ROBUST DECISION TO STRIKE OUT PERSONAL INJURY CLAIM FOR NON-COMPLIANCE WITH RULES IS UPHELD ON APPEAL: BANDWAGONS & CRASH HELMETS IN BRADFORD COUNTY COURT

I am grateful to barrister Toby Coupe for sending me a copy of the decision of HHJ Gosnell in Aslam -v- The Secretary of State for Justice (17/05/2019), a copy of which is available here.    Aslam v Secretary of State for Justice – Draft Judgment – 17.5.19 V1 The case is interesting because the Circuit Judge, on appeal, upheld the District Judge’s decision to strike out a case for non-compliance with the rules. The original striking out order was made at a hearing that was being held for allocation purposes. It provides important lessons as to the need for compliance and also the strategy that an advocate should take when a judge indicates that they are considering striking out.

“It is one of those hearings where colloquially, one might recommend to a colleague that they put a crash helmet on, because it is going to be quite a difficult hearing anticipated”

THE CASE

The claimant was injured in an accident in a prison in August 2013.

Proceedings were issued in August 2016 and served in November 2016.

When the defence was filed the defendant took the point that there was no medical report, the particulars of claim did not state the claimant’s date of birth and there was no schedule of damages. The same point was taken in the defendant’s direction questionnaires.

Thereafter nothing happened for two years.  The County Court Money Claims Centre appear to have mislaid the file. The claimant did not appear to do anything to chase the matter.

In October 2018 the matter was transferred to Bradford County Court.  It was listed for an allocation hearing on the 20th November 2018.

THE ALLOCATION HEARING BEFORE THE DISTRICT JUDGE

At the allocation hearing the District Judge struck the action out.  Both parties were represented by counsel. The claimant’s counsel did not have any explanation as to why a medical report had not been filed or served.  HHJ Gosnell had a transcript of the hearing.  The claimant’s counsel was asked.

“Sir, medical evidence, I have been advised, has not been served yet. They do have it.  I think there’s been a complication because the claimant was in prison”.  I pause there and wonder why, if the claimant’s solicitors had a medical report and they knew they were in breach of a Practice Direction, they would not have served it even some two years after the date of service of the original Particulars of Claim.  District Judge Foster makes that point in a colloquial way by saying: “Well, hang on, it’s two years ago”.”

The District Judge took the view that the claimant needed relief from sanctions.

“There are then further exchanges between the judge and counsel for both parties, and Mr. Coupe, for his part, I think probably it is fair to say, jumps on the bandwagon and complains of the breaches and encourages the judge that there should be an application for relief from sanctions, because of the fact that the claimant was significantly out of time in serving the medical evidence.  Eventually, Mr. Coupe suggests that the judge strike out the claim pursuant to Civil Procedure Rule 3.4.2(c) because the claimant had failed to comply with a Practice Direction over two years, had made no application for relief from sanctions and had served no evidence as to why they had not done that”

The District Judge then considered the case against the background of the overriding objective and concluded:

“This is a case where the claimant has done nothing meaningful to progress the action since November 2016, or very little has happened on the claimant’s part for the best part of two years. There has been a failure to comply with those Practice Directions, and this case itself has taken up a percentage of the court’s time when the resources could have been added to other cases before the court”.

“So, drawing those strands together, for those reasons, the claim is struck out pursuant to Civil Procedure Rule 3.4.2(c)”.

THE CLAIMANT’S APPEAL TO THE CIRCUIT JUDGE

(1) The hearing was procedurally unfair

The claimant argued that the hearing was unfair because there was no application before the court to strike out. Had there been an application then the claimant may have got the case together and obtained evidence. HHJ Gosnell observed:

“I do not agree with that categorisation of the hearing, for these reasons. Firstly, in the defence document itself, the deficiency about which the complaint was made by the judge had been clearly set out by Ms. Francis as long ago as November 2016, namely, no date of birth in the particulars of claim, no medical report, no schedule of loss.  There was also reference to  some of those deficiencies in the directions questionnaires.

I ask rhetorically what the claimant’s solicitors thought the purpose of the allocation hearing was? It is somewhat unusual in connection with a straightforward fast-track personal injury claim for there to be an allocation hearing, because these days, according to the rules as they are drafted at the moment, the court can make a presumptive decision in relation to the track and then a District Judge, having received the directions questionnaires, will then make an order usually confirming the allocation to the fast-track and making procedural directions, including the listing for trial within 30 weeks.

“In this case, it was listed for an allocation hearing.  I accept it did not give notice to the claimant’s solicitors that there might be some problems.  I have got to say, however, a competent solicitor must have considered the absence of service of a medical report and a schedule of loss as the sorts of issues that were going to be dealt with by the court, and the passage of two years in time was going to be a quite significant difficulty.  It is one of those hearings where colloquially, one might recommend to a colleague that they put a crash helmet on, because it is going to be quite a difficult hearing anticipated, I would have said.”

HHJ Gosnell  held that the District Judge had been given every opportunity to address the issues, after being addressed by the defendant on striking out.

“Now, that may be because he had not been given any real explanation why the medical evidence had not been served; my suspicion is, because there was no  good explanation why that had not been done.  Mr. Adnan could have said: “I hadn’t realised it was going to get quite so serious.  I would like an adjournment to file evidence which will assist me in dealing with this application in the face of the court, for the case to be struck out”, or even because all parties seemed to think at that point that it was a relief from sanctions application; to make the relief from sanctions application that had not been made before the court.”

“However, Mr. Adnan did not do that, and when District Judge Foster pointed out there was no application for relief from sanctions, Mr. Adnan agreed that there was not, and there was nothing further that he could add.  So, he could have applied for an adjournment.  He could have made an application in the face of the court for relief from sanctions.  He could have tried to persuade the court not to make the order that Mr. Coupe sought, but he did not really make any real spirited opposition to that application.  It was not because he was not given the opportunity by the judge, it was because he just failed to do so.“

(2) The decision in Mark -v- Universal Coatings Limited

Three days after the hearing before the District Judge judgment was given in Stephen Mark v Universal Coatings Limited [ 2018] EWHC 3206, that case is considered in detail here.  In essence it was held that breach of the Practice Direction to serve medical evidence did not give rise to an implied sanction.   There was, therefore, no need for an application for relief from sanctions.

“So, Mr. Justice Martin Spencer said that there was no implied sanction and so there was no need for an application for relief from sanctions.  He did not specifically deal with the issue of whether the claimant would need to make an application for an extension of time to comply with the Practice Direction, in which case that would have brought him swiftly back to rule 3.9.  However, that is not something I can deal with today”

The claimant argued that the District Judge’s decision was based on the incorrect assumption that the claimant required relief from sanctions in relation to filing medical evidence.   HHJ Gosnell held that the order was made under CPR 3.4

“He is then looking at the position through the lens of rule 3.4, which is very broadly drawn. It states that: “The court may strike out a statement of case if it appears to the court that there has been a failure to comply with the rule, Practice Direction or court order”.  It is obvious that this rule  could possibly apply in this case and that whether to apply the full rigour of that rule or whether to not apply it, or to apply it by the imposition of an unless order, is part of the court’s general case management powers.

District Judge Foster was right that if he was considering whether to make an order under rule 3.4.2(c), he would need to consider it in accordance with the overriding objective.  In paragraph 13 he sets out fully what the various considerations are from the definition of the overriding objective.

So, technically he is entitled to consider the matter under rule 3.4.2(c) and the appropriate test is the overriding objective.

I take the view that his error in saying that there should have been an application for relief from sanctions, is actually not material, because although he says there should have been an application and there was not, he does not attempt to deal with the case by using rule 3.9. In fact, had he done so, I suspect the claimant would have had no chance of satisfying that test.  He actually does so under the basis of rule 4.2(c), which is actually, in my assessment, a much higher threshold for the court to make an order striking out a claim, than it would have been had he considered it under rule 3.9.

I take the view that District Judge Foster’s error, which is firstly entirely understandable because Mark had not been handed down on that day, and secondly, did not in fact  affect his decision, because he did not actually use rule 3.9 to decide the case does not impugn his conclusion. He was looking at 3.4.2(c) and saying whether this was one of those cases where the breach is so egregious that the case should be struck out.”

(3) Alleged failure to consider the prejudice to the claimant

“The appellant complains that the judge did not consider the prejudice to the claimant, and I accept that within the words of his judgment he does not actually say that: “If I strike out, the claimant will not be able to pursue his case against the Ministry of Justice”. I do not think that matters, because it is obvious that that is the case.  It is an obvious consequence of the judge’s decision.  I do not think it really matters that he did not consider whether it was the claimant’s fault or the claimant’s solicitors’ fault, because that particular issue has been much less important since rule 3.9 was changed in 2013, from previously being one of the specific considerations the court should have regard to, and thereafter not being mentioned as a consideration  in favour of the two sub paragraphs in the modern Rule 3.9 , one of which is the need to comply with rules, Practice Directions and orders.”

(4) The order was well within the Court’s discretion

“I take the view that the failures in this case are so significant and lamentable that Judge Foster cannot be said to be wrong in striking out the case pursuant to rule 3.4.2(c). He did not apply rule 3.9, and so there is no damage done where he mistakenly seemed to have anticipated that an application should have been made for relief from sanction.  He decided the case under rule 3.4.2(c).  In my view, that is a higher threshold to strike out than rule 3.9, and he reached a decision which a reasonable judge could have taken, albeit one who was being robust on the day. One of the main thrusts of the Jackson reforms in 2013 was to attempt to give the rules some teeth and discourage wholesale disregard of the rules which had become fashionable before those reforms took place.  District Judge Foster’s decision was one that I believe Lord Justice Jackson would have supported.”