No automatic exit from protocol where defendant challenges late service of evidence at stage 3 hearing

11 Nov 2019

Wickes Building Supplies Limited v William Gerarde Blair, Court of Appeal (2019) EWCA Civ 1934

On 12 November, BLM successfully appealed in the above case, where the Court of Appeal has considered the procedure to be followed under the Pre-action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims (EL/PL protocol), where a claimant seeks to rely on evidence served out of time at a stage 3 hearing. In particular, the Court of Appeal determined whether the stage 3 hearing could still take place or whether the court was required to dismiss the claim from the protocol and allow the claimant to start proceedings under Part 7.

The facts

On 27 May 2015, Mr Blair had an accident at work when a plank of wood fell on his head. As a result of the accident, he sustained bruising and lacerations to his face and suffered recurrent headaches for several weeks. He also claimed that he suffered a recurrence of pre-existing psoriasis.

The claim proceeded under the EL/PL protocol. Liability was admitted at stage 1 and the parties entered stage 2. Various offers were put forward following service of the claimant’s stage 2 settlement pack but the claim for psoriasis was disputed on the basis that there was no medical evidence in support of this injury. As a result, Mr Blair issued proceedings in accordance with Practice Direction (PD) 8B (the stage 3 procedure) and the matter went to a stage 3 hearing.

At the stage 3 hearing, an issue arose regarding a witness statement produced by Mr Blair, which had not been served as part of the court proceedings pack. This witness statement referred to his symptoms of psoriasis but had not been seen by Wickes prior to this hearing.

On the basis of the evidence, the district judge held “… that it would be wrong to permit the claimant to rely on that statement of evidence” at the stage 3 hearing. He went on to assess damages in the sum of £2,000 plus costs in the sum of £1,080. 

On appeal, Judge Hughes set aside the order of the district judge and dismissed the claim under the EL/PL protocol pursuant to paragraph 9.1 of PD 8B. Judge Hughes reserved the question of costs until the conclusion of the claim under Part 7 and ordered Wickes to pay the costs of the appeal.

BLM, representing Wickes, appealed the decision.

Court of Appeal decision

The Court of Appeal held that raising an objection about the late service of a statement of evidence is not the same an opposing the claim on the ground that the claimant had failed to follow the EL/PL protocol. It was held that Wickes was not seeking to oppose the claim within the meaning of paragraph 9.1 of PD 8B but was instead objecting to the late service of evidence contrary to paragraphs 6.3, 6.4 and 7.1.

The Court of Appeal held that where the parties have followed the EL/PL protocol but are unable to agree the amount of damages, the matter will proceed to a stage 3 hearing but the parties may only rely on evidence which has been filed with the claim form in accordance with paragraph 7.1 of PD 8B.

The Court of Appeal concluded that paragraph 9 of PD 8B addresses the situation where a defendant in its acknowledgement of service, or at a later stage, objects to the claim proceeding under the EL/PL protocol because the claimant has failed to comply with procedure, or has filed and served additional evidence which has not been provided in accordance with the protocol. However, 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.

In the event that a defendant objects to the claim proceeding under the protocol, the court is under a duty to dismiss the claim under the protocol. As a result, the claimant may then start proceedings under Part 7, providing limitation has not expired. However, the Court of Appeal made clear that if the claimant is ultimately successful in respect of the Part 7 claim, the court has the discretion to order that the defendant pays no more than portal costs.

The Court of Appeal also gave the following guidance:

If paragraph 7.2 of PD 8B applies, in respect of the court considering that further evidence must be provided by a party and that the claim is not suitable for the stage 3 procedure; the court is under a duty to order that the claim will continue under Part 7. In that event, the claimant is not at risk of their claim being time-barred but under paragraph 7.3 the court will not allow the claimant to recover the stage 3 fixed costs.

In all other circumstances, the court has the discretion under CPR, r. 8.1(3) to order that the claim continues as if the claimant had not used the Part 8 procedure, but in exercising that power the court must comply with the overriding objective and the aims of the protocol.

As a result, the appeal was successful and the order of the district judge was restored.

What this means for you

The Court of Appeal provided essential guidance on the procedure to be followed where the defendant objects to the late service of evidence in cases where the EL/PL protocol applies.

It was made clear that the defendant is not opposing the claim itself under paragraph 9.1 of PD 8B for the court to dismiss it from the protocol. Instead, the defendant is objecting to evidence served out of time being relied upon at a stage 3 hearing. As a result, a stage 3 hearing can go ahead but the judge should only consider the evidence that was filed with the claim form.

This decision makes logical sense and prevents claimants from arguing that the courts must automatically exit the claim from the protocol in cases where the defendant objects to the late service of evidence. Here, it was made clear that claims can still proceed to a stage 3 hearing but the claimant will not be able to rely on evidence that was served out of time.

In cases where the defendant opposes the claim under paragraph 9.2 of PD 8B, the court may, in accordance with CPR, r. 45.24, only order that the claimant receives fixed portal costs and disbursements if there has been an unreasonable failure to comply with the EL/PL protocol. As a result, even if a case exits the protocol, the claimant can be limited to fixed portal costs where they unreasonably fail to comply or elect not to continue with the protocol procedure.

This case was handled by Amy Law, associate at BLM

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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