The High Court has criticised a solicitor from national firm Slater and Gordon for failing to disclose a judgment with direct consequences for his case.
The personal injury claim was first brought two years ago, in February 2015, by the English victim of a road traffic accident and members of her family, following the incident in Costa Rica, central America, in 2009.
At that time some existing authorities supported the scope of jurisdiction that was argued for. But a Court of Appeal judgment, Brownlie v Four Seasons Holdings Inc, in June 2015, has since taken away that support.
In Gunn & Ors v Diaz & Ors, The Honourable Mrs Justice Andrews DBE explained that an application for an extension of time for service of the claim form was made in March 2016 by Slater and Gordon solicitor Paul McClorry ‘without notice’ of the latest case law.
The judge outlined the duty on claimants to make full and frank disclosure of all material facts, and stressed the relevance of a particular matter was a decision for the court and not the lawyers.
Andrews said in this case that duty had been breached, after the claimant solicitors had ‘plainly overlooked’ the passage on duty of disclosure in the White Book 2016.
She said that ‘had [McClorry] thought about it, it should have been obvious’ the court would wish to know the consequences of a decision of the Court of Appeal, handed down nine months previously, dealing with service out of the jurisdiction.
The Court of Appeal in Brownlie ruled that ‘damage’ for the purposes of the tort gateway meant direct damage, no consequential loss, making the law applicable on the basis of where the damage occurs, regardless of the countries in which indirect consequences could occur.
An appeal is due to be heard by the Supreme Court in May.
Andrews said the judgment in Brownlie meant the sole legal basis for the services upon which the claimants were asking for more time had effectively disappeared. She said the court had no basis for extending jurisdiction over any defendants in respect of the accident in Costa Rica, and there was no lawful basis to serve a claim form out of the jurisdiction.
Andrews said even when McClorry filed a witness statement in August 2016, no mention was made of the Brownlie judgment.
Howard Palmer QC, speaking for the claimants, said McClorry was ‘quite right’ not to include reference to the Brownlie decision as the court was being asked only to decide on an extension based on the slow machinery of the Costa Rican process.
But Andrews said this was wrong, and her court was being asked to extend time for service of a claim on foreign defendants over whom the English court had no jurisdiction.
She noted there was no mention of the Brownlie decision or its impact, and this would have been relevant when the court granted an extension of time in March 2016.
She added: ‘The claimants’ solicitors were aware of the Court of Appeal’s judgment; they ought to have been aware of its potential impact and that, at the very least, it decided that the relevant rule on which they had relied when obtaining permission to serve out, had been misinterpreted (to their clients’ advantage).
‘They ought to have told the court about it, so that it could decide what to do. I accept that the non-disclosure was not deliberate, but that does not mean that it was not culpable.
‘A reasonable solicitor, particularly one practising in the field of personal injury claims as Mr McClorry does, would have appreciated the ramifications of Brownlie, and would have drawn it to the court’s attention.’
Andrews said the non-disclosure was serious enough to require ‘consequences’ to be visited on the party which was responsible.
She set aside an order for service of the claim form and particulars of claim as they were out of the jurisdiction and granted relief for defendants in the case.