time and resources, will be handled strictly by the courts.

Martin Ferguson was instructed by Richard Welsh and Paul Banks of DWF, Leeds.