I was involved in a straightforward head on collision with a car. Both of us were approaching a pinch point in the road. I had right of way, the driver in the oncoming lane was to give way to me. It looked as though he was stopping, I came through, then the guy accelerated straight into me.
The police were called. I was slightly injured, not anything especially serious, it could have been a whole lot worse, but there was a fair bit of damage to my bike. I did not think it could come any easier than this. However, the other driver is now defending the case, stating that the chicane in the road did not meet the appropriate standards, and he is not to blame.
My solicitors are pressing me to go to court over this, but surely I should not have to go to court to deal with a story which is patently complete bullshit. I have had one really bad experience in court where I had to give evidence as a victim. I do not want to go into detail but it was horrible, is there any way that I can avoid court?
Answer
If your solicitors do not know your reasons, I cannot blame them for pushing you on to court. There are methods by which you can avoid going to court but really in small claims they are a bit too sophisticated and will probably take longer than actually going to court.
You will certainly have to start court proceedings, if this driver puts in the defence, or his insurers support him with this nonsensical line of defence, which I actually doubt they will do, you can apply to the court for an order to strike out the defence as it discloses no reasonable cause of action, and I would say most district Judges would support the application.
The fact that this guy hit you is nothing to do with the road layout. If he thinks he has a separate course of action against the highway authority then he can run that but that does not need to involve you.
From the rest of your email you have said that you have an almost pathological fear of going to court, and while I won’t go into any detail, I can understand your reasons. You have had one truly horrendous experience in court as a kid. I get why you do not want to go to court.
Therefore, I do recommend that you take the unusual step of issuing court proceedings, getting the defence in, and thereafter applying to the court for what is known as ‘striking out the defence’. However if you have a paralegal this may well be entirely beyond their knowledge. Any qualified solicitor will know what to do.
The basis for your striking out the defence is set out in the Civil Procedure Rules because the defence, even if true and coherent, would not amount to a defence in law to the claim. It is not clear from your claim whether or not your case in is the small claims Jurisdiction, which will make striking out significantly more difficult, but the rules do still apply.
You will have to start the process of issuing the claim, so the Judge can strike out the defence. However if you are absolutely not prepared to go to court in any circumstances then you should think very carefully about whether or not you are willing to start the case, because if you are not prepared to finish it, don’t ask your solicitors to start it.
I think you ought to come clean with your solicitors and explain to them why you have this real phobia about going to court. When you explained it to me, I immediately understood your difficulties, and I am sure your solicitors will be Just as sympathetic. However my fundamental point remains. Unless you are prepared to finish a court action, then do not start it.
An alternative procedure is for you to sue the insurer of the car driver, rather than the driver himself, and the Insurers are then not bound by their insured’s crackpot version of events. Unfortunately insurers cannot as a matter of law, concede liability on behalf of their own insured without their Insured’s permission (even though they often do), and unfortunately you have been knocked off by an individual who is simply unwilling to accept that your motorcycle was not invisible, but nevertheless he failed to see you.
I think once your solicitors know that you have a real problem with going to court then they will start thinking through your problems a bit more laterally and both of the methods which are suggested (striking out and/or only naming the insurers the Defendant) should have the desired effect, if this does not work, then you may have to reveal to the court, and, in reality, to the slightly deranged defendant, what your reasons are for not being willing to go to court, which I appreciate are highly personal and absolutely not down to you. In short, give your solicitors your background story, as much as you want to give, and let them do some lawyering. That is what they get paid for.
Andrew Dalton
Fast Bikes July 2018
