Claim struck out after Litigation Friend absence

Weightmans has successfully applied to the court to strike out a child’s claim after the Claimant’s Litigation Friend failed to appear at two Infant…

Weightmans achieves strike out after Litigation Friend fails to attend multiple hearings

Executive summary

Weightmans has successfully applied to the court to strike out a child’s claim after the Claimant’s Litigation Friend failed to appear at two Infant Approval Hearings and attempts to contact her proved unsuccessful.

The facts

Following an accident at an indoor play area in 2012, a claim was brought on behalf of the injured child. Liability was admitted by the Defendant subject to causation and damages were agreed subject to the Court’s approval at an Infant Approval Hearing.

An Infant Approval Hearing was scheduled for early 2014 but the Claimant’s Litigation Friend failed to attend the hearing and it was re-listed for later in 2014. The Claimant’s Solicitors then asked the Court to adjourn the subsequent hearing as they had been unable to make contact with the Litigation Friend. Repeated attempts to contact her were unsuccessful and the Claimant’s Solicitors informed Weightmans that they intended to come off the record.

Weightmans made further attempts to contact the Litigation Friend at her home address but received no response. Reasonable attempts to trace her were also made including an investigation into title of her last-known address which indicated that she did not live there. No forwarding address was found and searches for her name on the voters roll in nearby areas did not provide any matches.

Our application

Weightmans applied to the court to strike out the claim under the Court’s case management powers in CPR 3.4 as the claim had been left at a standstill. The Defendant had made all reasonable attempts to progress the matter but without success. We therefore submitted that there was no likely chance that the Claimant wanted to bring the matter to a conclusion and it was not in the interests of the overriding objective to allow the claim to proceed. The judge agreed and struck out the claim, ordering the Claimant to pay the Defendant’s costs of the action.

Commentary

This is a useful example of the proactive steps that Defendant can take in order to advance a case when faced with potentially having to hold a reserve for many years (in this case an additional 13 years). It is important in such circumstances that the Defendant makes repeated documented attempts to contact the missing party and does some investigations into their whereabouts but ultimately, the Court is prepared in some cases to strike out a matter to give the Defendant much needed finality.

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