Legal Watch: Personal Injury 13th June 2014 Issue: 022
Civil Procedure/Use Of Witness Summaries Witness summaries are useful where helpful evidence is available from a witness but it is not possible to obtain from
In This Issue:
[Lawtel 6/06/2014] shows that there are limitations on the use
• Civil Procedure/Use Of Witness Summaries
them a signed witness statement. However, Scarlett v Grace of this device.
The respondent/defendant had been driving a car carrying
four passengers when it hit a tree and the appellant/claimant, who was in the back seat, suffered serious head injuries. The defendant admitted liability but the issue of contributory
negligence remained to be tried, the question being whether the claimant had been wearing a seat belt. Witness statements
which had been given to the police did not provide direct
evidence on that question. Shortly before witness statements
were due to be served, the defendant wrote to four witnesses, namely the front seat passenger, the first person on the scene and two ambulance personnel, asking to speak to them about
the seat belt issue. One of the ambulance crew said that he
was not willing to assist and the other responded that he had no information about the seat belt. The front seat passenger
said that she did not know whether the claimant had worn a seat belt and the first person on the scene did not reply.
The defendant served witness summaries in relation to the four witnesses which stated that they would give evidence as to whether the claimant had worn a seat belt. The defendant successfully applied to the Master for permission to rely on the summaries under CPR 32.9.
The claimant appealed and submitted that the summaries should be excluded as witnesses should not be called where
their evidence was not known, leaving the parties unable to prepare for trial or to deal with interlocutory matters such as settlement.
Allowing the appeal in part, the High Court judge held that the Master’s decision had been given in the context of a busy
case management list and the reliance on witness summaries was one of a number of matters which had been raised.
• RTA/MIB Uninsured Drivers’ Agreement • Jackson/Mitchell
The Master had dealt with the issue very briefly after the
obtained at the instant stage of the process would be
little opportunity to respond. The Master did not give his
decision to not follow-up three responses to requests for
defendant’s submissions and the claimant had been given
reasons so it was not possible to be satisfied that he had taken all relevant matters into account or to form a view as
to the manner in which he had exercised his discretion. The merits of the case had to be looked at afresh.
It was not satisfactory for a witness’s evidence not to be known prior to trial, which was why a summary could be
served only where the party was able to demonstrate that it was unable to obtain a statement. The response from
one ambulance crew member was a straightforward, clearcut refusal and justified the contention that the defendant
was unable to obtain a statement from him. The Master’s decision in relation to that witness summary had been
correct. The other ambulance crew member’s response
demonstrated that he did not recollect whether a seat belt had been worn, but did not amount to a refusal. If a party
submitted that it was unable to obtain a statement it must
show that it had taken the matter to a point where a clear refusal to assist was made, whether express or implied. The
defendant had not reached that point and a mere suspicion
that the witness would be unlikely to cooperate was not sufficient to satisfy CPR 32.9(1)(b). It was impossible to
say on the basis of the front seat passenger’s response
that she was refusing to cooperate and there had been no follow up from the defendant. The first person on the scene gave a statement to the claimant in which she expressed
surprise that the defendant had served a summary without contacting her. It was plain that she had not received the defendant’s letter and it was impossible to conclude that
she would not have assisted. At most it might appear that
she was inclined to cooperate with the claimant, but that did not rule out cooperation with the defendant.
On a proper and detailed analysis the Master should have concluded that he was not satisfied that the defendant had
been unable to obtain statements from three of the four witnesses. Where CPR 32.9 was not satisfied, permission to adduce the witness summaries was refused. The defendant
could take further steps to elicit responses, but statements
substantially out of time for service due to the defendant’s assistance.
‘… a summary could be served only where the party was able to demonstrate that it was unable to obtain a statement’
RTA/MIB Uninsured Drivers’ Agreement The case of Delaney v Secretary of State for Transport (2014)
avoiding of an insurance policy for misrepresentation or
‘defence’ available to the MIB (and Article 75
of the victim’s claim. That general rule was subject only to
EWHC 1785 (QB) potentially sees the demise of yet another under the Uninsured Drivers’ Agreement 1999.
insurers)
The claimant had sustained serious injuries in a car accident caused by the negligence of the driver. The claimant and
defendant were found to be in possession of a commercial quantity of cannabis with intent to supply. The claimant
commenced proceedings against the driver and the driver’s insurers who had avoided the policy for misrepresentation
and non-disclosure and therefore had Article 75 status. It
accepted its liability to meet the claim against the driver under the 1999 Agreement, but successfully argued that
non-disclosure by the insured, owed no liability in respect
a number of very limited exceptions involving the victim’s own blameworthy conduct and the case law made it clear
that those exceptions were limited to those expressly stipulated in Article 1.4 and Article 2.1. It was a basic
principle of community law that derogations and exclusions
were to be construed restrictively. There was no ability for a member state to create specific exceptions that were not mentioned in Article 1.4 or were not otherwise justifiable on public policy grounds according to established principles of domestic law.
liability was excluded under clause 6(1)(e)(iii) on the basis that
The jurisprudence therefore made it quite clear that
the course or furtherance of a crime. The claimant’s appeal
member states to ensure that compensation was paid in all
the claimant had known that the vehicle was being used in on that issue was dismissed. In the instant proceedings,
the claimant argued that Article 1.4 of Directive 84/5, which set out the obligations of an insurer of last resort to pay
compensation to third party victims, only permitted specified
limited exceptions to the payment of that compensation and clause 6(1)(e)(iii) was not one of those permitted exceptions.
Finding in favour of the claimant, the High Court judge held that Article 1.4 of the Second Directive, either read in isolation or in conjunction with Article 2.1, the First Directive and the
Third Directive, imposed obligations on member states in
respect of damage caused by vehicles in relation to which a valid policy of insurance was taken out, but where that
policy was subsequently avoided by the insurer. A raft of EU
decisions made it quite clear that a situation could not arise where the insurer’s avoidance of liability left a victim without
a remedy. The principle obligation to compensate lay with the insurer under Article 2.1 of the Second Directive, but if that was not satisfied then the national insurer of last resort, which in the UK was the MIB, must step in under Article
1.4. Thus the MIB must pay compensation in circumstances
where the insurer, for whatever reason, including the
Article 1.4 and Article 2.1 of the Second Directive required circumstances save those expressly set out as exclusions within the text of those provisions.
‘The UK was therefore in plain breach of its community law obligations’ The exclusion of liability under clause 6(1)(e)(iii) was
inconsistent with, and undermined, the specific exceptions permitted by Article 1.4 and Article 2.1. The UK was
therefore in plain breach of its community law obligations. The breach was a serious one and arose in circumstances where the UK’s room for manoeuvre under the directives
was closely circumscribed; it did not have a wide discretion. Its obligations under the directives, and their relevant confines, were quite clear and, in the absence of knowing the actual reason for the policy decision, the best that might
be said was that the Secretary of State decided to run the
risk, which was significant, knowing of its existence. The breach was so serious, that compensation must be paid to the claimant under the Francovich principle.
Comment Press reports of this case suggest that the defendant is
considering an appeal. However, if the decision stands
we may anticipate some form of amendment to the 1999 Agreement (or a new Agreement) to bring the terms in line
with the EU Directives. In the meantime, however, clause 6(1)(e)(iii) stands and Article 75 insurers are entitled to rely on its provisions.
Jackson/Mitchell While we await the outcome of the first batch of appeals
had made a conscious decision not to take steps which
adopt a robust attitude to default. In the commercial case
time, and he took the risk of putting the cheque in the post
from Jackson/Mitchell decisions, the courts continue to of Decadent Vapours Ltd v Bevan and another [Lawtel
10/06/2014) the claimant had issued proceedings seeking an interim injunction against the defendants. Directions were made requiring the claimant to pay the hearing fee in
October 2013. It did not pay the fee and the defendants did not file a defence. There were also issues between
the parties as to whether full disclosure had taken place.
On 12 December 2013 the court ordered that unless the claimant filed a pre-trial checklist and paid the hearing fee
by 16.00 on 19 December, the claim would be struck out. The claimant filed the pre-trial checklist on 18 December.
The claimant’s solicitor called the court office and was told that it would be acceptable if a cheque was sent prior to 19
December, even if it did not arrive by that date. The solicitor
dictated the appropriate letter, but did not check that it had been sent. The parties then agreed fresh directions ahead of
a pre-trial review on 7 January 2014, including a vacation of
the trial date. The claimant’s solicitor discovered at the pretrial review that the court had not received the cheque. The claim was struck out. The fee was paid on 9 January 2014.
The claimant applied for relief from sanctions and submitted that the failure to comply with the order was trivial and the
court should take into account the defendants’ failure to
comply with court orders. It also argued that the failure to comply had little or no effect on other court users as the trial would not have gone ahead in any event.
Dismissing the application, the Deputy High Court Judge
would have ensured that the order was complied with in six days before the Christmas period. The provisions of
CPR 3.7 dealing with the payment of fees were also relevant
considerations in assessing whether the claimant’s failure was trivial. The failure to comply was not trivial.
‘There was at least a chance... the judge might not have acceded to vacate the trial. Accordingly, there was an effect on court users’. A defence had not been filed, but the proceedings, which
had been started with an application for an interim injunction,
had brought forward the factual defences. There might have
been issues of law which had not been precisely articulated by 7 January, but that could have been dealt with by way of skeleton arguments. There might also have been some outstanding disclosure, but it was not clear whether that
was bound to have led to a vacation of the trial. There was at least a chance that, even though the parties had agreed
to vacate, the judge might not have acceded to vacate the
trial. Accordingly, there was an effect on court users. For all of those reasons the court was not persuaded to grant relief
held that it was clear from the claimant’s solicitor’s statement
from sanctions.
somehow justifying or excusing his behaviour. He was well
Comment
that he regarded the indications given by the court office as aware of the terms of the unless order. It was not acceptable
for him to seek to rely on what he may have been told by members of staff in the court office when it came to compliance with a judicial order made in proceedings. He
This case serves to illustrate the importance of often small details, such as ensuring that court fees are paid. Faced
with a sanction if there is default practitioners must ensure
that every ‘t’ is crossed an every ‘i’ dotted as any error or omission can prove fatal to the case.
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