Where are we at with Jackson & Mitchell?
Hard times or a level playing field for claimants and defendants?
The legacy of the Jackson reforms is working itself through the courts at the moment.
There has long been a perception amongst defendants of being the “underdog” in personal injury litigation – a feeling that the overriding objective was applied more generously to claimants than defendants. Interestingly, the April 2013 revised overriding objective combined with the interpretation in Mitchell appears to be redressing the balance a little.
We have recently had two fast track personal injury cases where the claimant’s case has been struck out where strike out pre April 2013 would likely not have occurred. The first case was an EL claim allegedly involving a June 2010 manual handling accident. Pre action protocol correspondence concluded in November 2011 with a firm denial on the facts; at that point underwriters considered their file to be closed.
Out of the blue, and 2 years’ later, proceedings were served at the defendant’s premises; however the defendant named in the proceedings was an unincorporated association and did not exist as a legal entity.
As the claim form had been issued on the last day before expiry of the limitation period and the date of service (had the proceedings been effective) was also just prior to expiry of the 4 month period permitted by the CPR, the claimant was out of time to amend and re-serve.
The claimant’s solicitors’ response to the error was to seek permission to amend the claim form combined with permission to bring proceedings out of time relying on the court’s s33 discretion. The defendant successfully resisted this application and the court struck the claim out ordering defendant’s costs. In doing so the court observed that no pre-issue request had been made for clarification of the defendant’s identity; no company search had been carried out; no explanation had been advanced for these failures; no explanation had been advanced for why proceedings were issued and served at the very end of the limitation period; leaving issue and service so late risked a limitation issue where there were procedural irregularities. The District Judge went on to refuse the claimant’s application for permission to appeal.
In our second case, an occupiers’ liability claim, the claimant issued and served proceedings close to expiry of the limitation period after allegedly slipping as she stepped out of the defendant’s showers. The claimant alleged that she was a lawful visitor to the defendant’s premises and that the cause of the fall was, amongst other things, inadequate grip on the shower tiles. An engineer’s report commissioned by the claimant pre issue which partially supported her allegations although a great many facts were in dispute. Of interest in this case was that no medical report was served with the particulars of claim, only A&E notes.
The defendant sought strike out at the case management conference based on non- compliance with Practice Direction 16 paragraph 4.3 “Where the claimant is relying on the evidence of a medical practitioner the claimant must attach to or serve with his particulars of claim a report from a medical practitioner about the personal injuries which he alleges in his claim.” There was a very clear evidential gap between the brief A & E notes and the injuries referenced in the particulars of claim.
Medical evidence was served by the claimant after the point was raised by the defendant and before the case management conference. The claimant sought permission to rely on this medical evidence in her draft directions but ignored the breach, making no application for permission to rectify the error prior to or after the breach had been highlighted.
At the case management conference the court took the view that the claimant’s solicitors had had ample time to obtain appropriate medical evidence before issuing and serving and that no compelling explanation had been given for the failure. The District Judge was not receptive to the claimant’s argument that service of the A&E records was sufficient to comply with CPR Part 16. He commented that “the courts are required under CPR 1.1(f) to enforce compliance with rules, practice directions and orders and are tightening up on sloppy practice”. He noted that no application to remedy the breach had been made at any time, struck the claim out and ordered the claimant to pay the defendant’s costs. Once again permission to appeal was refused.
The above cases underscore the advice we are being given through periodicals and training events namely that errors without prompt action when the error is identified will not be tolerated by the courts. The difference pre and post April 2013 is that intolerance appears to be whether the error be by claimant or defendant; a shift as a direct result of the overriding objective’s re-wording. This is a silver lining from a defendant’s perspective to the cloud that both parties face litigating in tough times.