10.05.09: Prematre issue of proceedings

This is the latest issue being taken by some of the major insurers. In our experience they have had some sympathy from the Courts but more recently, the contention is losing credibility in light of the fact that it is an over-used argument and one which is misconceived in many cases.

 

In our last 5 detailed assessment hearings, our insurer opponent has asserted that proceedings have been issued prematurely in RTA cases when our solicitor clients have allegedly not entered into negotiations prior to commencing proceedings.

 

In all 5 substantive actions the medical reports have been despatched with a covering letter inviting the Defendants insurer to submit their best and final offer within 21 days. The insurers failed to do so in each case (they either allowed the 21 days to expire without contacting our solicitor client or they submitted an undervaluation by way of offer).

 

Despite robust and lengthy arguments submitted by way of points of dispute, the Court dismissed the Defendants insurers contentions in each of the 5 cases.

 

Despite these successes, the same insurers persist in pursuing the point in similar matters and their stances will invariably result in further successful detailed assessments for us.

 

Of course, every case stands and falls on its own facts and there is not a one size fits all policy for ensuring that you do not fall foul of the premature issue argument. We do not profess to have a magic solution for defeating insurers arguments but we would say that solicitors should not be beaten into submission by insurers often misguided assertion that you have issued proceedings too quickly.

 

Insurers will say that the Claimants solicitors have a duty to put forward a counter offer. This is not true. There is no such obligation.

 

Insurers will say that 21 days does not allow them sufficient time in which to formulate an offer. That may be true but that is a point for them and it is not one that should result in the Court giving them any sympathy and certainly it should not result in the Court finding that proceedings were issued prematurely.

 

Insurers will say that the 21 day notice is net of days for service of such notice. This argument recently failed. Of course, they might not receive the notice letter for a couple of days but this still allows them plenty of time to formulate an offer. The 21 days stipulated in the protocol includes time for service.

 

Insurers will ask the Court to draw an inference from the fact that Counsel was instructed to draft particulars of claim within the 21 day period i.e an indicator that the Claimants solicitors always intended to issue proceedings. We have many times defeated this issue by explaining to the Court that the Claimants solicitors are merely readying themselves to issue if the 21 day period expires without resolution. In the event the matter was capable of resolution, Counsels fees would not be recoverable under the predictable costs regime. This is a risk which the Claimants solicitors are entitled to take and it is not something that is necessarily indicative of the manner in which the matter will proceed.

 

Insurers often now plead premature issue of proceedings in their defence in the substantive action. This makes very little difference. Such a unilateral plea does not make it so.

 

Insurers know that if their submission fails, they will have to pay the costs of the detailed assessment proceedings (between £1000-£2000). These figures will no doubt be used in the future by insurers to cynically demonstrate that the cost of litigation in RTA cases is disproportionate but they will of course fail to mention the fact that such costs have only increased because of an unreasonable stance adopted by them.