Small claims proceedings against the insurance company

I was on bikeradar.com yesterday and made a response to this thread and thought I would share with you the advice I was able to give the poster.

After explaining that I'm a keen cyclist but also a personal injury solicitor specialising in cycling claims, I was glad to see that he was not seriously injured. I understood from his post that he was not interested in claiming for personal injury but was simply seeking to recover the cost of repairing his bike and the damage to his property.

I could see that he had commenced small claims proceedings against the insurance company and that, as is usually the case, the insurance company had failed to acknowledge service of those proceedings within the initial period thus allowing him to obtain a judgement in default. As I understood it however, the insurance company had instructed their usual solicitors to seek to defend the claim.

The solicitors will be able to apply to set aside the judgement in default which he has obtained.  They will make their application to the Court in writing and this will be considered by a Judge. In order for their application to succeed they will need to prove that they have "a real prospect of successfully defending the claim" or that there is some other good reason why they should be allowed to defend the claim.  They will also need to show that they have made their application to set aside judgement promptly.

Thankfully, he had listed his various letters to the insurance company in a letter to the Court and sensibly included copies of the same.  He will need to await the Court's response which will probably not be until the New Year.  Unfortunately however, in my experience, default judgements are often set aside quite easily.  If this happens it is likely that a Judge will also make an order that the insurance company's solicitors file their defence within a set period of time.  The Judge will also either at that stage, or after the solicitors have filed their defence, make a list of "directions" which all parties must comply with up to a final hearing.

Directions usually include an order that parties exchange statements and it would then be a case of parties attending a small claims hearing.  Unfortunately, as he is claiming against an insurance company it is likley that the driver of the car that hit him would be present with a solicitor as the solicitor would be paid for by the insurance company.  However, in my experience of small claims matters, Judges are often particularily helpful to unrepresented parties such as this gentleman and will usually guide them through the process (it is not expected that individuals will have legal representation in the small claims court).

In theory it is possible that, if the default judgement is set aside, when the insurance company file their defence it may include a counter claim against the gentleman.  If this is the case then he should speak with his own household insurer urgently, however, in my experience, it is unlikely for a counter claim to be made in circumstances such as these.

Also, if this claim were to go to a small claims hearing, as another forum member has mentioned, there is a possibility that fault could be apportioned between the cyclist and the driver.  Accidents which occur on roundabouts are notoriously difficult but he will need to be clear in his descritption of the accident and hopefully the Judge will find in his favour.  Unfortunately however, if the Judge is simply unable to decide that one party was more at fault than the other then it is quite possible that the claim may be settled on a "50/50" basis which would effectively see him recover 50% of the full value of his claim.