UK: (Re)insurance Weekly Update 23 - 2017

Last Updated: 4 July 2017
Article by Nigel Brook

This week's case law:

Select Car Rentals v Esure Services: Recorder justified in making non-party costs order in favour of insurers against credit hire company/impact of QOCS regime

http://www.bailii.org/ew/cases/EWHC/QB/2017/1434.html

The claimant alleged that her car had been hit by a car driven by a driver insured by the defendant. Her claim was dismissed at trial, on the ground that it was suspicious. However, the insurers were unable to recover their costs from the claimant because she was immune from the enforcement of any adverse costs order by the operation of the Qualified One-way Costs Shifting ("QOCS") regime which applies to personal injury claims (and, indeed, she may well have been impecunious in any event).

The claimant had hired a replacement vehicle from a credit hire company ("Select") and the recorder made a non-party costs order against Select. Select then appealed against that decision.

Turner J has now rejected that appeal. He held that:

(1) Although the QOCS regime expressly provides that the court may "make an order for costs against a person, other than the claimant, for whose financial benefit the whole or part of the claim was made" (CPR r 44.16(3)), that does not create a new (and more relaxed) category of discretion to be exercised by the court, in addition to the existing discretion to make a non-party costs order. The judge noted that "It may well be that, as is often the case, where a credit hire company promotes litigation for its own financial benefit, knowing that the party in whose name the claim is brought will enjoy some level of protection under the QOCS regime or will probably not be able to satisfy any adverse costs order in any event, then this is a factor which the court may take into account when considering whether it is just for the credit hire company to pay costs. It will be noted, however, that even claimants otherwise protected under QOCS are not entirely immune from the enforcement of an order against them under CPR 44.16 even though it will usually be the case that it is the relevant non-party who has sought a financial benefit who will be first in line".

(2) Furthermore, a claim can be made for "the financial benefit" of the non-party even if the original hire agreement was not profitable: "The financial benefit is made out because, however good or bad the original deal, it is to the financial benefit of the credit hire organisation to recover the monies due under the hire agreement through the process of the claimant's litigation. Some money is better than no money".

(3) The recorder had applied the correct test. One factor which he had taken into account was that Select had been in direct email contact with the insurers about the progress of the claim. Turner J held that it did not matter that direct communications between a credit hirer and an insurer is standard practice under the ABI general terms of agreement between subscribing insurers and credit hire organisations: "even if these terms and this practice are to be taken as standard in the industry, this does not provide Select, or for that matter any other credit hire company, immunity from a non-party costs order".

Interactive Technology v Ferster: Whether judge can be shown Part 36 offer when some issues in a case have been decided

http://www.bailii.org/ew/cases/EWHC/Ch/2017/1510.html

CPR r36.16 provides that a Part 36 offer cannot be shown to a judge (and the fact it has been made cannot be disclosed either) "until the case has been decided". However, where "any part of, or issue in, the case has been decided" (which was the case here) and "the Part 36 offer relates only to parts or issues that have been decided" the judge may be told that about that Part 36 and its terms. The judge may also be told about the existence of any other Part 36 offers (ie ones which do not relate solely to the decided issues), but not the terms of those offers (unless certain other conditions are met (and they were not met in this case)).

The Part 36 offers made by the defendants in this case did not relate only to the issues which had been decided. The claimant applied for an order that the defendants pay its costs but the defendants argued that costs should be reserved until the end of the case (when the judge would be shown the terms of all the Part 36 offers).

The judge agreed that costs should be reserved. The defendants could not be criticised for having failed to make a Part 36 offer which related only to the issues which had been decided: "Even where there is a direction which splits the trial between issues of liability and quantum, or in some other way directs the trial of specified issues, it is open to a defendant to make a Part 36 offer which deals with the whole case and to expect the court to take that Part 36 offer into account when the court eventually deals with all of the costs of the action including the costs of the trial on liability, or on specified issues only".

COMMENT: Prior to 6th April 2015, there was some doubt as to whether a judge could be told about a Part 36 offer in a split trial, for example after the issue of liability had been decided. Since that date, the judge can be told about the existence of, and terms of, a Part 36 offer where that offer relates solely to the issue which has been decided. The White Book has queried what would happen where a party makes two or more Part 36 offers, one of which relates to issues which have been decided, and one of which relates to issues still being disputed. It is unclear whether the issue of costs will be reserved (as it was in this case, where the offer did not relate to issues which had been decided), or whether a judge would be inclined to make an immediate costs order at the end of the split trial.

Harrison v University Hospitals: Court of Appeal clarifies certain issues relating to costs budgeting

http://www.bailii.org/ew/cases/EWCA/Civ/2017/792.html

The Court of Appeal clarified certain issues concerning the relationship between costs budgeting and detailed assessment at the end of a case:

(1) The aims of costs budgeting include a reduction in detailed assessments and so a good reason is needed to depart from the costs budget and this includes a good reason to go below the budgeted amount.

(2) However, there is no need to show a good reason to depart from the amount of costs incurred prior to the budget: such incurred costs were never agreed or "approved" by the Costs Management Order and so they are to be the subject of detailed assessment in the usual way. 

Separately, the Court of Appeal also confirmed that a case is "commenced" for the purpose of the new proportionality rules which came into force on 1 April 2013 (see CPR r44.3(7)(a)) on the date entered by the court on the claim form. Although the rule refers to "cases" commenced before 1 April 2013, that did not mean something different from "proceedings" or "claims".

(Re)insurance Weekly Update 23 - 2017

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Nigel Brook
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.