Albany Asssistance offer only a 50-50 when it was a 'no-fault' What options do I have

moneysavingexpert-1

Hi
It has taken 23 months to get this 50-50 offer!
My treasured 17 year old Jaguar XK8 was hit and had its fibre-glass front end knocked off when it was hit by a car while I was two-thirds through a three point turn outside my half brother's village house at midnight. My car was under a street light and there are 3 other lights on the stretch the other car came along. Both cars had their headlights on and mine has several side lights and reflectors. The TP’s vehicle was not in sight when I started the manouvre but I was stationary from the time it first came in view. I waited but the driver just kept coming and ended up the opposite bank after hitting me.
The driver apologized profusely for some 15 minutes in front of the seven members of my family who were seeing me off and had seen the whole thing and this apology and statement that he just hadn’t seen me was witnessed by a neighbour who had come out having heard the impact. The police were not called as noone was hurt - they probably wouldn't have come if they had been called.
The TP insurance company (Admiral) transferred the case to Albany Assistance. My car was inspected and repairs were approved at £2400 and I avoided a feared possible write-off. I am a straight and honest guy and spent the next year fending off ‘referrals’. I paid for the repairs upfront. I declined a hire car to save the insurers extra expence as I also have a motorbike. Having been on the internet I now know that they make their money from high hire charges - perhaps this explains why it took 17 months for Albany to say that they were going to treat this as a 50-50. I wrote back refusing to accept this and responding to points made enclosing google maps of where the incident occurred. It took another 6 months before they repeated 50-50. So a total of 23 months and ‘respond within 14 days’. They were shivvied along by my insurers but to no avail.
I have spoken to them today to ask for a copy of the file. I told them that I was considering starting a Small Claims action but their reponse was that the seven members of my family would not be accepted as independent witnesses and nor would the neighbour’s evidence that he heard the TP apologize and say it was his fault because as a neighbour he would not be accepted as an independent witness as he was a neighbour of my brother! They said the only witness of an admission that they would accept would be a police officer.
I have been in touch with the TP and asked if he would confirm his admission but he said he had been advised by his insurer not to do so. Incidently he hasn't put in a claim as he fixed his car himself.
This is so unfair. I object because if I accept the 50-50 offer I will lose my excess and NCB.
Could I at this late junction go back to Admiral?
Would I be likely to win in a Small Claims Court?
Any advice would be appreciated.

BertTheRaccoon

So am I correct in saying that you have paid for your own repairs and Albany never arranged any hire or other services which would have given them or their suppliers any outlay? Are you the only one on your side with any financial loss?

I have to make you aware that Admiral insurance and Albany have had a cosy relationship for over a decade and there could well be a reluctance of Albany to pass this claim to a panel solicitor to issue proceedings due to the relationship they have with Admiral. A bit of the "don't bite the hand that feeds you".

Objectively, it is your word against the other party and you do not have any independent witness evidence. Non-independent witness evidence is more persuasive than anything else.

At trials, the judge is often keener to hear from an independent witness than the 2 parties scrapping it out.

All is not lost for you though. At the end of the day each case revolves around it's own facts and most importantly, the credibility of the parties.

I suspect from the response you've had from the other party, he is a bit sheepish about his position and is merely following the instructions from his insurers.

You have the right to issue your own small claims proceedings and there is no massive disadvantage to appearing as a litigant in person as the district judge will ensure there is fair play if the other party turned up with a barrister paid for by his insurers.

Even if you did not better the 50/50 at the hearing, it is unlikely you would be ordered to pay the other side's costs and your own fees would boil down the the court issue fee and perhaps an allocation fee.

You seem to have a decent and credible argument and I suspect the other party may not perform too well with his evidence, although you would have to master the art of cross examination of him after he has said his piece at the hearing to try and discredit his evidence and get him to contradict himself.

moneysavingexpert-1

Hi
Thanks for the quick reply.
Noone was injured and there is no other claim so I am the only one with a financial loss.
Albany haven't provided a car or any other services.
Would all my witnesses including the neighbour be barred from giving evidence?
If I start a small claims proceedings do I do so against the third party or against the TP and Admiral? If just the TP will the insurers muscle in? Are they likely to transfer the proceedings to their home turf making it hard for me and my witnesses to attend?

BertTheRaccoon

Your witnesses are allowed to give evidence, it will be their credibility the judge is interested in. You're not bulletproof having non-independent witnesses, but it certainly helps.

You issue proceedings against the other driver as he is the negligent party. Once he is served he will phone his insurers and they will muscle in by referring it to one of their panel firms to file a defence and take over conduct from that point onwards on behalf of the third party. So the next time you would communicate with him directly will be in the court room.

For the insurers and the solicitors involved, the case is as desirable as bum cancer as the solicitors won't make any money and it will cost them to take it to a hearing due to the barrister fees etc. So although they file a defence and maintain the 50/50 and come out the blocks fighting, they may well lose enthusiasm to see it all the way to court. Much will also depend on the enthusiasm of the other driver to see it through. If he can't be arsed to support them, they will kill it off.

It would be very interesting if he decides to counterclaim for his repair costs with the defence. if he does not counterclaim his own repairs, that is certainly something I would infer as to his enthusiasm for the case.

If they file a defence, the civil procedure rules suggest the matter be transferred to the Defendant's home court. If the parties are poles apart at opposite ends of the country then either it should be transferred to a court of equal distance to the parties, or in your case, you have many witnesses and it would be logical to argue the case should be heard in the court of local jurisdiction to the accident location, but also for the convenience of where the vast majority of attendees (witnesses) at trial would be travelling from.

BertTheRaccoon

My only concern for your case and doing better than the 50/50 is I would need to know the stretch of road.

If you are doing a 3 point turn in a country lane in the darkness where the other party has come around a bend and has a limited view, you could be criticised for doing the turn where you did and not finding another location to turn around in.

Otherwise, you appear a well adjusted individual who has acted in a more than reasonable fashion since the incident and you clearly care about your vehicle and are unlikely to perform a dangerous manoeuvre and risk getting your pride & joy mashed up.

Credibility is what wins the day at court.

moneysavingexpert-1

Hi
Thanks for the useful comments.
The lane in question is straight and well lit and I will have a google map to show this.
If I sue the TP in the Small Claims Court and the Insurers muscle in can they have the case transferred to their home area or is it only the TP who can do that? He and I are both local so it is only the insurers who would make life difficult!

BertTheRaccoon

No, it would remain in the court convenient to the parties, not to do with the insurers as they are not an actual party to the proceedings, they just have a financial interest in the outcome of the claim as per their obligations as RTA insurer

InsideInsurance

For the 50/50 to be considered you need to know what the TPs allegations/ version of events are. I would assume given the circumstances will be the fact you were not stationary but instead continued your manover crossing the path of his correctly proceeding vehicle but would want to know for sure.

Who are your insurers and what involvement have they had? Why'd you lose your NCD/ Excess etc if you say you've paid yourself for the repairs and the TP is not claiming?

In court anyone can be called as a witness but it is up to the judge to decide who they believe is giving a true account and who is likely to be biased because of which parties they know etc. Outside of courts most insurers chose to argue that family, friends, neighbours etc will be considered biased

You issue proceedings against the TP and they pass it to their insurers who will respond on the TPs behalf. The court will be appropriate to the parties involved not the insurer which will have country wide resources/ barristers etc

moneysavingexpert-1

Hi
I was stationary from the moment the TP came into view and was waiting. I was backed up against my brother's car ready for the last leg of the turn. I have asked for the file so will know what the TP said when I receive it. The first 50-50 letter said the TP had claimed the incident took place on a different stretch of road but I was parked in the disabled parking space the Council provided for my sister-in-law and this is clearly shown on the google map.
The neighbour is my brother's neighbour and is not known to me.
My insurers have been supportive but have not really harried the TP side hence the 23 months. They say they will only take court action if there is a 100% chance of success - legal expenses cover seems a bit of a con to me.
I assume I will lose my NCB and excess unless I win the case
Can I claim for lost interest on the £2400 I paid up front?

InsideInsurance

You would only lose your NCD and Excess if you were to claim off of your insurance or if the TP were to claim (assuming a 50/50 settlement). If you only reclaimed 50% of your losses from the TPI and carried the remainder yourself neither of the above would apply.

If you did claim off of your insurance then 50% of the excess would be recoverable from the TPI but the NCD would be impacted (just as it would if the TP did decide to claim).

Generally speaking you can only claim interest if it is litigated

The claim isnt being handled well if there is simply a 50/50 offer and it is actually passed on. Immediately it should be requested what the allegations of negligence are and on what grounds they are holding you liable. These should then have been passed on to you for your comment or a call to discuss them with your representatives giving a recommendation (or informing you with an explanation) of how to proceed