Kerry Underwood

PORTALS: STAGE 3 AND LATE EVIDENCE: COURT OF APPEAL DECISION

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The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

 

In

Wickes Building Supplies Ltd v Blair [2019] EWCA Civ 1934

the Court of Appeal ruled on the consequences of late service of evidence in the Employers’ Liability and Public Liability Pre-Action Protocol for Low Value Personal Injury Claims, generally known as the portal.

The same principles apply to the road traffic portal.

Here liability was admitted but quantum was not agreed and so the matter proceeded to Stage 3 of the portal process, but the claimant served evidence later than allowed by the rules.

The trial judge disregarded that evidence and determined quantum without reference to it.

The claimant argued that the judge should have dismissed the claim, thus allowing the claimant to start again under Part 7 and adduce the evidence, albeit at the risk of being penalised in costs.

On appeal the Circuit Judge allowed the claimant’s appeal, holding that the matter should have been dismissed, allowing the claimant to start again.

Here, the Court of Appeal restored the original decision of the District Judge, that is that the court can continue to deal with the matter in Stage 3 and ignore the late evidence.

 

The claimant unsuccessfully relied on paragraph 9 of Practice Direction 8B and the heading is:

 

“Dismissal of the claim

9.1 Where the defendant opposes the claim because the claimant has –

(1) not followed the procedure set out in the relevant Protocol; or

(2) filed and served additional or new evidence with the claim form that had not been provided under the relevant Protocol,

the court will dismiss the claim and the claimant may start proceedings under Part 7.

(Rule 45.24 sets out the costs consequences of failing to comply with the relevant Protocol.)”

 

The defendant successfully relied on paragraph 7 of the Practice Direction:

 

“Evidence – general

7.1 The parties may not rely upon evidence unless –

(1) it has been served in accordance with paragraph 6.4;

(2) it has been served in accordance with paragraph 8.2 and 11.3 [which relate to certificates of recoverable benefits, not relevant to this case]; or

(3) (where the court considers that it cannot properly determine the claim without it), the court orders otherwise and gives directions.

7.2 Where the court considers that –

(1) further evidence must be provided by any party; and

(2) the claim is not suitable to continue under the Stage 3 Procedure,

the court will order that the claim will continue under Part 7, allocate the claim to a track and give directions.

7.3 Where paragraph 7.2 applies the court will not allow the Stage 3 fixed costs.”

 

“31. Paragraph 9 addresses the situation where a defendant in his acknowledgement of service, or at a later stage, objects to the claim proceeding under the Protocol because the claimant has failed to comply with the procedure under the Protocol or has filed and served additional evidence with the claim form which has not been provided in accordance with the Protocol. But 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. That situation must arise not infrequently in a process used by litigants in person. If all claims in those circumstances were removed from the Protocol process, it would deprive litigants of the benefits of the relatively inexpensive and speedy resolution of their claims which the Protocol provides. In my judgment, a defendant served with an additional statement not included in the material served under Stage 2 has the choice of opposing the claim proceeding under the Protocol or continuing with the process but objecting to the evidence being considered by the court. In this case, Wickes plainly chose the second option. It is crystal clear from the Acknowledgment of Service that Wickes was opposing the claim but not objecting to the use of the Stage 3 Procedure.

32. In those circumstances, the issue fell to be considered by the district judge under paragraph 7 of the Practice Direction. Under that paragraph, the court at the hearing must disregard any evidence not served in accordance with the Protocol and the Practice Direction unless the court considers that it cannot properly determine the claim without it. If it does conclude that the proper determination of the claimant requires the evidence to be admitted, the court may allow the party to rely on the evidence and, if so, will give appropriate directions under paragraph 7.1(3). In this case, the district judge simply concluded that the statement should be disregarded and proceeded to make a decision on the level of damages. In taking that course, he was acting in accordance with the terms of the Practice Direction and the aims of the Protocol.

33. I agree with Ms Cullen’s submission that, if Judge Hughes’ interpretation of paragraph 9.1 was correct, it would mean that, whenever a defendant objected to the late filing of evidence, the claim would be removed automatically from the Stage 3 Procedure. The court would essentially be deprived of any discretion to deal with the late service of evidence as it considers appropriate. Such a consequence would be contrary to the aims set out in paragraph 3 of the Protocol and may unfairly disadvantage the defendant. By contrast under paragraph 7.1, whilst the default position is that the evidence may not be relied upon, the court has a discretion to order otherwise under 7.1(3) if it considers that it cannot properly determine the claim without it.

34. In this case, by appealing to the circuit judge, the claimant was seeking to overturn the order on the grounds that the district judge should have dismissed his claim as a result of his own failure to comply with the Protocol. As Ms Cullen says, this would allow the claimant to re-litigate the entire claim under Part 7 in the hope of getting a better result.

35. The decision in Phillips v Willis is of no assistance to Ms Robson’s argument. Paragraph 8.1(3) is not disapplied from claims under the Practice Direction. Jackson LJ did not say that a judge conducting a Stage 3 hearing could not exercise the power under paragraph 8.1(3) to order the claim to continue as if the claimant had not used the Part 8 procedure. Rather, he said that, on the facts of that case, it would have been an impermissible exercise of the power to transfer the case out of Part 8 and into Part 7.

36. In my judgment, the correct interpretation of these various provisions is as follows.

(1) At a Stage 3 hearing of a claim where the parties have followed the Protocol but are unable to agree the amount of damages, they may only rely on evidence as permitted under paragraph 7.1 of the Practice Direction.

(2) In the circumstances described in paragraph 9.1 of the Practice Direction, the court is under a duty to dismiss the claim under the Protocol. The claimant may then start proceedings under Part 7, provided the limitation period has not expired. If the claimant is ultimately successful in the Part 7 proceedings, the court under CPR r.45.24 may order the defendant to pay no more than the fixed costs in r.45.18 plus disbursements allowed under r.45.19.

(3) In the circumstances described in paragraph 7.2 of the Practice Direction, 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 his claim being time-barred but under paragraph 7.3 the court will not allow the claimant to recover the Stage 3 fixed costs.

(4) In all other circumstances, the court considering a claim under the Stage 3 Procedure has a discretion under CPR paragraph 8.1(3) to order the claim to continue 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.”

Written by kerryunderwood

November 25, 2019 at 7:37 am

Posted in Uncategorized

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