Legal Watch:Personal InjuryApril 2014Issue: 015

Events

Plexus and Greenwoods hold a series of events which are open to interested clients. See below for those being held in the next few months:

Personal Data Training | 12.05.14 | Peninsular House

MBIG Seminar | 22.05.14 | London

Credit Hire Training | 12.06.14 | Milton Keynes

In This Issue:

• Post Jackson/Mitchell Cases

• Product Liability

• Costs

Post Jackson/Mitchell CasesThe case of Canning v Network Rail Infrastructure Ltd [Lawtel

14/04/2014] sees a court looking both at strict compliance

with CPR and the impact that granting relief from sanctions

would have on court resources.

The claimant’s wife had been killed by a train on a level

crossing operated by the defendant. Prior to her death, she

had been an editor of cookery books. The claimant earned a

significant amount as a chartered surveyor, but had fallen sick

shortly after his wife had died. His particulars of claim had

stated that had his wife been alive, she would have become

more actively involved in publishing in order to supplement

his loss of income following that illness. The supplementary

witness statement that the claimant had made claimed that his

wife had been involved in the running of his company.

The defendant argued that following Mitchell, the present

application should be treated as an application for relief from

sanctions and dismissed, having been made five months too

late; further, that it changed the basis of the case and the

way it was pleaded. The claimant submitted that it was not

an application for relief from sanctions because under CPR

32.5(3) he was permitted to amplify his witness statement and

give evidence regarding new matters.

‘The defendant argued that following Mitchell, the present application should be treated as an application for relief from sanctions and dismissed’

Refusing the application, the deputy High Court judge held

that the matter had to be treated as an application for relief

from sanctions under CPR 3.9. It was not a trivial breach and

the application was extremely late. Unless and until relief

from sanctions was obtained, the defendant could not be

expected to prepare to deal with the evidence of witnesses

whose statements had been served out of time. The

case advanced by the claimant’s supplementary witness

statement was very different from his original one. The claim

had originally focused on the extra publishing work that the

claimant’s wife could have undertaken following his illness.

It was difficult to see how she could have done that if she

was working on company affairs. The two positions were

inconsistent. If the court was to accede to the application,

the claim would have to be amended. Even prior to Mitchell

it might not have been appropriate to grant the application.

Now the conclusion could be reached more directly: the new

rules were brought in to ensure that litigation was practised

expeditiously. To allow the claimant to rely on the statement

would mean that the court would have to use valuable time

determining which of the two assertions was valid. That

was disproportionate. It would lengthen the proceedings

unnecessarily and increase costs.

The second case under this heading illustrates the confusion

that still surrounds costs budgeting and the fine line

between ‘taking a point’ in a manner deemed to be sensible

and appropriate, and trying to gain an advantage for a client

in a way that is not viewed favourably by the court.

In Kershaw V Roberts and others (2014) EWHC 1037 (Ch)

the appellant/claimant appealed against a judge’s decision

that a directions hearing in the Part 8 claim which he had

issued against the respondent/defendants was not a case

management conference (CMC), so that they were not

required to serve a costs budget seven days in advance of

it.

Shortly after the claimant had issued his claim in the Taunton

County Court, that court sent to all parties a “Notice of

Directions”, stating that a directions hearing would take

place on 21 November 2013. On 14 November 14, the

claimant served a costs budget by fax. The defendants

served their own costs budget by post on 19 November,

but their letter was not received before the hearing. The

hearing on 21 November took place by telephone. The

claimant’s counsel argued that the hearing was a CMC, that

the defendants had failed to serve their costs budget in time

and that their costs budget should therefore be restricted

to court fees only. The district judge allocated the claim to

the multi-track and transferred it to the Rhyl County Court.

At a “costs case management hearing” in that court, the

judge ruled that the earlier directions hearing in Taunton was

not a CMC, with the result that no obligation to file a costs

budget had then arisen. The claimant appealed against that

decision.

Dismissing the appeal, the High Court judge held that as

a matter of construction, the rules were clear in providing

that, unless and until a Part 8 claim was allocated to the

multi-track by the court, the CMC provisions of the CPR

29 would not apply. CMCs were a creature of CPR 29, and

the express power to fix such a hearing was triggered by

the allocation of a claim to the multi-track by the court.

It was that actual allocation which triggered the various

procedural obligations attached to a CMC. The claimant’s

claim was not allocated to the multi-track until the district

judge specifically allocated it at the telephone hearing.

Consequently, that hearing itself was not and could not

have been, a CMC. The district judge was fully entitled to

hold a directions hearing before he gave directions. He

was fully entitled, at that hearing, to allocate the claim to

the multi-track, transfer the claim to Rhyl and give whatever

directions he could at that stage. He was fully entitled, then,

to direct that there should be a CMC in the allocated claim,

to include a costs management hearing. Not only was he

‘...the judge ruled that the earlier directions hearing… was not a CMC’

entitled to make those orders but most judges would have

made them.

The judge went on to say that because of imminent

amendments to the rules, the issue that had arisen would

soon be of historical interest only as the requirement for

costs budgeting is to be excluded from Part 8 proceedings

unless specifically ordered.

CommentAlthough this case draws a distinction between claims

commenced under Part 8 and those under Part 7 (the

majority of personal injury claims), the judge did make it

clear that if an allocation hearing is ordered under Part 7 that

will not be a CMC. However, it remains the case that most

hearings ordered after the filing of directions questionnaires

will be CMCs and on the multi-track a costs budget will be

required.

The decision in The Matter of Guidezone Ltd v Prakash and

others (2014) EWHC 1165 (Ch) is not surprising but it is

nevertheless comforting. This case is also an example of

how a party may be tempted to use Jackson/Mitchell to gain

a tactical advantage that would not otherwise be available.

The applicant/defendants had been ordered to serve their

defences by 14 February 2014. Citing the commitments

of counsel, on 29 January and again on 5 February their

solicitors asked the claimant’s solicitors for an extension

of time. The claimant’s solicitors did not reply until 10

February; they stated that the claimant would not agree

to an extension. The instant application was issued on 11

February.

The claimant opposed the application arguing, among other

things, that the principles in Mitchell, advocating a “new

more robust approach” to compliance with court orders,

applied to the claimant’s application and that it should be

refused.

Allowing the application, the High Court judge held that

the Mitchell guidelines did not apply directly to “in-time”

applications for an extension such as the one issued by

the defendants. The earlier case of Robert v Momentum

Services Ltd (2003) remained good law and was authority

for the proposition that an in-time application should not be

treated as if it were an application for relief from sanctions;

rather, it should be judged against the overriding objective.

In applying the overriding objective, the court should now

have regard to the fact that it had been reformulated to

add explicit reference to “enforcing compliance with rules,

practice directions and orders”. However, unlike in the case

of relief from sanctions, that consideration was not to be

given paramount status. To apply the Mitchell guidelines to

an in-time application would in effect erode the distinction

between an ordinary order directing a timetable and an

unless order. It would run the risk that ordinary orders setting

out timetables would become “trip wires”, which was not the

intention of the Jackson reforms. As to the practicalities, it

was not difficult to see that if the Mitchell guidelines applied

to in-time applications, there would be a risk in every case

that a request for an extension, however unobjectionable

in itself, might be declined by the other party in the hope

of persuading the court to refuse an extension and thereby

gain a significant advantage.

The consistent message from recent authorities was that a

party who needed more time for a procedural step should

not just ignore the problem but ask the other side for

consent and, if consent was not forthcoming, make an in-

time application for an extension. Conversely, the other side

should respond positively and in a spirit of co-operation to

reasonable requests for consent rather than “cry foul” and

seek to take opportunistic advantage of the other party’s

difficulties. Had the defendants’ request been acceded to,

it would not have cost either side anything and would have

had no practical impact on the orderly progression of the

proceedings. The decision to contest the application had

led to an expensive and time-consuming hearing.

It was appropriate to grant the extension of time sought.

Among other things, the penalty of losing the ability to

defend the claim would be wholly disproportionate. The

order in question set out a timetable but did not specify

any sanction for failing to comply with it. Moreover, granting

an extension would have no adverse consequences of

any substance on the claimant, other court users or the

timetable for the hearing of the preliminary issues.

Product LiabilityCases under this heading are relatively rare and so, although

it is on its own facts, we report Love v Halfords Ltd (2014)

EWHC 1057 (QB).

The claimant cyclist alleged that his injuries had been

caused by a defect in a mountain bike which he had bought

from the defendant supplier.

Nine months after the claimant had bought the bike, he lost

control while riding the bike on a tarmac cycle path. He fell

and suffered very serious head and facial injuries, including

the loss of an eye. The steerer tube which connected the

front wheel forks to the handlebars had fractured.

It was the claimant’s case that, from the moment of supply,

there had been a defect that had materially contributed to

the fracture, which in turn had caused his loss of control.

The defendant maintained that the fracture had not caused

the accident, but had been caused by it, the tube having

previously been weakened when it was bent in a prior

incident and then incompetently re-straightened. The

claimant denied there had been any prior incident or re-

straightening.

Finding in favour of the defendant, the High Court judge

held that on the basis of the scientific evidence, the clear

balance of probability was that there had to have been a

prior event where the tube was damaged by being bent and

further damaged by being subjected to a crude and amateur

attempt at repair by re-straightening. The tube had therefore

been shown by the defendant, on a clear balance of

probability, not to have been defective at the relevant time,

namely on the date of supply. There was nothing defective

about its design, assembly or the steel from which it was

made. The probable cause of the final fracture was the

second accident, involving considerable speed and force. A

collision with one of the row of fixed metal stanchions which

the claimant was riding past was likely to have been the

violent event that caused the fracture of the tube by ductile

overload, which occurred as a result of the accident and

was not the cause of it.

CostsAlthough Franklin v Maddison and another [Lawtel

17/04/2014] is not a personal injury case, it is of wider

relevance in the context of qualified one-way costs shifting

(QOCS).

The appellant/claimant had operated auto-trading

businesses which were searched by the police following

the disappearance, and suspected murder of two men. A

number of vehicles were seized, some of which were later

released to persons claiming ownership of them, including

the defendant/respondent. Three cars were returned to

him after he produced keys for them. The claimant was

subsequently convicted of murdering the two men and

sentenced to life imprisonment. Thereafter, he issued

proceedings against the police, complaining that they had

caused him to lose vehicles under their control, and against

the defendant, who was accused of wrongfully taking the

three cars.

At trial, the claimant sought to amend his claim to cover six

cars, but the judge refused on the basis that the proposed

amendment was not properly particularised. She accepted

the defendant’s evidence and concluded, on the balance

of probabilities that he was to be regarded as owner of the

vehicles he had claimed, having made cash payments to

the claimant for them. She indicated that the defendant was

entitled to recover his costs from the claimant.

The claimant’s claims against the police also failed. At the

hearing when judgment was handed down, the defendant

asked for costs on the indemnity basis. The judge referred

to the defendant’s failure to give proper disclosure and

comply with protocols, but indicated that the claimant’s

claim against the defendant was wholly without merit. She

therefore granted the request. However, since the claimant

was in prison and in no position to pay, the defendant had

made no attempt to enforce the costs order in his favour.

The claimant appealed and contended that:

(1) had the claim been considered on the basis of six cars, as

he had wished, the judge would not have concluded that

it was wholly without merit and consequently awarded

costs against him on the indemnity basis;

(2) the judge had failed to take account of the defendant’s

failure to give proper disclosure or comply with protocols.

Dismissing the appeal, the High Court judge held that the

trial judge had refused the claimant leave to amend his

claim, and that point could not be re-opened, but it was

plain that the judge would have rejected the amended

claim in any event since she had preferred the defendant’s

evidence to that of the claimant.

The judge had referred to the defendant’s procedural failures

and gone on to conclude that the claimant’s claim was

totally without merit. The question of costs was a matter for

the judge’s discretion: she had conducted the trial and seen

the witnesses give their evidence, and the costs order she

made in the defendant’s favour on the indemnity basis was

within the wide range of her discretion. There was no reason

to justify overturning the costs order.

(Obiter) The question whether the claimant was in a position

to pay costs was irrelevant in determining the costs order;

what mattered was whether the defendant was entitled to a

costs order in his favour on the indemnity basis.

CommentThis case is of potential assistance to defendants in personal

injury actions where QOCS applies, but it is found that there

were no reasonable grounds for bringing the claim or it was

an abuse of the court’s process. An award of costs on the

indemnity basis may be appropriate and the judge should

not take into account the claimant’s ability to pay the costs.

The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 8 Bedford Park, Croydon, Surrey CR0 2AP. Parabis Law LLP is authorised and regulated by the SRA.

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