London Borough of Islington v Said Bourous

The RTA Protocol is a self-contained, quick and proportionate procedure. It is designed to narrow the issues and limit evidence before a Stage 3 determination. A defendant generally cannot raise at Stage 3 an objection or evidential issue which should have been raised at Stage 2. A Stage 2 offer of a different vehicle-hire rate, without disputing the entitlement to hire in principle, leaves the rate as the relevant dispute. Substantive principles developed in ordinary Part 7 litigation do not dictate the procedural treatment of a Protocol claim. Where detailed investigation is required, the defendant should seek a timely transfer to Part 7. The transfer power is not confined to rare or exceptional cases.

Two joined appeals concerned taxi drivers who claimed personal injury and vehicle-related losses after road accidents. Both claims proceeded under the RTA Protocol.

In the first appeal, the defendant’s insurer challenged vehicle-hire damages at Stage 3 on the basis that the claimant should have claimed lost profits. That objection had not been raised at Stage 2. The Circuit Judge allowed the claimant’s appeal and remitted the claim for a Stage 3 assessment.

In the second appeal, the insurer challenged the sufficiency of evidence of impecuniosity and argued that the claim should have been transferred to Part 7. The Circuit Judge dismissed the appeal. The central issues were the consequences of failing to raise a dispute at Stage 2, the evidence permissible at Stage 3, and the circumstances in which a transfer to Part 7 could be sought.

Both appeals were dismissed. The court held that the RTA Protocol is a structured, quick and proportionate scheme intended to reduce disputes before Stage 3. Its inexorable character means that, where an issue is not raised or evidence is not served at the required stage, it generally cannot be raised later. The court applied the approach in Phillips v Willis [2016] EWCA Civ 401.

1. In appeal 1, the insurer had offered a different hire rate at Stage 2 without disputing the claimant’s entitlement to vehicle hire in principle. The need for hire was therefore not a live issue at Stage 3. Under paragraphs 7.41 and 7.66 of the RTA Protocol, the insurer could not then argue that a professional driver should have claimed loss of profit instead. Hussain v EUI Limited [2019] EWHC 2647 (QB) concerned a Part 7 claim and did not govern the procedural treatment of this Protocol claim. The dismissal of the hire claim was therefore erroneous. The claim was to be assessed at Stage 3 on the issues defined in the Court Proceedings Pack.
2. In appeal 2, the claimant’s witness statement was sufficient, in the context of the Protocol, to establish impecuniosity and the need for a replacement taxi. A detailed investigation of financial affairs was not feasible at Stage 3. If the insurer considered that further evidence was necessary, it should have sought a timely transfer to Part 7. Ground 1 therefore failed.
3. Ground 2 was a new point, not argued before the Deputy District Judge or raised as a ground before the Circuit Judge. Applying the principle in Jones v MBNA International Bank Limited [2000] EWCA Civ 514, permission was refused. The case was a second appeal, concerned a case-management discretion and involved a hypothetical exercise never invited below.

The court expressed no view on the separate issue of basic hire rate evidence. In a postscript, it stated that the power under paragraph 7.2 of Practice Direction 8B to transfer a claim to Part 7 is not constrained by the White Book note suggesting that transfer is limited to rare and exceptional cases.

• Court of Appeal (Civil Division): The joined appeals were dismissed. Permission was refused to pursue the second appeal’s new ground concerning transfer to Part 7.
• County court appeals: HHJ Hellman allowed the appeal from DDJ Evans and remitted the first claim for a Stage 3 assessment. HHJ Sykes dismissed the appeal from DDJ Grosscurth in the second claim.
• Deputy District Judges: DDJ Evans dismissed the first vehicle-hire claim but refused transfer to Part 7. DDJ Grosscurth awarded credit-hire damages in the second claim.