Electronic service of a 'Copley' offer by text message deemed acceptable

Background

Two recent first instance decisions have confirmed that service of a ‘Copley’ intervention letter by text message is an acceptable method of service.

These claims arose out of road traffic accidents where liability was not disputed.

Following the accidents, the defendant made contact with the claimants via text message, conceding liability was admitted. Subsequently, the defendant called the claimants to offer a replacement vehicle and, following those telephone calls, ‘Copley’ letters were sent to the claimants by text message, as an attachment.

In both cases, the claimants failed to take up the defendant’s offer and entered into a credit hire agreement with Enterprise Rent-a-Car.

The claims

The defendant submitted that the claimants had failed to mitigate their loss and that their recovery of the hire charges should be restricted to the ‘Copley’ rate offered.

The claimant in Bryan v Ageas alleged that he had ignored and/or deleted the texts because he did not know who Ageas were.

The claimant in Massie v Ageas maintained that he had not received the texts and/or that the links contained in the texts did not work. The claimant, having admitted, during his call with the defendant to reading parts of the letters was bound to fail with such arguments at trial. However, the claimant did admit, in cross examination, that he had in fact opened the text message and read “bits and pieces” of the ‘Copley’ letter.

The trials

The claimant in Bryan v Ageas made several key concessions. He accepted that he had received the texts but maintained that he had not opened the links within or that he did not forward the letters to his insurers despite telling the defendant that he would do so.

The District Judge rejected the claimant’s submissions, finding that he had acted unreasonably in declining to follow the text links he had received from the defendant. Further, it was wholly unreasonable to request service of the ‘Copley’ letter by text and subsequently delete the texts when he received them. The District Judge found that the claimant should have requested service by other means if he was uncomfortable with receiving correspondence by text message. 

In Massie v Ageas, the claimant maintained under cross-examination that he had not received any letters from Ageas, stating that he had received the texts but that the link to the letter did not work. However, in a call recording post-dating the ‘Copley’ letter the claimant admitted to opening the links and reading parts of the letter.

In finding that the letters sent to the claimants by text were ‘Copley’ compliant the Courts awarded the intervention rates as set out in the letters.

Comment

These claims are the next evolutionary step in the service of ‘Copley’ compliant intervention letters, following on from Weightmans’ case of Powell v Palani. As electronic communication becomes a more and more common feature of daily life, electronic service of an intervention letter, be that by text, e-mail or perhaps even WhatsApp, is difficult to ignore.

These are significant cases for defendant insurers who have often grappled with how to ‘capture’ claimants, and who have historically often denied having received ‘Copley’ offers by mail. In these two cases the call recordings played a key part in persuading the court that a valid offer had been made and that the claimants had acted unreasonably in not accepting the defendant’s offer.

A claimant will find it increasingly difficult to argue blissful ignorance of an intervention offer if the defendant’s insurers are better able to prove that the claimant was aware of the offer and that the terms were sent to them, and these cases highlight the importance of actually speaking with a claimant as part of the insurer’s intervention process.

These cases also reiterate that the onus is on the claimant to mitigate their loss. A claimant cannot be satisfied with disregarding a text if they are concerned about its legitimacy, but rather they must take further steps (such as requesting service by other means) in order to mitigate.