Google: Claimant tricked by advert
‘Google-spoofing’ by claims management companies, where they pay for prominent Google adverts to trick consumers, does not necessarily involve “anything illegal” in the absence of misrepresentation or fraud, a High Court judge has said.
Mrs Justice Dias said if there was “anything objectionable” in Google-spoofing, “it may well be that this can only be addressed by Parliament, the FCA [Financial Conduct Authority] or one of the other industry regulators”.
Immediately after being in a road traffic accident, Joshua Parker attempted to notify his insurer, Hastings. He Googled its name and rang the first number in the list of search results, the judge recounted.
“Unbeknownst to him, he was in fact speaking to a claims management company which told him that he would be put in touch with a hire company who would arrange for his car to be repaired. His car was then collected from his home later that same day.
“On the following Monday, he was called by [Spectra Drive Ltd] who told him that they could provide him with a hire car and also sort out the damage to his own car.”
Mr Parker sought to recover his losses arising out of the accident, including the credit hire charges and other storage and recovery fees incurred under the agreements he signed with Spectra.
The defendant insurer, Skyfire Insurance, challenged the credit hire charges on a number of grounds and applied for non-party disclosure of the calls between Mr Parker and Spectra.
“Skyfire strongly suspects that in the course of Spectra’s discussions with Mr Parker, some misrepresentation was made,” the judge explained. If so, the agreement would be voidable.
Dias J said this and similar cases shone a “spotlight on what some clearly view as questionable practices” by credit hire and claims management companies.
“It is clearly not uncommon for claimants in Mr Parker’s situation to assume that they are speaking to their own insurers when they are in fact not.
“One can therefore readily understand the desire of insurance companies to challenge such practices so that they can keep control themselves of the nature and amount of any credit hire charges that might be incurred.
“On the other hand, even if the enforceability of a credit hire agreement cannot be successfully attacked, the defendant can still challenge the amounts payable under it on grounds of failure to mitigate.
“Moreover, misrepresentation aside, it is not clear to me that paying Google to ensure that a company appears at the top of a particular list of search results necessarily involves anything illegal.”
Dias J said she had been informed by counsel for Spectra that only FCA-regulated companies could appear in these types of Google adverts.
It was, she acknowledged, “difficult for insurers to challenge” this practice in the context of RTAs, when the only question between the parties was whether the claimant suffered the losses alleged.
If a credit hire contract was “tainted by misrepresentation”, it was “no concern of the defendant” unless there was “some suggestion of fraud”, for example if there had been “collusion” between claimant and credit hire company.
“That is not suggested here, but it could conceivably arise in another case.
“In the absence of any evidence, it is not appropriate for me to say anything more about the legitimacy or otherwise of this so-called ‘Google-spoofing’. However, if there is anything objectionable in it, it may well be that this can only be addressed by Parliament, the FCA or one of the other industry regulators.”
The application was rejected at first instance by Mr Recorder Michael Smith, sitting at Liverpool County Court, in September last year. Skyfire appealed.
Dias J said 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 him being able to avoid the contract, regardless of any misrepresentation.
Even if 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”.
This meant that the recorder was “entirely correct” to conclude that disclosure would “serve no useful purpose”, and as a result Skyfire could not satisfy the conditions for non-party disclosure set out in CPR 31.17(3). She dismissed the appeal.
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