Whom to serve - Civil Procedure
Discussion
I'm planning to take a driver to the small claims (civil procedure) after reaching an impasse with their insurers.
The insurance company have implied that I serve their nominated Solicitors and stated if I fail to do so it will constitute improper service and they'll seek to recover costs from me.
I've read the Civil Procedure Rules and the defendant has to confirm the solicitor is acting on their behalf, or the solicitor has to write to me. The insurer representatives is a claims handler, and they have indicated that XYZ are their nominated Solicitors. But nothing formal from the solicitors themselves.
ChatGPT has suggested its a bluff and I still serve the other driver. It also suggests I could contact the solicitors asking them to directly if they are representing the driver.
To me the only way they the claims handler is correct is if I treat them as the defendant. Which the are not.
What is the correct action?
The insurance company have implied that I serve their nominated Solicitors and stated if I fail to do so it will constitute improper service and they'll seek to recover costs from me.
I've read the Civil Procedure Rules and the defendant has to confirm the solicitor is acting on their behalf, or the solicitor has to write to me. The insurer representatives is a claims handler, and they have indicated that XYZ are their nominated Solicitors. But nothing formal from the solicitors themselves.
ChatGPT has suggested its a bluff and I still serve the other driver. It also suggests I could contact the solicitors asking them to directly if they are representing the driver.
To me the only way they the claims handler is correct is if I treat them as the defendant. Which the are not.
What is the correct action?
Costs aren’t normally awarded in the Small Claims Track. Just disbursements such as the issue fee.
Insurers nominate solicitors to accept service of proceedings because they know members of the public are stupid. When they get served with proceedings, people sometimes stick their head in the sand and do nothing with them which results in Default Judgments. At least when proceedings are served on nominated solicitors, the solicitors will act promptly.
Insurers nominate solicitors to accept service of proceedings because they know members of the public are stupid. When they get served with proceedings, people sometimes stick their head in the sand and do nothing with them which results in Default Judgments. At least when proceedings are served on nominated solicitors, the solicitors will act promptly.
I always advise to nominate D1 as the insured party and then bring D2 into the picture at the same time as their insurer for the sake of good order. I’d stop away from issuing a nominated Solicitor at the outset as you have no litigation relationship with them at this juncture.
Ignore their statement(s) about incorrect service and recovery of costs. It’s just wind and water - they’re playing brinksmanship. D1 and D2 can then nominate solicitors etc. on their AoS or at the N181 Directions Questionnaire stage.
Have you issued a pre-action letter of claim formally to them?
Ignore their statement(s) about incorrect service and recovery of costs. It’s just wind and water - they’re playing brinksmanship. D1 and D2 can then nominate solicitors etc. on their AoS or at the N181 Directions Questionnaire stage.
Have you issued a pre-action letter of claim formally to them?
Interesting. Thanks all for confirming my understanding re costs.
So the only reason for me to name the solicitor over the defendant is to save the defendant hassle/time, and streamline the process for the insurer?
The claims handler keeps saying all correspondence will be forwarded to courts - to show how I will be penalised for not serving the solicitors. Surely, if it did find its way to a judge, would show them in a poor light instead? I've not been put off yet, it all seems rather desperate and pointless on their part as I've been clear that I'm not going away. Although it made me doubt my interpretation, I couldn't see how that would constitute improper service nor lead to increased costs - so thank you for backing that up.
I've served the LBA to the defendant at his home address. The 14 days have passed and I'm going to submit my claim online once I'm satisfied I'm serving correctly.
The request for involving their solicitors, and bluster about improper service has come from a response to my LBA. I have asked the insurer (again) to confirm that the solicitor is acting on their behalf on this claim and asked for the solicitors email address, so I can contact them directly to confirm.
The insurers latest statement was evasive in nominating the solicitor formally. Rather - these lot are our nominated Solicitors- tell them. Which I found odd in light of the above.
However, from what you are saying there is no strong reason I shouldn't serve Defendant (D1) and cc Insurer (D2)?
So the only reason for me to name the solicitor over the defendant is to save the defendant hassle/time, and streamline the process for the insurer?
The claims handler keeps saying all correspondence will be forwarded to courts - to show how I will be penalised for not serving the solicitors. Surely, if it did find its way to a judge, would show them in a poor light instead? I've not been put off yet, it all seems rather desperate and pointless on their part as I've been clear that I'm not going away. Although it made me doubt my interpretation, I couldn't see how that would constitute improper service nor lead to increased costs - so thank you for backing that up.
I've served the LBA to the defendant at his home address. The 14 days have passed and I'm going to submit my claim online once I'm satisfied I'm serving correctly.
The request for involving their solicitors, and bluster about improper service has come from a response to my LBA. I have asked the insurer (again) to confirm that the solicitor is acting on their behalf on this claim and asked for the solicitors email address, so I can contact them directly to confirm.
The insurers latest statement was evasive in nominating the solicitor formally. Rather - these lot are our nominated Solicitors- tell them. Which I found odd in light of the above.
However, from what you are saying there is no strong reason I shouldn't serve Defendant (D1) and cc Insurer (D2)?
Edited by shost on Thursday 16th October 07:08
shost said:
Interesting. Thanks all for confirming my understanding re costs.
So the only reason for me to name the solicitor over the defendant is to save the defendant hassle/time, and streamline the process for the insurer?
The claims handler keeps saying all correspondence will be forwarded to courts - to show how I will be penalised for not serving the solicitors. Surely, if it did find its way to a judge, would show them in a poor light instead? I've not been put off yet, it all seems rather desperate and pointless on their part as I've been clear that I'm not going away. Although it made me doubt my interpretation, I couldn't see how that would constitute improper service nor lead to increased costs - so thank you for backing that up.
I've served the LBA to the defendant at his home address. The 14 days have passed and I'm going to submit my claim online once I'm satisfied I'm serving correctly.
The request for involving their solicitors, and bluster about improper service has come from a response to my LBA. I have asked the insurer (again) to confirm that the solicitor is acting on their behalf on this claim and asked for the solicitors email address, so I can contact them directly to confirm.
The insurers latest statement was evasive in nominating the solicitor formally. Rather - these lot are our nominated Solicitors- tell them. Which I found odd in light of the above.
However, from what you are saying there is no strong reason I shouldn't serve Defendant (D1) and cc Insurer (D2)?
No - none whatsoever. So the only reason for me to name the solicitor over the defendant is to save the defendant hassle/time, and streamline the process for the insurer?
The claims handler keeps saying all correspondence will be forwarded to courts - to show how I will be penalised for not serving the solicitors. Surely, if it did find its way to a judge, would show them in a poor light instead? I've not been put off yet, it all seems rather desperate and pointless on their part as I've been clear that I'm not going away. Although it made me doubt my interpretation, I couldn't see how that would constitute improper service nor lead to increased costs - so thank you for backing that up.
I've served the LBA to the defendant at his home address. The 14 days have passed and I'm going to submit my claim online once I'm satisfied I'm serving correctly.
The request for involving their solicitors, and bluster about improper service has come from a response to my LBA. I have asked the insurer (again) to confirm that the solicitor is acting on their behalf on this claim and asked for the solicitors email address, so I can contact them directly to confirm.
The insurers latest statement was evasive in nominating the solicitor formally. Rather - these lot are our nominated Solicitors- tell them. Which I found odd in light of the above.
However, from what you are saying there is no strong reason I shouldn't serve Defendant (D1) and cc Insurer (D2)?
Edited by shost on Thursday 16th October 07:08
There is no reason why you should not nominate D1 and D2 as Defendent(s) in this matter. What they then choose to do and which route they choose to go down for paperwork handling is down to them and them alone.
As you are a LIP (Litigate in Person) they’re probably of the mindset when they use the tactic of ‘you’ll have to deal with our big, bad and nasty Solicitor’ in an effort to try and scare you. Same with their threat of costs. It’s nonsense. Should the matter actually progress to Court then a District Judge will not be interested in the slightest in the fact that you nominated D1 and D2 when you were asked to nominate D2’s solicitor instead of D2.
If incorrect service of papers is the strength of their defence then it speaks volumes.
Get it issued with MCOL and then sit back and see what they do…
Thank you. I honestly find it galling that they can try such tactics. Their denial of my claim is solely based on their clients continued denial there was any contact, despite reasonable evidence to the contrary. (Though not 100% slam dunk otherwise I wouldn't be here).
They've not provided their solicitors email address yet. But I shall get on with filing and wait and see.
I did wonder if they dislike their client enough to load up his claim with solicitors costs. Or if they have a kick back going on of some sort as it makes no sense to fire up solicitors vs the value of my claim.
They've not provided their solicitors email address yet. But I shall get on with filing and wait and see.
I did wonder if they dislike their client enough to load up his claim with solicitors costs. Or if they have a kick back going on of some sort as it makes no sense to fire up solicitors vs the value of my claim.
Regardless as to how unreasonable you think the Third Party are being, their solicitors nonetheless have a duty to indemnify them against any claim. They’ll have panel solicitors that will deal with the defence of any claim on a fixed fee basis. Any cost to the insurer is already written into their budget.
I’m not sure why you think the insurer are being difficult. It’s just a matter of course that they nominate their solicitors to accept service of proceedings.
I’m not sure why you think the insurer are being difficult. It’s just a matter of course that they nominate their solicitors to accept service of proceedings.
I accept they have to act on their behalf and indemnify their client.
It feel they're being difficult when they are threatening or implying costs coming my way if I don't do as they say, when the CPR rules suggest nothing of the sort.
CPR 6.7 1(a) discuss Defendant and Solictor. Would the insurer as D2 naming the solicitor be considered doing that? My lay person understanding at this stage is the Defendant is the third party. And not their insurers. But if the Defendant can be considered the insurer then yes they've nominated the solicitor, in writing.
It feel they're being difficult when they are threatening or implying costs coming my way if I don't do as they say, when the CPR rules suggest nothing of the sort.
CPR 6.7 1(a) discuss Defendant and Solictor. Would the insurer as D2 naming the solicitor be considered doing that? My lay person understanding at this stage is the Defendant is the third party. And not their insurers. But if the Defendant can be considered the insurer then yes they've nominated the solicitor, in writing.
Gassing Station | Speed, Plod & the Law | Top of Page | What's New | My Stuff