REVISITING COMPLIANCE WITH A PEREMPTORY ORDER AFTER TRIAL: LIES ARE FOUND OUT AND ACTION DISMISSED
I am grateful to Jeff Turton of Weightmans for sending me a copy of the transcript in the case of Anward -v- Severn Trent Water Ltd (13th July 2015). Abid Anwar – Full Judgment It raises an interesting and important point on whether, if the court finds that the claimants have lied to avoid the effect of a peremptory order, the court can re-visit the situation after trial.
- There was a trial where the claimants had been found to be lying on key issues but two of the claimants awarded damages.
- However shortly after the trial the judge revisited an earlier order which stated that the claimants had complied with a peremptory order to reply to Part 18 requests.
- It was clear that the claimants had not, in fact, complied with those requests because the answers given in the replies were inaccurate and dishonest.
- If the judge who had heard the matter knew the full facts then they would not have decided that the claimants had complied with the requests and, given the lies, would not have granted relief from sanctions.
- The judge, therefore, decided that the action stood struck out because of the failure to comply with the peremptory order and set aside the earlier order which said that the peremptory order had been complied with.
After a trial the judge found that two of the there claimants were present at an accident scene. One was present but not the driver, the other was a passenger. The third was not at the scene at all. The defendant driver was found 25% responsible and damages were awarded at trial to two claimants. There was some discussion as to whether the claimants should receive damages at all, however the judge found that they were entitled to damages.
REVISITING THE ORDERS MADE
Very promptly after the trial the defendant’s solicitor wrote pointing out that during the course of the action the court had made a peremptory order. The claimants had filed replies and had obtained a declaration that those replies were accurate and the claim was not struck out for non-compliance.
“7. The defendant says today that if the court had known at that particular time that the answers given were not full and complete and were certainly not accurate, th at it would not have made the order that it did and the court should re -visit the order made in consequence. It does not appear to be disputed between the parties that CPR 3.1(7) does give the court power to go back and re-visit orders that it has made. The fundamental question is whether or not the court should re-visit such an order.”
RE-OPENING THE ISSUE OF EARLIER COMPLIANCE
The judge held that her findings at trial meant that it was clear that the Part 18 replies given earlier were not true, accurate, or complete. This meant that the order of the Deputy District Judge that stated that they were was incorrect (through no fault of the Deputy who had been misled).