Facts:
Mr. Parler was involved in a road traffic accident in December 2021. Immediately after the accident, he attempted to notify his insurers, Hastings, by googling their name and phoning the first number in the list of search results. The number, in fact, was that of a claims management company. They arranged for the claimant to hire a car on credit with the first respondent, Spectra. The claimant had the car for a year and sought to recover the hire charges from the defendant. All of the claimant’s claims had been settled save for the car hire charges.
Skyfire objected to the claim for credit hire charges on several grounds, which for present purposes include enforceability of the credit hire contract. They argued that a misrepresentation was made which rendered the agreement voidable which, in turn, means that Mr. Parker would not be under any subsisting liability to pay the credit hire charge and corresponding loss. As a result, Skyfire would be relieved of any obligation to indemnify him. To prove their point, they asked for the recordings of the conversations between Mr. Parker and Spectra. The County Court refused non-party disclosure (NPD).
Decision:
The main underlying issue cited was “Google-spoofing” as the claimant believed he rang his own insurers but, in fact, rang a claims management company. The defendant failed in its application in the first instance and appealed. The High Court dismissed the appeal, upholding the County Court’s decision that NPD of call recordings would serve no useful purpose in the proceedings.
The Judge set out the terms of CPR 3.17 in some detail. The High Court found that the threshold conditions for NPD under CPR Part 31.17 were not satisfied. It held that the call recordings sought by Skyfire would not likely affect the case's outcome, as the contract with Spectra was valid and enforceable until voided, which Mr. Parker had not indicated he would do. The appeal was dismissed on the basis that the disclosure was not necessary to dispose fairly of the claim or save costs.
Moreover, Mrs. Justice Dias noted that the hire agreement with Spectra was “a contract for services which has now been fully performed” and Mr. Parker “had the benefit and use of the car for nearly one year and it is difficult to see how he can make restitution in respect of those services received”. This presented an “insuperable obstacle” in terms of his being able to void the contract, regardless of any misrepresentation. The Judge continued by arguing that even if the disclosure was granted and it “fully supported a case of misrepresentation”, Skyfire would be “unable to establish any circumstances in which Mr. Parker would be relieved of his liability under the contract with Spectra”.
In a postscript, the Court noted that while ‘Google-spoofing’ might be a questionable practice and he understood why insurance companies wanted to challenge such practices, it does not necessarily involve “anything illegal” in the absence of misrepresentation or fraud. Mrs. Justice Dias concluded by noting that “if there was anything objectionable in Google-spoofing, it may well be that this can only be addressed by Parliament, the FCA, or one of the other industry regulators”.
Implications:
This decision provides a detailed analysis of CPR Part 31.17 and the threshold conditions for NPD. The Court concluded that such disclosure would not serve any purpose as, even if a misrepresentation was established, the credit hire agreement remained valid and enforceable until voided by the claimant himself. It was not open for Skyfire to try to void this contract.
The decision also emphasised the validity of a contract unless avoided and the impossibility of voiding it in such cases. The judgement also discusses the challenges faced by insurers in disputing credit hire agreements and the practice of claims management companies in such Google-spoofing practices. While the Judge understood the reasoning of the insurers, she made it clear that should practice should be addressed by Parliament, the FCA, or one of the other industry regulators, but was not presently illegal per se.