CASE STRUCK OUT FOR FAILURE TO GIVE DISCLOSURE IN RELATION TO LATER ACCIDENT: RELIEF FROM SANCTIONS REFUSED

October 1, 2015 · by · in Civil Procedure, Relief from sanctions, Striking out, Uncategorized

In Ali -v- CIS General Insurance 2015 WL 5037781 His Honour Judge Cryan upheld a decision striking out a claim for failure to comply with disclosure.

“The failure to comply with the order for disclosure was a serious failure to comply with a specific order. The disclosure sought was rightly sought and rightly ordered”

THE CASE

The claimant was bringing a claim for damage to her car. There were no injuries. The claim related to damage to the car, recovery, storage and credit hire charges. The claimant’s husband was driving the car.

A week after the accident the claimant was involved in a second accident, driving another vehicle, this accident was her fault.

KEY POINTS

  • The claimant had not put forward any reason for failing to comply with an order for disclosure.
  • The District Judge struck out the claim on the defendant’s application.
  • The Circuit Judge, on appeal, held it the District Judge acted within her discretion and did not allow the claimant’s appeal.
  • The claimant had not, expressly, made an application for relief from sanctions, however the court considered that the Denton principles were relevant to the overall exercise of the discretion.

THE DEFENDANT’S APPLICATION AND THE COURT ORDER

The defendant obtained an order that:

“The claimant shall disclose [by list by 4 p.m. on 4 December 2013] details of all accidents she has been involved in five years prior to and subsequent to the index accident. Disclosure is to include Medical reports, details of special damage claimed, witness statements and engineering evidence”.

The defendant also asked Part 18 questions in relation to the second accident.

THE CLAIMANT’S FAILURE TO COMPLY

The claimant did not disclose details of the second accident and replied to the Part 18 questions. The defendant, therefore, sought to strike out the claim on the grounds of the failure to comply with the order.

THE DISTRICT JUDGE’S STRIKING OUT OF THE ACTION

“…. it seems to me that the claimants, through their solicitors, should have disclosed the documents at least relating to the payout to the third party, and in so doing enable the defendants to assess whether by virtue of that documentation there is likely to have been documentation relating to the accident in itself and not just the payout, therefore testing the veracity of the claimant’s statement in a witness statement that the BMW only suffered minor damage, and as I have said that goes to the issue of the higher charges that she is claiming in relation to the index accident on 14 January 2013.”

24 The District Judge added,

“it seems to me that the failure to disclose documentation is [a] real and a non-disclosure that is certainly far more than trivial, albeit I accept the point made by Mr Kapoor that this is not an application made for relief from sanction by the claimant. Indeed the claimants have not made an application for relief from section for their failure to comply with paragraph 6(a) of the order made by Judge Bishop on 6th of November. In those circumstances bearing in mind my obligation under the overriding objective and the new era in which we are finding to strike out this claim its entirety concerned to the application made by the defendant.”

THE APPEAL TO THE CIRCUIT JUDGE: ALL TO NO AVAIL

The judge dismissed the claimant’s appeal.

“33 In deciding whether the strike out was justified the district judge was required to consider the provisions of CPR 3.4 . At CPR 3.4 (2) it provides: “the court may strike out if it appears to the court….(c) that there is a failure to comply with a rule practice directions or order” in so doing, as was said in the case of Walsham , based on the Supreme Court case of HRH Prince Abdulaziz Bin Mishal Bin Abdulaziz Al Saud v Apex Global Management Ltd [2014] UKSC 64 , at paragraph 16, where Lord Neuberger quoted with evident approval the observation of the first instance judge that “the striking out of a statement of case is one of the most powerful weapons in the court’s case management armoury and should not be deployed unless its consequences can be justified”.
34 The first stage in the Mitchell test is to assess the seriousness of the breach. Since the case of Denton the question to be asked is whether the breach has been serious or significant. The District Judge used the language prevailing at the time and concluded that the breach was real and far more that trivial. I agree with her. There had been a specific application for an order for disclosure in respect of the BMW accident. The District Judge had found that there were likely to documents in the power and control of the claimant which would potentially affect the defendant’s ability to prepare its case on an extremely important issue. It is some measure of the gravity of the issue that the defendant had sought a specific order from District Judge Bishop and had served a Part 18questionnaire addressing that aspect of its case. I am satisfied from what the District Judge said in her judgment and in the course of argument that she regarded the breach as serious.
35 I am satisfied that it was within her discretion to do so in the context of this case. The defendant need the documents to prepare its case and the claimant had taken no effective steps to provide them. To attempt to characterise the breach as minimal or trivial is entirely inappropriate. To my mind it amounts to a bold and unsustainable assertion.
36 The second test in Mitchell involves an examination of why the default occurred. The District Judge was given no explanation other than that the defendant did not consider the documents material to the issues before the court. It is said she was surprised to learn of the settlement in the BMW accident. None of that is to the point. There was a specific order with a timetable which was not complied with, either deliberately or irresponsibly, and the claimant placed no reasonable excuse before the District Judge. The third stage is to consider all the circumstances of the case, including the requirements of CPR 3.9 (1) (a) and (b) namely the need for litigation to be conducted efficiently and at a proportionate cost and to enforce compliance with the court. Of course, the District judge had to have in mind the overriding consideration of the CPR and the need to deal withy the application justly.
37 Here the District Judge was clearly concerned that the trial date would be lost by the claimant’s failure to comply with the order of District Judge Bishop. This was compounded by the fact that the claimant took some five months to reply to the Part 18 Questionnaire, whereas PD 18.4 clearly envisages such enquiries being dealt with “promptly”. She took the view that the courts resources were not being applied appropriately. I accept that in her extemporary judgment the District Judge did not refer expressly to CPR 3.4 , but I am satisfied that she effectively asked herself the right questions, and was satisfied that the conduct of the claimant had been such that the litigation should come to an end.
38 I must ask whether the District Judge’s order was proportionate. Should the claimant have lost her chance to litigate the case as a result of her failure to comply with the order for disclosure having in mind the draconian nature of the order? Ought there, for example have been an unless order or should the court have merely struck out the claim for hire charges leaving the loss of the vehicle and the storage charges. If that had been done the trial might have been saved?
39 I accept that an appeal on these latter grounds ought to have permission to be argued, but I do not consider that it would be right for this court to find that the District Judge had used her discretion inappropriately. The failure to comply with the order for disclosure was a serious failure to comply with a specific order. The disclosure sought was rightly sought and rightly ordered. (That can be taken from the original order which was neither appealed or sought to be varied, and in any event as the District Judge clearly found on the evidence before her, it remained potentially important.) The tardy provision of contexturalising information in the Part 18 Questionnaire close to the trial merely compounded the failure. The District Judge took all the matters into account she was asked to, but concluded that she out not to allow a situation which resulted from the claimant’s procedural failure to defeat the listing of the trial and further absorb public resources. She reminded herself of the overriding provision post the Jackson reforms, which required her to take such matters into account and also reminded herself that this was not an application for relief against sanction, thus somewhat presciently anticipating the observations in the case of Walsham .
40 I accept that it was open to her conclude, in effect, that those who chose not to comply with the directions of the court in such a way out not to be indulged. A further unless order would itself be disproportionate. The mischief of a lost trial date would not be avoided. The court have no confidence in the conduct of the claimant. The defendant ought not be further obliged to tussle with the claimant’s uncooperativeness. The claimant had had ample time to do what was necessary and in various ways had failed to act within the letter and spirit of the CPR . Only I his oral submissions did counsel for the claimant suggest that the District Judge ought to have considered striking out part of the claim, namely that related to car hire, but it seems to me that, whilst robust, she was entitled to take the view that the claimant’s deliberate conduct was such that the remaining relatively modest part of the action should should fall with the rest of it. For the reasons which I have given this appeal will be dismissed.”

RELATED POSTS: DISCLOSURE AND COMPLIANCE

Tags: , , ,