The recent Court of Appeal decision in Phillips v Willis  EWCA Civ 401 has provided welcome clarity as to the fate of claims initially made through the RTA portal when the personal injury element has been resolved prior to litigation commencing at Stage 3, but a dispute as to low-value special damages remains live between the parties.
The matter in question arose out of a collision between the parties’ vehicles on 28th June 2013. The Claimant’s Vauxhall Astra car was written off and he suffered minor personal injuries, for which he required physiotherapy. In the absence of the Astra, he also required a car and, to this end, he hired an alternative car for just over one month.
Given the date and nature of the accident, it was inevitable that the Claimant would need to proceed under the applicable RTA Protocol (ie that dealing with accidents occurring before 31st July 2013). This was exactly what he did. Liability was rapidly admitted and by the end of Stage 2 of the process, the Defendant’s insurer had agreed his claims for general damages and treatment costs. Hire charges of £3,486 were however still in issue, with the insurer offering only £2,334.
This being so, the Claimant moved onwards to Stage 3 and, again entirely unremarkably, thus issued a claim form under CPR Part 8. This requested an oral hearing, as opposed to a paper determination of the hire costs, which were by now all that remained outstanding between the parties. Such a hearing was duly listed by the court.
Upon the parties attending court, matters took a more unusual and more contentious turn. The district judge hearing the matter decided that because the action should proceed under CPR Part 7 as a small claim. This appears to have been on the basis that further evidence was required, over and above that contained in the witness statement from the Claimant’s car hire company setting out comparative rates of hire in what appears to have been a helpful and unremarkable fashion. Having done so, the district judge then gave a fairly lengthy set of directions and fixed a further hearing date.
The Claimant was aggrieved by this approach and appealed that decision. The appeal was dismissed on the basis that the district judge had made a case management decision with which an appellate court could not interfere. Unsurprisingly, the Claimant remained dissatisfied and sought leave to appeal to the Court of Appeal. Permission was granted despite the very limited quantum. While the case was of very low value, the number of such claims meant the point was nonetheless one of some significance.
The Court of Appeal allowed the Claimant’s appeal, disagreeing with both of the judges who had previously dealt with the matter. Jackson LJ pointed out that the decision to direct that the claim should proceed under Part 7 would inevitably lead to the parties incurring significant costs, which would in part inevitably be borne by the winning party in any event given that it was to be heard on the small claims track. Moreover, the costs of the initial hearing would not be recovered and would be thrown away. These costs were disproportionate to the sums in issue.
Furthermore, the only additional evidence that might realistically have been available to the Court was oral evidence in relation to the need for daily as opposed to weekly hire. Otherwise, no further evidence was necessary to allow the issue as to damages to be resolved – nor, beyond that, could it be suggested what that evidence might be. This was in circumstances where a very small sum was in issue and the nature of both parties’ arguments was already clear, apparent and inevitable from the Claimant’s evidence as to hire rates (the Defendant not having filed any).
This being so, the Defendant’s contention that Paragraph 7.2 of CPR PD 8B permitted the Court to take the case management decision it had was rejected. This provides that:
7.2. Where the court considers that --
(1) further evidence must be provided by any party; and
(2) the claim is not suitable to continue under the Stage 3 procedure,
the court will order that the claim will continue under Part 7, allocate the claim to a track and give directions.
Phillips does not go on to define the circumstances in which paragraph 7.2(2) might however apply. It appears to be envisaged that it may be intended to allow the Court to deal properly with cases involving very high car hire charges involving complex issues of fact or law that would likely prove difficult to deal with at a Stage 3 hearing. However, Phillips was clearly not such a case and the judgment distinctly (although unsurprisingly) appears to infer that such cases will be rare.
Beyond that, what is however made usefully and abundantly clear is that the mere fact that the personal injury element of a RTA Protocol claim has been resolved before Stage 3 is similarly not of itself a reason to exit from the process set down within the Protocol. The fact that the heads of loss in dispute become ever fewer as the matter progresses is an expected and inevitable part of the process.