Gladwin v Bogescu, Court of Appeal - Queen's Bench Division, June 12, 2017, [2017] EWHC 1287 (QB)

Issuing Organization:Queen's Bench Division
Actores:Gladwin v Bogescu
Resolution Date:June 12, 2017
 
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Neutral Citation Number: [2017] EWHC 1287 (QB)

Case No: C79YJ669

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

LIVERPOOL DISTRICT REGISTRY

Liverpool Civil & Family Court

35 Vernon Street

Liverpool

L2 2BX

Date: 12/06/2017

Before :

MR JUSTICE TURNER

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Between :

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Mr Benjamin Williams QC (instructed by Armstrongs solicitors) for the Claimant

Mr Mark Roberts (instructed by Weightmans LLP solicitors) for the Defendant

Hearing date: 22nd May 2017

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Mr Justice Turner :

INTRODUCTION

  1. This case started life as a very straightforward and relatively low value road traffic accident claim but thereafter descended into procedural chaos. Responsibility for this state of affairs is entirely that of the claimant's solicitors who have, through a combination of complacency and procrastination, proceeded as if compliance with the Civil Procedure Rules and the orders of this court were of scant importance. This left His Honour Judge Gregory trying valiantly to rescue what he could from the procedural wreckage when the matter came before him for trial on 8 February 2017. In the event, he granted the claimant relief from sanctions notwithstanding his solicitors' serious breaches for which no good reason had been provided and the direct consequence of which was the vacation of the trial date.

  2. In reaching this conclusion the learned judge considered that, on the very particular facts of this case, the consequences of refusing relief to the claimant would be more prejudicial to the defendant than if relief were to be granted. He thus applied the judicial equivalent of the advantage rule in rugby union and allowed play to continue without formally penalising the offender.

  3. The question arises on this appeal as to whether he was right to proceed on this basis.

    BACKGROUND

  4. On 29 November 2014, the defendant drove his car into collision with the claimant's motorcycle. Liability was never in issue. Quantum, however, was in significant dispute. For example, the defendant was naturally curious as to how, according to Facebook, the claimant had managed, at a time when he had told his reporting doctor that he was still suffering from significant symptoms, to win the silver medal in the Kent Kyu Open Judo Competition. The defendant was also sceptical of his claim for hire charges of £17,151.12 in respect of the provision of a temporary replacement for a six year old motorcycle which ultimately cost only £909.78 to repair.

  5. Proceedings were commenced in April 2016. In due course, on 23 August 2016, the case came before District Judge Coffey who gave directions which followed a template then in common use in the County Court at Liverpool in respect of so-called credit hire cases. He ordered service of all witness statements by 4pm on 3 November 2014. The consequences of default were also set out:

    ``Oral evidence will not be permitted at trial from a witness whose statement has not been served in accordance with this order or has been served late, except with permission from the Court.''

  6. This form of words followed very closely the terms of CPR 32.10 which provide:

    ``Consequence of failure to serve witness statement or summary

    32.10 If a witness statement or a witness summary for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission.''

  7. At the last minute, and on the very day upon which service of witness statements had been ordered to take place, the claimant's solicitors asked the defendant's solicitors for an extension of time for service of witness statements until 17 November 2016 and this indulgence was granted. At about that time, the relevant file was passed from one member of the claimant's firm to another. The evidence suggests that the solicitor with conduct of the claim had done nothing whatsoever between August and November to set about the routine task of obtaining a witness statement from her client.

  8. The extended date for compliance came and went. In consequence of an internal procedural failure, the solicitor to whom the poisoned chalice had been passed was not expressly told of the extended date of compliance. One might reasonably have expected, however, that, at the very latest, when the defendant served its witness statements on 17 November then alarm bells would have started to ring at the claimant's solicitors' offices. Apparently, they did not.

  9. Indeed, it was not until nearly a month later on 15 December 2017 in the completed Listing Questionnaire that the claimant's solicitors first acknowledged the fact that they were in breach of the order for service of the witness statements. An immediate application ought then to have been made for relief from sanctions. It was not. In the event, a witness statement was not obtained from the claimant until 5 January 2017.

  10. Eventually, less than a week before trial, the claimant's solicitors applied for relief from sanctions and permission for the claimant to give oral evidence. The terms of the order applied for by the claimant acknowledged that if the relief sought were granted then the trial date would have to be vacated. Mr Williams QC on behalf of the claimant began his submissions on this appeal with the observation that to describe the situation as being unsatisfactory would be a gross understatement. I agree.

  11. On the day upon which the trial ought, but for the claimant's procedural blunders, have gone ahead, the time of the court was, instead, taken up with arguments over the consequences of the claimant's default.

  12. The criteria to be applied in considering an application for relief from sanctions are set out in the leading and familiar case of Denton v T H White [2014] 1 W.L.R. 906 in which the Court of Appeal held that a judge should address such an application under CPR r 3.9(1) in three stages: (i) identify and assess the seriousness and significance of the failure to comply with any rule, practice direction or court order which engages rule 3.9(1); (ii) consider why the default occurred; (iii) evaluate all the circumstances of the case, so as to enable the court to deal justly with the application including the factors in sub-paragraphs (a) and (b) of the rule.

  13. In the event, HHJ Gregory found that the breach was significant and that there was no good reason for the default. He rightly described the delay between the...

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