14 November 2019
Amy Rumble discusses the Court of Appeal’s recent interpretation of the Pre-Action Protocol for Low Value Personal Injury (Employer’s Liability and Public Liability) Claims.
Introduction The Judgment in Wickes Building Supplies Ltd v William Gerarde Blair  EWCA CIV 1934 focused on the procedure to be followed if a claimant seeks to rely on evidence served out of time when following the stage 3 procedure. Is this a matter to be dealt with by the court under paragraph 7 of the PD 8B or does it lead to automatic dismissal of the claim under the protocol paragraph 9 ? Facts The Claimant, Mr Blair, suffered an accident at work when a plank of wood fell on his head. He sustained bruising and lacerations to his face and suffered recurrent headaches for several weeks. He also alleged that he suffered a recurrence of pre-existing psoriasis which lasted for two years. He made no claim for special damages. Mr Blair submitted a CNF under the Protocol against his employers, Wickes Building. Wickes admitted liability. Thereafter, the parties entered Stage 2 of the Protocol but were unable to agree damages and the case moved to Stage 3. At the outset of the stage 3 hearing, a preliminary issue arose regarding a statement signed by Mr Blair which, according to Wickes, had not been served in accordance with the Protocol. It was asserted that the statement should not be considered by the court. Having heard submissions on the issue, the District Judge delivered a short judgment in which he concluded: “In all the circumstances, I think it is more likely than not that the defendants did not have the statement of evidence in time, in accordance with the Protocol or otherwise, and accordingly it would be wrong to permit the claimant to rely on that statement of evidence.” The District Judge went on to award damages and costs without consideration of the statement. Appeal C appealed on the basis that: “There was a finding of fact that the claimant did not comply with the requirements of the [Protocol]. This finding was made based on a submission from the defendant’s counsel.” Therefore in accordance with CPR PD 8B 9.1(1) and 9.1(2) once the learned judge had made the finding of fact that the claimant had filed and served additional or new evidence with the claim form that had not been provided under the relevant Protocol the rules are clear that the court will dismiss the claim and the claimant may start proceedings under Part 7. CPR 45.24 provides for the possible sanctions the court might invoke on the claimant in the Part 7 action. It was submitted that the judge had therefore made a procedural error. The appeal was allowed. The Circuit Judge cited paragraphs 7.1 and 9.1 of the Practice Direction and reached the following conclusion: “the sanction to a claimant that has not followed the procedure or has filed and served new evidence or additional evidence that had not been provided under the relevant protocol, is that the claim will be dismissed, which has cost consequences. If the claimant wishes to start proceedings, then the Limitation Act may or may not apply.” Court of Appeal Counsel on behalf of the employer submitted that, contrary to the circuit judge's view, para.9.1 was not triggered by the employee's attempted late service of a statement at the Stage 3 hearing. The matter was properly dealt with under para.7.1, which pertained to evidence that could not be relied on because of filing or service defects. There was no need to consider para.9.1 at all. The employer had not been seeking to "oppose the claim" within para.9.1 but rather to object to the late service of evidence contrary to paras 6.3, 6.4 and 7.1. Held: The employer's submissions were correct. “When it had objected to the district judge reading the employee's additional statement, it was not opposing the claim because the employee had filed and served that statement; rather, it was objecting to the court considering that new evidence. PD para.9.1 was not triggered in that situation at all. The district judge had correctly dealt with the matter by reference to para.7 “. A defendant served with an additional statement not filed in accordance with the Protocol was not obliged to oppose the claim continuing under the Protocol under para.9.1. That situation was bound to arise frequently in a process used by litigants in person. If all claims in those circumstances were removed from the process, it would deprive litigants of the benefits of the relatively inexpensive and speedy resolution of their claims that the Protocol provided. Comment Lord Justice Baker further commented in his Judgment: “The provisions of the Protocol are regrettably not drafted in a way which makes interpretation entirely straightforward”  Watch this space for further interpretations of the protocol provisions!