The Court of Appeal has overturned a decision to strike out a £2.2m personal injury claim, despite concluding it was issued inappropriately and there had been an abuse of process.

Lord Justice Coulson said if the claim was struck out, the victim of an accident from 2014 would have to start all over again, this time with a professional negligence claim against his solicitors. Instead he penalised the claimant’s solicitors with an adverse costs order covering several years of litigation.

The court in Cable v Liverpool Victoria Insurance Co Ltd heard the case had a history of delays and lack of disclosure as it became clear the claim was no longer suitable for the RTA protocol and needed to be moved to the separate PI protocol.

Coulson concluded it was ‘quite possible’ for this to be an abuse of process but for the claim not to be struck out and allowed to continue.

Coulson made a number of criticisms of the claimant’s solicitors over the conduct of the claim. Progress following an interim £1,000 payment was ‘non-existent’ for more than two years, despite defendant lawyers continually chasing for information about what was happening. No reply was made to any of these requests, and lack of communication was so poor that Cable’s solicitors did not even inform the defendant when he lost his £130,000-a-year job in December 2015.

Defendant solicitors were not provided with a copy of a doctor’s report, which described Cable’s condition as having become chronic, until August 2018 – at least a year after it became clear the claim was worth far more than £25,000 and a change in strategy was required.

Cable’s claim form, which included the request for a stay of proceedings in line with the RTA protocol, was ‘misleading in a number of important respects’ – not least because it was clear by this stage that the claim was not suitable for the lower value protocol.

In the Birkenhead County Court, District Judge Baker granted a stay and ordered that a revised claim form be sent to the defendant by 20 August 2017. In the event, the claimant solicitors failed to comply and did not send the form until February 2018. The file was transferred to the multi-track team, but this information was not shared with the defendant solicitors. It was not until August 2018, four days before the expiry of the stay, that defendant solicitors were told about Cable losing his job. Then, a month later, an amended claim form was served setting out a damages claim worth £2.2m.

The claimant’s application for relief from sanctions, as a result of the failure to serve the amended claim form in time, was effectively struck out by District Judge Campbell, who refused permission for the matter to proceed. This decision was upheld on first appeal by His Honour Judge Graham Wood QC.

On further appeal, Coulson agreed that the principles of abuse of process could apply to procedure governed by the RTA protocol. He concluded that at the point that claimant solicitors issued the claim under Part 8, they knew or ought to have known this was not a Part 8 claim. Further, they did not intend to and did not use the stay of proceedings for the purposes for which it was sought and granted.

But he questioned the evidence of any wider prejudice to the defendant which could justify striking out the claim. He accepted there was a ‘lost year’ due to the use of the wrong protocol, but said that even if the personal injury protocol and not the RTA protocol was used then nothing significant would have changed.

He added: ‘There was no evidence of prejudice to the respondent, beyond the delay of one year noted above. That delay required some form of sanction, but there was nothing to suggest that a more conventional form of sanction in costs or in respect of interest would not have met the justice of the case.’

Coulson allowed the appeal, lifted the stay; and transferred the case to CPR Part 7. He ordered the claimant to pay the defendant’s costs on an indemnity basis up to and including October 2018, and ordered that the claimant was disentitled to any interest on his special damages up to that point.