Advantage Insurance v Shaw [2026] EWHC 2188 (KB) (17 July 2026)

JUDGE PEARCE:

This is my judgment on the preliminary issues that arise in respect of the application brought by Ms Gillian Wilde and/or Advantage Insurance Company - I will go into greater detail about the distinction between the two in a moment - for permission to bring committal proceedings against Mr Matthew Shaw. I give judgment orally, having risen over the short adjournment to prepare the judgement but having heard submissions on a further point raised by the applicants when I returned to court to give judgment.

Mr Shaw was involved in a road traffic accident on 30 June 2018. The alleged tortfeasor was Ms Gillian Wilde. Mr Shaw issued proceedings and judgment was entered after a trial on the issue of liability.

Advantage is the insurer of Ms Wilde. As far as I am able to see, Mr Higgins, on behalf of Advantage and/or Ms Wilde, is correct to say that throughout, at the very least, the quantum aspect of this claim, the defence of the claim was carried out entirely under the egis of Advantage as the Road Traffic Act insurer. The quantum issues led to a trial before HHJ Sephton KC.

At the conclusion of the trial, His Honour Judge Sephton KC found that the claimant's true loss was a substantial figure in excess of £1 million but that his far larger claim was an exaggerated claim and that he had been fundamentally dishonest in relation to the claim. Hence, Judge Sephton dismissed the claim under section 57 of the Criminal Justice and Courts Act 2015. It is asserted on behalf of Advantage that this is the largest claim to have been dismissed under section 57 of the 2015 Act. It is doubtless a very substantial claim, even if not actually the largest, and Advantage view that it ought to apply for permission to bring committal proceedings against Mr Shaw is understandable.

Those proceedings were brought under cover of an application notice N600, which is the form for applying for committal within existing proceedings. The matter came before HHJ Sephton KC in August of 2025 and following a hearing on 7 August 2025, Judge Sephton gave a series of directions. One of the most significant of those directions was that he recused himself from further hearings in respect of the claim. He also gave a series of directions dealing with issues not only of the evidential basis of the application to commit but also that dealt with issues of standing on the part of the applicant for committal.

That issue of standing appears to be rooted in at least two different questions. The first is whether Advantage, as the insurer, had the right to use Ms Wilde's name to bring the application. Judge Sephton KC was clearly also concerned with whether, in substance, Advantage could bring an application to commit.

Mr Higgins, on behalf of Advantage, has referred me to KJM Superbikes v Hinton [2019] 1 WLR 2406 and Verlox International Ltd v Antoshin & Ors [2023] EWHC 86. As I read it, the second of those cases goes more to the issue as to whether any power to permit the insurer to bring committal proceedings should, in fact, be exercised in its favour, having regard to the public interest elements of the claim. The former, though, at the very least touches upon the right of an insurer in the position of Advantage here to bring such a claim. I agree that there is, in the judgment of Moore-Bick LJ, support for the argument that, in principle, an insurer may be able to bring such an application.

For present purposes, it is not necessary for me to reach a firm conclusion on whether an insurer in the position of Advantage, which has indemnified an insured and where the claimant has been found to have brought a claim against the insured which is fundamentally dishonest, is able in its own name to apply for permission to bring committal proceedings. I assume that there is no absolute bar to an insurer bringing an application to commit an individual who has brought a claim against someone to whom the insurer is providing or has provided an indemnity.

But Judge Sephton KC, as I have indicated, raised questions not only as to the right to bring the claim, but also as to the standing of the second applicant, which is to say Advantage, to bring a claim in the name of the first applicant, Ms Wilde. Judge Sephton KC had before him not only the application in the existing proceedings, F90MA233, the proceedings between Mr Shaw and Ms Wilde in which Advantage were not named, but also the separate claim brought subsequently by Advantage under claim number KB-2025-MAN-000132, a freestanding claim for committal. It was because both applications were before him that he referred to Ms Wilde as the first applicant and to Advantage as the second applicant; I shall refer to them jointly as the applicants.

Judge Sephton's order was the subject of an application for permission to appeal which was considered by Whipple LJ on 29 January 2026, in an order sealed on 2 February 2026. She refused the application for permission to appeal. She considered each of the 12 grounds that were before the court, refusing all grounds for permission, saying in respect of grounds 1 to 3, which related to Judge Sephton's decision to recuse himself, that that was a reasonable decision that lay within the range of the reasonable judge in the position of Judge Sephton, even if others might have reached a different conclusion. On grounds 4 to 5 and 8 to 9, relating to the issue of the standing of Advantage and/or Ms Wilde, she indicated that the judge was entitled to dispense with formal notice of an application and was entitled to make orders relating to standing under grounds 6, 7, and 11, that Judge Sephton KC was entitled to make disclosure orders. One of those becomes relevant to an issue that I need to deal with later on.

She also noted on an issue as the judge's adjournment of the application to bring to contempt proceedings that although that was subject to appeal that counsel for the appellants had, in fact, conceded in the course of submissions that permission should be adjourned to another day. That is a concession which I noted when I read the transcript. Overall, on behalf of the claimant, Mr Bradley KC and Mr Lewis say that the manner in which that appeal was conducted and, indeed, the manner in which these proceedings have continued to be conducted, give rise to considerable doubt as to whether, in fact, this insurer in this case is properly respecting its duties as potential quasi prosector rather than acting in a manner which ought to lead to the refusal of permission to bring committal proceedings at all.

I express no concluded views on those issues at the moment. They are matters of concern to me and if this case passes the threshold issues that I am dealing with at the moment and which have been the subject of submissions today, I consider that the court would wish to be addressed further on whether there are aspects of the way in which this committal application has been conducted by the applicants that ought to point against the grant of permission to pursue those proceedings. No doubt, the applicants would argue that the level and effect of the respondent's dishonesty would need to be weighted in the balance with any alleged inappropriate conduct by the insurer in deciding on the permission issue. I leave that for later argument if appropriate.

At this stage, three points need consideration:

i) The first point is whether it is open to the applicant(s), whether it be Advantage alone or Advantage and Ms Wilde, to proceed with this application in the particular circumstances that the application has been brought in the name of Ms Wilde but, says the respondent's side, there is no evidence that the application is brought with her consent, nor is there any evidence that Advantage has any subrogated or other right to bring the application independently of that consent.

ii) The second issue that arises at this preliminary stage is whether if I were minded to accede to the respondent's submissions on that issue, which absent any further application would be liable to lead to the underlying application to commit to be struck out, whether I ought nevertheless to permit an application be made to amend the name of the applicant from Ms Wilde to Advantage.

iii) The third issue which has arisen this afternoon following my rising in order to prepare judgment, is that the applicants now say that they have in their possession evidence of actual consent on the part of Ms Wilde to the bringing of these proceedings. Ought I in some way to accede to an argument that permits them to bring evidence of that consent before the court which clearly might be capable of dealing with the argument raised on behalf of the claimant that there is no evidence of such consent? I emphasise at this point in time that I do not know the nature or detail of the alleged consent. I have no reason to doubt that which is said from the bar that there is material that can evidence the consent, but there is no consent or purported consent in front of me, nor is there any application for permission to adduce such evidence before.

I deal, then, with the first question of the right of the applicants, be it Ms Wilde herself or Advantage, to bring this application as currently formulated. One of the issues which troubled the parties earlier on in this case is whether the application to commit in these circumstances ought to be brought within existing proceedings or could properly be brought as a fresh part 8 claim. It was because of that debate and potential issue that the applicants issued the second application that I referred to, the one in which Advantage is named as the applicant. There had been some doubt on the authorities as to whether after judgment has been given and the claim dismissed under section 57 of the 2015 Act, that it could properly be said that there were existing proceedings in which the application could be brought. It is a nice, academic debate. It has been solved by the good sense of the parties in agreeing that, at least in that respect, there is no issue between them that the proper way to make the application is within the existing proceedings.

In summary, on behalf of the applicants, Mr Higgins contends that the arguments being advanced against permission being granted, those arguments which I am dealing with on this preliminary issue, are, in effect, a smokescreen for the fact that the claimant otherwise has no arguable case to resist permission being granted. It is common ground that permission should only be granted in circumstances where the applicant in the permission proceedings is able to show a strong prima facie case (see, for example, paragraph 16 in KJM Superbikes v Hinton which I cited earlier). In this case, the claimant has acknowledged that for the purpose of the application for permission the evidence is sufficiently strong to pass that test, so I do not need to be troubled by it further but Mr Higgins understandably seeks to emphasise as part of his case the seriousness of the situation where the claimant acknowledges that the prima facie test is passed.

The second question that arises is that of public interest, a matter I have touched upon already. Mr Higgins says that the arguments being raised now by the respondent are a smokescreen for the fact that there is no possible ground upon which in a case where the figures are as high as this a court might conclude that the public interest lies against the bringing of contempt proceedings. It is, of course, the case that the personal circumstances of a respondent to such an application may persuade a court that permission should not be granted. There are no relevant personal circumstances here. There may be cases where, notwithstanding a finding of fundamental dishonesty, the court concludes that the conduct of the alleged contemnor is, in fact, so mitigated by some feature or other that it would not be in the public interest to allow the proceedings to progress.

In this case, Mr Bradley KC, on behalf of the respondent, has proffered one reason why that may be so, which is that his client has already lost a claim worth more than £1 million on the grounds of his conduct which was found to have been fundamentally dishonest and that it may be considered excessive to punish him a second time over by permitting a committal application to be brought. That is a point that clearly can be argued on the respondent's behalf. But I certainly do not think that there is any overwhelming argument against the applicants in respect of the situation of the claimant at a personal level which might militate against the grant of permission.

But it is also the case that consideration of the public interest necessarily involves considering the conduct of the applicant for committal proceedings. It is in that respect that I have already raised a question that might need answering in certain circumstances as to whether permission ought to be granted even if procedurally there is no bar to this application progressing at this stage. I have left that issue open and to that extent, at least, the conduct of the respondent in seeking to defeat this application at a preliminary stage could not be said simply to be a smokescreen to cover an otherwise entirely unmeritorious position.

The "smokescreen" argument also suffers from the potential problem that it fails to take into account the obvious and clear need for procedural rigour in applications of this kind. This application has been brought and argued on the basis that the conduct of Mr Shaw is so obviously so bad that the court need not be overly troubled by technical issues as to procedure. That is a submission which I quite simply do not accept. Mr Shaw is at risk of committal to prison if these proceedings progress. That is a serious position for anybody to be in. He is entitled to the proper procedural protections which include knowing the case against him and which include, where a case has, in fact, been brought in circumstances that cannot be justified, enable him to raise argument against that claim progressing and enable him properly to argue that the claim becomes an abuse of process because of the failure properly to follow procedure. It is perhaps particularly striking in a case which has already taken up considerable time in terms of case management that the court should, in certain respects, find itself being met with arguments that it need not worry about the detail of procedural rigour that it can be satisfied that the insurer ought to be able to progress the application without necessarily finding that the court is being helped with the proper basis for the application being brought.

In essence, Mr Higgins' position is this. Advantage has a freestanding right to bring an application to commit. Whether the application is, in fact, brought in its name or in Ms Wilde's name is a mere procedural technicality. These are proceedings that at least since liability was resolved have been entirely under the control of Advantage. Advantage has doubtless made all of the applications that it needed to make procedurally in order for the quantum trial to be resolve and, equally, doubtless acted on behalf of Ms Wilde in responding to any applications made on Mr Shaw's behalf. There can be no confusion in this case. This, in reality, is Advantage's case. It is Advantage's case because if Mr Shaw had succeeded in his claim and it had not been dismissed under section 57 it would have been Advantage that was writing the cheque for the damages. That seems to me to be entirely clear from the evidence before me. If there were any doubt about it, it is confirmed within the witness evidence of Mr Pope and I accept that that is factually so.

Mr Higgins argues that that control is the beginning, middle and end of this issue. Advantage have had control over the litigation on behalf of Mr Wilde. It therefore can bring this application. The person in whose name the application is brought is irrelevant to that right to do it. It would be an affront to justice, in effect, if the court allowed a technical objection as to who was named as the applicant to prevent the application proceeding. It is that second point that the applicant in effect acknowledges by raising the argument that if I am against the applicant on the first point, if I say that the proceedings as currently constructed could not properly lead to the grant of permission that I ought to consider the question of application to amend.

Until lunchtime today, no argument was advanced before me that Ms Wilde had, in fact, consented to the bringing of this application. I rose to consider my judgment and returned to court after lunch to be told that the applicants say they are now in possession of material that demonstrates that at least now she has given permission. Since I have not seen the material, I do not know the detail of it. As I understand it, that consent is said to have been given very recently, but that is a matter that would need to be explored in the event that the court were being asked to admit evidence as to Ms Wilde's consent to the proceedings. However no formal application has been brought to admit her evidence and no consideration has been given as to how the court should treat any such application in light of paragraph 6 of HHJ Sephton KC's order of 7 August 2025.

In response to those arguments and in contending that the court simply has no basis to allow these proceedings to progress, I will take matters a little out of order by dealing with points 2 and 3 before I deal with point 1. Point 2, that the court should consider permitting the applicants to amend if I am against them on the primary point. Mr Bradley says absolutely not. There is no formal application to amend the application to commit. All there is is a document produced last night - technically, under the Civil Procedure Rules, I am told, and I am sure this is right, that amounts to service this morning - a document in which in place of Gillian Wilde as the claimant, which as Mr Higgins rightly might be better expressed to be the applicant, is substituted Advantage Insurance Company Limited.

Mr Bradley raises a series of objections to this. The court should not be dealing with an application like this without an application notice, on the hoof without proper argument. There are a series of potential questions that are raised here, including why it is only at the last minute that this amendment is proffered, whether a person, a legal person, namely Advantage Insurance Company Limited, that is not a party to the proceedings can, in fact, be named as an applicant or claimant, as the case may be, in respect of an application to commit and similar. Mr Bradley says he, on behalf of the respondent, simply has not had proper time to consider this application and to respond to it. That is entirely unsatisfactory, he says, in a case where the permission application has now been before the court for in excess of a year and where directions were given as long ago as 7 August 2025. His response to the third application, the application that invites the court through some means to take account of the permission now proffered, by all accounts, on the part of Ms Wilde is even more flawed. There is no written material before the court at all to understand that, to understand what has gone on, to understand in what circumstances Ms Wilde is alleged to have given consent, at what time she gave consent, to what she was giving consent and such like. It is simply too late. Mr Bradley seeks to emphasise the point by drawing my attention to the order of HHJ Sephton KC of 7 August 2025, which sets a date by which the applicants should produce such material if they intend to do so. That date is 8 September 2025, more than 10 months ago.

On that last point, Mr Higgins did not immediately accept that there was a failure to comply with paragraph 6. As he points out, entirely correctly, paragraph 6 is said to be an obligation that is subject to any point on legal professional privilege. It could, I think, conceivably be the case that the applicants, if they had not disclosed documents on 8 September because they were considering or asserting legal professional privilege in respect of them, could nevertheless say that they had complied with the obligation in paragraph 6 if they had produced the documents as soon as the legal professional privilege issue was resolved. On any fair reading of paragraph 6, it cannot be said to be the case that when on 17 July 2026 the court is told that there exists documents but for the moments cannot be or are not being produced, that the applicant can be said to have complied with paragraph 6 of the order. This is not simply the claimant or his legal advisors taking advantage of minor procedural irregularities. Mr Bradley says that the applicants are seeking driving a coach and horses through Civil Procedure Rules, through normal practice and, most particularly, through the order of HHJ Sephton KC made consciously when similar issues were before the court and simply ignoring procedural obligations until the very last minute when it realises that it has problems and seeks to get out of those problems in an unsatisfactory manner.

On the first issue as to whether, assuming as the respondent says I should do, that the court looks merely at the application as currently formulated, Mr Bradley contends that this is a hopeless application. There are essentially two routes through to an application being brought in the name of Ms Wilde. The first is for the applicant (or applicants) to show that Ms Wilde has consented to the making of this application. There is no evidence to indicate that subject to my acceding to the third of the issues and the applicant's arguments in thereof, there is simply not evidence at all on the issue as to whether Ms Wilde has consented to this application being brought. Moreover, everything about the way the applications have been brought would tend to indicate that at least until very recently, when there may have been communication with Ms Wilde, Advantage has proceeded on the basis that it has not obtained her consent and that it need not obtain her consent. That much can be seen from the very way in which Advantage pursues the application, basing it upon its own control of proceedings.

Within the material cited on behalf of the applicants for permission in this case, my attention is drawn to the case of Castellain v Preston (1883) 11 QBD 380. It deals with questions of indemnity and questions of subrogation within insurance law. Mr Bradley argues that it is necessary on the applicant's control argument to show that the power that it is purporting to exercise to bring proceedings in Ms Wilde's name, if not expressly brought with her consent, fall both within the indemnity in the insurance contract and with the subrogated right. In particular on the right to subrogation, both sides have drawn my attention to the headnote in the case and the following passage in the judge of Brett LJ:

"Now, it seems to me that in order to carry out the fundamental rule of insurance law this doctrine of subrogation must be carried to the extent which I am not about to endeavour to express, namely, that as between the underwriter and the insured, the underwriter is entitled to the advantage of every right of the assured, whether such right consists in contract, fulfilled or unfulfilled, or in remedy for tort capable of being insisted or already insisted on or in any other right, whether by way of condition or otherwise, legal or equitable which can be or has been exercised or has accrued and whether such right could or could not be enforced by the insurer on the name of the assured..."

I pause there mid-sentence to say that that is how the passage was cited to me by Mr Higgins in support of the argument that this was a right that lay with the insured. I continue with the remainder of that sentence:

"... in the name of the assured by the exercise or acquiring of which right or condition the loss against which the assured is insured can be or has been diminished."

The final part of that sentence demonstrates, Mr Bradley says, the point that he seeks to make in respect of subrogation. It is an aspect of the indemnity under the contract. Here, the contract is not before the court. What indemnity has the insurer given here that is said to be relevant to an application to commit for prison? Indeed, the point might be put even more strongly by saying that if one looks at that passage that I read from Brett LJ, in what sense is an application to commit about the loss of the insured being diminished? That passage would, it is argued, point very much towards the fact that to show a subrogated right the court would have to be having its attention drawn to rights that relate to the insurance company's losses in the sense of diminishing those losses rather than rights that relate to either invoking the public interest or, still worse, perhaps invoking a sense of revenge against a person who has lied to the court. There is a public interest in ensuring that those who lie to the court are rendered answerable for that, but that does not make every application to commit an application which relates to the doctrine of subrogation or the diminution of the losses of the insurer.

Mr Bradley goes onto argue that in several respects, even if the insurer is able to invoke a doctrine of subrogation it is not able to show this court that it has properly gone through the procedural hoops necessary to permit an application to be brought of this nature. In this regard, there is a relatively sharp divide between the arguments advanced by Mr Bradley KC on behalf of the claimant and by Mr Higgins on behalf of the applicants. In particular, the cases of Bao Xiong v British Airways [2016] CP Rep 8 and Novitas Loans v Amtrust Specialty [2026] EWHC 592 have been cited to me in support of the argument that an insurer or solicitor or other person who seeks to bring an application in the name of others is under a variety of duties which cannot be shown have been discharged here. On the other hand, in this case Mr Higgins says that it is quite evident from the way that proceedings have been conducted thus far that the insurer has the right to defend proceedings in the name of Ms Wilde and that there are no further procedural hoops that need to be gone through in order to permit this application to proceed. One can see Mr Higgins' point that such hoops would have probably no relevance to an insurer bringing an application for disclosure in the middle of quantum proceedings where the court could safely assume or might even have evidence before it that there were existing rights of subrogation. That is hardly likely to be objectionable, but it is also the case that an application to commit the claimant is a long way from most of the aspects of the conduct of the defence of a quantum claim by an insurer. It is far less obvious that rights of subrogation apply there and, equally, it may be far more probable, as Mr Bradley has argued, that even if powers of subrogation are being invoked, at the very least the express permission of the insured is required to bring the application.

We are now a long way through today's listing with, on any version of events, more matters that need to be addressed. In my judgment, I do not need to deal with the argument that, even if Advantage were able to show either the consent of Ms Wilde to the application being brought or a right in subrogation to bring the application in the absence of her consent, there may be further procedural hoops by way of proof of the discharge of a variety of duties which Advantage needs to pass through to show that permission should be granted.

I have no hesitation in concluding that in order for Advantage to continue to progress this application they need to persuade me as a threshold issue that they either have the express permission of Ms Wilde to pursue this application or that they have a contractual right which permits them to do so. On the first issue in respect of the existence of an express right, there is no evidence before me of consent having been given by Ms Wilde. Mr Higgins says it would be entirely artificial and simply not how a court should act for me to ignore the fact that he says he can produce evidence that will put this omission right. I do not agree. We do not conduct litigation on the basis that a party can bring before the court an argument that notwithstanding the absence of evidence at this stage the party may, in the future, may be able to do something to put it right.

It is true that in the context of striking out pleadings and statements of case the court is liable to be indulgent to a party who may be able to put matters right by an amendment, in particular, where it does not consider that to do so would involve unfairness to the opposing side. There is however potentially considerable unfairness to Mr Shaw if this court today allows Advantage the indulgence of arguing that it has Ms Wilde's consent, it simply is not before the court in an admissible form at this stage. Mr Shaw has had to bear the threat of these proceedings for some time. Subject to the resolution of the remaining issues today, he may have to bear the threat of proceedings hereafter. A yet further delay in this case to allow Advantage to put right what seems to have been a fairly obvious gap in its case since 7 August 2025 would be entirely inconsistent with the overriding objective. Notwithstanding the seriousness of the conduct alleged against Mr Shaw, it simply cannot be right that there be further delay, further risk and exposure of Mr Shaw in circumstances where Advantage has had as long as this to put matters right.

The same argument applies in respect of the contention that the applicant should be able to plug any gap in this case by an amendment of the name of the person bringing the application from that of Ms Wilde to that of Advantage. That is a very late proposal, not as yet formulated in a way that I could properly do justice to in a ruling. It cannot be right that the respondent is exposed to the potential delay and those funding this litigation exposed to the potential further cost of having to put right a matter that could have been dealt with months ago.

That leaves me with the simple and central argument in this case; can this application be permitted to proceed when it is brought in the name of Ms Wilde? As I indicate there were two arguments against it:

i) The lack of evidence of consent on her part. That seems to me to be utterly overwhelmingly in favour of the claimant. There is no evidence before the court of consent on Ms Wilde's part and I could permit this application to proceed if that were the only basis for it proceeding.

ii) The argument about subrogation and/or the argument of control as it is put by Mr Higgins. Although Mr Higgins is right to say that throughout the quantum aspect of these proceedings the defence of this litigation has been entirely under the control of Advantage. I mean no disrespect if I raise the simple question, "So what?" What is the legal principle, or the legal basis for bringing a claim in that situation? I can see no other basis than one that arises from the terms of the contract between Advantage and Ms Wilde and from the application of the general law of indemnity and subrogation to that contract. I simply do not know what the contract of insurance has to say on this issue, but even if the contract of insurance did in some way cover the question of the insurer's right to conduct proceedings in the name of Ms Wilde, I see no obvious answer to the point that the law of subrogation could not be invoked where the subrogated right was one that related not to a diminution in the loss, but rather a right to take action that related to the punishment of the other party to the litigation.

In summary:

i) The consent of Ms Wilde has not been proved;

ii) I will not now permit steps to be taken now to obtain that consent; the claim has been brought in Ms Wilde's name and it would be unfair to permit it to be amended to be brought in the name of Advantage, where it is not obvious that to do so would put right the procedural tangle that the applicants are in; and

iii) Advantage fails to persuade me on the material before the court that it has any subrogated or similar recognised legal ground to bring an application in Ms Wilde's name absent evidence of proof of her consent.

For those reasons, this is an application to commit that cannot succeed and I should strike the application out as an abuse of process.

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You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Advantage Insurance v Shaw [2026] EWHC 2188 (KB) (17 July 2026) URL: https://www.bailii.org/ew/cases/EWHC/KB/2026/2188.html Cite as: [2026] EWHC 2188 (KB)

England and Wales High Court (King's Bench Division) Decisions