No implied sanction for failure to serve medical report

Spencer: ‘Must’ is used liberally in the CPR

There is no implied sanction for failing to serve a medical report, the High Court has ruled, reinstating a complex personal injury claim which had been struck out.

Mr Justice Martin Spencer said implying the need to apply for relief from sanctions in all cases where the word ‘must’ was used by the rules would result in the courts being “inundated with applications, quite unnecessarily”. The word was used “liberally” in the CPR, he observed.

He said failure to serve a medical report was “not in the same category” as rules or practice directions which carried implied sanctions.

The judge gave two examples where implied sanctions arose – failure by a respondent wishing to resist an appeal on new grounds to serve a respondent’s notice and a litigant wishing to appeal but failing to serve and file a notice of appeal in time.

In both cases, he said, the reason why those rules carried implied sanctions could be “discerned by reference to the default position” if the applications were refused.

However, failure to serve a medical report often amounted to a “trivial breach because compliance could be achieved with the service of documents which, in the end, are relatively uninformative and do not take the matter any further”.

He suggested that most practitioners would “be surprised at the suggestion that the Mitchell/Denton regime for relief from sanction applies to the obligation to serve a medical report and schedule of loss with the particulars of claim, with all the hurdles which need to be surmounted within those principles.”

Spencer J went on: “This comes back to the wide range of personal injury litigation and the significant difference between, at one end of the scale, a simple running-down action and, at the other end of the scale, a complicated clinical negligence action or, as here, personal injury action.

“The ‘one size fits all’ approach of the CPR leads to documents being served with the particulars of claim in complex cases which, in reality, are unhelpful and uninformative.”

The High Court heard in Mark v Universal Coatings & Services [2018] EWHC 3206 (QB) that Stephen Mark was forced to give up work through illness in 2012, having suffered “silicosis and massive pulmonary fibrosis, in consequence of the inhalation of silica dust”.

Mr Mark first received medical treatment in June 2012 and by 2016 was told he had only two more years to live. The judge said that at the date of the High Court hearing on 5 November, Mr Mark was alive, but he did not have an up-to-date prognosis.

Striking out the claim, HHJ Gargan, sitting at Middlesbrough County Court, said the claimant had shown a “flagrant disregard for the rules”, not only in failing to service a medical report and schedule but by “misrepresenting the attempts which had been made to obtain medical evidence”.

HHJ Gargan ruled that if it was not a case of implied sanctions, he would have struck out the claim in any case as an abuse of process.

However, Spencer J said there was “no proper basis” on which the court could find that it had been misled by the claimant’s first solicitor, “and certainly not without the matter being further investigated and the court hearing oral evidence about it”.

He went on: “Without the court having been misled into granting the initial extension of time for service of the claim form, it seems to me that the other complaints and breaches of the rules, without condoning them or suggesting that they were in any way excusable, did not, whether individually or collectively, amount to the kind of abuse of process which justifies a claim being struck out.

“There were, in my judgment, other and more proportionate steps which the court could have taken including the making of unless orders and penalisation in costs.”

The judge added: “Before leaving this case, I cannot refrain from remarking that it is utterly tragic that, for a claimant with such a foreshortened life expectancy, it has taken just a few days short of two years for the appeal to come on for hearing before me from the time it was heard in the court below.

“I cast no blame for this, but I sincerely hope that the parties will be able to agree a timetable for the future conduct of this case which will enable it to be resolved as expeditiously as possible and, in any event, whilst the claimant remains able to see the outcome of the litigation.”

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