Legal Watch:Personal Injury20th November 2014Issue: 041

Events

Plexus and Greenwoods hold a series of events which are open to interested clients. See below for those being held in the next few months:

The Major Bodily Injury Group (MBIG) | Spring Seminar | 28.04.15 | The Wellcome Collection, London

In This Issue:

• Civil procedure/expert evidence

• Civil procedure/split trials

• Jackson/Mitchell/Denton

Civil procedure/expert evidenceAlthough it is a case on its own facts, Jowari v NHS England [Lawtel 17/11/2014] is a reminder of the importance of identifying the issues in a case at the outset and of obtaining the correct evidence. In the post Mitchell era the courts are less likely than ever to allow a party time in which to correct any errors in its preparation.

The claimant had practised in a dental clinic in Hackney before moving to a clinic in Croydon. The defendant trust sent a letter to him stating that as he no longer worked in Hackney, his name was to be removed from the City and Hackney dental register. The claimant did not respond and therefore his name was removed, his removal being backdated to a few weeks before the letter was sent. He then left the clinic in Croydon and returned to Hackney, to a different clinic, and was told that his name had been removed from the Hackney register. As the claimant was no longer on the register in Croydon he could not carry out work for the defendant. He was then restored to the register in Hackney. He issued a claim against the defendant alleging that he had been unlawfully removed from the register and as a result had suffered financial loss. He also claimed that he had intended to buy the clinic in Hackney, once he had started working there, and therefore his removal from the register had resulted in a loss of chance to purchase the clinic. Default judgment had been entered against the defendant but was set aside. A Master granted permission for the defendant to file a draft defence, gave a date by which witness statements should be served and refused to give permission for a single joint expert. He did however give a date by which the defendant had to make an application if it wished to rely on expert accounting evidence. The instant hearing took place two weeks before the trial was due to start.

The defendant made a series of applications and submitted that (1) it should be granted permission to rely on an expert report; (2) it should be granted permission to rely on a witness statement that had not been served in time; (3) the claimant

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should be compelled to provide fuller answers to some of the trust’s Part 18 questions; (4) it should be granted permission to rely on a defence of limitation, which had not been included in its draft defence, as the claimant’s claim was time-barred as it was over six years since he was removed from the register.

The deputy High Court judge held that the report was not expert accounting evidence but evidence of the market relating to dental practices. It was therefore not what the Master had permitted the defendant to obtain. The defendant made the instant application at a very late stage and further delays had been caused in the listing of the hearing. It was too late to allow the trust to adduce the report, even though the claimant had indicated that he would not request an adjournment to seek an expert report of his own.

‘…the report was not expert accounting evidence but evidence of the market relating to dental practices. It was therefore not what the Master had permitted the defendant to obtain.’The only important point for the defendant in the witness statement was that the witness had bought the practice that the claimant claimed he had intended to buy, the date he had bought it and the price he had paid. The claimant had indicated that he would make an admission as to those specific facts. The remainder of the witness statement was of little relevance and therefore permission to adduce it, or for the witness to give oral evidence, was refused.

The claimant had not properly answered some of the Part 18 questions posed. Therefore, he was ordered to provide

further information in relation to where he was living at the time the letter was sent, when he had received it or a copy of it, the steps he had taken to raise funds to purchase the clinic and why he had not purchased another clinic.

Nothing had been done to include the new defence in the statements of case, until the instant application, which had been made two weeks before trial. It was extraordinary for the defendant to suggest that the limitation period ran from the retrospective date of the claimant’s removal from the register. In addition, if the breach was caused by the act of removing him from the register then it would remain until he had been reinstated, which would mean that his claim was not out of time. The court also had to have regard to the likelihood of the defence succeeding. It was unlikely that the defence would succeed and it was too late to raise it two weeks before the trial date.

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Civil procedure/split trialsWhen is it appropriate to have separate trials of the issues of liability and quantum? That was what concerned the court in Hornsby-Clifton v Ministry of Defence [Lawtel 18/11/2014].

The claimant’s claim related to alleged negligent treatment by the defendant’s medical service for the chronic fatigue syndrome that she developed in 2007. She had served in the army legal service since 2000 and was prevented from working by her condition and medically discharged in 2012. The claimant alleged that she was not properly treated during her service for that condition. She argued that if she had been properly treated she would have been able to continue working until 2016 when she would have various other career options open to her. Her case was that because of the defendant’s negligence all those options were now closed as she was unable to work in any capacity. The claim was substantial ranging from £2m to £4.4m. A trial date was set for February 2015 with a seven-day time estimate and had been fixed for some time. The claimant wanted a split trial of liability and quantum as there was an outstanding issue in relation to a pension and it was suggested that the trial might exceed its time estimate if all the issues were dealt with at the same time. The defendant applied informally for permission to put in further witness statements: one from a physiotherapist and the second from a rehabilitation consultant who had treated the claimant, instead of making a formal application to return to court within 14 days.

‘…if the trial was split it would increase the costs and court time if they (the witnesses) had to be called again for quantum.’

The High Court judge held that there was no good reason for putting off the issue of quantum or for a split trial. There would be an overlap between causation issues and quantum. The same trial judge would be in a better position having heard all the evidence to determine those issues. By and large the same experts would deal with all the evidence relating to liability and quantum. Therefore, if the trial was split it would increase the costs and court time if they had to be called again for quantum. If the claim succeeded there might not even be a quantum trial because the case might be compromised. It seemed that all the issues were overlapping and intermingled and should all be dealt with at the same time by the same trial judge. It would be a risk if there was a split trial on quantum as a different judge who would not have had the advantage of seeing the witnesses on causation and negligence. It was not appropriate to split the trial and all the issues should be dealt with at the same time.

The main difficulty with allowing the defendant’s supplementary evidence was that those witness statements were still being prepared. While the court applauded the defendant in seeking to save time and costs in making a separate application it was wrong to accede to it. In the absence of the statements it was not right to give permission currently and an application should be made in the proper form with the statements attached and an explanation of why they were relevant. The defendant needed to make a formal application within 14 days time.

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Jackson/Mitchell/DentonIn previous editions of this periodical we have questioned whether we are already seeing a significant softening of the courts’ approach to relief from sanctions in the post Denton era. This seems to have been the case in Bankside Hotels Ltd v Gourgey [Lawtel 18/11/2014].

The applicants had served three unfair prejudice petitions in respect of three companies of which the first respondent was a director. The applicants had served a request for further information. The respondents objected to the request’s content on the grounds it was neither reasonable nor proportionate, but had later consented to an order that they would provide “a full response”. They failed to reply and an unless order was made requiring them to provide “their” response by a certain date, in default of which their defence would be struck out. The respondents served a document purporting to comply, but the claimant considered that the reply was defective and in breach of the unless order because it did not contain a signed statement of truth and did not give a “full” response.

The respondents argued that the reference in the unless order to “their” response meant that they could choose how to respond.

Allowing relief from sanction, the deputy High Court judge held that the failure to verify a reply to a request for further information did not make the document a nullity. Under CPR 22. 2 it was not struck out simply by virtue of the absence of a statement of truth. Accordingly, the respondents had not failed to comply with the consent order by lack of a statement of truth.

The unless order could only sensibly be interpreted against the background of the consent order. The unless order was intended to enforce the consent order and the respondents were not entitled to object to the consent order. There were several examples of egregious non-compliance by the respondents which demonstrated a substantial failure to respond adequately to the request. They were obliged

to comply with the unless order, particularly because it had been made to enforce a consent order. The reply was plainly incomplete and insufficient, so the unless order was effective unless relief from sanctions was granted.

‘The point of CPR 3.9 was that the court had a discretion to grant relief if it was right to do so.’On an application for relief from sanctions under CPR 3.9 (and applying Denton) the court had to consider the seriousness of the breach, the reason for the breach and all the circumstances to enable the court to deal with the case justly. An assessment of the seriousness of the breach should not consider unrelated failures, which should be considered as part of the overall circumstances. The failure to reply adequately was a serious and significant default and disrupted the litigation process. The default had occurred because the respondents had decided to answer only those questions that they considered to be valid and appropriate, but that had not been open for them to do. There was no good reason for the breach. In relation to the overall circumstances, the evidence fell short of establishing a course of conduct designed to delay the hearing, but delay had been caused. The delay would not affect the trial date, but it might have inconvenienced the applicant. The respondents had also delayed in making their application for relief. It had to be recognised that non-compliance with an unless order always resulted in deprivation. The point of CPR 3.9 was that the court had a discretion to grant relief if it was right to do so. Taking all the matters into account, and placing weight on CPR 3.9 (1)(a) and (b), relief should be granted. The overriding objective was to deal with cases justly. There was a need to enforce compliance with rules and orders, but Denton had displaced the perception post

The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 8 Bedford Park, Croydon, Surrey CR0 2AP. Parabis Law LLP is authorised and regulated by the SRA.

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Mitchell that relief from sanctions had to be refused where the breach was anything other than trivial. An insistence on enforcing compliance with court orders where there was no effect on the proceedings was not the right approach in the light of Denton and would ignore the need to deal with cases justly. It would not be just, fair or proportionate to refuse relief, but it would be granted on terms that the respondent pay the applicant’s costs on a indemnity basis and a further unless order would be made requiring a full response to the request within 21 days, in default of which the defence would be struck out. Barring something extraordinary the court would expect compliance.