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Summary justice?

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By DAC Beachcroft


Published 10 February 2022


McMurray v Buckley’s Mobile Crane Service Ltd

How do you convince a claimant to abandon a claim to which you believe you have a strong defence? With the present QOCS regime favouring the claimant, it is difficult, but Dominic Kemp in our Complex Injury team recently successfully used the CPR to force the issue.

In this public liability claim the claimant (C), Mr McMurray, was a rigger employed by the owner of a yacht to “unstep” (remove) its 20 metre mast while it was in dry dock. Our client was Aviva and its insured was the defendant, Buckley’s Mobile Crane Service Ltd (D). D was contracted to provide a crane and driver to assist with the unstepping operation.

The crane driver lifted C up to the ‘balance point’ of the mast to attach a strop (sling) so that it could safely be lifted out of position. The plan involved C using a rope to abseil back down to the deck. The driver would then raise the crane’s hook to make the strop taut, the men on deck would release the stays and the mast could be lifted clear by the crane.

Unfortunately C fell between four and five metres to the deck shortly after he began to abseil down, suffering multiple fractures. The principal allegation against D was that the crane driver had raised the hook too soon, effectively making the rope too short for C to be able to abseil safely.

Investigations were carried out involving the marina, the fire service, the coastguard and the yacht’s owner. A number of videos of the incident came to light and, by enhancing them, it was possible to see that C’s abseil line was too short in the first place and that the crane driver’s actions had nothing to do with his subsequent fall.

C was given notice that unless he discontinued within a specified time we would make an application to strike out under CPR 3.4 which, if successful, would displace QOCS and make a costs order enforceable pursuant to CPR 44.15. On the afternoon of the last day of the period we had given C, he discontinued his claim.

CPR 3.4(2)(a) provides that the court can strike a case out if it discloses no reasonable grounds for bringing or defending the claim. Practice Direction 3A 1.7 clarifies the position. If a party believes he can show without a trial that the opponent’s case has no real prospect of success on the facts or that the case is bound to fail because of a point of law then that party can apply under rule 3.4 or Part 24, which deals with summary judgments, or both as appropriate.

The practice point? If you have a strong case on liability such as this, threaten an application to strike out by arguing the Claimant has no prospect of success on the facts. C will have to bear in mind that QOCS would no longer operate and that he/she would be at risk on costs.

Read more from our Complex Injury experts here.