This post looks at the decision in Dass –v- Dass where the defendant was refused permission to rely upon medical experts because they had not been served in accordance with court directions. 

Many of the recent cases in relation to default and relief from sanctions have concentrated upon the actions of claimants who were in default. However the decision of Mr Justice Haddon-Cave in Dass –v- Dass [2013] EWHC shows that defendants are far from immune.

The facts

Dass was a personal injury case where the claimant was injured in August 2007.  Proceedings were issued and In November 2010 an order was made that the parties file their medical evidence by the 27th May 2011.  The defendant did not file the reports timeously and on the 14th March 2013 Master McCloud debarred the defendant from relying upon any medical evidence in the assessment of quantum in the action.

The appeal

The defendant appealed. There was some discussion about the basis upon which the discretion should be exercised (if the appeal judge could be persuaded to exercise it afresh).  However the appeal was decided under the “old” CPR rules 3.8 and 3.9.

The findings of the judge on appeal

The judge pointed to a number of key findings of the Master.

  • The defendant’s reports were in hand in February 2012 but were not served. A further report had been available 9 months earlier but not served.
  • The reasons the reports were not served were that the defendant’s insurers had not given permission for them to be served.
  • This represented a deliberate refusal of the insurers to comply with the court order.
  • There was some prejudice to the claimant as some of the medical issues were not clear.
  • There was “an element of the ‘tactical’ in the delay” or refusal of the defendant’s insurer to serve the medical evidence. The defendant had taken advantage of the delay to carry out surveillance of the defendant and inform the medical experts of the result of that.
  • The case could well be over if it were not for the delay.

The judge observed that the defendant’s decision to delay for tactical reasons must have stood out in the mind of the Master.

The trenchant observations of the judge

The judge held that this was a relief from sanctions application.   Whilst it was true that the claimant’s solicitors had not applied for a peremptory order until shortly before the hearing before the Master:

“It is a case, however, in which the Claimants did not press for anunless order or raise the question of an unless order until shortly before thehearing before Master McCloud in March this year. However, that merelybackground to the clear situation that presented itself to Master McCloud. Theplain fact is that the Defendant insurers had wantonly failed to comply with aCourt order that was made almost two and a half years before and she concludedthat they had done so, not merely because of oversight, but for tactical reasons.

In these circumstances, she was, in my judgment, quite entitled to take a dimview of the conduct of the Defendant insurers in this regard. The Court had made a court order; court orders are to be obeyed. If parties are unable to comply with court orders because of new developments, or for whatever reason, they must come back to the Court and seek an extension of time or a fresh order. They cannot simply blithely ignore court orders as if they are a thing writ in water. The fact that the Claimant in this case had not pressed hard or applied to the Courtearlier for an unless order or a debarring order was not the point. Ultimately, it is for the Courts to exercise their case management powers to ensure that cases areproperly progressed and that the Court’s orders are complied with.”

 The equally trenchant observations of the Master

The judge approved the observations of the Master:

It seems to me that in these days of proactive case management, in circumstances where professionals are representing both sides, and court time has been wasted, or a lengthy delay has been caused where no application has been made for relief or for an extension of time, and in the absence of any good reason to waive this breach it is entirely proper for this Court to take the robust view that the Defendant may not serve andmay not rely upon expert evidence on this assessment of quantum.”

The result

The defendant’s appeal was dismissed.  The defendant could not produce medical evidence at the trial.

This was a pre-April application

It is salutary to remember that this was a matter heard, and the appeal expressly determined, on the basis of the law prior to 1st April 2013.

Lessons for defendants and insurers (and indeed every litigator)

It is not uncommon for insurers to want doctors to see video evidence.   However they will now need clear and unequivocal advice on the dangers of delaying serving medical reports, and other evidence.  Parties need to be fully advised about the risks of non-compliance.

Final words from the Judge

This is driven home by the final paragraphs of the judge’s judgment.  The judge found that, although a CMC had been adjourned by consent, he was satisfied that the adjournment contributed to that adjournment.

“20. I am also satisfied that it was appropriate for the Claimants before the hearing before Master McCloud to toughen their position and seek an unless order or a debarring order in the court. In any event, the Court as the master of its own procedure would have been entitled to have made such an order of its own motion, because of the deliberate flouting of the Court’s original order. 

21. Let this be a lesson that parties who deliberately refuse to comply with court orders for tactical reasons do so at their peril. They cannot rely upon or hide behind the fact that the other side have not taken pressed heretofore, for any particular sanction. 

22. It seems to me that Master McCloud did have regard to the overriding interest of justice in her decision and her reasons. The overriding interest of justice include, in particular, the integrity of the Court system and the orders, which includes theorders of the Court being respected and obeyed. 

23. I have no doubt that the same decision would be made before and after 1st April 2013 because this was, as master McCloud said: “One of the most serious breaches I have encountered.”

24. So, for those reasons the Defendant’s appeal is dismissed.”