COURT OF APPEAL UPHOLDS ORDER STRIKING OUT CLAIM FOR FAILURE TO SERVE EXPERT REPORT: DON'T PARK THE LORRY WHEN THE TIDE IS AGAINST YOU

In Elliott -v- Stobart Group Ltd [2015] EWCA Civ 449 the Court of Appeal upheld a decision to strike out an application for damages because of a failure to serve a medical report.

“In my judgment Judge Platts was correct to treat this as a case in which the order of Judge Pelling by implication imposed a sanction for non-compliance,…the tide is flowing strongly in that direction, and towards a less indulgent approach to non-compliance.”

THE CASE

Stobart and others had obtained an injunction against Mt Elliott (the defendant).  His case was that the injunction had caused him psychiatric harm and he was bringing an action based on the undertakings given when the injunction was obtained. The judge ordered that there be an enquiry into the loss, the defendant was ordered to file an expert medical report to support his case. Various orders were made in relation to disclosure.  The defendant was in default and made an application for an extension of time. That order was refused by the judge at first instance.

KEY POINTS

• Where a claimant sought an order (retrospectively) extending time for service of a report this was an application that would be heard under the CPR 3.9 criteria.
• The fact that a party was unrepresented was not a good reason for delay or the ignoring of the rules of court or court orders.
• The judge had addressed the correct criteria and the court would not interfere with his exercise of the discretion given to him.

THE ORDERS TO SERVE EXPERT EVIDENCE

After the initial directions  to file medical reports were made there was delay by the defendant and a failure to serve teh report in accordance with the initial timetable. The defendant sought an extension of time and these were initially agreed by the defendant, subject to approval of the court.  Eventually an order was made:-

“1. The Defendant must file and serve by no later than 4pm 16 September 2013 a report from an expert psychiatrist containing the evidence upon which he relies in order to establish his claim that he suffers from a psychiatric condition or disorder and that such psychiatric condition or disorder was either caused or exacerbated or otherwise adversely affected by the Injunction Order dated 15 June 2012.

2. The Defendant must by no later than 4pm 16 September 2013 provide to the Claimants’ solicitors a signed authority to his general practitioner which authorises his GP to release his medical records directly and only to Dr Gareth Vincenti FRC Psych., Consultant Psychiatrist, being the Claimants’ nominated expert witness.”

1. Importantly, Judge Pelling’s Order of 11 July 2013 also included the following:-

“6. The Defendant has permission to apply to vary or discharge this Order, provided that such application must be made not later than ten days after service on him of the sealed Order.

7. The Defendant has permission to make any such application in writing provided that he serves his application and any evidence and/or submissions in support on the Claimants’ solicitors and files evidence of such service with the Court.

8. In the event that Defendant is informed of the date of the trial of the proceedings which are referred to in the third paragraph of the letter to the Court from Andy Creevy dated 5 July 2013 mentioned above (“the Trial”), after the expiry of the time limit in paragraph 6 of this Order, then the Defendant further has permission to apply to vary any provision in this Order, provided that such Application must be made not more than seven days after the Defendant receives such notice of such trial date. Any such application must comply with the requirements of Paragraph 7 above and must include evidence as to when the Defendant was first informed of the date of the Trial

…

10. If the Defendant does not file and serve the expert report referred to in paragraph 1 of this Order by 4pm on 16 September 2013 and does not make an application to vary or to set aside paragraph 1 of this Order that complies with paragraph 6 of this Order, then the Claimants will have permission to apply to strike out those parts of the Defendant’s claim which allege that any psychiatric condition or disorder suffered by the Defendant was either caused or exacerbated or otherwise adversely affected by the Injunction Order dated 15 June 2012.”

THE DEFENDANT’S FAILURE TO COMPLY

Me Elliot did not provide an expert report by the 16th September not did he give a signed authority in relation to his medical notes. A medical report was served on the 13th November 2013 which had been prepared without consideration fo the medical notes.

THE ORDER THAT THE DEFENDANT APPLY FOR RELIEF

The judge ordered that any extension of time for service of the medical evidence should be made by the 29th November 2013. The Defendant made an application for an extension of time to comply, the claimants made an application to strike out the defendant’s application for damages on the undertaking.

THE JUDGE’S DECISION TO REFUSE RELIEF FROM SANCTIONS

The judge considered two recent authorities from the Court of Appeal

Mitchell v News Group Newspapers Ltd [2014] 1 WLR 795 and Bianca Durrant v Chief Constable of Avon & Somerset Constabulary [2014] 1 WLR 4313. He held that:

• This was not the first failure to comply with an order for serving medical evidence.
• The application was not made promptly.
• The delay was considerable.
• The order was for sequential exchange. The defendant’s failure brought the proceedings to an effective half.
• The earlier orders were unambiguous.
• Two days of court time had been taken up dealing with applications which need never have been made.
• There was still no compliance because the report served was incomplete.
• The reasons put forward were not good reasons.

THE DEFENDANT’S ARGUMENTS ON APPEAL

The defendant argued that the case should not have been approached on the grounds that it was an application for relief from sanctions. Alternatively that the judge failed to take into account a number of important factors.

THE JUDGMENT OF THE COURT OF APPEAL

1. In Hysaj v Secretary of State for the Home Department [2014] EWCA Civ 1633 this court took the opportunity to give guidance on the approach that should be taken to applications for extensions of time for filing a notice of appeal, in the light of the decisions of the court in Mitchell andDenton. In each case before the court in Hysaj the applicant had failed to file a notice of appeal within the time prescribed by CPR 52.4 (2), which made it necessary for him to seek an extension of time. At paragraph 43 of the judgment of Moore-Bick LJ it was pointed out that in the modern world inability to pay for legal representation cannot be regarded as a good reason for delay. At paragraph 44 it was pointed out that being a litigant in person with no previous experience of legal proceedings is not a good reason for failing to comply with the Civil Procedure Rules or, I would add, court orders.
2. It is not suggested that Mr Elliott did not understand what the order of Judge Pelling required him to do. Moreover he is a very experienced litigator. It is however pointed out that he has mental health problems, and that this is a factor to be taken into account when ensuring that the administration of justice is not undermined. I accept that point. It is however for precisely that reason that Judge Pelling gave him what Ms Anderson described as “extra leeway” and crafted his order as he did.
3. As to impecuniosity, Miss Freeman points out that a litigant who is short of funds may represent himself but that Mr Elliott needed to pay for an independent expert’s report without which he could not proceed. The point is well made, but undermined by the circumstance that there is no independent evidence of Mr Elliott’s financial position at any relevant time. It is true that Miss Freeman was able to point to passages in a witness statement from Mr Alban Pepper, which the Stobart interests sought to introduce on the appeal, which suggested that even though Mr Elliott described himself as a multi-millionaire he was apparently unable in the summer of 2013 “to access any significant liquid funds.” Mr Pepper had provided some limited funding, about £6000, towards a construction project which he and Mr Elliott were jointly undertaking but in respect of which they apparently could not afford to pay contractors. Against this it is apparent that Mr Elliott was actively pursuing his business interests in the summer of 2013. In his most recent evidence, a witness statement of 27 March 2015, Mr Elliott says:-

“e. During October 2013, I was able to reach an agreement with Mr Simon Michaels to lend me some money allow me to continue living. As soon as I managed to do this (which involved me taking a loan to repay and giving away 30% of the water business company (Shell) that had been set up) I contacted Professor Turkington and managed to get an appointment. I then saw him.

f. I was categorically and simply in no financial position until that point to get any Report. By this time, I was already in breach of the interim Order so I didn’t believe that it would help me to write to the court.”

This is wholly unparticularised and undocumented. The reference to the water business is presumably to “the assets” to which Mr Elliott referred before Judge Platts, but there is no explanation as to why Mr Elliott could not have taken these steps, whatever exactly they were, earlier in the year. There is also no indication how much it cost Mr Elliott to obtain the report from Professor Turkington. The professor explains in his 15 page report that it is based upon an interview of one and a half hours in his consulting rooms in Newcastle. Whilst I am sure that Professor Turkington will have charged an appropriate professional fee, the evidence is quite insufficient to support the submission that until November Mr Elliott could not procure funds of that order.

1. It is important to note, as did Judge Platts, that the evidence from Mr Creevy did not suggest that Mr Elliott was at any material time unfit or unable to attend for psychiatric examination, or interview as Professor Turkington describes it. The emphasis, in reliance on Dr Prosser, was on the stress of court hearings. Mr Creevy’s letter of 28 November 2013 suggested that Mr Elliott had been selective in the litigation matters to which he would devote his attention during the summer months, a suggestion born out by Mr Creevy’s witness statement of 27 March 2015, paragraph 13 of which reads:-

“After referring to Mr Elliott’s medical notes, I can confirm that during the summer of 2013, Mr Elliott had a natural break from his legal disputes with his ex wife Leonie and also his former employer Stobart Limited and we agreed that it would be therapeutic for him to park those issues and concentrate on working on his farm to help him recover mentally and emotionally. He reported to me at the time that his patterns of work were sporadic and that he found he had the capacity to work at irregular times, even late at night and in the early hours of the morning.”

With some justification Ms Anderson characterised this as cherry picking. It is plain from Mr Creevy’s evidence that it was not his advice that Mr Elliott should ignore any court orders which required action of him in relation to his matrimonial litigation or his litigation with the Stobart interests, and Mr Elliott’s witness statement of 27 March 2015 also suggests that during this period he was dealing with ancillary relief proceedings and that he stood trial at Carlisle Crown Court during September. The two critical points are however that:-

(i) It is not suggested that Mr Elliott was unfit to attend an interview with a consultant psychiatrist, and

(ii) if the stress of so doing in connection with the Stobart litigation was simply too great, Mr Elliott could have applied in writing for a variation of Judge Pelling’s order.

In the event, Mr Elliott simply refused to engage with the litigation process.

1. In my judgment Judge Platts was correct to treat this as a case in which the order of Judge Pelling by implication imposed a sanction for non-compliance, here the inability to proceed with the claim for compensation under the cross-undertaking. That was the approach taken by this court inAltomart Limited v Salford Estates (No 2) Limited [2015] CP Rep 8, [2014] EWCA Civ 1408 which concerned an application for an extension of time in which to file a Respondent’s Notice, and Hysaj, above, which concerned an application for an extension of time within which to file a Notice of Appeal. The tide is flowing strongly in that direction, and towards a less indulgent approach to non-compliance. However as Miss Freeman acknowledged, this makes little difference to the outcome of the case. Even if Judge Platts’ exercise of discretion must be revisited in the light ofDenton, the critical enquiry is at stage three.
2. I should also mention that this is in my view a case where the prejudice to the Stobart interests resulting from non-compliance is far from trivial. As the judge rightly observed, Mr Elliott’s failure has brought the proceedings to a halt. When the enquiry was ordered in March 2013 it could reasonably be expected to have come on for trial by the autumn of 2013 at the latest. This action, if not all the other litigation, should by then have been resolved. Dealing justly with the application involves the interests of both parties being weighed in the balance. As the judge also observed, a considerable amount of court time has been devoted to the consequences of Mr Elliott’s failure to engage with the litigation process.
3. Miss Freeman submitted that Judge Platts failed to take into account that whether or not a psychiatric report was furnished on time, there would in any event have had to be a hearing to deal with the Stobart interests’ application to strike out the remainder of the claim made in Mr Elliott’s witness statement of 18 March 2013. That is true, but I do not consider that it invalidates the judge’s conclusion that the entire proceedings could reasonably have been expected to have been resolved by the autumn of 2013.
4. It is accepted that the failure was serious and significant. The judge considered carefully why the failure occurred. The judge on this hypothesis had next to consider all the circumstances of the case so as to enable him to deal justly with the application. Miss Freeman suggests that the judge failed properly to take into account the circumstances which I have set out at paragraph 36 above.
5. It is to be borne in mind that the court will only interfere with a discretionary decision of this sort if the judge below has misdirected himself, or if he has reached a decision which falls outside the ambit of reasonable decision making. The judge here directed himself impeccably, subject only to the gloss that the Mitchell principles have since been explained or refined in subsequent decisions to which we must have regard.
6. In my judgment this is a case in which Judge Pelling, who was uniquely well placed so to do, took very carefully intoI account all the relevant circumstances and, in the light thereof, drew back from making in July 2013 an order which imposed an automatic sanction for non-compliance. Judge Pelling of course had also to take into account the legitimate interests of the Stobart parties in seeking an economic and expeditious resolution of the litigation. Judge Pelling however leant over backwards to accommodate any difficulties in compliance which Mr Elliott might have and crafted his order accordingly. I agree with Ms Anderson that we should not lightly adopt a course which retrospectively undermines Judge Pelling’s careful exercise of his discretion. I also note in this regard that it is apparent from paragraph 21 of Judge Platts’ judgment that Mr Elliott made observations to Judge Pelling at the CMC on 21 March 2013 to the effect that he “may be unable to afford” a psychiatric report and that Judge Pelling nonetheless ordered that a report be produced. That was as Judge Platts observed understandable since without such a report the claim could simply not proceed.
7. We are however immediately concerned with the exercise of discretion by Judge Platts. In my judgment Judge Platts gave very careful consideration to all of the circumstances identified by Miss Freeman to which he could properly have regard. Inability to present for psychiatric examination was not made out and nor was inability to meet the cost of an independent report. The judge gave careful consideration not only to the manner in which Judge Pelling had taken into account the mental health issues but also to the extent to which, if at all, they were relevant to Mr Elliott’s failure to comply with Judge Pelling’s order. The judge found that Mr Elliott had ignored the opportunity given to him to apply in writing to vary the July order and that he had, in effect, simply ignored the requirements imposed upon him by that order. The judge was fully aware that a report had belatedly been produced and he gave little weight to the circumstance that it was incomplete. He was also fully aware of the draconian nature and effect of an order preventing Mr Elliott from pursuing his claim.
8. Professor Turkington at paragraph 6.7 of his report says this:-

“The prognosis for full recovery will depend upon the outcome of these legal proceedings. If he does not achieve the outcome that he believes to be just then it is my view that he will be likely to become chronically mentally unwell and may develop a chronic clinical depressive disorder. His use of alcohol instead of antidepressants is a negative factor and alcohol dependence syndrome is another possible long term complication. If he believes that his case has been heard and justice done and if he proceeds with CBT he should in due course achieve a degree of gradual recovery.”

Of course on the professor’s view these unfortunate possible consequences will only be avoided if Mr Elliott achieves the outcome which he desires, but I am prepared to accept that an inability to have his day in court could trigger a similar reaction. Judge Platts had read Professor Turkington’s report and I think it very unlikely that he had not taken this into account in his evaluation of the effects of the “draconian measure” which he was invited to take, albeit he makes no express reference to it. At the very end of his judgment, after dealing with the application to strike out the remainder of the claim in respect of matters other than psychiatric harm and loss, the judge recognised that the striking out of the claim in its entirety would be a huge disappointment to Mr Elliott.

1. In my judgment the conclusion which Judge Platts reached falls well within the range of reasonable decision making. It is not a conclusion to which no judge could reasonably have come. That is not to say that every judge would necessarily have come to the same conclusion, but that is not the test. The discretion was entrusted to Judge Platts and he exercised it in an exemplary manner and came to a permissible conclusion.