DOLMANS INSURANCE BULLETIN

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1 DOLMANS INSURANCE BULLETIN Welcome to the June 2017 edition of the Dolmans Insurance Bulletin In this issue we cover: REPORT ON Effective witness evidence and established case law - a winning combination in highways cases - Rhian Cottingham v Bridgend County Borough Council FOCUS ON Withdrawal of admissions where the value of the claim is very significantly higher than it initially appeared or was presented RECENT CASE UPDATE Civil procedure - costs budget Civil procedure - relief from sanctions Costs - funding Discontinuance / QUOCS Personal injury - fundamental dishonesty Relief from sanctions If there are any items you would like us to examine, or if you would like to include a comment on these pages, please the editor, Justin Harris, Partner, at justinh@dolmans.co.uk 1

2 DOLMANS REPORT ON EFFECTIVE WITNESS EVIDENCE AND ESTABLISHED CASE LAW - A WINNING COMBINATION IN HIGHWAYS CASES Rhian Cottingham v Bridgend County Borough Council The above matter, in which Dolmans successfully represented the Defendant Authority, illustrates how a combination of effective witness evidence with an established case authority can prove to be a winning formula. Background The Claimant alleged that on 13 November 2012, she was driving a motor vehicle along Minffrwd Road in Pencoed, when a wheel of her vehicle entered a pothole, causing her vehicle to be brought to an abrupt stop. As a result, the Claimant alleged that she had suffered injuries to her neck and lumbar spine. Effectively, it was alleged that the Claimant had suffered a whiplash type injury. It was alleged that the Defendant Authority was negligent and/or in breach of Section 41 of the Highways Act Further, and/or in the alternative, it was alleged that the alleged defect constituted a nuisance and that the Defendant Authority had created or permitted the alleged nuisance. As well as claiming general damages for pain, suffering and loss of amenity, the Claimant pursued claims for past loss of earnings, vehicle damage, travel expenses, care and assistance, miscellaneous expenses and physiotherapy costs. The Claimant had originally limited her claim to 3,000.00, but subsequently increased this to 15, The Issues The Claimant was put to proof as to both factual and medical causation. Although there was no evidence to contradict that the Claimant had driven into a pothole, a search of the Claimant s social media suggested that she had not been incapacitated to the extent claimed. The Claimant was required to explain how her vehicle could have come to an abrupt stop after hitting the pothole as she alleged. The Claimant was also put to proof as to dangerousness and the Defendant Authority alleged that it had a Defence in accordance with Section 58 of the Highways Act The Defendant Authority also alleged contributory negligence on the Claimant s part. 2

3 DOLMANS REPORT ON The Evidence The Claimant s photographs did not include any measurements. However, both the Highways Inspector for the area and the Defendant Authority s Highways Network Manager gave evidence that, having considered the Claimant s photographs, the pothole was less than 100mm deep, as the base course was only just beginning to show. The Defendant Authority s safety defect intervention threshold for the relevant carriageway was 100mm for emergency defects (requiring repair within 24 hours) and 40mm for non-emergency defects (requiring repair within 28 days), although Highways Inspectors could also use their discretion and request repairs if deemed necessary, prior to the next scheduled inspection for example. The Highways Inspector and the Highways Network Manger were, however, able to adduce additional evidence which suggested that the depth of the pothole was below the emergency safety intervention level, after having reviewed the relevant customer complaints records for the 12 month period prior to the date of the Claimant s alleged accident. These had shown no similar customer complaints until 5 November 2012, just over a week prior to the date of the Claimant s alleged accident. The complaint made on 5 November 2012 and subsequently on 6 November 2012 appeared to relate to the pothole that had allegedly caused the Claimant s accident and referred to the pothole having been marked for repair following a previous ad hoc inspection on 30 October Further consideration of the relevant records revealed that the pothole had been marked for a non-emergency repair on 30 October 2012, which was completed by 19 November 2012, well within the requisite 28 day period. Given the request for a non-emergency repair, the Defendant Authority again argued that the pothole must have been less than 100mm deep. Following notification of the Claimant s alleged accident, but prior to repairs having been undertaken within the 28 day period as referred to above, the Highways Inspector for the area attended the location and recorded that the pothole remained a non-emergency defect, indicating that its post-accident depth was still within 100mm and had not, therefore, deteriorated to an emergency level before repairs were completed. This also illustrated, therefore, that the Highways Inspector s judgement by requesting a nonemergency repair had been correct. The relevant carriageway was scheduled for inspection on a 12 monthly basis and the last scheduled inspection of the carriageway prior to the Claimant s alleged accident had been undertaken on 7 November However, a reactive system was also in place, which had led to the ad hoc inspection just prior to the Claimant s alleged accident, as referred to above. 3

4 DOLMANS REPORT ON Decision District Judge Peter Llewellyn sitting in the Neath and Port Talbot County Court was satisfied as to factual causation and went on to consider breach of duty, including the Defendant Authority s alleged Section 58 Defence. The District Judge advised that he needed to consider whether there was a reasonable foresight of harm to users of the highway and that the Court must not impose too high a standard; citing Lord Justice Steyn in Mills v Barnsley Borough Council (1992) PIQR 291. It is worth reminding readers that Lord Justice Steyn in Mills considered that in order for a Claimant to succeed against a Highway Authority in a claim for personal injury for failure to maintain or repair the highway, he/she must prove that: (a) (b) (c) The highway was in such a condition that it was dangerous to traffic or pedestrians in the sense that in the ordinary course of human affairs, danger may reasonably have been anticipated from its continued use by the public; The dangerous condition was created by failure to maintain or repair the highway, and; The injury or damage resulted from such a failure. Only if the Claimant proves the above does it become necessary to turn to the Highway Authority s reliance on the Special Defence under Section 58 of the Highways Act 1980 Act; that the Authority had taken such care, as in all the circumstances was reasonably required, to secure that the particular part of the highway was not dangerous to traffic, the burden for which rests with the Highway Authority. The District Judge in Cottingham, echoing Lord Justice Steyn in Mills, considered that mechanical jurisprudence is not to be encouraged, that measurements are only one argument and that other factors also needed to be considered, such as the position of any alleged defect and the type of road users. The District Judge accepted that an element of discretion by the Highways Inspectors is vital and that although there was a defect present at the time of the Claimant s alleged accident, the pothole in question did not present a reasonable foresight of harm to users of the highway. The District Judge was satisfied with the Defendant Authority s system of inspection and maintenance and dismissed the Claimant s claim accordingly. 4

5 DOLMANS REPORT ON Conclusion This matter illustrates that the District Judge was prepared to combine established case law with the specific evidence that had been so effectively adduced by the Defendant Authority s highways personnel, and, in doing so, applied an appropriate standard in relation to the particular road in question and its users. In so doing, the Defendant Authority, in this particular matter, not only avoided paying damages, which the Claimant had sought to increase significantly during the proceedings, but also substantial costs given that this was a pre-quocs matter. Tom Danter Associate Dolmans Solicitors For further information regarding this article, please contact Tom Danter at tomd@dolmans.co.uk or visit our website at 5

6 DOLMANS FOCUS ON WITHDRAWAL OF ADMISSIONS WHERE THE VALUE OF THE CLAIM IS VERY SIGNIFICANTLY HIGHER THAN IT INITIALLY APPEARED OR WAS PRESENTED The Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents from 31 July 2013 (the RTA Portal ) and the Pre-Action Protocol for Low Value Personal Injury (Employers Liability and Public Liability) Claims (the PL / EL Portal ) contain slightly different definitions of admission of liability, but both effectively provide that when an admission is made, the Defendant admits that: (a) the accident / damage occurred; (b) the accident / damage was caused by the Defendant s breach of duty; (c) the Defendant caused some loss to the Claimant, the nature and extent of which is not admitted; and (d) the Defendant has no accrued defence to the claim under the Limitation Act Such admissions are crucial to keep low value claims (ie claims valued below 25, the upper limit ) in a Portal, which provides the benefit of fixed costs at a lower level than claims which exit a Portal. Except in the case of occupational disease claims, the costs consequences for low value claims exiting a Portal is ameliorated by the fact that a fixed costs regime (an admittedly more generous one, albeit relative to the fixed costs regime within the relevant Portal) will still apply. In the case of occupational disease claims, ex-portal costs are assessed on the standard basis and no fixed costs regime presently applies (though it would be extremely difficult to keep such claims in the Portal except in clear cut cases and, given the propensity for multiple Defendants, most such claims do not enter the PL / EL Portal in the first place as the relevant Protocol does not apply where there is more than one Defendant, or to mesothelioma claims which would exceed the upper limit in any event). It is the scope of the Protocol admission, which must be construed narrowly, that makes such Portal admissions particularly problematic. Even in cases that exceed the upper limit, or otherwise fall outside the scope of a Portal, early admissions can be of benefit to limit the scope of costly and intrusive investigations (on both sides) and/or to forestall applications for pre-action disclosure with a view to proceeding to a prompt settlement of the claim. Early admissions bring the greatest costs benefit to claims at a lower value where potential savings in costs across a class of claims exceeds the cost of occasionally settling without actual merit on a broad brush basis. Such considerations will apply both before and after proceedings are issued. The form of admission under the Portals is prescribed and cannot be circumvented whilst keeping the claim within the Portal. In that sense, it requires a broader brush approach than might otherwise be wished for (which is why most occupational disease claims are unsuitable to remain in the PL / EL Portal). In claims that do not enter, or fall out of, the Portals, then particular care should be taken to tailor any admissions that are made. 6

7 DOLMANS FOCUS ON Part 14 of the Civil Procedure Rules ( CPR ) applies to admissions made before and after proceedings are issued. Proceedings are likely to be deemed to be commenced when the Court issues the Claim Form and not when a Claimant took steps to have the Claim Form issued (per the Court of Appeal in Harrison v University Hospitals Coventry & Warwickshire NHS Trust [2017] EWCA Civ 792). In deciding whether to give permission for an admission to be withdrawn, the Court will (pursuant to para 7.2 of the Practice Direction to CPR Part 14) have regard to all the circumstances of the case, including: In respect of pre-commencement admissions, CPR Part 14 provides that notice may be given in writing withdrawing a pre-action admission made before the commencement of proceedings if the person to whom the admission was made agrees, or, after proceedings are commenced, if all parties to the proceedings consent, or with the permission of the Court. Any admission made after proceedings are commenced requires permission of the Court to amend or withdraw an admission. In respect of causation only, a Defendant may withdraw an admission made in the Portals during the initial consideration period, or with the agreement of the person to whom the admission was made before proceedings were issued, or with the consent of all parties or the permission of the Court after proceedings are commenced. The grounds upon which the applicant seeks to withdraw the admission, including whether or not new evidence has come to light which was not available at the time the admission was made; The conduct of the parties, including any conduct which led the party making the admission to do so; The prejudice that may be caused to any person if the admission is withdrawn; The prejudice that may be caused to any person if the application is refused; The stage in the proceedings at which the application to withdraw is made, in particular, in relation to the date or period fixed for trial; The prospects of success (if the admission is withdrawn) of the claim, or part of the claim, in relation to which the offer was made; and The interests of the administration of justice. 7

8 DOLMANS FOCUS ON Having made an admission influenced, in whole or in part, by a desire to avoid incurring costs on economic / proportionality grounds, it can be extremely vexing (albeit not entirely uncommon) for a Defendant to be then faced with a claim whose potential value increases significantly beyond the value stated, or expected, when the admission was made. In Kieran Blake v (1) Dominic Croasdale (2) Esure Insurance Limited [2017] EWHC 1336 (QB), HHJ Purle QC had to deal with precisely this situation. It should be stated at the outset that the Judgment does not add anything new to our understanding of the operation of CPR Part 14, but it does offer a useful reminder of the way in which the rule operates. The Claimant suffered a severe brain injury as the result of a road traffic collision. The Claimant was the passenger in a vehicle driven by the First Defendant (another passenger was killed) that collided with another vehicle whilst failing to stop for Police after running a red light. A Claim Notification Form was issued under the RTA Portal stating that the claim was limited to 25, Whilst still in the Portal, the Second Defendant Insurer wrote to the Claimant s Solicitors stating that primary liability for the accident is admitted. The claim then exited the Portal on grounds that allegations of contributory negligence were raised (in the same letter). The Second Defendant subsequently confirmed that primary liability was admitted and, following receipt of medical evidence, offered to settle the claim for damages in the net sum of 100,000.00, thereby appreciating that the claim was worth in excess of 25, Subsequently, however, proceedings were issued accompanied by a Schedule of Loss in the sum of between 3 million and 5 million (or more based substantially on a neuropsychologist s report only served with the proceedings). A Defence was filed pleading that the Claimant s injury was caused by his own criminal act (ie as a drug dealer engaged with the First Defendant in a joint criminal enterprise). This represented the legal causation defence of ex turpi causa. An expanded contributory negligence defence was also pleaded. The two defences were intertwined and dependent on similar facts. Needless to say, the Claimant did not consent to the primary admission being withdrawn and the Court s permission was required. Whilst recognising that an ex turpi causa defence is often difficult to make out, the Judge, nonetheless, agreed that there was a real issue to be tried, ie there was a realistic prospect of defence (which did not provisionally need to satisfy the burden of proof). Notwithstanding that the material enabling the Second Defendant to raise the ex turpi causa defence had been available to them at an early stage, the Judge permitted them to withdraw their admission because to refuse to do so would discourage Defendants, especially Insurers, from acting proportionately, which would make the giving of admissions in like cases, where it is appropriate, in the interests of reasonableness and proportionality, to give them, more difficult to secure. 8

9 DOLMANS FOCUS ON Neither party s conduct (of the litigation) was open to criticism. There would be (obvious) prejudice to the Claimant by the withdrawal of an admission, but if that was the basis alone, then permission would never be given. The Second Defendant would be prejudiced by any refusal to permit the admission to be withdrawn. The admission was withdrawn shortly after proceedings were commenced. The Defendant s case had some realistic prospect of success. The general justice of the case required permission to withdraw the admission to be given. Comment This case should provide some comfort for Defendants who wish to make admissions in perceived low value claims on economic / proportionality grounds free from the prospect that they will be held to that admission if the value of the claim increases far beyond the level where such economic / proportionality considerations would still apply. Care should still be taken to seek to withdraw admissions as soon as it becomes apparent that the economic / proportionality considerations might no longer apply. Otherwise, there is a clear risk of some kind of evidential or other problem developing and, thus, prejudicing the Claimant over and above the general prejudice accruing to a Claimant party by the simple fact of the withdrawal of an admission. Not least, the appropriateness of any admission should be reviewed as soon as it becomes likely that the claim will not settle on an economic or proportionate basis. Put simply, any delay in responding to changes in the complexion of the quantum of the claim will likely be seen to go to the conduct of the parties element of the test to be applied pursuant to the CPR (see above). In cases which fall outside of the Portals, care should be taken to admit no more than is strictly required to achieve the aims of limiting costly and intrusive investigations or forestalling applications for pre-action disclosure. In some circumstances, a limited or contingent admission might be more appropriate than a full admission of liability and informal legal advice may well be appropriate / useful in that context. For further information regarding this article, please contact Jamie Mitchell at jamiem@dolmans.co.uk or visit our website at Jamie Mitchell Associate Dolmans Solicitors 9

10 DOLMANS RECENT CASE UPDATE Civil Procedure - Costs Budget Asgar & Another v Bhatti & Another QBD Lawtel The Claimants failed to file a Costs Budget, therefore, the Court made an Order under CPR r.3.14 that the Claimants Budget only comprised the applicable Court fees. At the time of the preparation of the Budgets, the Trial was estimated to last 6 days. It subsequently transpired that the Trial was likely to last 12 days. The parties changed their Costs Budgets on that basis. The issue was whether the Claimants could revise their Costs Budget to include costs for the additional work not anticipated at the time of the preparation of the original Budgets. The Costs Master decided she would permit revision of their Budget in respect of the additional 6 days of Trial. The issue was whether the practical effect of this Order was to overturn the costs sanction imposed upon the Claimants. It was held that there had been a significant development since the Claimants failure to file the original Costs Budget. That was a ground for permitting revision of the Budget. If there had been a significant development, then a revision would not undermine the policy underlying CPR r The revised Budget only related to the extra 6 days of Trial preparation. The Master had been entitled to find that preparation for an extra 6 days of Trial was capable of being a significant development and that it was appropriate to review the Costs Budget. If the Master had allowed costs of preparation for all 12 days, then that would have been an error of principle. However, it was not possible to infer that she had done so. She had specifically stated that she was only allowing the Claimants costs for the preparation of an extra 6 days of Trial. Civil Procedure - Relief from Sanctions Redbourn Group Ltd v Fairgate Development Ltd [2017] EWHC 1223 (TCC) The Defendant applied to the Court to set aside Judgment in Default. The Defence was due to be filed by 25 January The Claimant offered to agree a 7 day extension to 1 February On that date, the Defendant applied to the Court for an extension of time, but did not chase up the Court for a hearing date for the Application. On 23 February, the Claimant applied for and obtained Judgment in Default. The Defendant applied to set aside the Judgment a few days later. 10

11 DOLMANS RECENT CASE UPDATE In determining the Application, the Court held that it was necessary to consider first the elements of CPR r.13.3 and then the 3 stage test in Denton v TH White Ltd [2014] on relief from sanctions. Under CPR r.13.3, the Defendant had to demonstrate that it had a reasonable prospect of successfully defending the Claimant s claim and the Defence had to carry some degree of conviction and had to be more than merely arguable ; ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472. In the instant case, the Defence mainly consisted of bare denials and non-admissions. A Defendant was required to do much more than that if it wanted to persuade the Court to set aside Judgment. The delays in the Defendant setting out its Defence and the absence of detailed evidence from those involved strongly suggested that it did not have a Defence with a realistic prospect of success. No criticism could be made of the timing of the Application to set aside. However, the real issue was whether the Defendant had acted promptly after Judgment was entered. No reason had been provided as to why the draft Defence and Counterclaim was not served until 11 May Its Application to set aside was inadequate as originally lodged and a further Witness Statement in support had to be filed. An extension of time of over 3½ months would not have been granted if sought in the ordinary way in the circumstances of this case. Accordingly, the Court held that the discretion under CPR r.13.3 should be exercised in favour of the Claimant. Had it been necessary to consider the 3 stage test in Denton, relief from sanctions would not have been granted. The Defendant s failure to serve the Defence was serious. There were no reasons for its failure. Considering all of the circumstances of the case led to a conclusion adverse to the Defendant. Application refused. Costs - Funding Hyde v Milton Keynes Hospital NHS Foundation Trust [2017] EWCA Civ 399 The Claimant, H, brought a claim for personal injuries against the Defendant Trust which settled in A CLS funding certificate had been issued to H in 2008 which had a costs limitation upon it of 43,000. In 2013, H s Solicitors carried out a costs review and concluded this would be insufficient to bring the case to a conclusion. Accordingly, they entered into a CFA with H. H s Solicitors did not apply for a discharge of the funding certificate. The Trust submitted that the CFA was unenforceable because it amounted to a private retainer running concurrently with public funding in breach of s.10(1) and s. 22(2) of the Access to Justice Act

12 DOLMANS RECENT CASE UPDATE The Court of Appeal upheld the finding that the CFA was enforceable. There was nothing in the statutory scheme to bind parties to the provision of services under a funding certificate, unless and until the funding certificate was formally discharged. As a matter of reality and substance, the CFA had, for all purposes, replaced the previous public funding. Discontinuance / QUOCS Shaw v Medtronic Corevalve LLC & Others [2017] EWHC 1397 (QB) The Claimant, S, pursued a claim against 5 Defendants. At a hearing in January, the Judge set aside Orders that had been made giving S leave to serve Claim Forms out of the jurisdiction on D1 and D3 and set aside service of those Claim Forms. He also ordered that the Particulars of Claim was struck out insofar as it related to D4. Directions were given for the hearing of strike out applications by D2 and D5. S subsequently discontinued her claim against D5. The case came back before the Judge to consider D2 s strike out application, S s application to amend her claim against D2, applications by D1, D3 and D4 for costs and an application by D1, D3 and D5 for orders to allow them to enforce Costs Orders in their favour. The Judge dismissed S s application to amend her claim against D2 and struck out the Particulars of Claim insofar as it related to D2. There was no dispute that all the Defendants were entitled to their costs of the action. The issue was the extent to which the Defendants could enforce any Costs Orders as S had the protection of Qualified One-Way Costs Shifting (QUOCS). As no damages or interest had been awarded to S, no Costs Orders could be enforced against S, unless the Defendants fell within one of the exceptions in CPR or CPR CPR (a) provides that Orders for costs made against a Claimant may be enforced to the full extent of such Orders without the permission of the Court where the proceedings have been struck out on the grounds that the Claimant has disclosed no reasonable grounds for bringing the proceedings. D2 and D4 were able to rely upon this. However, whilst the Judge had found that the Claimant had disclosed no reasonable grounds for bringing proceedings against D1 and D3, and he would have struck the claims out if they had been served on them within the jurisdiction, because the claims were served outside of the jurisdiction, the appropriate relief granted was to set aside service. The proceedings against D5 were not struck out as S discontinued them. Accordingly, D1, D3 and D5 could not rely on CPR (a). 12

13 DOLMANS RECENT CASE UPDATE D5 sought an Order setting aside the Notice of Discontinuance so that the Judge could deal with D5 s strike out application. The Court has power to set aside a Notice of Discontinuance as an abuse of the process of the Court. D5 relied on case law in which a Notice of Discontinuance had been set aside where the Claimant had sought to achieve a tactical advantage. D5 submitted that the Judge could infer that S s intent in serving Notice of Discontinuance was to avoid the exception to QUOCS in the event that D5 s strike out application succeeded. The Judge was not prepared to reach this inference on the facts and found no sufficient grounds for setting aside the Notice of Discontinuance. D1, D3 and D5 also sought to rely on CPR Rule (b) which provides: Orders for costs made against the Claimant may be enforced up to the full extent of such Orders with the permission of the Court and to the extent that it considers just where:.. (b) a claim is made for the benefit of the Claimant other than a claim to which this section applies. There were two potential claims falling outside the scope of CPR The first was a claim for misrepresentation and deceit referred to in the Claim Form, but, as this was not pleaded in the Particulars of Claim, the Judge ignored it. The second was a freestanding claim in unjust enrichment. It was unclear from the Particulars of Claim whether this was included and, in any event, it had not been made against D1 and D3 as S had not obtained permission to serve Claim Forms out of the jurisdiction in respect of this freestanding claim. In any event, the Judge considered that the claim overlapped entirely with S s claim for restitutionary damages, therefore, the additional costs of the freestanding claim were minimal and it would not be just to make an order under s (b) on that basis. Accordingly, the applications of D1, D3 and D5 for orders to allow them to enforce Costs Orders in their favour were dismissed. Personal Injury - Fundamental Dishonesty Peter Stanton v Henry Hunter CC (Liverpool) The Claimant sought damages in respect of personal injuries arising out of an accident which occurred while he was working on the Defendant s property. Contrary to the medical evidence served in support of his claim, surveillance evidence demonstrated that the Claimant was continuing to work as a taxi driver and it also showed no apparent limitation of movement of the left shoulder and the Claimant was seen performing bimanual tasks. 13

14 DOLMANS RECENT CASE UPDATE At Trial, the Claimant resiled from his original claim, conceding that he was doing some work and hoped to continue to do so. He relied on his limited literacy, difficulty with documentation and post-accident psychological state in support of his explanation for his assertions and statements given to the medical expert. The Defendant admitted primary liability, but asserted contributory negligence and he applied under the Criminal Justice and Courts Act 2015 s.57 for dismissal of the entirety of the claim on the basis of fundamental dishonesty. It was held that the Claimant s conduct was dishonest. Documents produced at Trial showed that the Claimant knew that he was providing false instructions in relation to his earning loss. His repeated falsehoods could only be described as fundamental, which was sufficient to trigger the Court s duty to dismiss under s.57. There was no basis for a finding of substantial injustice and the Claimant s claim was dismissed. However, Section 57(4) required the Court to record the amount of damages it would have awarded to the Claimant but for the dismissal. Relief from Sanctions Gladwin v Bogescu [2017] EWHC 1287 (QB) The Claimant, G, commenced proceedings in relation to a road traffic accident claim in April Liability was never in issue. In August 2016, Directions were given which included a Direction for service of Witness Statements by 3 November 2016 and stated that oral evidence will not be permitted at Trial from a witness whose Statement has not been served in accordance with this Order or has been served late, except with permission from the Court. This wording was similar to the wording of CPR Following an extension of time agreed with the Defendant, G s Statement should have been served by 17 November G failed to comply. Upon completing their Listing Questionnaire, G s Solicitors acknowledged that they were in breach of the Direction, but did not apply for relief from sanctions. G s Solicitors finally obtained a Statement from G on 5 January 2017 and, in February 2017, less than a week before Trial, they made an Application for relief from sanctions and permission for G to give oral evidence at Trial. G s Application acknowledged that if relief were granted, the Trial would have to be vacated. The Application was heard on the day that the Trial was listed to take place. The Judge hearing the Application, applying Denton v T H White [2014], found that the breach was significant and there was no good reason for the default. However, the Judge concluded that if he were to refuse G s Application for relief from sanctions, the result would be that the Defendant would suffer greater prejudice than G because G, although debarred from giving oral evidence, would potentially remain entitled as of right merely to rely on his Witness Statement and thereby evade the perils of cross-examination. The Judge, therefore, granted relief from sanctions and adjourned the Trial. The Defendant appealed. 14

15 DOLMANS RECENT CASE UPDATE The Appeal Judge found that the first instance Judge was right to conclude that the sanction under the Order was merely that G could not give oral evidence. G s written Statement could still be relied upon as hearsay evidence. However, the first instance Judge erred in concluding that his powers were limited to the automatic sanction. He fell into error by assuming that he could not act more robustly to preclude G from relying on his Witness Statement. He further fell into error by failing to have proper regard to his powers to strike out the claim altogether in response to G's breaches. Accordingly, the Appeal Judge was free to exercise his own discretion on the issues arising from the Application. The Appeal Judge concluded that adjournment of the Trial should have been refused. The claim was relatively modest, whereas the costs and expenses consequent upon an adjournment were significant. The fault was not that of G, but, following the Jackson reforms, the Courts are less indulgent of the faults of legal advisers as a justification for granting forbearance to litigants. Whilst a refusal to adjourn would have been fatal to the claim, and thereby prejudicial to G, in the circumstances of this case, that did not attract sufficient weight to justify granting an adjournment. Had the adjournment been refused, G would have had to seek to tender his Statement as evidence there and then. However, the Directions Order had also required that the parties serve all notices relating to evidence, including Civil Evidence Act (CEA) notices, by 3 November G was, therefore, in breach of this. Whilst s.2(4) of the Civil Evidence Act 1995 provides that a failure to comply with rules relating to the service of CEA notices does not affect the admissibility of the evidence, to allow a party to rely upon a Witness Statement rather than to call the witness himself who, as here, is sitting at the back of the Court would normally be absurd. In such circumstances, it would be appropriate for the Court to exercise its power under CPR 32.1 (2) to exclude the evidence of the Witness Statement, even if it would otherwise have been admissible under section 2(4) of the 1995 Act. Having decided that the case could not proceed on the day listed for Trial without causing significant prejudice to the Defendant, the Court was entitled to give consideration to its powers to strike out the case under CPR 3.4 which provides, insofar as is material: "(2) The Court may strike out a Statement of Case if it appears to the Court.. (c) that there has been a failure to comply with a Rule, Practice Direction or Court Order. The Appeal Judge, accordingly, allowed the Defendant s appeal and struck out the claim. For further information on any of the above cases, please contact: Amanda Evans at amandae@dolmans.co.uk or Judith Blades at judithb@dolmans.co.uk 15

16 DOLMANS TRAINING OPPORTUNITIES At Dolmans, we want to ensure that you are kept informed and up-to-date about any changes and developments in the law. To assist you in this, we can offer a whole range of training seminars which are aimed at Local Authorities, their Brokers, Claims Handlers and Insurers. All seminars will be tailored to make sure that they cover the points relevant to your needs. Seminars we can offer include: Apportionment in HAVS cases Bullying, harassment, intimidation and victimisation in the workplace personal injury claims Conditional Fee Agreements and costs issues Corporate manslaughter Data Protection Defending claims the approach to risk management Display Screen Regulations duties on employers Employers liability update Employers liability claims investigation for managers and supervisors Flooding and drainage duties and powers of landowners and Local Authorities for drainage under the Land Drainage Act Common law rights and duties of landowners in respect of drainage Flooding and drainage duties and powers of Highway Authorities for drainage and flooding under the Highways Act Consideration of case law relating to the civil liabilities of the Highway Authority in respect of highway waters Highways training Housing disrepair claims Industrial disease for Defendants The Jackson Reforms (to include : costs budgeting; disclosure of funding arrangements; disclosure of medical records; non party costs orders; part 36/Calderbank offers; qualified one way costs shifting (QWOCS); strikeout/ fundamental dishonesty/fraud; 10% increase in General Damages) Liability of Local Education Authority for accidents involving children Ministry of Justice reforms Pre-action protocol in relation to occupational disease claims overview and tactics Public liability claims update If you would like any further information in relation to any of our training seminars, or wish to have an informal chat regarding any of the above, please contact our Training Partner, Clare Hoskins at clareh@dolmans.co.uk 16