Copley v Lawn (Intervention Letters) and Electronic Communications

Introduction

The well-known case of Copley v Lawn [2009] EWCA Civ 580 was reported in 2009. I wrote an article on it titled “The Implications of Copley v Lawn”. It is a Court of Appeal case, which is still valid. It is however also correct that it's been 16 years since that decision and electronic communication has taken far more prominence since then. By electronic communication, I am referring to emails and text messages, which undoubtedly will only take a greater role in the future. There has however been no higher court case dealing with whether electronic communication can be an effective way of making a Copley v Lawn offer. In a recent case where I was acting for a claimant, the defence had sought to relay the intervention letter by way of a recorded delivery letter, email and text message.

There are however county court decisions, some of which I will refer to in this article. I am always however wary of county court decisions. The history of credit hire is filled with county court cases, which often contradict each other. Of course, either one side or the other (or both) will seek to take advantage of a county court decision, which is understandable. In this article, I will however seek to look at these county court decisions in the context of the higher court case of Copley v Lawn, which may be more productive.

This article seeks to seriously examine the issue of electronic communication and intervention letters in the following way:

(i) analysis of two county court cases specifically dealing with intervention letters by email and text;

(ii) re-examining the case of Copley v Lawn (Court of Appeal decision) in the light of the county court decisions and electronic communications;

(iii) interesting points arising from the above cases

and

(iv) conclusion.

Analysis of two county court cases specifically dealing with intervention letters by email and text

There are two county court cases, one dealing with an intervention letter by text and one case dealing with the same by way of email. There are undoubtedly other county court cases, but I have here selected two cases with publicly available judgments. It's important to stress that these are not higher court cases that create any kind of binding precedent.

Alexander Massie v Ageas Insurance Limited [2019] 10 WLUK 862 was a county court decision decided by a Deputy District Judge. In what was a very short judgment consisting of 10 paragraphs, it appears that there was a text sent the day after the index accident. The claimant accepted he received the text, but stated that he was unable to open the link to the purported intervention letter. There was a later conversation in which the claimant stated that he “read all the bits and pieces in it”. The judge found as a fact that this could have only referred to the intervention letter, not just the text which was very brief. So, a finding of fact was made that the claimant did in fact receive the intervention letter, by way of the link to the text. There was also a reference to a conversation between Mr Massie and a Ms Molly “...shortly after the accident...” (paragraph 7) - I am not clear if this was in relation to the offer of a hire vehicle, though I presume it would be a telephone conversation. The judge stated, “The validity of the letter itself is not questioned by the claimant’s counsel” (paragraph 9).

I am not entirely clear about all arguments that were advanced on this case for which a short judgment was produced, but it seems that it was disputed that the claimant did receive any intervention letter (as he was unable to open it). The judge found he did receive the intervention letter as a finding of fact and therefore the hire charges were accordingly reduced.

In Mr Trevinder Thandi v AA Underwriting Insurance Company Limited [2025] 4 WLUK 723 an intervention letter was sent by email and days later also by post. The judge (who was a Recorder) found that the claimant should have chosen to switch from the credit hire vehicle to the intervention vehicle within 7 days of receiving the I cannot see however any argument by the parties that an intervention could not be made via email. The issue appears to be around whether there was sufficient information in the intervention letter and whether it was reasonable for the claimant to refuse the intervention.

Re-examining the case of Copley v Lawn (Court of Appeal decision) in the light of the county court decisions and electronic communications

It is correct that Copley v Lawn did not appear to be dealing specifically with the issue of electronic communications. Copley v Lawn is however a Court of Appeal decision and in my view some helpful pointers can be gleaned from this case, albeit a higher court authority directly dealing with the issue of electronic communications would be most helpful.

In Copley v Lawn, the Court of Appeal disapproved very strongly of “cold” telephone calls stating (in paragraph 9) that:

“What is completely clear to me is that the cold telephone call to Mrs Copley was inappropriate.”

One could argue this potentially extends to texts. Texts are commonly received nowadays and is there any real and material difference between a cold call and a text? Imagine you have had a road traffic accident and the following day you receive a text offering you a “free vehicle”. In a world where sales pitches and scams are becoming increasingly common via text, would a higher court perceive a text message any different to a cold call? Whilst I am not entirely certain whether there was a call discussing a provision of an intervention hire vehicle before the text in the non-binding case of Alexander Massie, could it be that (ironically in the context that in Copley v Lawn it was stated that a cold was “inappropriate”) a text with an intervention letter which follows a cold call could be considered to be a valid intervention letter? I am not entirely convinced, though it is clear to me that higher court guidance would be most welcome on this. In my view just a text without a call beforehand purportedly could be considered to be in the category of a “cold call” - but again guidance from a higher court would be most welcome. Whilst in Alexander Massie there appeared to be no difficulty in accepting that a text could be used to produce a valid intervention letter, it's not clear that any of the arguments put forward in this paragraph of this article were made. It seems that in Alexander Massie the question appeared to be a factual one of whether the claimant had received the intervention letter as he claimed he could not open the link – as I state I am not clear if it was argued that a text was “inappropriate” in the first place as being akin to cold call in Copley v Lawn. In any event this was a non-binding county court decision.

After all if one carefully looks at Copley v Lawn, whilst the ratio decidendi (reasons for decision) for rejecting the intervention was that letter did not have the cost of the hire (to the defendant), there was also extreme reluctance in accepting the premise in the first instance that the defence should be entitled to intervene. This is what the Court of Appeal stated in paragraph 6:

“Despite Mr Butcher’s recognition that the doctrine of mitigation can have a part to play in cases like the present, judges should, in my view, be reluctant to become too readily involved in complicated mitigation arguments since the major protection for the defendant and his insurers is that the claimant can only recover the “spot” or market rate of hire as explained in Dimond v Lovell . One rarely encounters mitigation arguments in ordinary sales of goods cases precisely because the relevant statute provides that damages are to be prima facie assessed by reference to the market value of the goods. The reason is that it is usually open to the innocent buyer or seller to go into the market to acquire other goods or dispose of the contractual goods and that is what he ought to be doing by way of mitigation of his loss. There is no reason why loss of use claims based on the hire of goods should be any different. I would, therefore, look with some scepticism on arguments that an innocent claimant should take further steps (over and above ensuring that he is not hiring a replacement car for more than the market rate) by way of mitigating his own loss or protecting the tortfeasor’s position.”

In paragraph 9 of Copley v Lawn, the Court of Appeal stated this when discussing intervention in that case:

“It is very difficult to know what an average driver would make of all of this. It comes (within a day or two of the accident) from the insurers of a defendant who has negligently caused damage to the claimant’s car and perhaps his person too. It has an unpleasant threatening tone to it and does not even suggest that the recipient should pass it to his insurer or solicitor for advice as to its contents. It is tempting to say that any recipient should be entitled to ignore it completely. But that is not a course which any of the judges below adopted. What is completely clear to me is that the cold telephone call to Mrs Copley was inappropriate. If that is KGM’s practice it should be discontinued forthwith.”

Emails are very common now as an accepted form of communication and it is hard to see how any intervention letter could not be considered valid on the basis it was sent by email. Looking at the matter practically having easy access to the intervention letter on a laptop on a screen, is far more acceptable than a text with a link received on a far smaller screen. In Trevinder Thandi, there did not appear to be any challenge that an intervention could by way of email and the court proceeded on that basis. This all seems sensible to me.

Interesting points arising from the above cases

There are a number of interesting points which arise from the case of Copley v Lawn and the two county court cases, namely:

a) As in presently stands, there is no higher court authority dealing with the issue of whether intervention letters sent by way of text and email are valid;

b) The cases of Alexander Massie, Trevinder Thandi and any other cases will be county court cases, which are not binding. The cases of Alexander Massie and Trevinder Thandi appear to be largely decided on the facts;

c) Having said this, it's hard to conceive that an intervention letter by email (provided it can be opened etc) could not be considered a valid way of sending an intervention letter;

d) In the case of Alexander Massie, there does not seem in principle to have been any issue arisen as to whether an intervention letter could be delivered via text message, the main issue being whether the claimant was able to open the link with the intervention letter (which the Deputy District Judge decided he did open);

e) In any event Alexander Massie was a county court decision, which is not binding;

f) If one looks carefully at the Court of Appeal case of Copley v Lawn, there appeared to be a great deal of caution expressed in whether intervention letters should be taken into account in the context that “spot rates” (now called BHR) were available on the open market to all. But the lower court judges in Copley v Lawn did not approach the issue in that way and in the Court of Appeal itself no such argument was taken by the parties, so the Court of Appeal did not go behind this approach but made it clear that the cost of the intervention had to be made clear. They were also very clear that a “cold call” was inappropriate;

g) So, in the light of the Court of Appeals caution and also clear indication that a cold call was “inappropriate”, what would a higher court make of a text which followed a cold call? Indeed, what would a high court make of a text which did not even have a cold call precede it? Would not a text seem like a bolt from the blue? In today's times, when the public is inundated with “sales pitches" after an accident is reported, how would a text with a link on a small screen on a mobile phone be viewed as, by a higher court? Could not a text seem to be the equivalent of a “cold call”? Especially one when no other prior communication was made?

h) It's important not to get overawed by technology. For example, what if there was a purported service of an intervention letter by text message with a link and the claimant asserted that he could not open the link? In Alexander Massie the claimant made admissions that he had read “bits and pieces”; but what if no such admissions were made?

i) Perhaps it's just best to take the approach that both older and newer methods should be used! I recall a case I had recently representing a claimant on a credit hire case. The defendant had purportedly served the Copley v Lawn letter by post (recorded delivery), by text message and by email. The client recognised the signature which the defence had produced for the recorded delivery as “one that looked like hers”, but she did not recall signing any such document. She did not recall receiving any intervention letter by text, though he may have received “something” by text. The meta data the defence had produced supporting the delivery of the intervention letter by text was in my view ambiguous. There was however an email which appeared to have been sent to the client, though she could not recall receiving it. Whilst the case was settled on handsome terms for the client before trial, my advice to the client was that she would struggle in countering that a Copley v Lawn offer was not received by her, as three types of service were used!

Conclusion

The case of Copley v Lawn is nearly 20 years old now. Communication by way of texts and emails is increasingly becoming the norm now. With this in mind, it should not be forgotten that phone calls (including “cold” calls) when the case of Copley v Lawn was decided were also the norm, yet the Court of Appeal did not hesitate to describe cold calls as “inappropriate”. These comments of the Court of Appeal should not be overlooked when thinking about electronic communications, particularly texts. This is especially the case with texts where they are the first communication for intervention (with no prior call), which may seem like a “bolt from the blue” for a claimant.

There are county courts cases which appear to accept in principle that emails and texts are appropriate ways of conveying an intervention letter, but this appears to be in a context when parties do not appear to challenge these modes of communication. An intervention letter by email may potentially seem non-controversial, but a text particularly without any prior communication may be considered by analogy to be akin with a “cold call” as being inappropriate – though higher court guidance would of course be welcome. In any event, these county court cases are non-binding decisions.

In my article on Dimond v Lovell (“Should Dimond v Lovell be re-visited?"), I suggested that much has changed since that case and there was a strong case for that case to be re-visited. In my view, the same potentially applies to Copley v Lawn, whereby the way people communicate has vastly changed since that decision.

In my view, the subject of electronic communications and intervention letters is far from settled. Law firms, insurance companies and credit hire companies may not have heard the last on this subject...All parties should be ready for this!

Higher court guidance would be most desirable.

Please note this article does not constitute legal advice for any specific case or cases or for any other situation.

© Mohammed Azeem Ali 2025