Court of Appeal clarifies the Court’s jurisdiction to make directions relating to the Pre-Action Protocol for Low Value Road Traffic Accidents Claims

Introduction

The Court of Appeal has confirmed that the Court has jurisdiction to make directions in a claim within the Pre-Action Protocol for Low Value Road Traffic Accidents Claims (the PAP), where the claimant has also commenced proceedings under CPR Part 8 (Part 8) to protect against a limitation defence, reversing the determination by the District Judge at first instance and Circuit Judge on first appeal. While the PAP is a specialist pre-action protocol, the decision provides helpful guidance on the Court’s approach to directions in respect of the pre-action stage more generally.

Factual background

The claim arose from a road traffic accident involving the claimant and a vehicle driven by an employee of the first defendant/appellant. The second defendant/appellant is the relevant insurer.

The claim had progressed through Stage 1 of the PAP process, whereby the second defendant admitted liability. Stage 2 of the PAP process required the claimant to prepare a Settlement Pack, which functions as a settlement offer and includes certain requirements for evidence supporting the claim. Progress stalled at this stage because the claimant did not produce the Settlement Pack and consequently faced the expiry of the limitation period. In order to prevent the defendants from accruing a limitation defence, the claimant issued a Part 8 claim under paragraph 16 of Practice Direction 49F (a mechanism designed precisely for this scenario).

The Part 8 claim was stayed for a year on the basis that it would be struck out after that period unless the claimant proceeded to a Stage 3 hearing or transferred the matter to the CPR Part 7 procedure. The claimant’s inactivity continued and, three months before the stay was due to expire, the defendants applied for an order that (i) the stay be lifted; and (ii) unless the Stage 2 Settlement Pack was provided within 21 days, that the Part 8 claim be struck out. The requested order would therefore have required the Court to make directions within the PAP. The defendants submitted that the court had the necessary jurisdiction to make such an order pursuant to CPR 3.1(2)(p), which provides that the court “may take any other step or make any other order for the purpose of managing the case and furthering the overriding objective…”

Procedural background

The District and Circuit Judges below were sympathetic to the defendants but ultimately were unpersuaded that the court had jurisdiction to make orders within the proceedings governed by the PAP on the basis the court was not managing those proceedings. Steps taken by the parties within the context of the PAP were not considered to be steps “for the purposes of managing the case” under CPR 3.1(2)(p); “case” could only mean a case before the court and not the pre-action process being followed. The Court’s involvement only commenced during the Stage 3 hearing.

Court of Appeal decision

The Court of Appeal unanimously allowed the defendant’s appeal and found that the Judges below were wrong to find that the court had no power to make case management directions, with the leading judgment given by Lord Justice Coulson.

The Court did have jurisdiction to make an order requiring the claimant to comply with his obligations in respect of the Settlement Pack. The PAP process is self-contained and not ordinarily subject to the Court’s jurisdiction because its process expressly functions before the issue of any court proceedings. This means that if things go wrong under the PAP, a party cannot issue freestanding court proceedings requiring another party to comply. However, where the claimant has expressly invoked the jurisdiction of the court by issuing a claim form (as here), then the position changes and the court has the jurisdiction to deal with the Part 8 claim in accordance with the CPR. The Part 8 claim was therefore “the case” for the purposes of CPR 3.1(2)(p). That case may require a consideration of the progress of the claim in the PAP and the making of consequential directions accordingly.

Analysis

This decision is welcome for the clarity it provides in relation to the role of the Court within the PAP process. Whilst the Court does not have jurisdiction over the PAP until a claim is issued, this decision makes clear that the process is not entirely divorced from any subsequent litigation and parties should be mindful that their conduct at the pre-action stage can influence later directions, including being required to “get on with it” in the context of delay. Both Coulson LJ and Lady Justice Andrews were critical of the claimant’s conduct, particularly for his misplaced allocation of blame for the delay at the foot of the defendant, noting that the PAP’s provision for a claimant to protect its limitation position “does not relieve the claimant of the responsibility to progress the claim.”

More generally, the Court did not welcome the additional issues raised by the claimant, with Coulson LJ noting that “these satellite issues have tended to obscure the straightforward point at the heart of the appeal.” This serves as a gentle reminder that appeal judges appreciate when issues at the appeal stage have been approached with a narrow focus rather than enthusiastic over-inclusion.

The claim is valued at £10,000 and it is assumed that the costs of this procedural wrangling must vastly exceed that. This is an unfortunate outcome for both parties but it is hoped that this specific scenario will be avoided in future now that judges dealing with the PAP can freely exercise their jurisdiction to case manage and progress such claims.