A claimant whose solicitors were initially judged to have misrepresented their attempts to obtain medical evidence has had his case reinstated.
The terminally ill claimant challenged the order and judgment of His Honour Judge Mark Gargan in Mark v Universal Coatings & Services Ltd & Anor to strike out his personal injury claim against two defendants in May 2017.
Mr Justice Martin Spencer, sitting in the High Court at Leeds Combined Court Centre, said the judge’s approach had not been appropriate, suggesting the court could have taken other steps such as the making of unless orders or costs penalties.
HHJ Mark Gargan had catalogued a series of mistakes and failures on the part of the claimant, saying his conduct (or that of his solicitors) represented a ‘flagrant disregard’ for the rules.
The judge had even found the claimant’s solicitor had ‘at best, recklessly misled’ a court into granting an initial extension of the time for service of the claim form. The court had granted a four-month extension in September 2015 after being told by claimant solicitors their client was awaiting a medical appointment date.
The judge had cited the principles of Mitchell/Denton in penalising breaches of practice directions, saying there was no good explanation for the failure to serve a medical report and schedule of loss within the particulars of claims.
Mr Justice Martin Spencer said the suggestion that the claimant’s solicitors could have misled the court played a ‘significant part’ in HHJ Mark Gargan’s decision, but there was no basis for it and the court was not entitled to find it was correct without further investigation.
Without this suggestion being proved as true, the other complaints and rule breaches did not amount to the kind of abuse of process which justified a claim being struck out.
‘The defendant always has the option of recourse to the court,’ he ruled. ‘The point is that most practitioners would, I strongly suspect, be surprised at the suggestion that the Mitchell/Denton regime for relief from sanction applies to the obligation to serve a medical report and schedule of loss with the particulars of claim.’
He described the failure to serve a medical report as often ‘trivial’ because compliance could be achieved with the service of documents which, in the end, are relatively uninformative and do not take the matter any further.
Lawyers for the claimant had argued there was no stated sanction in practice directions for failure to serve a medical report or schedule of loss, nor could there be any implied sanction. In these circumstances, the defendants could apply for an order or service, but the claimant did not need to apply for relief against sanction.
The defendants submitted that it was necessary for the appellate court to show the judge’s decision was wrong. Complying with practice directions was mandatory, and courts had showed their willingness to impose implied sanctions where conduct was deemed bad enough.
The appeal was allowed and the case reinstated.