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Kulasingham v Mariyathas and Co-Operative Insurance

9th August 2013

Henry Slack acted for the Second Defendant insurer in this multi track trial at Bow County Court on 25 June 2013. 

The case arose out of a road traffic accident in circumstances where the Second Defendant had withheld indemnity for the First Defendant’s insurance on the basis the accident was contrived. At the trial of this action all parties attended. D1 was unrepresented.

It transpired the Claimant solicitors had not served a trial bundle on D1. D2 had sent D1 a full set of trial papers in May, but he said he had not received the same. Furthermore the Claim Form in the trial bundle had the incorrect address for D1. On examination of the court file it was found there was an amended Claim Form, but this again had the wrong address.

In the circumstances there was no evidence D1 had ever been served with a Claim. It transpired the Claimant’s solicitors had never served any documents on D1 but instead had concentrated on Orders only in relation to D2, his erstwhile road traffic insurer. It was submitted on behalf of D2 that they were withholding indemnity and were a separate party. This was apparent from their Defence. In addition, the Particulars of Claim did not directly make any claim against D2; they were named in the title/heading but there was no allegation under the Road Traffic Act or under EU Regs. Furthermore there had been no reply by C to D2’s Defence. Therefore there was in effect no pleaded case against D2.

The court found that there was non-service of the Claim Form on D1 which was now out of time and therefore the claim as against D1 no longer existed. The claim against D2, never having been properly pleaded, was struck out. It was also found that as a result of the failure to serve the Claim Form there had been ongoing non-compliance with all Orders in the case and, in such circumstances, the Judge expressed that he thought it unlikely the Claimant’s solicitors would succeed with any application for relief from sanctions, even more so given proportionality on costs where the claim was at most worth £10,000 and relief from sanction would necessitate a whole re-start for the claim.

The Claimant was refused permission to appeal.

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