Hussain v Lawrence

A reminder was provided to practitioners that directions must be complied with, failing which there may be drastic consequences

Summary

In Hussain v Lawrence (DJ Bellamy, Sheffield County Court 6.12.18) a reminder was provided to practitioners that directions must be complied with, failing which there may be drastic consequences. “Better late than never” is a maxim which no longer safely applies to civil litigation.

Facts

The claimant and defendant were involved in a simple road traffic accident. The claimant sought damages for personal injury and vehicle related losses limited to £10,000. Liability and quantum were disputed. Standard fast track directions were provided in advance of the matter being listed for trial on 6 December 2018.

The claimant had filed a witness statement in September. That statement only addressed issues of liability and did not address the extent of injuries at all.

The defendant considered such omission to be significant. The claimant’s GP records were at odds with his reporting to his medical expert. Issues of credibility in relation to liability were inextricably linked to issues of credibility regarding quantum.

The claimant only identified the deficiency in his witness statement in proving his losses for personal injury shortly before trial. He made an application for relief from sanctions and permission to provide further evidence on quantum on the day of the trial. District Judge Bellamy did not feel such application satisfied the well known test provided under CPR 3.9.

District Judge Bellamy felt the breach was serious and that no good reason for the breach had been provided. Dealing with all the circumstances of the case, he felt the trial date would be lost if the claimant’s application for relief was granted.

The defendant subsequently made an application for summary judgment The defendant questioned how the claimant could succeed in a claim for damages for personal injury and other losses when those losses were not referred to in the claimant’s witness evidence? The claimant argued his witness statement could be the subject of ‘clarificatory questions’. In addition the claimant referred to the fact the medical report was appended to the Particulars of Claim and had been the subject of permission at the directions stage.

The defence contended that the CPR is clear and that the claimant’s evidence should be set out in his witness statement and in his own words. It would fly in the face of refusing the application for relief from sanctions to allow the claimant to amplify his present witness statement by simply referring to his medical report.

The District Judge took account of CPR Part 1, and in particular:

It is for the court to consider whether there has been compliance with rules and practice directions and they are paramount in the interests of justice.

In so doing, the District Judge refused the claimant’s application for relief from sanctions and allowed the defendant’s application for summary judgment. As a result the claim failed procedurally and the District Judge was not required to assess issues of liability and quantum.

Comment

This refusal of an application for relief comes hot on the heels of BMCE Bank International plc v Phoenix Commodities PVT Ltd and Another [2018] EWHC 3380 the defendant’s costs budget was filed 2 weeks late with drastic consequences to the defendant in terms of potential costs recovery.

Failure to comply with court directions has serious consequences. Comply, ahead of time: better late than never might no longer save a defaulting party in civil litigation.

If you have any questions or would like to know more about our legal update, please contact Iain Davison, Partner on 0113 213 4077, or iain.davison@weightmans.com.

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