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Robinson v Doselle, Milton Keynes County Court, 19 December 2005

17 January 2006
The issues

Costs – CFA – Sarwar v Alam – Failure To Enquire About Before The Event Insurance Cover

The facts

The Claimant was a passenger on a bus which was hit by a lorry driven by the Defendant. She suffered personal injuries. The claim was compromised for £3,250.00. The accident occurred after 6th October 2003 and the case therefore fell within the provisions of fixed recoverable costs set out in CPR 45.7 to 45.19. The Defendant refused to pay the Claimant’s costs. The Defendant alleged that the Claimant had available for her use a before the event legal expenses insurance policy which was provided as an extension of the Defendant’s motor insurance policy. Although this was pleaded in the Points of Dispute it was acknowledged at the Hearing that it was incorrect although it was also accepted that the parties were aware of the true nature of the allegation which was that MK Metro the operators of the bus in which the Claimant was travelling at the time of her accident had a motor policy which provided before the event legal expenses cover as an extension and that the Claimant could have availed herself of that policy.

The decision

The solicitor to act reasonably. It was not sufficient for him to ask the client whether the client had before the event insurance and rely on the answer. The investigation could not be delegated to a Claims Management company. If the investigation was so inadequate as to amount to a breach of the CFA Regulations it would not save the solicitor concerned to show that the client had not in fact been prejudiced. The Court should only declare a CFA unenforceable if the breach mattered and if the client could have relied on it successfully against his solicitor. The issue fought in this case was whether in failing to enquire of MK Metro the Claimant’s solicitors were giving the Claimant cause to complain? Was the failure something that the client could have relied upon against them?

Litigators are on notice after Sarwar v Alam that motor policies commonly contain legal expenses insurance cover which is available for the benefit of passengers. In this case the Claimant’s solicitors could easily have asked MK Metro. To do so would not have been to embark on a treasure hunt. It would have involved the writing of just one letter. It is possible that if the enquiry had been made features of the policy would have made it unacceptable one which it was reasonable for the Claimant to reject. But that could not avail the Claimant’s solicitors. The Claimant had been prejudiced because she had been left with a potential liability for disbursements incurred that she would not have had if she had proceeded under BTE LEI cover.

Because of the Claimant’s solicitors failure to comply with the Regulations they were not entitled to look to the Claimant for payment and she in turn could not look to the Defendant’s insurers. The Claimant’s solicitor’s costs had to be assessed at nil.

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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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