A High Court judge has overturned relief from sanctions granted to a claimant in a medical negligence case, partly because of her solicitor’s “egregious” conduct.
Mrs Justice Yip also said the recorder who granted the claimant relief had misdirected himself by placing too much weight to the right to a fair trial under article 6 of the European Convention on Human Rights.
The claimant and respondent in the appeal, Joy Willmott, sued Simone Magee, a GP, for negligence because of an alleged delay in diagnosing bowel cancer.
Ms Willmott sought to rely on additional expert evidence “which came into existence only after the date for exchange of the evidence to be relied on at trial” – a “serious” breach of a court order which resulted in the loss of the trial date.
Ms Willmott was granted relief from sanctions by Mr Recorder Riza QC in November 2019. Ms Magee appealed.
Yip J said: “The conduct of the respondent’s solicitor was particularly egregious. He was not frank with the appellant or the court and delayed in making the application and in giving full disclosure while he attempted to obtain the necessary evidence to support the claim which had been advanced.
“He did so in response to the appellant’s solicitor appropriately identifying the difficulties in maintaining the pleaded claim.
“To allow the application for relief would not only fail to do justice between the parties but would serve to discourage the sensible, pro-active and efficient approach to litigation exemplified by the appellant’s side.”
Yip J said the factors identified in CPR 3.9 pointed strongly towards refusing relief.
“The natural sympathy inevitably felt for the respondent, who was not personally responsible for the breach, cannot properly tip the balance in her favour.
“Properly analysed, it is far from clear that she is significantly prejudiced by the refusal of relief given the weak position she would have found herself in anyway given the piecemeal development of her expert evidence so late in the course of the litigation. It follows that I must allow this part of the appeal and refuse relief from sanctions.”
Delivering judgment in Magee v Willmott  EWHC 1378 (QB), Yip J said Mr Recorder Riza had also misdirected himself in his approach to article 6.
She said the recorder had focused on Ms Willmott’s article 6 right rather than the Denton test, asking whether it was “necessary” to deprive her of her right to a trial of her claim and “seeking so far as possible” not to do so.
“The simple balancing of prejudice to the respondent if she were unable to pursue her claim to trial against that to the appellant in not having the claim struck out also failed to properly engage with all the relevant circumstances, including the two factors specifically mentioned in CPR 3.9,” Yip J said.
She ruled that the refusal to grant relief would not offend article 6 provided that doing so was proportionate: “Securing compliance with court orders is a legitimate aim. Conducting the required balancing exercise pursuant to CPR 3.9 will generally ensure that the decision on whether to grant relief from sanctions is convention compliant.
“Otherwise, litigants could act with impunity, avoiding compliance with court orders and claiming relief on the basis of their right to a fair trial. The recorder was wrong to elevate the respondent’s article 6 right to the decisive factor in the way that he did.
“A proper application of CPR 3.9, weighing all the circumstances so as to deal with the application justly satisfies article 6.”
The judge said it would not be appropriate to strike out the entire claim as an abuse of process, but the claim “no longer has any prospect of success” and the respondent accepted that.
Yip J said the appellant made no application for summary judgment under CPR 24, but “that may well be appropriate”.
The judge said it was “impossible” not to be sympathetic with Ms Willmott’s position. “It is particularly unfortunate for someone who believes that they have been failed by the medical profession to then be badly let down by the legal profession…
“Further, I accept that a claim for professional negligence against her solicitors may not provide a real remedy for her for multiple reasons, including the way in which damages are calculated, the time involved in prosecuting a new claim and the denial of the opportunity to seek a positive finding against the appellant.”