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Sarwar v Alam, Court of Appeal

25 September 2001
The issues

Costs – funding – BTE policies – enquiries to be made as to sources of funding.

The facts

The Claimant was the passenger in a car driven by the Defendant which collided with another vehicle. The Claimant sued the Defendant using an ATE Policy. Subsequently after the case had finished but before costs had been decided, the Defendant’s Insurers pointed out that their Insured’s BTE Policy would have covered the passenger’s claim. They did this to support their argument that they should not pay the ATE premium. The Courts below agreed finding that it was unreasonable in these circumstances for the Claimant to have taken out the ATE Policy. The Claimant appealed to the Court of Appeal.

The decision

1. The Claimant did not have to use the Defendant’s policy.

2. If Claimant had done so, it would have been using a policy arranged by the Defendant’s Insurers who specifically retained full control of the claim. This was unreasonable.

3. It might have been a different situation if BTE Insurers generally were to finance some transparently independent organisation to handle claims like the Claimant’s and if it were made clear in the policy that this was so.

4. In ordinary circumstances, a Solicitor should use a standard form letter which should invite the Claimant to bring along to the first interview any relevant motor/household insurance policy as well as any stand alone Legal Expenses Insurance Policy which the client or the client’s spouse or partner might have, but proportionality governed everything and no Solicitor was obliged to start on “a treasure hunt”.

5. A Solicitor should also ask his client in the case of passenger claims to obtain if practicable a copy of the driver’s Insurance Policy.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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