Small claims court

gill1111

Hi 
I have pursued a claim against an insurance company as a third party. The judgment came through as the company had not responded. 
I now find that their solicitors are saying that I did not serve properly...as they had indicated I could serve the solicitors and not the company...under civil procedure rule 6.7 they want me to consent to withdraw the judgment.
However in an email the insurance company said I could serve the solicitor or  their registered address and they would forward to their solicitor...giving birth addresses.
Do I have reasonable grounds to challenge or not? 
Any advice world be most welcome.

DullGreyGuy

Why did you serve on the insurance company rather than the first party?

Did the solicitors make contact before you served and inform you that they're instructed to accept service? Was that before/after the insurance company's email?

gill1111

I served the registered address as the claims process online made a point of saying its important to get the address details right.  So I emailed them to confirm it and they did say if I wish I could serve the registered office and they would pass it on. 

No contact from the solicitor until now, no contact prior to me submitting the claim.

Thank-you for responding. 

Okell

gill1111 said:

 
... I now find that their solicitors are saying that I did not serve properly...as they had indicated I could serve the solicitors and not the company...under civil procedure rule 6.7 they want me to consent to withdraw the judgment.
However in an email the insurance company said I could serve the solicitor or  their registered address and they would forward to their solicitor...

So where did you serve the claim?  To the insurance company or to their solicitors?

Why are you suing this insurance company?  Does this arise from a motor accident between you and another driver and you are suing the other driver's insurer?  (Just trying to make sense of what you are trying to do...)

gill1111

Okell said:

gill1111 said:

 
... I now find that their solicitors are saying that I did not serve properly...as they had indicated I could serve the solicitors and not the company...under civil procedure rule 6.7 they want me to consent to withdraw the judgment.
However in an email the insurance company said I could serve the solicitor or  their registered address and they would forward to their solicitor...

So where did you serve the claim?  To the insurance company or to their solicitors?

Why are you suing this insurance company?  Does this arise from a motor accident between you and another driver and you are suing the other driver's insurer?  (Just trying to make sense of what you are trying to do...)

I served the insurance company not their solicitors. That appears,to be the issue upon which the solicitor has said the service is incorrect.
I am claiming for criminal damage caused to my property caused by their insured person in his car, hence claiming under his car insurance.

The insurance company offered too little, I tried to negotiate then put in a claim to the small claims court as the amount is under 5k.

Hope that's all clear

eskbanker

gill1111 said:
I am claiming for criminal damage caused to my property caused by their insured person in his car

Has the driver been charged and prosecuted?

Okell

I'm no insurance expert, but why wouldn't you sue the insured driver rather than their insurance company?  Surely your claim is against the driver.  The insurance company didn't damage your property.  They simply indemnify their client against claims like this.

(I assume that's the point DullGreyGuy was making...)

the_lunatic_is_in_my_head

I don't think it really matters to OP at this point why they sued to the insurance company unless the insurance company want to get the claim withdrawn based on that argument and if they did wouldn't that be the angle the solicitors would go down rather than focusing on addresses? 

What I don't understand is why would someone like the OP consent to a judgement being withdrawn? Either something hasn't been done correctly and the insurance co/their solicitors can apply to the court to have the judgement withdrawn or they can't? 

DullGreyGuy

gill1111 said:

I served the registered address as the claims process online made a point of saying its important to get the address details right.  So I emailed them to confirm it and they did say if I wish I could serve the registered office and they would pass it on. 

No contact from the solicitor until now, no contact prior to me submitting the claim.

Thank-you for responding. 

You're getting into a fairly technical bit of law...

6.7

(1) Solicitor within the jurisdiction: Subject to rule 6.5(1), where –

(a) the defendant has given in writing the business address within the jurisdiction of a solicitor as an address at which the defendant may be served with the claim form; or

(b) a solicitor acting for the defendant has notified the claimant in writing that the solicitor is instructed by the defendant to accept service of the claim form on behalf of the defendant at a business address within the jurisdiction,

the claim form must be served at the business address of that solicitor.

Note that I've crossed out 6.7(1)(b) as it's not relevant in this case. So had the defendant told you to issue to their solicitors then certainly the above would apply. As the defendant explicitly stated you could serve on either... I mean the wording says "may" which could imply they are correct but I've no experience on how these things are interpreted by the courts. 

I am however even more concerned of your issuing on the insurer now given it was a drunk driver as that would typically invalidate their insurance. They would most likely still be liable as the RTA insurer under S151 however for that to apply you must have a judgement against the tortfeasor (a great archaic word - ie the drink driver). Now most insurers will play happy outside of court to try to settle these claims without the cost of litigation but once things get litigated many start playing hardball. 

Sorry that its not a straight answer from me. 

Okell

I would say that the quoted rule 6.7(1) means that the OP should have served the claim on the solicitors.  That certainly must be what the insurance company's solicitors are arguing.

The insurance company appear to have (deliberately?) confused the issue by apparently telling the OP that they could serve at either address, whereas I think the rule is saying that where a solicitor's address has been given for service (even if only as an alternative to the defendant's address) then the solicitor's address must be used.

But I'm not a lawyer...

Okell

the_lunatic_is_in_my_head said:

I don't think it really matters to OP at this point why they sued to the insurance company unless the insurance company want to get the claim withdrawn based on that argument and if they did wouldn't that be the angle the solicitors would go down rather than focusing on addresses?...

They're holding that argument in reserve!

I'm aware that motorists involved in accidents are sometimes advised to make a claim against the other party's insurer rather than against their own, but my understanding of that is that if you can't reach a settlement with the other party's insurer, then you sue the other party, not their insurer.  So I'm wondering if the next argument after this one will be that the OP is suing the wrong person.

But I'm by no means certain of that.  I'm sure DullGreyGuy can explain

the_lunatic_is_in_my_head said:

...What I don't understand is why would someone like the OP consent to a judgement being withdrawn? Either something hasn't been done correctly and the insurance co/their solicitors can apply to the court to have the judgement withdrawn or they can't? 

Again I don't know for sure but if the OP's claim was wrongly served in the first place then the court will chuck the judgment out when the solicitors challenge it.  There's no point in the OP being awkward - and increasing costs - if the judgment is going to be set aside anyway because the claim wasn't properly issued originally.  Might as well consent...

But what do I know!

(Although this thread does demonstrate some of the potential pitfalls a claimant faces when making a money claim.  If you aren't aware of the Civil Procedure Rules it could be a bit of a minefield...)