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Failure to comply leads to dismissal of £60,000 hire claim

Alves v Suen & RSA Insurance plc
County Court at Edmonton
1st and 2nd February 2016

The Claimant’s failure to obtain relief from sanctions after he had failed to comply with an order to give disclosure and serve witness evidence meant that his claim was dismissed.  The Claimant had claimed for personal injury and hire charges of over £60,000. The Claimant had initially obtained judgment by default against the First Defendant, although the Second Defendant, RSA, had gone on to file a Defence, outlining a number of concerns that they had about the case.

Senior Solicitor, Mark Holmes, who acted for RSA, reviews this case and on what basis RSA opposed the Claimant’s application for relief from sanctions.  Once relief from sanctions had been refused, the Claimant attempted to correct his failure to serve witness evidence as directed, by serving his witness statement with a Hearsay Notice.  As a result of the dismissal of the claim the Claimant was ordered to pay the Second Defendant's costs and also repay an interim payment made to the Claimant.  

Background

The Claimant, Alexander Alves, sought damages for personal injury and a number of items of special damages including a claim for hire charges in excess of £62,000 following a road traffic accident said to have taken place on 23 January 2013, when it was alleged that he was struck by another vehicle being driven by My Kwai Suen (who was insured by RSA), who failed to give way at a junction. 

The Claimant issued proceedings against Mr Suen, after which DWF successfully applied to join RSA into proceedings as a Second Defendant.  A defence was filed on RSA's behalf putting the Claimant to strict proof of his case and outlining a number of concerns that the Second Defendant held.  The matter was then allocated to the multi track with the case being listed for a two day trial.  

What happened next

The Claimant failed to deal with disclosure and serve witness evidence in accordance with the Court’s timetable.  Four weeks after the deadline to serve witness evidence had passed, the Claimant made an application to the Court for relief from sanctions.  Further, the Claimant applied to obtain judgement against the First Defendant on the basis that the First Defendant had not participated in the proceedings and because RSA had not advanced any positive evidence disputing liability. 

The Claimant's application for relief from sanction and judgment was heard before District Judge Lethem on 1 December 2015, eight weeks prior to trial.  We opposed both applications and in respect of the application for relief from sanctions we argued that:

  • the claimant’s failure to comply was both serious and significant.

  • the statement that the claimant had served late, was substantively in respect of quantum and did not properly address liability

  • the claimant’s inability to comply with the order for disclosure (it was claimed that the claimant was out of the country at the time) was not insurmountable

  • a change of file handler was not a good reason for non-compliance

  • the claimant had applied for relief over three months after initially failing to comply (the third stage of the test in Denton)

  • the witness statement that was served, pre-dated the First Defendant’s application to set judgment aside

The application for relief was dismissed, so that the application for summary judgement also fell by the wayside.  Consequently the Claimant was debarred from giving oral evidence at Trial.  At the conclusion of that hearing, Claimant's Counsel indicated that the Claimant would re-serve his witness evidence under cover of a Hearsay Notice which he duly did. 

The matter proceeded to trial, but DWF made an application for Summary Judgement on the basis that the Claimant could not, having been debarred from giving oral evidence at trial, prove his case on the balance of probabilities. 

The application was listed on the morning of the trial before District Judge Dias.  The Claimant challenged the application for Summary Judgement on the basis that insufficient notice had been given.  The Court nevertheless considered DWF's submissions made in that application when considering whether or not the Claimant could, on the evidence available, realistically prove his claim on the balance of probabilities.

Detailed submissions were made, with the Claimant referencing a number of documents, including the Particulars of Claim, the First Defendant’s Defence and the First Defendant’s statement which provided snippets of evidence in relation to the issue of liability.  It was contended on RSA's behalf that those documents did not contain evidence that the Claimant could use to found his case upon and that the facts should be determined on the basis of oral evidence, following production of appropriate witness evidence.  It was argued that having been debarred from giving oral evidence at trial it would not be right to allow the Claimant to succeed on liability on the basis of the documentary evidence that he sought to rely upon when he had not served a witness statement, as he had been ordered to by the Court. 

The Judge found that the evidence that had been served was inconclusive and not sufficient, such that the Claimant could have a realistic prospect of discharging the burden of proof as to who was at fault for the collision.  The judge found that there was sufficient evidence in the papers to say there was a collision (the First Defendant had completed an accident report form which admitted as much) but there was insufficient evidence for the judge to make a finding of who was at fault.  The Judge also rejected the Claimant's attempt to adduce his witness statement via a Hearsay Notice. It followed that, as the Claimant could not give oral evidence at trial, his claim would be dismissed.

As well as being ordered to pay the Second Defendant’s costs, the Claimant was ordered to make an interim payment in respect of costs in the sum of £5,000, as well as re-pay an interim payment in the sum of £2,299.

Comment

This case highlights that although there has been a softening of approach in the Courts following the Mitchell case that the Court will still very much have the overriding objective in mind when deciding whether to grant relief from sanctions.  In this particular case, it appeared to have played on the Court's mind that the Claimant was in default of directions in relation to disclosure as well as having failed to serve witness evidence on time, such that the cumulative effect of the Claimant's breaches was to render his application for relief from sanction for failing to serve his witness evidence unsuccessful.

The Claimant's attempt to serve his witness statement with a Hearsay Notice was an attempt to circumvent the fact that he could not give oral evidence at trial and introduce his evidence ‘through the back door’.  The Court agreed with DWF's submissions that the deadline for service of evidence with a Hearsay Notice is, at the latest, whatever deadline the court has set for service of that evidence type (so in this case the Hearsay Notice should have been served on the date that witness statements should have been served).

When considering whether the Claimant could prove his case on the basis of the evidence that he had served, the Court carefully considered the contents of the Particulars of Claim, the Claimant's medical report and an accident report form completed by the First Defendant and concluded that whilst each document could establish that the First Defendant was responsible for causing the collision, equally there could have been any number of reasons as to why the First Defendant was not at fault for the accident.  As a result, the Court concluded that the Claimant was unable to prove his case as to liability on the balance of probabilities resulting in the dismissal of his claim.  

Contact

For further information please contact Mark Holmes, Senior Solicitor, on 0151 907 3439 or at Mark.Holmes@dwf.law

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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