EVANS -v- WOLVERHAMPTON: PART 36: SERVICE OF NOTICE TO APPEAL AND RELIEF FROM SANCTIONS: IN THE REPORTS AGAIN
The case of Evans -v- The Royal Wolverhampton Hospital Trust  EWHC 3185 (QB) has been examined before in this blog. It was the case where the defendant made an ex parte application for permission to withdraw a Part 36 offer and also that the information it relied upon not be disclosed to the claimant. The defendant then made a subsequent application, after disclosure of the information, but served the notice of appeal late. The defendant’s application throws some light on the matter. (This was a preliminary application reported at  EWCA Civ 1782. The substantive decision in the appeal has not yet been given.)
WHAT HAPPENED AFTER THE FIRST HEARING
There was a subsequent hearing after the reported case in which the defendant disclosed the evidence upon which it relied. An anonymous letter was written to the Trust stating that none of the injuries were caused by its negligence.
KEY POINTS ON APPEAL
1. A judge had power to vary the time for service of an appellant’s notice to state that it must be served by a specific date.
2. However such a power should be exercised sparingly, the judge should address specifically the reason for varying the rules.
3. The defendant was in breach of the order and required relief from sanctions under the Denton criteria.
4. On the facts of this case it was appropriate to grant relief from sanctions.
DEVELOPMENTS AFTER THE DEFENDANT WAS REFUSED PERMISSION TO RELY UPON “SECRET” INFORMATION
THE DEFENDANT’S SUBSEQUENT DEFAULT
The defendant failed to serve the Notice of Appeal on the claimant’s solicitors in accordance with the order It was necessary for the defendant to apply for an extension/relief from sanctions.
There were two issues:
1. Did the High Court judge have power to order that the notice of appeal be served on a certain date? (The Court of Appeal found that he did).
2. Should the defendant be granted an extension of time? (The Court of Appeal found that it should).
THE JUDGMENT OF THE COURT OF APPEAL ON THESE ISSUES
happen here. The question of abridgement of time for service of the notice of appeal was not debated at the hearing. The matter went by default in the drafting of what became paragraph 6 that was done by counsel after the hearing on 16 October, and the final form of the order was presented to the judge for approval without his attention being drawn to the point.
h the order as well.
THE JUDGMENT OF LORD JUSTICE LEWISON
There is a short judgment from Lord Justice Lewison which contains some interesting observations.
OTHER POSTS ON PART 36
- Claimant pays three times more in costs than in damages: Dangers of Part 36
- Costs after variation of Part 36 offer to be less advantageous to the recipient.
- No specific written notice needed to withdraw a Part 36 offer.
- You can’t go behind the other side’s back when withdrawing a Part 36 offer.
POSTS ON THE NEW PART 36 RULES COMING INTO FORCE IN APRIL 2015
Deals with the new 36. 1 – 13.
- The scope of Part 36.
- Offers can still be made outside Part 36.
- The application of Part 36 to appeals.
- Form and contents of a Part 36 offer.
- Pre-action offers and the date when an offer is made.
- Clarifying, withdrawing and changing the terms of an offer.
- Withdrawing or changing an offer before the expiry of the relevant offer period.
- Acceptance of a Part 36 offer.
- Acceptance of a Part 36 offer in a split trial case.
- Costs consequences of a Part 36 offer.
Deals with the offer effects of making a Part 36 offer
- The main terms if an offer is accepted.
- What to do if payment is note made.
- If the offer is not for a sum of money.
Deals with unaccepted offers and the increased restriction on the disclosure of offers after split trials
- Restrictions on disclosure of a Part 36 offer.
- Disclosure after a split trial.
Deals with the new rule as to recoverability of costs after a Part 36 offer where the party making the offer has had their costs budget assessed at nil.
- The issue
- The new rule.
- The consequences in relation to costs.
- Costs budgeting when a nil budget sanction is imposed.
Deals with the new provision for costs consequences following judgment – was the offer a “genuine attempt to settle proceedings”?
- The factors the court takes into account.
- Does the section have any relevance.
- The purpose of the new rule and pre-existing case law.
Deals with personal injury cases
- The structure of Part 36 on personal injury cases.
- The new rules
Deals with the second section of the new Part 36 governing offers under the RTA and EL/PL Protocol.
- Summary of the rules governing Protocol offers.
- The new rules.
Deals with the structure of the new Part 36.
Deals with how the new rules reflect and change the existing case law
Summarises the changes