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Published 22 September 2022
Richard Wetherell of the Complex Injury team dealt with this personal injury case in which we acted on behalf of Royal Sun Alliance’s insured.
Once again, if any reminder were needed, the perils of not complying with the terms of court orders was highlighted.
The claimant, an 18 year old man, suffered significant knee and ankle injuries when several hundred kilos of wood fell on him whilst he was at work. Liability was admitted.
He was unable to continue working for the defendant and went to work in a lighter role at a print shop. His experts concluded that he was disabled for the purposes of the Disability Discrimination Act 1995. In terms of the value of the claim, a Smith v Manchester award for disability on the open labour market, calculated on the relevant Ogden basis, alone would have been around £300,000 even though the claimant was suffering no continuing loss of earnings
Intervening prison sentence
Sometime after proceedings had been served, the claimant was sent to prison. It appears that he had shot at an individual in a park in Chester. He pleaded guilty to possession of a firearm and was sentenced to 16 months inside, of which he served nine before being released on licence. The proceedings were stayed whilst he was detained, with directions to be given by the court following his release.
His solicitors applied for and obtained an order extending time for their expert evidence but then failed by some distance to comply with the terms of the order that they themselves had requested. They failed to respond to any email communications/telephone calls for almost five months, did not file and serve their Pre-Trial Checklist and did not disclose their client’s medical evidence.
Ultimately, in view of the manifest default, we applied to the court to have the claim struck out. The claimant’s solicitors made a cross-application for relief from sanctions two months after, two days before our application was due to be heard. Perhaps inevitably the hearing was adjourned.
Surprisingly, the claimant’s solicitor still did nothing to remedy the default, including not serving the medical evidence or filing the Checklist, which is all the more surprising because the court takes into account what the parties’ conduct has been since the respective applications were made when looking at whether relief from sanctions should be granted or not.
The application was listed to continue on 27th July at the hearing of which the claimant was refused any relief and his claim was struck out under CPR rule 3.4(2)(c), i.e. failure to comply with a rule, practice direction or court order or, in this case, all three.
The saving for our client was in the order of £500,000 although, perhaps surprisingly, the court did not discharge QOCS.
No matter how many times the courts demonstrate their attitude towards default in respect of orders and time limits, practitioners are being caught out whether through simple mistake or neglect.
The overriding objective should be foremost in every civil litigation lawyer’s mind when considering the importance of compliance with the rules:
(1) These Rules are a procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.
(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –
(f) enforcing compliance with rules, practice directions and orders.
Given this is one of the powers underpinning the CPR it should be no surprise to anyone when the courts invoke it, with disastrous effects for the claimant in this case.
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