STRIKING OUT SPECIAL DAMAGES CLAIM BECAUSE OF ABSENCE OF EVIDENCE IN WITNESS STATEMENT: MORE DETAIL PROVIDED

I am grateful to Dave Toulson of Hill Dickinson for a more detailed explanation of the news that prompted the article on drafting witness statements and proving damages. The original tweet was that a claim for hire had been struck out on the grounds that there was no mention of this in the claimant’s witness statement. Dave’s note is an example of the robust case management decisions now being made on a daily basis.

THE NATURE OF THE HEARING

There was a hearing  on 24.1.2013 before DJ Kramer.

The application was made against a claimant (one of 4 claimants) on the basis that their witness evidence was solely limited to  personal injury  only despite a pleaded case of hire, storage, recovery, misc expenses of nearly £300 on the basis that this was not covered in witness evidence.  Application filed at the time of Pre Trial Checklists as is was listed for trial before a Recorder with ELH of 1.5 days.

In addition, specials were subject to Police investigation into hire company (permission given by Police to disclose) and we argues that in the event they are not struck out, should at least be stayed.  We argued in the event they are not struck out and matters be determined at trial, my insurer client would likely be making payments if the claimant were successful, pursuant to proceeds of crime/money laundering on the basis the hire company was investigated for fraud and 20 people remained on bail.  (Not the Claimants in the current claim)

The Claimant Sols were put on Notice a number of times but still failed to address the issue.  Opportunity given for them to discontinue, however, they remained silent.

It was noted pre action Part 18’s were not endorsed with a statement of truth, and further that the disclosure statements were signed by Claimants Solicitors. We believe the Solicitors do not hold instructions, so asked the Court for an Unless Order in part for the P18 and disclosure.  This was granted.

THE ORDER MADE

 We also sought permission to amend our Defence to plead the police investigation.  Permission was given.  DJ gave the following Order:-

1.         Claims of the First Claimant for hire charges, storage, administrative charges, travelling and                        miscellaneous expenses, not being evidenced by his witness statement, are struck out;

2.         The First, Second, Third and Fourth Claimants shall by 4pm on 7/2/14 serve copies of their responses to the Part 18 requests dated 22/2/11, each of which are to be verified by a statement of truth in accordance with CPR 22 and signed by them personally and the claim of any Claimant who is in default of this order will be struck out;

3.         By 4pm on 7/2/14 the Second, Third and Fourth Claimants each do serve copies of their list of documents, each containing a disclosure statement signed by them personally and the claim of any Claimant in default shall be struck out;

4.         The Second Defendant has permission to amend its Defence in accordance with the draft provided the Second Defendant files and serves the amended Defence by 7/2/14;

5.         Costs in the case.

The Application  was timed at PTC stage on the basis that judge could limit evidence and deal with PI justly, at  proportionate cost to all parties.

 LESSONS TO BE LEARNT?

• The obvious one for claimants is to ensure that the witness statement proves your special damages claim.
• Parties, faced with Part 18 and lists of documents that are not signed personally by the litigant may well be justified in making an application for a peremptory order.