Legal Watch: Personal Injury 20th November 2014 Issue: 041
Civil procedure/expert evidence Although it is a case on its own facts, Jowari v NHS England [Lawtel 17/11/2014] is a reminder of the importance of
In This Issue:
the correct evidence. In the post Mitchell era the courts are
• Civil procedure/expert evidence
identifying the issues in a case at the outset and of obtaining
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
• Civil procedure/split trials • Jackson/Mitchell/Denton
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
further information in relation to where he was living at the
permission to rely on a defence of limitation, which had not
of it, the steps he had taken to raise funds to purchase the
of the trust’s Part 18 questions; (4) it should be granted 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 02
time the letter was sent, when he had received it or a copy 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.
Civil procedure/split trials When is it appropriate to have separate trials of the issues of
The High Court judge held that there was no good reason
Hornsby-Clifton v Ministry of Defence [Lawtel 18/11/2014].
There would be an overlap between causation issues and
liability and quantum? That was what concerned the court in 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
for putting off the issue of quantum or for a split trial. 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.
trial of liability and quantum as there was an outstanding
The
trial might exceed its time estimate if all the issues were dealt
were still being prepared. While the court applauded the
issue in relation to a pension and it was suggested that the 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.’
main
difficulty
with
allowing
the
defendant’s
supplementary evidence was that those witness statements
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.
03
Jackson/Mitchell/Denton In previous editions of this periodical we have questioned
to comply with the unless order, particularly because it
courts’ approach to relief from sanctions in the post Denton
plainly incomplete and insufficient, so the unless order was
whether we are already seeing a significant softening of the
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
had been made to enforce a consent order. The reply 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.’
an unless order was made requiring them to provide “their”
On an application for relief from sanctions under CPR
would be struck out. The respondents served a document
seriousness of the breach, the reason for the breach and
the reply was defective and in breach of the unless order
case justly. An assessment of the seriousness of the breach
did not give a “full” response.
considered as part of the overall circumstances. The failure
response by a certain date, in default of which their defence
3.9 (and applying Denton) the court had to consider the
purporting to comply, but the claimant considered that
all the circumstances to enable the court to deal with the
because it did not contain a signed statement of truth and
should not consider unrelated failures, which should be
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 02
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
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.
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