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Legal Watch: Personal Injury April 2014 Issue: 015


Post Jackson/Mitchell Cases The case of Canning v Network Rail Infrastructure Ltd [Lawtel 14/04/2014] sees a court looking both at strict compliance with CPR and the impact that granting relief from sanctions

In This Issue:

would have on court resources.

• Post Jackson/Mitchell Cases

The claimant’s wife had been killed by a train on a level

• Product Liability

crossing operated by the defendant. Prior to her death, she had been an editor of cookery books. The claimant earned a

• Costs

significant amount as a chartered surveyor, but had fallen sick shortly after his wife had died. His particulars of claim had stated that had his wife been alive, she would have become more actively involved in publishing in order to supplement his loss of income following that illness. The supplementary witness statement that the claimant had made claimed that his wife had been involved in the running of his company.

‘The defendant argued that following Mitchell, the present application should be treated as an application for relief from sanctions and dismissed’ The defendant argued that following Mitchell, the present application should be treated as an application for relief from sanctions and dismissed, having been made five months too late; further, that it changed the basis of the case and the way it was pleaded. The claimant submitted that it was not an application for relief from sanctions because under CPR 32.5(3) he was permitted to amplify his witness statement and give evidence regarding new matters.

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Refusing the application, the deputy High Court judge held

served their own costs budget by post on 19 November,

that the matter had to be treated as an application for relief

but their letter was not received before the hearing. The

from sanctions under CPR 3.9. It was not a trivial breach and

hearing on 21 November took place by telephone. The

the application was extremely late. Unless and until relief

claimant’s counsel argued that the hearing was a CMC, that

from sanctions was obtained, the defendant could not be

the defendants had failed to serve their costs budget in time

expected to prepare to deal with the evidence of witnesses

and that their costs budget should therefore be restricted

whose statements had been served out of time. The

to court fees only. The district judge allocated the claim to

case advanced by the claimant’s supplementary witness

the multi-track and transferred it to the Rhyl County Court.

statement was very different from his original one. The claim

At a “costs case management hearing” in that court, the

had originally focused on the extra publishing work that the

judge ruled that the earlier directions hearing in Taunton was

claimant’s wife could have undertaken following his illness.

not a CMC, with the result that no obligation to file a costs

It was difficult to see how she could have done that if she

budget had then arisen. The claimant appealed against that

was working on company affairs. The two positions were

decision.

inconsistent. If the court was to accede to the application, the claim would have to be amended. Even prior to Mitchell it might not have been appropriate to grant the application. Now the conclusion could be reached more directly: the new rules were brought in to ensure that litigation was practised expeditiously. To allow the claimant to rely on the statement would mean that the court would have to use valuable time determining which of the two assertions was valid. That

‘...the judge ruled that the earlier directions hearing… was not a CMC’

was disproportionate. It would lengthen the proceedings unnecessarily and increase costs. The second case under this heading illustrates the confusion that still surrounds costs budgeting and the fine line between ‘taking a point’ in a manner deemed to be sensible and appropriate, and trying to gain an advantage for a client in a way that is not viewed favourably by the court.

Dismissing the appeal, the High Court judge held that as a matter of construction, the rules were clear in providing that, unless and until a Part 8 claim was allocated to the multi-track by the court, the CMC provisions of the CPR 29 would not apply. CMCs were a creature of CPR 29, and the express power to fix such a hearing was triggered by

In Kershaw V Roberts and others (2014) EWHC 1037 (Ch)

the allocation of a claim to the multi-track by the court.

the appellant/claimant appealed against a judge’s decision

It was that actual allocation which triggered the various

that a directions hearing in the Part 8 claim which he had

procedural obligations attached to a CMC. The claimant’s

issued against the respondent/defendants was not a case

claim was not allocated to the multi-track until the district

management conference (CMC), so that they were not

judge specifically allocated it at the telephone hearing.

required to serve a costs budget seven days in advance of

Consequently, that hearing itself was not and could not

it.

have been, a CMC. The district judge was fully entitled to

Shortly after the claimant had issued his claim in the Taunton

hold a directions hearing before he gave directions. He

County Court, that court sent to all parties a “Notice of

was fully entitled, at that hearing, to allocate the claim to

Directions”, stating that a directions hearing would take

the multi-track, transfer the claim to Rhyl and give whatever

place on 21 November 2013. On 14 November 14, the

directions he could at that stage. He was fully entitled, then,

claimant served a costs budget by fax. The defendants

to direct that there should be a CMC in the allocated claim, to include a costs management hearing. Not only was he


entitled to make those orders but most judges would have

for the proposition that an in-time application should not be

made them.

treated as if it were an application for relief from sanctions;

The judge went on to say that because of imminent amendments to the rules, the issue that had arisen would soon be of historical interest only as the requirement for costs budgeting is to be excluded from Part 8 proceedings unless specifically ordered.

Comment Although this case draws a distinction between claims commenced under Part 8 and those under Part 7 (the majority of personal injury claims), the judge did make it clear that if an allocation hearing is ordered under Part 7 that will not be a CMC. However, it remains the case that most hearings ordered after the filing of directions questionnaires will be CMCs and on the multi-track a costs budget will be required.

rather, it should be judged against the overriding objective. In applying the overriding objective, the court should now have regard to the fact that it had been reformulated to add explicit reference to “enforcing compliance with rules, practice directions and orders”. However, unlike in the case of relief from sanctions, that consideration was not to be given paramount status. To apply the Mitchell guidelines to an in-time application would in effect erode the distinction between an ordinary order directing a timetable and an unless order. It would run the risk that ordinary orders setting out timetables would become “trip wires”, which was not the intention of the Jackson reforms. As to the practicalities, it was not difficult to see that if the Mitchell guidelines applied to in-time applications, there would be a risk in every case that a request for an extension, however unobjectionable in itself, might be declined by the other party in the hope

The decision in The Matter of Guidezone Ltd v Prakash and

of persuading the court to refuse an extension and thereby

others (2014) EWHC 1165 (Ch) is not surprising but it is

gain a significant advantage.

nevertheless comforting. This case is also an example of how a party may be tempted to use Jackson/Mitchell to gain a tactical advantage that would not otherwise be available.

The consistent message from recent authorities was that a party who needed more time for a procedural step should not just ignore the problem but ask the other side for

The applicant/defendants had been ordered to serve their

consent and, if consent was not forthcoming, make an in-

defences by 14 February 2014. Citing the commitments

time application for an extension. Conversely, the other side

of counsel, on 29 January and again on 5 February their

should respond positively and in a spirit of co-operation to

solicitors asked the claimant’s solicitors for an extension

reasonable requests for consent rather than “cry foul” and

of time. The claimant’s solicitors did not reply until 10

seek to take opportunistic advantage of the other party’s

February; they stated that the claimant would not agree

difficulties. Had the defendants’ request been acceded to,

to an extension. The instant application was issued on 11

it would not have cost either side anything and would have

February.

had no practical impact on the orderly progression of the

The claimant opposed the application arguing, among other things, that the principles in Mitchell, advocating a “new

proceedings. The decision to contest the application had led to an expensive and time-consuming hearing.

more robust approach” to compliance with court orders,

It was appropriate to grant the extension of time sought.

applied to the claimant’s application and that it should be

Among other things, the penalty of losing the ability to

refused.

defend the claim would be wholly disproportionate. The

Allowing the application, the High Court judge held that the Mitchell guidelines did not apply directly to “in-time” applications for an extension such as the one issued by the defendants. The earlier case of Robert v Momentum Services Ltd (2003) remained good law and was authority

order in question set out a timetable but did not specify any sanction for failing to comply with it. Moreover, granting an extension would have no adverse consequences of any substance on the claimant, other court users or the timetable for the hearing of the preliminary issues.


Product Liability Cases under this heading are relatively rare and so, although it is on its own facts, we report Love v Halfords Ltd (2014) EWHC 1057 (QB). The claimant cyclist alleged that his injuries had been caused by a defect in a mountain bike which he had bought from the defendant supplier. Nine months after the claimant had bought the bike, he lost control while riding the bike on a tarmac cycle path. He fell and suffered very serious head and facial injuries, including the loss of an eye. The steerer tube which connected the front wheel forks to the handlebars had fractured. It was the claimant’s case that, from the moment of supply, there had been a defect that had materially contributed to the fracture, which in turn had caused his loss of control. The defendant maintained that the fracture had not caused the accident, but had been caused by it, the tube having previously been weakened when it was bent in a prior incident and then incompetently re-straightened. The claimant denied there had been any prior incident or restraightening. Finding in favour of the defendant, the High Court judge held that on the basis of the scientific evidence, the clear balance of probability was that there had to have been a prior event where the tube was damaged by being bent and further damaged by being subjected to a crude and amateur attempt at repair by re-straightening. The tube had therefore been shown by the defendant, on a clear balance of probability, not to have been defective at the relevant time, namely on the date of supply. There was nothing defective about its design, assembly or the steel from which it was made. The probable cause of the final fracture was the second accident, involving considerable speed and force. A collision with one of the row of fixed metal stanchions which the claimant was riding past was likely to have been the violent event that caused the fracture of the tube by ductile overload, which occurred as a result of the accident and was not the cause of it.


Costs Although Franklin v Maddison and another [Lawtel 17/04/2014] is not a personal injury case, it is of wider relevance in the context of qualified one-way costs shifting (QOCS). The

appellant/claimant

The claimant appealed and contended that: (1) had the claim been considered on the basis of six cars, as he had wished, the judge would not have concluded that it was wholly without merit and consequently awarded

had

operated

auto-trading

businesses which were searched by the police following the disappearance, and suspected murder of two men. A number of vehicles were seized, some of which were later

costs against him on the indemnity basis; (2) the judge had failed to take account of the defendant’s failure to give proper disclosure or comply with protocols.

released to persons claiming ownership of them, including

Dismissing the appeal, the High Court judge held that the

the defendant/respondent. Three cars were returned to

trial judge had refused the claimant leave to amend his

him after he produced keys for them. The claimant was

claim, and that point could not be re-opened, but it was

subsequently convicted of murdering the two men and

plain that the judge would have rejected the amended

sentenced to life imprisonment. Thereafter, he issued

claim in any event since she had preferred the defendant’s

proceedings against the police, complaining that they had

evidence to that of the claimant.

caused him to lose vehicles under their control, and against

The judge had referred to the defendant’s procedural failures

the defendant, who was accused of wrongfully taking the

and gone on to conclude that the claimant’s claim was

three cars.

totally without merit. The question of costs was a matter for

At trial, the claimant sought to amend his claim to cover six

the judge’s discretion: she had conducted the trial and seen

cars, but the judge refused on the basis that the proposed

the witnesses give their evidence, and the costs order she

amendment was not properly particularised. She accepted

made in the defendant’s favour on the indemnity basis was

the defendant’s evidence and concluded, on the balance

within the wide range of her discretion. There was no reason

of probabilities that he was to be regarded as owner of the

to justify overturning the costs order.

vehicles he had claimed, having made cash payments to

(Obiter) The question whether the claimant was in a position

the claimant for them. She indicated that the defendant was

to pay costs was irrelevant in determining the costs order;

entitled to recover his costs from the claimant.

what mattered was whether the defendant was entitled to a

The claimant’s claims against the police also failed. At the

costs order in his favour on the indemnity basis.

hearing when judgment was handed down, the defendant asked for costs on the indemnity basis. The judge referred

Comment

to the defendant’s failure to give proper disclosure and

This case is of potential assistance to defendants in personal

comply with protocols, but indicated that the claimant’s

injury actions where QOCS applies, but it is found that there

claim against the defendant was wholly without merit. She

were no reasonable grounds for bringing the claim or it was

therefore granted the request. However, since the claimant

an abuse of the court’s process. An award of costs on the

was in prison and in no position to pay, the defendant had

indemnity basis may be appropriate and the judge should

made no attempt to enforce the costs order in his favour.

not take into account the claimant’s ability to pay the costs.


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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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