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
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
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
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
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
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
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 claimantâ€™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
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
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
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
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.