HAVE YOU COMPLIED WITH A PEREMPTORY ORDER? A FURTHER HIGH COURT DECISION ON BREACH & SANCTIONS
WAHID AND SHADKAM –V- SKANSKA UK PLC AND RIVERSTONE INSURANCE  EWHC 251 (QB) (Mrs Justice Slade DBE).
(This case has not yet been reported on Bailli and I will deal with the facts in some detail).
This was a personal injury claim. Both claimants were passengers in a vehicle being driven by a Mr Abdulgany, who was originally a Claimant and then became a Part 20 Defendant. It was alleged that a van belonging to the First Defendant and driven by its employee collided with the car in which the claimants were travelling.
THE PROCEDURAL HISTORY
- On the 3rd August 2012 an Order was made requiring standard disclosure to take place by 4.00 pm on 15th October 2012.
- It also provided that the 2nd and 3rd Claimants’ lists should include photographic proof of identification, a lost of all road traffic accidents they had been involved in and copies of any medical reports outlining injuries sustained from those accidents. They also had to provide mandates for the release of their clinical records.
- The claimants failed to comply with the Order.
- On the 11th December 2012 a further Unless Order was made. This ordered that the time for the claimants to comply with the requirements be extended to 4.00pm on 3rd January 2013. Failure to do so would result in their statements of case being struck out automatically.
- On the 27th December 2013 the claimants served a list of documents together with a list of their prior accidents.
- In March 2013 the Defendants wrote to the court asking for the court to enter judgment against the claimants as the first claimant had failed to provide a medical report outlining the injuries he received in a road traffic accident in 2005.
- The Court subsequently made an order on the 9th April 2013 declaring that “as at 4.00pm on 3rd January 2013 the statements of case of both [Mr Wahid and Mr Shadkam] stood struck out”.
- The claimants then applied for the Order made on the 9th April 2013 to be set aside and their claims reinstated. Alternatively they asked for an order for relief from sanctions.
THE JUDGMENT OF HHJ GERALD
HHJ Gerald refused the claimants’ application for the following reasons:
(1) The claimants had provided inaccurate mandates naming the wrong GP. This was in breach of the Unless Order.
(2) The Order striking out the claimants’ statements of case was “in actual fact merely a confirmatory Order of what had already happened, namely that statements of claim had been struck out at 4.01pm on 3rd January 2013.”
(3) The claimants’ had made the wrong application, four months late. The application which should have been made was a relief from sanctions application in relation to the 11th December 2012 Order and for an extension or time.
(4) The claimants had still not complied with orders relating to disclosure of medical records and to reports of previous accidents.
THE CLAIMANTS’ SUBSEQUENT APPLICATIONS
The claimants applied for permission to appeal. This was rejected on the papers but then granted at an oral hearing after the claimants produced a letter from a doctor at the GP surgery named on Mr Wahid’s medical mandate. This letter stated that Mr Wahid had been a patient of the practice since June 2001 and that he still was.
THE ARGUMENT ON APPEAL
The Claimants conceded that the appeal on behalf of Mr Shadkam was bound to fail. He had failed to comply with the order and was therefore struck out. The appeal therefore only related to Mr Wahid. They argued that Mr Wahid was not in breach of the Order of the 3rd August 2012 and that the automatic strike out provisions had not been triggered. They alleged that Mr Wahid had:
(1) Provided a signed disclosure statement.
(2) Provided a signed medical mandate (pre-dating the unless order)
(3) That the defendants had copies of the medical records of the first claimant on or about the 10th March 2013.
(4) Mr Wahid had provided a list of his previous road traffic accidents. He could not provide a medical report in relation to his past accidents as the report had been destroyed by his previous solicitors. However he had explained this to the defendants and that this complied with his duty under CPR 31.
Counsel for the claimants also contended that the fact that Mr Wahid’s medical records had been obtained “in relation to the mandate” was not drawn to HHJ Gerald’s attention. He submitted that it should be inferred that these had been provided in response to the request of the GP surgery made on behalf of the defendant. On this information he should have concluded that Mr Wahid’s medical mandate named the correct GP Surgery and that Mr Wahid had not breached the court order.
THE DEFENDANT’S ARGUMENTS AT APPEAL
The first defendant submitted that the HHJ Gerald had appreciated the importance of the mandates in the context of the claims made by the claimants:
- The Defence raised an issue over the genuineness of the accident which gave rise to the claims. Therefore without an accurate medical mandate the insurers did not have the comfort of knowing that the medical records were complete.
- The claimants did not take any steps until after the judgment of 17th May 2013 to investigate or correct the initial reply by the medical practice named by him on his mandate that he was not a patient of theirs.
- The GP practice only sent the medical records to the first defendant and not the second defendant.
- There had been further non compliance with the requirement to provide the medical report following the 2005 accident. There was no direct evidence that the report was no longer available and the evidence the defendant did provide was in any event after the date for compliance with the Unless Order.
- The Second Defendant also argued that there was no such thing as effective compliance with an Order. Either there was compliance or not.
THE JUDGE’S DISCUSSION AND CONCLUSION
“36. The appeal before me is from that part of the judgment and Order of HHJ Gerald made on 17th may 2013 by which he dismissed the application of Mr Wahid to set aside the Order made by DJ Lightman sealed on 21st April 2013 and made on 9th April. Permission was not given to appeal the dismissal of the application for relief from sanction.
37. Mr Coulter on behalf of Mr Wahid has sought to demonstrate that the statement of case of Mr Wahid should not have been automatically struck out on 3rd January 2013 for non-compliance with the Unless Order made on 11th December 2012. I agree with the observation of HHJ Gerald at paragraph 8 of his judgment that the application before him challenged the wrong Order. The Order sealed on 21st April 2013 which was the subject of the application made on 7th May 2013 confirmed the automatic strike out of Mr Wahid’s statement of case. The application before the Judge did not challenge the automatic strike out or the prior Unless Order. Because of the way the matter was advanced before him, the learned Judge understandably thought that the application which should have been made was for relief from the sanction of striking out imposed by the Unless Order. Having regard to the only ground upon which this appeal had been permitted to proceed, no issue of relief from sanction is before this court. Ground 1 of the Notice of Appeal which was permitted to proceed, challenges the automatic strike out of 3rd January 2013 which was not the subject of the application before HHJ Gerald.
38. The Court of Appeal in Mitchell explained at paragraph 44 :
If a party wishes to contend that it was not appropriate to make the order, that should be by way of appeal or, exceptionally, by asking the court which imposed the order to vary or revoke it under CPR 3.1 (7). The circumstances in which the latter discretion can be exercised were considered by this court in Tibbles v SIG Plc (trading as Asphaltic Roofing Supplies)  EWCA Civ 518. The court held that considerations of finality, the undesirability of allowing litigants to have two bites at the cherry and the need to avoid undermining the concept of appeal all required a principled curtailment of an otherwise apparently open discretion. The discretion might be appropriately exercised normally only (i) where there had been a material change of circumstances since the order was made; (ii) where the facts on which the original decision was made had been misstated; or (iii) where there had been a manifest mistake on the part of the judge in formulating the order. Moreover, as the court emphasised, the application must be made promptly. This reasoning has equal validity in the context of an application under CPR 3.9. ”
THE CLAIMANT’S FAILURE TO PROVIDE A CORRECT MEDICAL MANDATE
“39. At the hearing on the 11th December 2012 at which Mr Wahid was legally represented, DJ Lightman extended the time for compliance with paragraphs 9,11 and 12 of the Order of 3rd August 2012 to 3rd January 2013. Solicitors for Skanska had informed solicitors for Mr Wahid on 29th October 2012 that the GP surgery named by him on his medical mandate provided to them on 8th October 2-12 had stated he was not their patient. On the material before this court it appears it was not until after the judgement of HHJ Gerald that Mr Wahid’s solicitors obtained evidence that he was the patient of the practice named on his mandate. Even if the sending by the GP surgery of Mr Wahid’s clinical records to Plexus Law is to be taken as leading to an inference that Mr Wahid had named the correct surgery on his mandate, on his solicitor’s own account this did not occur until 8th February 2013. On the information before the Defendants on the date for compliance Mr Wahid had given incorrect information on his medical mandate and so had not complied with the requirement of the Unless Order in this regard. It cannot be said that counsel for the defendants misstated the facts before HHJ Gerald by failing to draw his attention to the fact that the GP surgery had sent Mr Wahid’s clinical records to them. The learned Judge had the letter dated 22nd March 2013 from Plexus Law to the court before him. The Judge referred to that letter in paragraph 7 of his judgment. In the letter of 22nd March 2013 solicitors for Skanska stated that Mr Wahid had provided his clinical records. If the legal advisors of Mr Wahid had given the correct information on his medical mandate they could have done so. Instead Mr Wahid’s counsel conceded before HHJ Gerald that he had not complied with the Order to give a medical mandate.
40. Even if the correct application had been made before HHJ Gerald on behalf of Mr Wahid it cannot be said that the facts on which HHJ Gerald made his decision in regard to non-compliance with the Unless Order had been misstated. Further, there would have been no basis for extending time to challenge the Unless Order of 11th December 2012 or the automatic strike out of 3rd January 2013. All the facts and matters now relief upon by Mr Wahid were available to him before the Unless Order was made. The Unless Order could have been resisted of it was thought the Order of 3rd August 2012 had been complied with. An application could have been made to set it or the automatic strike out aside if there were grounds for considering that the Unless Order had in fact been complied with. Instead, as HHJ Gerald observed, four months elapsed since 3rd January 2013 before an application was made to challenge the wrong Order.”
THE CLAIMANT’S FAILURE TO PROVIDE MEDICAL REPORTS
The Judge then went on to consider the claimant’s argument that the Unless Order was an order for specific disclosure without an obligation to search for the medical report following the accident of 2005. He found that it was ingenious, but misguided.
41. Paragraph 11 of the Order of the 3rd August 2012 set out the documents which the Claimants’ disclosure lists should include. The Order requiring disclosure by lists was in paragraph 9 which stated that there was to be “standard disclosure by lists”. Paragraph 11 did no more than particularise what was to be include in the list. An Order for specific disclosure is made following an application supported by evidence (see 31APD5). There is no suggestion that such an application was made in this case.
The requirement in paragraph 11 of the Order was for standard not specific disclosure. CPR 31.10 (4) provides that the standard disclosure list must indicate :
(b)(i) those documents which are no longer in the party’s control; and
(ii) what has happened to those documents
The list of documents provided by Mr Wahid did not include such a statement regarding the medical report following the 2005 accident. Whilst solicitors for Mr Wahid wrote to the Defendants before 3rd January 2013 to tell them that they were contacting the solicitors who had acted fro him in 2005; it was not until after time for compliance with the Unless Order had passed that they provided information, a note of a telephone conversation on 22nd January 2013, which indicated that the former solicitors no longer had their files due to passage of time. HHJ Gerald rightly observed in paragraph 13 of his judgment “insofar as Mr Wahid is concerned, it was not until 22nd January that enquiries were made in relation to a 2005 accident. That again evidences a complete disregard for orders of the court.
43.HHJ Gerald did not err in concluding that there was no relevant application before him. The application was to set aside the Order of DJ Lightman sealed on 21st April 2013. The Order declared that the statements of case of the Claimants had been struck out on 3rd January 2013. There was no application to set aside the striking out on 3rd January 2013 or the Unless Order of 11th December 2012 pursuant to which the claims were struck out. The Judge was right to hold that in any event the application for extension of time would have been required to make an application for relief from the sanction of the 11th December 2012 Order and that there were no grounds on which it would be proper to do so.
44. As it was held by the Court of Appeal in Mitchell in respect of relief from sanction under CPR 3.9, a challenge to the validity of the Unless Order of 11th December 2012 or the consequential automatic strike out of 3rd January 2013 would have to be made by way of appeal from that Order and the automatic strike out or by asking the court which imposed the Order to vary or revoke it under CPR 3.1 (7). In the interests of finality in litigation considerations of delay would apply to such an appeal or application.
45. Even if despite the information before HHJ Gerald there had been compliance with paragraph 12 of the Order of 3rd August 2012 it is clear that paragraph 11c had not been complied with. More importantly the decision of HHJ Gerald was not wrong nor was his decision unjust because of a serious irregularity in the proceedings before him.”
The appeal of Mr Wahid was dismissed.
LESSONS TO BE DRAWN
This was not a case so much about relief from sanctions, it was an issue about whether there had been a breach. However it is clear that:
1. If you want to argue that an order is wrong then you should apply to set aside or vary that order.
2. Disclosure is, needless to say, an important obligation. It covers documents that the party once had.
3. Compliance, compliance, compliance.
4. If you can’t comply with directions make an application in advance.