Late evidence does not mean automatic protocol exit

Wickes: Claimant’s evidence submitted late

A circuit judge was wrong to find that an employer’s liability claim automatically exited the pre-action protocol because the defendent challenged the late service of evidence at the stage 3 hearing, the Court of Appeal has ruled.

Lord Justice Baker said that otherwise the court would be deprived of any discretion to deal with the late service of evidence as it considered appropriate.

“Such a consequence would be contrary to the aims set out in paragraph 3 of the protocol and may unfairly disadvantage the defendant,” he said.

Wickes Building Supplies Limited v William Gerarde Blair [2019] EWCA Civ 1934 was brought under the EL/PL protocol, and liability was admitted at stage 1. But the parties could not agree a settlement due to a dispute over his claim that the accident caused a recurrence of pre-existing psoriasis, so the case moved to the stage 3 hearing.

It emerged at the hearing that a witness statement produced by Mr Blair about his psoriasis had not been served as part of the court proceedings pack and had not been seen by Wickes prior to the hearing.

District Judge James held that it would be wrong to permit the claimant to rely on the statement at the hearing and assessed damages at £2,000, plus costs of £1,080.

On appeal, His Honour Judge Hughes QC in Winchester set aside the order of the district judge and dismissed the claim under the EL/PL protocol pursuant to paragraph 9.1 of practice direction 8B.

This provides that, where the defendant opposes the claim because the claimant has either not followed the procedure set out in the protocol or filed and served additional or new evidence with the claim form that had not been provided under the protocol, the court will dismiss the claim and the claimant may start proceedings under part 7.

He reserved the question of costs until the conclusion of the claim under part 7 and ordered Wickes to pay the costs of the appeal.

On Wickes’s appeal, the Court of Appeal acknowledged that the provisions of the protocol were “regrettably not drafted in a way which makes interpretation entirely straightforward”.

But, giving the court’s ruling, Baker LJ stressed that raising an objection about the late service of a statement was not the same as opposing the claim on the ground that the claimant had failed to follow the protocol.

He held the company had not opposed the claim because the claimant had filed and served additional evidence; rather, it had objected to the new evidence being considered by the court.

“I agree with [counsel Grace Cullen for Wickes] that paragraph 9.1 of practice direction 8B was not ‘triggered’ in the situation at all. The district judge quite properly dealt with the matter by reference to paragraph 7 of the practice direction [dealing with evidence].”

Baker LJ said paragraph 9 of the PD addressed the situation where a defendant in his acknowledgement of service, or at a later stage, objected to the claim proceeding under the protocol because the claimant has failed to comply with the procedure under the protocol or has filed and served additional evidence with the claim form which has not been provided in accordance with the protocol.

“But a defendant served with an additional statement not filed in accordance with the protocol is not obliged to oppose the claim continuing under the protocol. That situation must arise not infrequently in a process used by litigants in person.

“If all claims in those circumstances were removed from the protocol process, it would deprive litigants of the benefits of the relatively inexpensive and speedy resolution of their claims which the protocol provides.

“In my judgment, a defendant served with an additional statement not included in the material served under stage 2 has the choice of opposing the claim proceeding under the protocol or continuing with the process but objecting to the evidence being considered by the court.

“In this case, Wickes plainly chose the second option. It is crystal clear from the acknowledgment of service that Wickes was opposing the claim but not objecting to the use of the stage 3 procedure.”

Baker LJ said that, by appealing to the circuit judge, the claimant was seeking to overturn the order on the grounds that the district judge should have dismissed his claim as a result of his own failure to comply with the protocol.

“As Ms Cullen says, this would allow the claimant to re-litigate the entire claim under part 7 in the hope of getting a better result.”

The judge added that, where paragraph 9.1 did apply, the claimant could start proceedings under part 7, provided the limitation period has not expired.

“If the claimant is ultimately successful in the part 7 proceedings, the court under CPR rule 45.24 may order the defendant to pay no more than the fixed costs in rule 45.18 plus disbursements allowed under rule 45.19.”

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