[2021] EW Misc 16 (CC)

Wrexham County Court, HHJ Jarman QC, 29th Sept 2021

 

In both appeals, the Claimants were taxi drivers, and hired a replacement taxi whilst their own vehicles were being repaired.  Claims were brought in the MOJ Portal where Hussain v EUI was raised by the Defendant during Stage 2.  In both cases, the Claimant solicitor responded to the points raised by way of email, which they also attached to the Portal within Stage 2.  At both Stage 3 hearings, the judges accepted the position advanced by the respective solicitors in the emails.  The Defendant argued the emails were not admissible evidence, and that no weight should be given to such an account, as such a narrative account ought be given by way of witness statement.  In the alternative they argued that less weight should have been given to the emails.

 

In a reserved judgment, HHJ Jarman QC upheld both decisions at first instance for the reasons given by the lower courts.  He noted that the Portal protocol is a highly stand alone code, and that whilst statements were permitted they were not required.  He also observed at [37] that Defendants are faced with a choice at Stage 2 to either proceed to a Stage 3 hearing or remove the claim from the Portal and follow the more expensive Part 7 route.  He found that if a Defendant wanted to challenge the contents of an email such as those in these cases, then it was appropriate to move the claim to Part 7.  He also found it was artificial to talk of 'admissibility' of the emails in question in the modified procedure of the Portal.

 

This case highlights the stark difference between Portal claims and those going through the 'normal' Part 7 procedure.  It is well established that the Portal is a highly stand alone code, and that non-Portal CPRs and Common Law Doctrines do not apply.  It is simply not possible to parachute in a requirement to comply with Part 7 rules of evidence where the rules do not provide for the same.

 

Instructed by Kaizen Law

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