On 3 March, Winchester County Court handed down judgment on the case of Batt v English, which overturned a first instance decision to strike out a claim on the basis of defective service of the claim form. This case is important for discerning the lengths to which a Solicitor must confirm details of instruction, when an action involves both an insured and an insurer on the same side of litigation.
The claimant, Mr Nicholas Batt was injured in a road traffic accident on 15 January 2013. Correspondence then began between the defendant and claimant Solicitor, initially with a letter from the defendant Solicitor, on 30 October, stating:
Later in the line of correspondence, on 6 May 2015, another letter from the solicitor read:
As can be observed in the written messages between parties, the defendant consistently referred to their client as Lee English, the defendant insured in the case, although the defendant Solicitor’s client was, despite never stating as much, Aviva, the insurer.
Proceedings were issued on 17 January 2016, after which, the claimant, who had instructed new solicitors, served the claim form, on 11 May.
Subsequently, on 2 June, the defendant issued an application notice, seeking relief from the action, on this basis:
In response, on 26 July, the claimant submitted a cross-application, arguing:
On 9 November, Deputy District Judge Smith, at first instance, struck out the claim, on the basis that there had been defective service, and decided against using their discretion to remedy ‘good service’.
The claimant was granted permission to appeal against the decision:
On appeal at Winchester County Court, Recorder Davidson, on first impression, perceived the application to be ‘a little surprising’, since a claim, served against the defendant, within the limitation period, without prejudice, being struck out, seemed, ‘on the face of it’ to be ‘odd’.
Analysing CPR 11 (displayed above), regarding jurisdiction of the Court, the Recorder approved of the ‘nuanced’ and ‘common sense’ approach taken at first influence by the Deputy District Judge, who decided against taking a ‘strict’, ‘black letter law’ reading of the law on application notices and rejected the claimant’s submission that application notices must ‘specifically recite or at least expressly refer to, CPR 11’.
As to the main issue at hand, i.e. whether service was defective, the letter, sent on 6 May 2015, was most relevant. Did the admission that the defendant solicitor was instructed to accept service on behalf of Aviva, their client, mean that they were also instructed on behalf of the defendant?
Between paragraphs 6 and 10 of her judgment, the Deputy District Judge reasoned:
However, on appeal, Recorder Davidson took issue with the Deputy District Judge’s assertion that instruction to accept service on behalf of an insurer, by virtue of the fact that they are a separate ‘legal entity’, would mean exactly that and nothing more. Since insurers commonly exercise their rights of subrogation to defend claims against insured parties, restrictions imposed on instruction, which had not been explicitly corresponded in this scenario, ‘would be highly unusual’. It is worth noting also that the claimant Solicitor never threatened to bring a separate claim against Aviva as opposed to, or in addition, to the claim brought against the defendant.
Supporting this position, the Recorder utilised a witness statement, quoting a partner of the defendant Solicitor as saying:
This was, therefore, not an example of a case where the insurer and insured would be acting separately, and thus:
‘...instructions to accept service on behalf of Aviva, plainly meant Aviva “standing in the shoes of” the defendant’.
Held, at paragraphs 26 to 28:
The full judgment can be accessed here.