TWO CASES WHERE RELIEF FROM SANCTIONS REFUSED: (I) LATE WITNESS STATEMENTS (II) NO SCHEDULE OF COSTS

There are two cases reported on Lawtel this morning which exemplify problems of modern litigation and relief from sanctions. The first involves late service of a witness statement in a fatal accident case; the second the failure to file a schedule of costs.

CANNING -v- NETWORK RAIL: LATE SERVICE OF WITNESS STATEMENT IN FATAL ACCIDENT CASE

This is a report of a decision by Judge David Mitchell on 11/4/2014. The claimant was a widower claiming damages following the death of his wife.  He applied for permission to put in an additional witness statement to show that his wife  would have been involved in his business. The judge held that:-

• The application was treated as an application for relief from sanctions and the Mitchell principles applied.
• It was made extremely late.
• It changed the basis of the way the action was pleaded.
• This was not a trivial breach.
• The defendant could not be expected to deal with witness evidence served out of time.
• The case being put forward ran contrary to the earlier case. The court would have to spend time deciding which of two inconsistent statements were correct

The application was dismissed.

COMMENT: GETTING THE CASE CLEAR FROM THE START

Whilst it may be necessary to file additional evidence in personal injury cases due to changing medical conditions circumstances the way damages are put in a fatal accident case has to be clear and consistent from the outset.  There may be rare cases where there are changes of circumstances (in relation to the health of a dependant) but a clear strategy should be agreed from the outset. See the summary of the law in Fatal Accidents blog.

There is also a  checklist in relation to loss of earnings which can be adapted to fatal cases in the Accidents at Work and Loss of  Earnings blog.

NOT SERVING A SCHEDULE OF COSTS: CARRIBEAN SCENE LTD -v- NEWHAM BOROUGH LONDON COUNCIL

This was a decision of Ramsey J, again on the 11th April 2014.  The judge held that it was appropriate for costs to be awarded over and above the fixed charge regime for interim and final charging orders.  Two of the applicants had put in schedule of costs and costs were assessed over and above the fixed costs. The third applicant had failed to put in a schedule and its costs were determined as confined to the fixed costs. The judge held that it was not appropriate to adjourn the matter to deal with costs.

THE LESSON: GET YOUR SCHEDULES OF COSTS IN – ON TIME!

This shows the importance of getting schedule of costs in before the hearing (and on time).