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Successful strike out of NIHL claim: failure to serve medical evidence

Allen v Johnson Electrical International (UK) Limited
County Court at Durham
12 May 2015

DWF’s disease team has recently succeeded in having two noise induced hearing loss claims struck out following defaults on the part of the claimant.

In this article Angela Thompson discusses her case of Allen v Johnson Electrical International (UK) Ltd (2015) in which the claimant failed to serve medical evidence with the proceedings in accordance with paragraph 4.3 of the Practice Direction to CPR Part 16.

In a separate article Sarah Stutchfield discusses her case of Davies v Webb Son & Company Limited (2015) which was struck out following a number of defaults but most significantly due to the claimant's failure to restore the defendant company to the Register. Find out more.

Background

This was a noise induced hearing loss claim.  The claimant entered into a Conditional Fee Agreement with his solicitors on 22 August 2011. A letter of claim was forwarded to the defendant on 2 December 2011. Proceedings were issued against Johnson Electrical and two other defendants on 27 August 2014.  The claim form and particulars of claim were served on the defendant on 17 December 2014; however the claimant failed to serve any medical evidence as required pursuant to the Practice Direction to CPR Part 16.

Facts

The claimant’s solicitors confirmed in open correspondence dated 18 July 2012 that he underwent a hearing test on 22 August 2011which revealed that he was suffering from noise induced loss. It was confirmed that this was his date of knowledge for the purposes of the Limitation Act 1980. 

At the time proceedings were served the claimant’s solicitors had three years and four months to obtain the medical evidence but had failed to do so.   

When the acknowledgment of service was filed the claimant’s solicitors confirmed that they intended to make an application to extend the time for service of the medical report; however no such application was made and we made an application to strike out the claim.  The co-defendant’s solicitors also made an application to strike out the claim, this being one of five applications they had made in relation to similar breaches in cases handled by the claimant’s solicitors.  The six applications were listed for hearing at Durham County Court on 12 May 2015.

On 6 May the claimant’s solicitors purported to serve the medical report and schedule of special damages by email. They did not however make an application for relief from sanctions.

Findings

At the hearing the claim was struck out. The Deputy District Judge took the view that the claim had no real prospects of succeeding without medical evidence.  The claimant had not served the medical report in compliance with the rules and had not made an application to serve the particulars of claim without medical evidence, in time or retrospectively. The claimant had also failed to make an application for relief from sanctions or serve a statement in response to the applications.

The claimant asked the court to consider an oral application at the hearing.  The Deputy District Judge held that an application for relief needed to be supported by evidence but indicated that in any event, the application did not satisfy the test for relief in the case of Denton.  The breach in this case was significant and there was no real explanation as to why the default had occurred. It was of note that the claimant had been telling the defendants for years that the medical evidence would follow.

When set against the factual background, chronology, lack of explanation and the use of the court’s resources so far, although a refusal to grant relief would be detrimental to the claimant, when balanced against all other factors, the application must be refused.  

The claim against all three defendants was stuck out and the claimant was ordered to pay their costs of the action.

The other strike-out applications were also successful so that a total of six claims were struck out.

Application for permission to appeal

Following receipt of the judgment, the claimant’s solicitors made a without notice application for permission to appeal the same on the basis that the Deputy District Judge’s decision was incorrect and unjust.

His Honour Judge Freedman refused the application for permission to appeal.  He set out his reasons fully in the Order:-

“There was a flagrant and serious breach of the Rules in not serving a medical report with the Particulars of Claim. It is noted that the defendants requested medical evidence in December 2012 and throughout 2013 and 2014 the claimant’s solicitors gave assurances that the medical evidence will follow shortly. No explanation was given for the failure to provide medical evidence. No evidence from the claimant was placed before the court at the strike out hearing. The claimant made no request for relief from sanctions. The DDJ correctly applied Denton. There was no error of law or procedure; and the DDJ correctly exercised her discretion. Alternatively, it could not be said that her decision fell outside the wide ambit of discretion afforded to her. The appeal stands no reasonable prospect of success.”

Comment

In this case the court indicated that the failure to serve the medical report alone would probably not have been fatal.  It was the length of the significant delay in obtaining the medical evidence that led to the claim being struck out.

The court placed particular emphasis on the chronology and noted that the defendants had been chasing the claimant’s medical evidence for over 2 years. It was also noted that even when the report was available the claimant took no action to rectify the breach by making an application for relief from sanctions.

Interestingly, the court considered the point as to whether an application for relief can be made orally, without a formal application being issued. The DDJ agreed that the court has a discretion to consider such an application even where a formal application has not been made. The DDJ held however that an application for relief from sanctions must be supported by evidence, which was not the case here.  In any event she made it clear that the Denton test was not satisfied and although it would be detrimental to the claimant, relief would not be allowed.

Contact

For further information please contact Angela Thompson, Senior Solicitor on 0113 261 6574.

By Angela Thompson

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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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