Defendant granted relief even though its solicitor lied about breach

Clinical negligence: Surveillance data went to damages

A circuit judge has narrowly decided to grant relief from sanctions in a case where the defendant solicitor lied that documents had been sent in time when they had not.

Though finding “the degree of candour accompanying this particular application [for relief] to fall short of what I would have expected”, His Honour Judge Robinson in Sheffield said he was “just prepared to accept that human error amounts to a good reason in this case”.

Wadsley v Sherwood Forest Hospitals NHS Foundation Trust concerned alleged clinical negligence by the defendant. Breach of duty was admitted, leaving causation and damage at issue.

The defendant was ordered to serve and file all of its surveillance evidence about the extent of damage, including written evidence, by 20 July 2016. The footage was served electronically on that date, but some of the witness statements were only served nine days later.

The judge said that what would have been “perfectly straightforward application” for relief was complicated by the fact that the defendant solicitor lied to the claimant’s solicitors over the reason why the statements were served late. “She has since been dismissed as I understand it by reason of her conduct in relation to this matter.”

The solicitor said she had sent the witness statements by email but could not resend that email as it had been deleted from the main server because of space limitations and could not be retrieved. She maintained this position in the face of the claimant’s solicitors’ scepticism.

“In fact the truth appears to be that the now dismissed solicitor had delegated the task of sending all of the evidence specified by the order,” explained the judge, and the defendant firm said the legal assistant to which it had been delegated misunderstood the instructions.

Though the delay had no effect on the conduct of the litigation, HHJ Robinson, considering Denton, said he could not look at the breach in isolation from the excuse made by the solicitor.

“It might be argued that a breach accompanied by a lie exacerbates a breach that would otherwise be treated as not serious to the level of serious. Alternatively a breach such as this accompanied by a lie concerning the circumstances of the breach escalates the breach to one where, even if not serious viewed in isolation, stages two and three of Denton are engaged in the sense that they assume greater importance.

“If I had to choose one of those options I would opt for the second of those routes but, however one looks at it, in my judgment the breach is serious such that stages two and three of Denton are engaged and assume greater importance.”

As to whether there was good reason, the judge said the defendant firm had not provided sufficient detail about what had happened. “In short I find the degree of candour accompanying this particular application to fall short of what I would have expected.”

However, he was “driven to accept at face value the bald assertion” made by a partner in the firm that there had been a misunderstanding.

“It is supported by a statement of truth. In my judgment I cannot go behind it. A simple misunderstanding of instructions may or may not be capable of amounting to a good reason. In this case I do not know what those instructions were and so it is difficult, to say the least, to seek to assess the culpability of the misunderstanding.

“This is a borderline case but I am just prepared to accept that human error amounts to a good reason in this case.”

Though the claimant’s solicitors were “put to trouble in investigating the explanation given by the now dismissed solicitor”, HHJ Robinson concluded: “Balancing all the factors including those in CPR rule 3.9 and having regard to the overriding objective, I determine it is appropriate to grant relief from sanctions and to excuse the lateness of service of the written part of the evidence.

“However, I must make this absolutely clear; there has been a suggestion that the claimant’s solicitors were unreasonable in refusing their consent to the granting of relief from sanctions in this case.

“In some cases such consent should be given or at least no opposition made because it would be absolutely correct to do so. In this case it was equally absolutely correct to decline to give such consent. The conduct exposed in this instance was serious.”

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