In Gentry v Miller the Court of Appeal has dismissed an insurer’s application to (a) set aside a default judgment and (b) set aside a judgment where a party failed to attend trial, criticising the insurer’s delay.
The case concerned a claim where the claimant obtained a judgment for £75,089 mainly consisting of hire charges. Briefly, the claim was intimated through the MOJ portal on 17 March 2013. The appellant’s solicitors chased the insurer on six occasions between April and June 2013, with notice that hire charges were accruing. A notice of intention to issue was sent on 19 June 2013, with proceedings issued on 3 July 2013 and judgment in default entered on 8 August 2013. Damages were awarded at a disposal hearing on 17 October 2013
The defendant insurer did not instruct a solicitor until after the disposal hearing but was initially successful in setting aside the judgments in order to defend the claim raising an allegation of fraud. The claimant appealed to the Court of Appeal.
It was noted in the Court of Appeal that an allegation of fraud does not circumvent the principles set out in Mitchell and Denton. The court’s power to grant the applications to set aside a judgment are governed by the promptness tests contained within CPR13, CPR39 and the analysis continues by reference to the three-stage Denton tests
An interesting feature from this case is that in finding that the insurer did not act promptly, Lord Justice Vos makes repetitive use of the term “professional litigant” when describing the defendant insurer. The judgment makes reference to numerous touch points on the file before the judgment was obtained that placed the insurer with sufficient knowledge and expertise to have made more of an effort to defend the claim.
Throughout the period leading up to the disposal hearing, LJ Vos stated that the insurer could ‘not have been in any doubt, had it considered the matter, that the claim had ceased to be a low value claim under £10,000, because of the high value of the appellant’s car and the accumulating hire charges’. The insurer contested that it received all of the communications from the appellant’s solicitors but it had produced no evidence to substantiate that contention. Consequently, the court did not accept that the insurer did not know the risks it was running or was not aware, in broad terms, what was going on.
The tone of LJ Vos in his assessment of the defendant insurer’s conduct may lead to a conversation surrounding the standard expected of a ‘professional litigant’. Whilst there is no legal definition of a professional litigator, the implications may be typified by reference to paragraph 34 which states “[T]he court cannot ignore that insurers are professional litigants, who can properly be held responsible for any blatant disregard of their own commercial interests’.
One can speculate on a potentially different outcome if in a similar case, an insurer can produce evidence of its internal procedures or reasons why some letters may not have been received from a claimant solicitor but the sentiment is clear. For every touch point on a file therein lies (a) an opportunity for an insurer to consider its commercial interests and react accordingly or (b) face the consequence of its own inaction if this falls short of the expectations set out in the CPR and Denton in its capacity as a ‘professional litigator
