The RSA Test Cases: Coles & Ors v Hetherton & Ors [2011] EWHC 2405 (Comm) (22 September 2011)

Coles & Ors v Hetherton & Ors [2011] EWHC 2405 (Comm) (22 September 2011).

I was reminded today that I had not posted this link on the website.

Thanks Bailii…

Neutral Citation Number: [2011] EWHC 2405 (Comm)
Case Nos: 2011 Folios 1071, 1072, 1073

Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :


Ms Adrianne COLES (Folio 1071),
Miss Natalie WOODHEAD (Folio 1072),
Miss Kim CROWTHER (Folio 1073), and the claimants in the County Court Proceedings listed in the Schedule
- and -

Mrs Rosemary HETHERTON (Folio 1071),
Mrs Mahala GUY (Folio 1072),
Mr Oliver THOMAS (Folio 1073) and the defendants in the County Court Proceedings listed in the Schedule

Mr Christopher Butcher QC and Mr Jonathan Hough (instructed by Lyons Davidson) for the Claimants in the County Court Proceedings listed in the Schedule and the Defendants listed above.
Mr Richard Slade QC (instructed by Ford & Warren) for the Defendants in the County Court Proceedings listed in the Schedule (other than Mr Kulah and Mr White) and the Claimants listed above.
Mr Michael Curtis QC and Mr Justin Davis (instructed by Beachcroft LLP) for Mr Kulah and Mr White.
Hearing date: 22 September 2011


Crown Copyright ©

Mr Justice Walker:


Each of these cases arises out of a simple road traffic accident in which the vehicle of a person insured by Royal & Sun Alliance Insurance Plc (“RSAI”) was damaged by the admitted negligence of another insured driver. In each case, RSAI indemnified its policyholder by having his vehicle repaired. The question in dispute is what sums can be recovered by the RSAI policyholders in claims for vehicle damage. Having stated the question in that way, Mr Christopher Butcher QC and Mr Jonathan Hough on behalf of RSAI’s policyholders rightly observe that such claims would, of course, normally either be settled or be resolved by small claims track hearings in the County Courts.
In such hearings, however, insurers for defendants have questioned claims by RSAI policyholders on grounds which potentially have application to many other cases. RSAI has advanced a contention that the commercial model it uses to effect repairs (“the RSA scheme”) is such that the claims are sound in law. That contention has not met with universal success in the County Court. In February this year Provident Insurance plc (“Provident”) publicly announced that it would seek a determination by the Commercial Court in this regard. RSAI accepted that this was a desirable course. It was agreed between RSAI and Provident that for this purpose (1) the claims in 2011 Folios 1071, 1072 and 1073 should be issued in the Commercial Court, and (2) certain other cases should be transferred from the County Court to the Commercial Court. This Court is now asked to make the necessary orders to transfer those cases and to give initial case-management directions.
On 2 September 2011 Beachcroft LLP, solicitors for Allianz Insurance plc (“Allianz”), wrote to propose that cases involving that company’s policyholders should also be transferred. On 9 September, they made applications for two specific cases to be transferred to this Court from County Courts. RSAI and Provident oppose those applications.
Why should the Commercial Court deal with these cases?

In my view RSAI was right to conclude that a determination by the Commercial Court was desirable. That course was strongly advocated by Mr Richard Slade QC for parties insured by Provident, on the grounds that a Commercial Court judgment on relevant points of insurance law may be expected to assist settlement in over 700 collision claims between RSAI and Provident. Mr Michael Curtis QC and Mr Justin Davis for defendants insured by Allianz add that among the hundreds of claims being litigated in the county courts between RSAI and defendant insurers arising out of the RSA scheme, Beachcroft LLP acts for Allianz in 49 cases and for other defendant insurers in over 350 cases. I am told that Allianz is supported by seven other insurers in relation to these applications.
It is a tribute to the skill and dedication of Circuit Judges and District Judges in the County Courts that they have with their customary efficiency taken on this raft of cases and managed them, in some cases through to a conclusion. They have considerable expertise in this area. There are inevitable difficulties, however, in assembling test cases in the County Court, and for that reason I accept that the preferable course is for relevant issues to be determined with the benefit of case management in this court. That conclusion involves no criticism of the County Court: on the contrary, this court will be much assisted by the reasoned judgments given in County Court proceedings to date.
A possible alternative course should be noted. This is that the parties seek a decision from the Court of Appeal in a case or cases in which a decision has been reached by the County Court. Permission to appeal has been given in at least one such case. However those cases necessarily turn on the evidence before the County Court, which has not been assembled with a view to a definitive ruling of the kind now proposed. Accordingly I agree that this alternative would not offer a satisfactory solution to a general problem.
The way forward

It is not possible at the present stage to select lead cases. The issues which arise are not simple, and they need to be carefully formulated before lead cases can be identified. At this morning’s hearing various options were canvassed. I conclude that the speediest and most efficient process will be achieved by directions along the lines set out in the following paragraphs.
The County Court proceedings listed in the Schedule (“the transferred cases”) are transferred to the High Court and assigned to the Commercial Court.
Case Nos: 2011 Folios 1071, 1072, 1073 (“the declaration cases”) are to be case managed together with each other and with the transferred cases, and all such cases are referred to below as “the managed cases”.
No later than 4 pm on 14 October 2011 the defendants in the transferred cases and the claimants in the declaration cases shall jointly file and serve a single Initial Statement of Objections accompanied by an Initial Schedule of Issues. The Initial Statement of Objections shall list each issue of law and of fact which those parties are currently able to identify as arising by way of objection to the claims advanced in the managed cases taken as a whole, and separately in relation to each such issue shall set out those parties’ arguments on that issue. The Initial Schedule of Issues shall identify for each of the managed cases which of the issues arises.
No later than 4 pm on 28 October 2011 the claimants in the transferred cases and the defendants in the declaration cases shall jointly file and serve a single Initial Statement of Response to Objections, accompanied if appropriate by a revised Initial Schedule of Issues.
No later than 4 pm on 4 November 2011 the defendants in the transferred cases and the claimants in the declaration cases shall jointly file and serve a single Initial Statement of Reply, and a further revised Initial Schedule of Issues, if so advised.
The judge in charge of the List shall be asked to consider appointment of a judge (“the trial judge”) to manage the managed cases, to select lead cases, and to try the lead cases. A hearing, which shall be before the trial judge if possible, shall be fixed for further directions. The parties have told me that disclosure or production of documents is likely to be in issue. I hope it will not be, for if documents are potentially relevant then the public importance of expediting the managed cases should in my view be given great weight. Redaction should be possible to take account of commercial confidentiality, at least in the first instance. Nevertheless if there are issues of this kind they can be dealt with at whatever stage is appropriate, and application can be made for the statements of case to be revised in consequence.
Role of Allianz

RSAI says – with support from Provident – that Allianz does not seek to raise arguments or issues distinct from those that are raised, or could be raised, by Provident, and the involvement of another insurer would only add to the length and cost of proceedings. I consider that this contention is best considered when the court is identifying the appropriate lead cases.
Cases in the County Court involving issues in the managed cases.

RSAI has told me that it will seek to stay such cases, or at least such parts of them as are concerned with the quantum of claims for vehicle repairs. On the footing that the present proceedings will be pursued with expedition I consider that in general terms this will be likely to be a highly desirable course. Whether it is the right course in any particular case must, of course, be determined by the County Court in the light of the circumstances of the particular case.

I have been persuaded that it is in not only in the interests of the parties and their insurers, but also in the public interest, for this court to hear cases which would otherwise be determined in the County Court, and I have made special orders to enable speedy determination by this court of the real issues which merit that determination. The parties must work together in an efficient and orderly way to enable this court to achieve these objectives.
Schedule of Transferred Cases

(1) Willis v Thunber (Woolwich County Court; 1UC24336)

(2) Woodard v Ward (Staines County Court; 1SM00351)

(3) Samphier v Scott (Bristol County Court; 1BS02330)

(4) Donovan v Sirett (Basildon County Court; 1UC56370)

(5) Janmohamed v Massood (Watford County Court; 1WD00866)

(6) Ralph v Venibels (Walsall County Court; 1IQ12427)

(7) Errington v Burton (Leeds County Court; 1LS09492)

(8) Moyes v Akyol ( Ipswich County Court: 1UC54785)

(9) Grynberg v Kulah (Ilford County Court; 0UC59386)

(10) J B Air Conditioning Services Ltd v White (Romford County Court; 1UD08676)

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