Claimant firm castigated for “procedural chaos” that saw case struck out

Motorcyle claim: circuit judge should have exercised discretion

A claimant law firm that allowed a straightforward and relatively low-value road traffic accident claim to descend into “procedural chaos” has seen it struck out by the High Court.

Mr Justice Turner said that the firm, Armstrongs Solicitors, had, “through a combination of complacency and procrastination, proceeded as if compliance with the Civil Procedure Rules and the orders of this court were of scant importance”.

He overturned a decision by His Honour Judge Gregory in Liverpool, who – “trying valiantly to rescue what he could from the procedural wreckage” – granted the claimant relief from sanctions.

Gladwin v Bogescu [2017] EWHC 1287 (QB) involved the defendant’s car colliding with the claimant’s motorcycle. Liability was never in issue, but quantum was in significant dispute, in relation to both potential exaggeration of the injury and hire charges of £17,151 to replace a six-year-old motorcycle which ultimately cost only £910 to repair.

In August 2016, the parties were given what were, at the time, common directions in Liverpool County Court in respect of credit hire cases, ordering service of all witness statements by 3 November.

They said: “Oral evidence will not be permitted at trial from a witness whose statement has not been served in accordance with this order or has been served late, except with permission from the court.”

On 3 November, the claimant’s solicitors asked the defendant’s solicitors for a two-week extension of time, which was granted.

Turner J noted: “The evidence suggests that the solicitor with conduct of the claim had done nothing whatsoever between August and November to set about the routine task of obtaining a witness statement from her client.”

The extended date for compliance came and went, and a witness statement was not obtained from the claimant until 5 January 2017.

A month later, less than a week before trial, the claimant’s solicitors applied for relief from sanctions and permission for the claimant to give oral evidence, recognising that the trial date would have to be vacated as a result.

The breach was clearly significant and no good reason was provided for it. On the third limb of Denton, however, HHJ Gregory concluded that if he were to refuse the application for relief, the defendant would suffer greater prejudice than the claimant because the claimant would potentially remain entitled as of right merely to rely on his witness statement and thereby evade cross-examination.

But Turner J said the circuit judge “fell into error by assuming that he could not act more robustly to preclude the claimant from relying on his witness statement. He further fell into error by failing to have proper regard to his powers to strike out the claim altogether in response to the claimant’s breaches”.

HHJ Gregory “too readily followed the path of adjournment. Indeed, the adjournment application should have been refused”.

Turner J continued: “Applying the overriding objective, the arguments in favour of granting an adjournment were weak. In the context of a relatively modest claim, the additional expenses generated by an adjournment would have been significant.

“The claim would not have been expeditiously disposed of and the court’s resources would have been wasted. Serious failures to comply with rules and orders had been perpetrated.”

That it was the claimant’s advisers who had defaulted and not the claimant itself was not a strong enough reason to decide differently.

“Since the introduction of the Jackson reforms, the general approach of the courts is likely to be less rather than more indulgent of the defaults of legal advisers as a justification for granting forbearance to the litigants themselves…

“Of course, I fully recognise the prejudice which would be occasioned to the claimant in having to look to his advisers for redress and the potential disadvantages, including the loss of privilege, which this entails.

“I accept that this is a factor to be borne in mind but, in the circumstances of this case, it does not attract sufficient weight, when taken in combination with all the other relevant factors to be taken into account when seeking to apply the overriding objective, to prevail.

Turner J concluded that having decided that the case could not proceed on the day listed for trial without causing significant prejudice to the defendant, HHJ Gregory should have exercised his power to strike out the case due to a failure to comply with the order.

A spokeswoman for Armstrongs said: “This was a regrettable incident and the matter has been dealt with internally with the staff member involved.”

As a postscript, Turner J recorded that the template now generally adopted by district judges in Liverpool in respect of credit hire claims has been revised to read: “No party shall be entitled to rely upon the evidence of a witness whose statement has not been served in accordance with this order, or has been served late, except with permission of the court.”

He said: “For my own part, I consider this to be an improvement on its predecessor.”

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