In the opening article of this week’s edition, Parklane Plowden Barrister, Michael Ditchfield, examined the line of case law on the claimant’s obligation to serve medical evidence with Particulars of Claim, ending with Mark v Universal Coatings & Services Limited & Others  EWHC 3206.
Last month, however, we came into possession of a draft County Court judgment (dated 17 May 2019) in the case of Aslam v The Secretary of State for Justice.
Why is this significant?
It is the first example, to the best of our knowledge, of a case citing Mark.
Aslam is an appeal decision against an order of Deputy District Judge Foster, which struck out a £15,000 personal injury claim.
The defendant’s strike out application was successful at 1st instance, pursuant to CPR 3.4(2)(c), [there had been a failure to comply with the relevant Practice Direction (PD)].
The claimant’s breach was, among other failings, that the Particulars, which had been served with the Claim Form in November 2016, were not accompanied by a medical report, i.e. there had been a breach of PD 16 para 4.3.
Transcription of the allocation hearing, which took place on 20 November 2016, discussed the claimant’s ‘flagrant breach of the protocol’.
DDJ Foster considered, unlike Mr. Justice Spencer in Mark, that the deliberate inclusion of the word ‘must’ was ‘crucial’ to the construction of PD 16 para 4.3, as it conveyed the ‘mandatory obligation’ to serve a report from a medical practitioner:
‘It should be noticed that the use of the word “must” is a consistent feature in the Practice Direction. The use of “must” means obligatory, mandatory and necessary, essential. It directs a party that something has to be done. The claimant even now has not complied with the requirements of the Practice Direction’.
Nevertheless, it is of substantial importance to recognise that the 1st instance judgment was decided 3-days before Mark was handed down and was therefore not decided in the light of binding legal authority. This is obvious from the District Judge’s observation, at paragraph 10 of his judgment:
‘Furthermore, at no stage has there been an application for relief or for permission to serve without medical evidence’.
On appeal (after Mark had been handed down), Aslam fell before His Honour Judge Gosnell (who presided over Dalus v Lear Corp & ATV Automotives[i]).
Before reaching his decision on the issue at hand, the Circuit Judge identified that, if he were to interfere with the original decision, he would only be able to do so if the 1st instance judge’s ruling had:
- Erred in principle / approach [AEI Rediffusion Music];
- Left out from account / taken into account some feature that he should or should not have considered [AEI Rediffusion Music];
- Been ‘wholly wrong’ because they did not ‘balance the various factors fairly in the scale’ [AEI Rediffusion Music];
- ‘...not merely preferred an imperfect solution ... but ... exceeded the general ambit within which a reasonable disagreement is possible’ [G v G]; or
- Been ‘...plainly wrong, in the sense of being outside the generous ambit where reasonable decision-makers may disagree’ [Global Torch Limited v Apex Global Management Limited].
To begin with, HHJ Gosnell summarised the High Court ruling in Mark as:
‘... the first time a Judge in the higher courts found that where a party has failed to comply with the Practice Direction to part 16, paragraphs 4.2 and 3, that is obviously a breach of a Practice Direction, but it is not one of those instances that involves an implied sanction, such as an application to extend time for an appellant’s notice, or an application to extend time for a respondent’s notice, or perhaps even an application to extend time for witness statements.
In essence, he highlighted that HHJ Gargan’s approach had been overruled by the High Court because he ‘wrongly’ considered that breach of PD 16 para 4.3 carried an implied sanction and relief would not have been granted. The Circuit Judge went on to presume that:
‘Had District Judge Foster, Mr. Coupe [defendant counsel] and Mr. Adnan [claimant counsel] known of this decision on 20th November 2018, I suspect they would not have gone down the road of there being an obligation on the claimant to seek relief from sanctions, because the decision in Mark says that that is not necessary’.
Ultimately, the question before HHJ Gosnell was as follows: did the High Court-established lack of implied sanction, ensuing breach of PD 16 para 4.3, impugn the decision of DDJ Foster?
In confronting this question, HHJ Gosnell reasoned that DDJ Foster’s ‘error’ was not actually ‘material’, as he had dealt with the strike out application by giving effect to overriding objective,[ii] and not by ‘mistakenly’ conducting a suppositious exercise under CPR 3.9 (relief from sanctions):
‘This is a case where the claimant has done nothing meaningful to progress the action since November 2016, or very little has happened on the claimant’s part for the best part of two years. There has been a failure to comply with those Practice Directions, and this case itself has taken up a percentage of the court’s time when the resources could have been added to other cases before the court’.
Not only was his error ‘immaterial’, it was also ‘entirely understandable’, given that Mark could only be respected with hindsight.
Was the breach ‘so egregious’ that the case should be struck out?
It was the Circuit Judge’s view that the ‘majority of judges’ would have made an unless order with a relatively short timescale, coupled with the sanction of striking out the case and the costs of the hearing against the claimant. Whereas, a ‘significant minority’ of judges, in the face of ‘wholesale disregard of the rules’, would have taken a more ‘draconian view’ and struck out the case.
Where did HHJ Gosnell position himself on this sliding scale?
He concluded, at paragraph 54:
‘I take the view that the failures in this case are so significant and lamentable that Judge Foster cannot be said to be wrong in striking out the case pursuant to rule 3.4.2(c). He did not apply rule 3.9, and so there is no damage done where he mistakenly seemed to have anticipated that an application should have been made for relief from sanction. He decided the case under rule 3.4.2(c). In my view, that is a [much] higher threshold to strike out than rule 3.9, and he reached a decision which a reasonable judge could have taken, albeit one who was being robust on the day. One of the main thrusts of the Jackson reforms in 2013 was to attempt to give the rules some teeth and discourage wholesale disregard of the rules which had become fashionable before those reforms took place. District Judge Foster’s decision was one that I believe Lord Justice Jackson would have supported’.
As such, the claimant’s appeal was dismissed. The 1st instance Judge had not dealt with the case ‘unfairly’, nor had he erred in applying his powers of case management.
Full text judgment can be accessed here.
[i] Leeds County Court.
[ii] ‘... to deal with cases proportionately and at a proportionate cost and that involves the parties, on an equal footing, saving expense and dealing with the case in a manner which is proportionate due to the amount of money involved, the importance of the case, the complexity of the issues and the financial position of each party, and also to ensure that it is dealt with expeditiously and fairly and allotting to it an appropriate share of the court’s resources whilst taking into account the need to allot resources to other cases and enforcing compliance with rules, Practice Directions and orders’.