Legal Watch: Personal Injury 27th June 2014 Issue: 024
Civil Procedure/Evidence Cases relating to non-party disclosure applications are relatively rare but the issue has arisen in another chapter in the saga of Mitchell v New Group Newspapers Ltd (2014) EWHC 1885 (QB). So far as it is relevant to this report, CPR 31.17 says: (1) This rule applies where an application is made to the court under any Act for disclosure by a person who is not a party to the proceedings. (2) The application must be supported by evidence. (3) The court may make an order under this rule only where– (a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and (b) disclosure is necessary in order to dispose fairly of the claim or to save costs. The applicants, a police officer and a newspaper publisher, applied for third party disclosure of documents by the respondent Commissioner of Police of the Metropolis in two defamation claims. One of the claims was by the claimant, MP Andrew Mitchell, against the defendant newspaper publisher in respect of its reporting of an incident in which it was alleged that the claimant shouted abusively at police officers, including the applicant officer; the other was the officer’s claim against the claimant in respect of his allegation that the officer had lied. Part of the claimant’s case was an accusation that the police officers involved had colluded to make a false statement. The documents sought were the result of an investigation into the incident under the Police Reform Act 2002. The applicants’ representatives had been permitted to inspect documents under conditions of confidentiality so that they could identify those documents that were relevant and necessary for the
In This Issue:
• Civil Procedure/Evidence • Employers’ Liability/Stress At Work • RTA/Fraud • Jackson/Mitchell • From within Greenwoods
purposes of CPR 31.17. The police officers were invited
were all police officers and the events in question arose
to attend or make representations. A third party, who was
out of their official duties. The public interest in disclosure
not a police officer, appeared to object; according to his
clearly outweighed the interests of the officers. Insofar as
witness statements he had spoken to the claimant and to
they had raised issues, their concerns could be substantially
a police officer shortly after the incident. He objected to the
addressed by the conditions under which the order for
disclosure on the basis that his evidence would be hearsay.
disclosure was made, and by further court orders in the
The High Court judge held that the third party’s statements were unlikely to support the applicants’ cases or adversely affect the case of one of the other parties, and their disclosure was not necessary in order to dispose fairly of the claims or to save costs. As to the third party’s evidence of his conversation with the police officer, that officer was one of those whose statements would be disclosed. His hearsay evidence was no more than evidence that a complaint was made shortly after the alleged incident. That was unlikely to add anything to the first-hand evidence of the officer. As to the third party’s evidence of his conversation with the claimant, the most that could be said about it was that it would be relevant, if at all, as evidence of propensity or similar facts. It was unlikely that a judge at trial would consider that the evidence of the words allegedly used by the claimant in his conversation with the third party would have any material probative weight on any issue likely to arise.
‘The public interest in disclosure clearly outweighed the interests of the officers’ In relation to the other third parties, who were all police officers, the criteria in CPR 31.17(3)(a) and (b) were satisfied, and the court exercised its discretion to order disclosure. The context was libel actions between private parties, but the issues raised concerned the public to a greater extent than most libel actions. There was a strong public interest in the court having before it all the relevant evidence and documents. The third parties had legitimate concerns about becoming involved in such a high-profile action, but they
future if required.
Employers’ Liability/Stress At Work In Olulana v London Borough of Southwark [Lawtel 23/06/2014] the claimant had been a finance officer at the defendant for over a decade. She was seen as a hard worker, although with some deficiencies as a senior account manager, and in 2003 was suspended for incorrect working. In that year she began to suffer from delusions that included that she had a reputation as a whistleblower and was suffering from victimisation. There was nothing in her employment records to indicate that she was suffering from psychiatric injury. Her job had imposed stresses and from 2007-2009 there were a number of meetings with
‘the test…was that of a reasonable and prudent employer, taking positive thought for his workers in the light of what he knew or ought to have known’
management to discuss the situation. A temporary member
Dismissing the claim the High Court judge held that the test
of staff had been employed to alleviate the pressure on
to be applied was that of a reasonable and prudent employer,
the claimant. A few months later she was referred to
taking positive thought for his workers in the light of what he
occupational health for hypertension, but said she was all
knew or ought to have known. The defendant had treated
right otherwise. Her employer took her at her word. From
the claimant in an exemplary way once it knew of her illness
the beginning of the next year the claimant complained that
and had been far from negligent. There had been nothing in
stress at work was the worst of the previous two years. She
the claimant’s records to show that she had suffered from
was diagnosed with psychiatric illness and by late 2011 was
psychiatric injury and the local authority had been entitled to
saying that management were hacking into her computer
take what she said about her health at face value. She had
and following her in a car. Her delusions continued and
been in denial about her psychiatric condition until after she
increased, and she was diagnosed with schizophrenia.
had left her job. The evidence of the local authority’s expert
She alleged that as a result of the local authority’s actions
was to be preferred; the claimant had a neurobiological
some time after 2003 and lasting until 2011 she suffered
condition that had developed insidiously and inevitably. She
psychiatric injury, namely the acceleration of schizophrenia.
had not proved any causative factor.
She brought actions at common law for breach of contract and tort and under the Equality Act 2010. The claimant’s expert witness reported that the illness was likely to be of genetic origin but that its onset was accelerated by five to seven years of work-related stresses starting from 2003 and was triggered by stressful events at work in June 2009. The local authority’s expert witness took the view that 2003 saw the first manifestations of schizophrenia, and that the illness developed insidiously and inevitably from then. He stated that a triggering event was rare, but she had undergone a fertility procedure and divorce, which could have been a factor. The claimant did not give oral evidence.
RTA/Fraud Although they are cases on their own facts Aziz v Ali and related claims (2014) EWHC 1846 (QB) are of interest in the context of the courts’ increasing attention to stamping out fraudulent claims. In the first claim, the claimant alleged that he had been driving his car when a second car had come out of a road to his left; that he had not been able to brake or stop until after the second car had collided with his own and that the driver of the second vehicle had admitted fault and given his details. The claimant gave three different versions of how he had made his claim for damages and what had happened to his car after the accident. The expert evidence stated that the damage to the car was incompatible with contact by a car in the circumstances alleged. There was further evidence that insurance claims, one of which involved the same claimant, had been made in relation to five alleged accidents involving five different vehicles and that insurance policies had been taken out in the name of five different individuals said to have caused the accidents very shortly beforehand. The same bank details had been used at the inception of each of the policies.
‘The same bank details had been used at the inception of each of the policies’ Rejecting all of the claims, the High Court judge held that there was no doubt, on the evidence, that the accident described by the claimant in the first claim had not taken place and that the alleged negligence had not occurred. The expert’s evidence alone satisfied the court that the accident had not occurred as claimed. However, that conclusion was reinforced by the insurance evidence and the claimant’s different accounts of the aftermath of the accident. It was not credible that the same bank account had been used to pay for five different people. The inference to be drawn was that the policies had not genuinely been taken out by the individuals named as policyholder and that it was unlikely that there had been a genuine accident whereby a vehicle said to belong to the defendant had struck the claimant’s
In the second, third and fourth claims, the claimants alleged
vehicle. The claimant’s account of the immediate aftermath
that one of the claimants had been driving along a street
of the accident had been changeable, inconsistent and
when another car had failed to give way and had collided
not credible. The inference to be drawn was that he had
with them. They each claimed to have suffered injuries. One
not been telling the truth because the accident had not
of these claimants later gave evidence that the accident had
happened in the way he had alleged.
not happened and that the claim had been planned as a way of obtaining money. The expert evidence stated that the car in which the claimants had allegedly been injured had been stationary when struck, which was incompatible with the circumstances alleged. The vehicles’ insurers, who had been joined as second defendants in each claim, contended that the two accidents had not happened and that the claims were fraudulent.
There was no doubt, on the evidence, that the second accident described by the other claimants had not taken place and they had failed to establish that the alleged negligence had occurred. The expert’s evidence alone satisfied the court that the accident had not occurred as alleged. That conclusion was reinforced by evidence by one of those claimants that the accident had not happened. The other passenger’s evidence was rejected; it was contradicted by the evidence of the claimant who said the accident had not occurred and the expert evidence. The judgment is silent as to any further steps that may be taken by the insurers in each case.
Jackson/Mitchell Three cases this week see the courts continue to adopt varying and inconsistent approaches to non-compliance with rules and orders. In Swinden and another v Grima and another [Lawtel 20/06/2014] the appellant/claimants had bought a pub from the defendant/respondents in 2011. The claimants brought a claim against the defendants alleging that they had been induced into the sale by reason of a fraudulent misrepresentation by the defendants concerning the cost of electricity. The claim was stayed pending the outcome of criminal proceedings concerning the unlawful abstraction of electricity from the premises by an electrician. In 2013 it was agreed that witness statements in the civil proceedings would be served on 6 December 2013 and a three-day trial was fixed for 6 January 2014. The claimants served their witness statements and stated that there might be one more statement to come from the electrician. They had arranged numerous meetings with the electrician to obtain a statement but he failed to attend. He finally made a statement on 22 December and the claimants served it on 23 December. The defendants’ solicitors objected to the late service of the statement stating that as they had acted for the electrician in the criminal proceedings and had privileged information which might assist the defendants but which they could not disclose, they would be professionally embarrassed if they continued to act for them. On 10 January 2014, the claimants applied for relief from sanctions and for permission to rely on the electrician’s statement. The judge held that the claimants’ non-compliance was not trivial and their application for relief from sanctions was not prompt, but noted that their solicitors could not be criticised as they had done all in their power to contact the electrician. He concluded that the defendants were prejudiced by the late
‘The lost trial date would prejudice not only the defendants but other litigants too’ Dismissing the claimants’ appeal, the High Court judge held that when considering whether to grant relief from sanctions the court looked at whether the breach was trivial. If a breach was trivial relief would be more readily granted. The judge had been correct in ruling that the breach was not trivial. The application for relief from sanctions had not been made promptly. It could have been issued when the electrician’s statement was served. Had the application been issued then it was unlikely that a hearing would have occurred before the trial date. It was right that Mitchell did not confine relief to only trivial breaches. The court had to look at all of the circumstances and inquire into why a breach had occurred. In the instant case there was good reason for the breach; the claimants’ solicitors had done everything in their power to secure a statement from the electrician. His statement was clearly important. However, the judge had also looked at the prejudice to the defendants that would result from its late service. The defendants’ solicitors would have had to withdraw, the defendants would have to instruct new representation and the trial date would have been lost. The lost trial date would prejudice not only the defendants but other litigants too. It was in the public interest to ensure that other litigants got justice promptly. The loss of a trial date could not be compensated by a costs order. Since Mitchell the courts had moved away from such an approach.
service of the statement as they could have instructed new
The court adopted a different approach in Gordon v Fraser
solicitors had they received it earlier and dismissed the
[Lawtel 23/06/2014].
claimants’ application.
The defendant, who was being sued by the claimant, her 93-year-old father, applied on the first day of trial to call a witness, despite having failed to serve a witness statement or witness summary in time.
The claimant alleged that the defendant had improperly
sanctions varied considerably in different contexts. Where,
withdrawn money, of which he was the beneficial owner,
for example, refusing an application for relief from sanction
from a bank account in their joint names. The defence
would lead to a negligence action against solicitors, issues
was that the claimant had withdrawn the money himself to
for determination would be not only whether the solicitors’
finance his girlfriends and gambling. The manager of the
default had been negligent, but also what loss had been
relevant branch of the bank said that that the claimant had
caused. That would depend on what the outcome of the
attended the bank on his own and made the withdrawals.
original action would have been, which might not be easy
The defendant intended to call the branch manager as a
to decide. A different deterrent, such as allowing the case
witness. After a series of extensions of time, a date for
to proceed while imposing a wasted costs order, might be
exchange of witness statements was agreed. Almost three
more effective. The extent to which the court had to take
months after that date, the defendant served a witness
account of the likelihood of substantial satellite litigation
summary relating to the bank manager’s evidence. No good
resulting from a refusal of relief from sanctions was unclear,
reason for breach of the court timetable was established.
but a refusal of relief might be seriously counterproductive
Under CPR 32.10, the bank manager could not be called as
to efficiency and cost. It was also relevant that the basic
a witness without the court’s permission.
aim of a trial was to correctly decide a party’s rights. The
‘(The defendant’s) default had not created a need for an adjournment, and had caused no prejudice to anyone’
exclusion of relevant evidence risked imperilling the integrity of the judicial process. In the instant case it was appropriate to allow the defendant’s application. While her default was not trivial, it was not high on the scale of seriousness. To have tried the case without the only available independent evidence would have been very undesirable and would have given rise to a serious risk of injustice and to the possibility of an inaccurate finding that the defendant was a thief. As her default had not created a need for an adjournment and had caused no prejudice to anyone, promoting rigorous
Allowing the application, the deputy High Court judge held
compliance with court rules was neither proportionate nor
that as the application had been made after the time for
justifiable.
service had expired, it was governed by the principles
In the context of other decisions it is difficult to follow the
relating to relief from sanctions in Mitchell, which contained
reasoning in Davies v Liberty Place (Sheepcote Street)
a strict approach to default and stipulated that its unforgiving
Management Co (2014) EWHC 2034 (Admin) other than as
doctrine be robustly applied. The defendant’s breach was
a softening of the judicial approach to Mitchell. It can be
not trivial and was not explicable by any good reason.
seen, however, that the default in this case arose early in
Ordinarily, therefore, Mitchell would not support relief from
the proceedings and as in the previous case there was no
sanctions because there were no compelling circumstances.
threat to any form of hearing or court resources (apart from
However, Mitchell was not entirely inflexible; the court still
the time taken by the application).
had to give effect to the overriding objective and ensure that its response to default was proportionate and fair. There was little guidance as yet to the circumstances in which it would be appropriate to depart from the usual rule and, more particularly, as to the weight to be attached to the prospect of satellite litigation. The practical effect of refusing relief from
The appellant/claimant had been late in serving witness statements and had agreed a short extension of time with the respondent/defendant. That date was met, but 10 days later the claimant applied to rely on a further witness statement containing potentially significant, even determinative, evidence. He also made another statement
and applied to rely on it. Those events occurred before the
rule or order had arisen. There was no binding authority on
close of pleadings, as a counterclaim had been served with
the instant point; CPR 32.10 did not require an application
the defence and a reply and defence to counterclaim had
for relief to be made provided that an application to extend
not been served by the defendant until four weeks after
time for service and exchange of witness statements had
the potentially significant witness statement. The original
been made before the witness was due to be called. Under
trial window had to be postponed for three months. The
CPR 3.8(1) failures to comply with rules or court orders
defendant objected to service of the further evidence,
meant that sanctions took effect unless the defaulter applied
arguing that the application to rely was one of relief from
for or obtained relief. CPR 3.8(1) dealt with a situation
sanctions and that the criteria established by Mitchell had
where, without it and the inherent jurisdiction of the court it
not been met. Its case was that the effect of CPR 32.1 was
regulated, the defaulters would be without a remedy because
that, on the expiry of the date set by the court for submission
the sanction for non-compliance had taken effect and prima
of witness statements, a sanction resulted whereby the
facie left no way of escape. CPR 3.8(1) was not dealing
witness could not be called to give oral evidence unless the
with situations where the sanction was only contingent
court gave permission and that such permission required an
because the rule or order specifying the sanction offered a
application for relief from sanction.
route to avoiding it; the rule was not apt for that purpose.
The claimant argued that the judge had been incorrect to treat the matter as one in which relief from sanctions was required.
A consequence only operated if and when permission was sought and refused. It was only if and when that happened that CPR 3.8(1) was apposite and an application for relief was required. The fact that a witness statement was served
‘…relief was not required unless and until the sanction had taken effect…’
after the specified date did not mean that the defaulter
Allowing the appeal, the High Court judge held that if the
relief from sanctions, but to an application for an “unless”
judge had been correct to decide that the Mitchell criteria
order, and only where there was failure to comply with that
applied he would not have been wrong to view the claimant’s
did the sanctions regime become active. There was no
default as not trivial within the meaning of Mitchell. Similarly,
reason in principle why late service of a witness statement
there would have been no basis for holding that he had made
should receive different treatment and why the same “two
any error of principle or wrongly exercised his discretion in
strikes” approach should not apply. Such a difference would
refusing to grant relief from sanctions, if that was what the
be a trap for the unwary and unfair, and in the instant case
claimant was seeking. However, there was an alternative
the additional witness statement could potentially make a
view of CPR 32.10 to that of the defendant, which was
difference to the outcome of the case. The judge had been
suggested in the notes to that rule in the CPR, namely that
wrong to rely on the Mitchell criteria.
relief was not required unless and until the sanction had taken effect, which would only occur when a witness who would otherwise be called could not be called by reason of CPR 32.10. It would be unusual if relief was required before the consequence imposed for non-compliance by a relevant
was automatically precluded from relying on the statement unless he applied for and was granted relief under CPR 3.9. The rules did not need to be interpreted in a draconian way and to do so would treat late service of a witness statement more severely than late service of a statement of case, or disclosure, or other directions. In all those instances default did not lead immediately to the need for a party to apply for
From within Greenwoods Opposing an application to withdraw a Part 36 Offer Does a simple mistake in calculation provide grounds for
claimant to withdraw its offer in the circumstances. It would also run counter to the overriding objective – specifically as regards saving expense, and proportionality.
resisted the application.
‘Mere miscalculation was not sufficient grounds for withdrawal’
The claimant’s solicitors stated that they had wrongly
The District Judge accepted these arguments. Hilton was
calculated the amount of the offer: they had neglected to
directly relevant. Mere miscalculation was not sufficient
include one of the heads of loss in their calculation. The
grounds for withdrawal. Granting the application would
issue before the court was whether such a mistake would
revive the litigation and lead to further expense, and would
justify withdrawing the offer after it had been accepted.
run counter to the overriding objective and to the clear
The claimant argued that the test for withdrawing a Part
purpose of Part 36. The application was therefore refused,
36 offer within the relevant period is taken from Cumper v
with an order that the claimant pay our client’s costs.
Pothecary (1941) 2 KB 59, as adopted in Flynn v Scougall
We are grateful to Ezra MacDonald of Pump Court
(2004)EWCA Civ 983, and extends to “matters such as fraud
Chambers for preparing this article.
withdrawing a Part 36 offer within the relevant period? In a recent case, the claimant had applied to withdraw a Part 36 offer after notice of acceptance had been served. Greenwoods, acting on behalf of the defendant, successfully
or mistake…” Clearly the claimant’s solicitors had made a mistake – therefore they should be allowed to withdraw the
For further details contact:
offer.
Lindsey Bartling
On behalf of our client, it was argued that “mistake” is
T: 0207 462 3456
a specific legal concept. It does not extend to simple
E: lab@greenwoods-solicitors.com
miscalculation or misjudgement. The claimant’s solicitors had not made a mistake in law, nor would it be just to allow them to withdraw their offer on the basis of a simple error of judgment. Our client relied on the case of Hilton International v Smith (2000) in which the applicants sought to amend a notice of payment into court: they had made an error of calculation and had offered £46,000 rather than £6,000. Pitchford J in Hilton commented that, “(it) does not follow that, because one party makes an error of judgment in the course of litigation, it is just to permit that party to escape its consequences.” Furthermore, Part 36 was designed with certainty in mind. It would be counter to the purpose of Part 36 to allow the
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