ISSUING HIGH VALUE PERSONAL INJURY AND CLINICAL NEGLIGENCE CLAIMS: LOCAL IS USUALLY BEST: HIGH COURT DECISION

I am grateful to all those readers who brought my attention to the judgment of Mr Justice Cotter in  Jennings v Otis Ltd & Anor [2023] EWHC 2039 (KB), in particular to the section on the wisdom of issuing in local courts.

“I do not accept that a policy of issuing all High Court personal injury (and /or clinical negligence claims) in the Royal Courts of Justice is sensible, complies with the overriding objective or serves the interest of any party. Any solicitor issuing a claim should make a case specific assessment of the suitable place to issue. In the present case issuing in London has caused significant delay and I have no doubt extra costs. It also served to hamper effective case and costs management. The lack of good sense in the choice is obvious when it is appreciated that it was the combined view of the parties that the case should be transferred to Bristol for trial. If trial was to be in Bristol, why not the management?”

THE CASE

The claimant was injured in an accident in central Bristol.  He issued proceedings in London.  The Master made directions and the claimant appealed some of the orders made.  The appeal was unsuccessful. However Mr Justice Cotter made some observations in relation to the claimant’s decision to issue in London. The accident happened within 5 -10 minutes walk of the Bristol call.  Most of the witnesses were in Bristol. The parties agreed that the trial should take place in Bristol.

THE JUDGMENT ON ISSUING IN BRISTOL

The judge was, to say the least,  sceptical of the wisdom of issuing in London.

1. 1. The Master was faced with the position whereby the parties agreed that the venue for the trial should be Bristol. This was an accident which occurred in a building which is 5-10 minutes walk from the Bristol Civil Justice Centre, during which one passes the Appellant’s solicitors’ offices. The Claimant lives in Bristol, as presumably do his witnesses (including those covering any quantum issues) and the second Defendant is Bristol City Council. The First Defendant had a contract to install, repair and maintain the lift in the relevant building in Bristol.

1. 1. Notwithstanding that the obvious and cost effective place to issue the proceedings was the Bristol District Registry the Appellant’s solicitors issued at the Royal Courts of Justice. Mr Knifton indicated that it was the policy of the Appellant’s solicitors, a very large firm handling a very high volume of personal injury work, to issue High Court claims in London notwithstanding any nexus between the accident and the relevant regional Court centre and/or that common sense would dictate that the claim be issued elsewhere. In my experience the Appellant’s solicitors are not alone in this regard.

1. 1. I do not accept that a policy of issuing all High Court personal injury (and /or clinical negligence claims) in the Royal Courts of Justice is sensible, complies with the overriding objective or serves the interest of any party. Any solicitor issuing a claim should make a case specific assessment of the suitable place to issue. In the present case issuing in London has caused significant delay and I have no doubt extra costs. It also served to hamper effective case and costs management. The lack of good sense in the choice is obvious when it is appreciated that it was the combined view of the parties that the case should be transferred to Bristol for trial. If trial was to be in Bristol, why not the management?

1. 1. A potential rationale advanced by Mr Knifton for the issuing of higher value claims in London is that the Masters have relevant expertise for personal injury/clinical negligence claims^[2] and this is not, or at least not necessarily, the case when such a case is managed in a regional centre. I have also previously been given an explanation that it is more likely to achieve Judicial continuity and a trial (if appropriate) before a High Court Judge. These arguments, to the extent that they ever had validity, belong in the past. As long ago as December 2015 Lord Justice Briggs, as he then was, set out the principle that no case is too big to be resolved in the regions in his Civil Courts Structure Review; Interim (December 2015) and Final report (July 2016). All the main regional centres have resident Designated Civil Judges, experienced District Judges some well versed in personal injury/clinical negligence litigation (and solicitors based in a city with a regional centre should ensure that are aware of whether there are Judges with relevant expertise at that centre^[3]) and six are appeals centres from the County Court with visiting High Court Judges before whom appropriate trials can be listed. Many High Court claims, and the present case is a paradigm, are unlikely to be of such value that they are unsuitable for hearing by a Deputy High Court Judge (it should be borne in mind that personal injury claims of a value under £1million may be suitable for transfer to the County Court). As I indicated during submissions it is my experience that a Claimant could even end up in the position of having his case heard at the Royal Courts of Justice by one of the section 9 Judges based in the relevant court centre where the claim should have been issued^[4].

1. 1. As for Judicial continuity Judges based at or visiting the Royal Courts of Justice do not ordinarily case manage higher value personal injury/clinical negligence claims through to a trial which they will conduct^[5]. However this can and does happen in regional centres (and can be requested, as can listing a CCMC before a salaried and/or specialist District Judge). Also given the large number of cases (and the high percentage which settle) it is often, if not usually the case, that it is not possible to ensure that a personal injury or clinical negligence conducted at the Royal Courts of Justice has its pre-trial review before the trial Judge. Again, this can be achieved in a regional centre.

1. 1. Issuing a personal injury or clinical negligence case in London which has its natural home in Birmingham, Manchester, Leeds, Bristol etc also creates unnecessary practical difficulties. In the present case the Master faced the wholly unnecessary issue of how to deal with a site visit without the appropriate local knowledge. Whether such a visit can take place can have a significant impact at the CCMC stage as the extent to which photographs and/or a video of the accident scene are necessary may depend upon the Judge’s ability to visit the scene (without undue loss of court time) and /or local knowledge^[6]. A Judge in the relevant regional centre is also likely to have been knowledge of other matters which may impact on costs budgeting^[7] and to be able to set a fixed trial date at the CCMC hearing which can be of very considerable help to those who will need to attend (including experts yet to be instructed^[8]).

1. 1. Finally, but by no means an unimportant consideration, the need to attend a trial in London also often, if not usually, increases stress and inconvenience for parties and witnesses (in some clinical negligence cases impacting on the ability of clinicians to do other work within a day) and increases costs.

1. The common sense step would have been to issue this case in Bristol and as that had not happened consideration should have been given at the earliest opportunity by the Court for its transfer under CPR 30.3^[9] (this being a matter either Respondent also could have raised). Both parties agreed at the appeal hearing that the best way to avoid any further delay was to transfer the Claim to Bristol District Registry with the adjourned CCMC to be listed before the Designated Civil Judge or his nominee.^[10]