The Practical Lawyer


Exiting the Portal – reasonable

Insurers should be very careful about making allegations (for instance, at Stage 2 of the EL/PL Protocol), especially if they could be interpreted as allegations of ‘dishonesty’.

Raising issues of causation and credibility may justify the claimant in reasonably exiting the Portal, and issuing proceedings under Part 7 (rather than Part 8).

This is illustrated by a case involving a finger injury. At Stage 2 the insurer argued there was no evidence that the finger was injured in the accident, and it could have been injured elsewhere. Accordingly, the claimant started proceedings under Part 7, with the claim being settled shortly after the defence was filed. But, what costs should be paid – assessed costs under Part 7, or fixed costs under Part 8? At a provisional assessment, the judge held the exit from the Portal was reasonable; that was confirmed at the oral review, and also upheld by the civil judge. In his view, the issue of whether the finger was injured or not was a ‘significant issue of fact’ which meant the matter was not suitable for Part 8. The claimant’s honesty and credibility has been put in issue – a potential finding of ‘fundamental dishonesty’ was disproportionately significant. In short, while it was right for insurers to be sceptical, they could not complain if they raised such issues and then found the claimant elected not to proceed under Part 8.

The lesson for insurers is clear: allegations relating to causation and credibility should only be raised when they fully consider the potential costs consequences. See note on Nicholls v The Ambassador Theatre Group [2018] (unreported) but noted in [2018] 166 Personal Injury Law Journal 24.


Most-read articles

Trustees – duty to beneficiaries
Wednesday, 11 July 2018
Trustees cannot simply ignore beneficiaries’ request for information about a trust, the High Court has held. In this case, the trust property was a farm outside Cardiff. Read more...
Conveyancing searches – disbursements?
Wednesday, 11 July 2018
Should electronic property searches be treated as disbursements for VAT purposes? Alternatively, are they part of the legal service provided, and so subject to VAT? Read more...
Professional – update
Wednesday, 11 July 2018
From December 2018 there will be new rules requiring firms to publish prices for conveyancing, probate, motoring offences and immigration, as well as the price for bringing ET claims.  Read more...
Service mistake – discretion?
Wednesday, 11 July 2018
To what extent do you have a duty to point out the other side’s procedural errors (as part of your obligation to comply with the ‘overriding objective’)? Read more...
Exiting the Portal – reasonable
Wednesday, 11 July 2018
Insurers should be very careful about making allegations (for instance, at Stage 2 of the EL/PL Protocol), especially if they could be interpreted as allegations of ‘dishonesty’. Read more...
Airbnb – breach of lease
Wednesday, 11 July 2018
It now seems clear that an Airbnb short let will be in breach of a typical long lease. Read more...
GDPR – data rooms
Wednesday, 11 July 2018
If L is planning to sell a property subject to leases, then almost certainly a data room will be set up containing all relevant documents. Read more...
Rights of way – public
Wednesday, 11 July 2018
There are four categories of public rights of way: Read more...
Financial remedies – company assets
Wednesday, 11 July 2018
A recent ruling illustrates when a court can treat a company-owned asset as as a matrimonial asset. Read more...
GDPR – references
Wednesday, 11 July 2018
GDPR impacts on the giving of references:


IAG International
MSI Global Alliance
In House Lawyer
Join the IBA now!