Press release by Autofocus 15 July 2010
Autofocus notes the Announcement made by Accident Exchange plc on 14 July 2010 in relation to the Judgment handed down by the Court of Appeal on that day. Autofocus did not pursue its appeal in order to strike out Accident Exchange's case. Instead, Autofocus sought confirmation, following the Judgment of His Honour Mr Justice Mackie QC, that nothing in that Judgment would prevent Autofocus from relying on the witness immunity rule as a defence to Accident Exchange's allegations.
The Court of Appeal declined to make a declaration which finally determined whether or not the witness immunity rule protects Autofocus primarily because of a change in the way Accident Exchange argued the point on appeal. Lord Justice Kay noted that:
...Accident Exchange submits... [that Judge Mackie QC] probably did not intend to express his views on the merits of the witness immunity point with finality but should be taken simply to have decided the point on an arguable basis… In my Judgment [Accident Exchange's] point is correct… The Judge was not determining a preliminary point of law… Accordingly, the outcome of Autofocus' application was not designed to be conclusive on the issue. It remains at large. By parity of reasoning, we ought not to take unto ourselves the ultimate determination of the issue."
The appeal was accordingly dismissed. However, Autofocus is pleased that Accident Exchange has conceded and the Court of Appeal has confirmed that this issue remains at large, for the trial Judge to decide. Autofocus will therefore be able to rely on the witness immunity rule as a defence to Accident Exchange's claims at trial.
Autofocus notes the intention of Accident Exchange to amend its claim yet again. Autofocus has repeatedly highlighted to Accident Exchange the significant deficiencies in its case, and it awaits to see whether Accident Exchange is able to cure those deficiencies in what will be its third set of Particulars of Claim in 9 months.
Autofocus also awaits Accident Exchange's clarification of how it intends to establish any loss arising from 2,500 separate cases in which it alleges that Autofocus provided unsound evidence.
To date, Accident Exchange has identified only 96 cases to Autofocus in which it alleges that Autofocus' evidence is unsound. Autofocus has revisited its evidence in each of these 96 cases and conducted a comparison exercise. That comparison has involved conducting internet-only surveys (rather than using telephone surveys). Internet only surveys rely solely on internet searches using publicly available information that can easily and conclusively be verified.
The results of that comparison exercise show that Autofocus' original evidence, which is the subject of Accident Exchange's complaints, was accurate and, if anything, favoured Accident Exchange by a small margin in comparison with the internet-only rates.
Therefore, even if Accident Exchange is able to overcome the witness immunity rule and the deficiencies in its case, and then prove that Autofocus' evidence was unsound in each of 2,500 unspecified cases, Autofocus does not believe that Accident Exchange will be able to establish any recoverable losses from those cases. Nor is it apparent how re-opening cases can have any worth to Accident Exchange or its stakeholders.
Meanwhile, Autofocus continues to provide witness evidence in cases against Accident Exchange. Between September 2009 and June 2010, the total claim value of the 37 full trials during that time was £585,314.81 and the court awards totalled £202,030.75 (34.5%) of the amount claimed by Accident Exchange. Period was reduced by the courts in 16 of the 37 claims (43.2%).