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.

KEY POINTS

• 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.

THE CASE

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).

” 17. If when the matter came before Deputy District Judge Long he had been told that the Part 18 answers which said that the third claimant was present and the steps taken by the first and second claimants in respect of the third claimant were actually wholly untrue and the third claimant had not been present at all, I do not consider that Deputy District Judge Long would have considered that the claimants had complied and ought to be permitted to continue. He would undoubtedly have said that to have told lies within the Part 18 answers to the extent that they were, which was significant, was a serious breach. He would have looked at the question of whether there was a good reason for that and plainly there cannot be a good reason for telling basically wholly fraudulent lies within a Part 18 response.

18. He would then have looked at all the circumstances of the case, which included the fact that final unless orders had been made with which the claimants had to comply and would undoubtedly have considered that all those factors pointed against any relief from sanctions being granted. He would not have considered that the claimants had complied with the order of Deputy District Judge Fowler and there would plainly have been no good reason for them not to have complied and the case would have been struck out.

19. I do not think that this is a case of punishing the claimants twice. I think it is a case that if I do not vary the order, that the claimants actually get a better position through telling lies than they would have done if the court had known the truth at the time. If the court had known the truth at the time of the order of 9 th February, this case would never have reached trial, the claimants would have been struck out, there would have been a decision at that point in favour of the defendant. Court resources in having a final trial would not have been given. I think it would be wrong if the court said that by allowing the claimants to tell lies after there had been an order for a full and complete response, that it should be in a better position than if no such order had been made and had gone on to a full trial.

20. If there had been no such order, then obviously matters would be entirely different and the notes in the White Book with regard to whether or not I should award damages and what costs sanctions should be imposed would be a proper and proportionate response but there had been that previous order, the claimants had told lies to get round that previous order, I do not consider they should be in a better position for doing so. In the circumstances I set aside the order made by Deputy District Judge Long and I hold that the claimants were struck out by 9th February 2015 and the sanctions set out within the order of Deputy District Judge Fowler of 24th October will therefore apply.”