Strike out or grant relief from sanctions for misjudging the rules ?

Strike out or grant relief from sanctions for misjudging the rules ?

Relief from sanctions granted when Claimant did not serve a “medical report” with the Particulars of Claim

 

Dalus v Lear Corporation (Nottingham) Ltd & ATV Automative & Industrial Components (UK) Ltd

In a judgment given on 2 July 2018 at Leeds County Court although the Court ruled that the Claimant, seeking damages for industrial deafness, breached the rules by serving with the Proceedings a report that was not in compliance with CPR 35, it refused the Defendant’s application to strike out a claim and granted the Claimant relief from sanctions.

BACKGROUND

The Claimant was bringing an action for industrial deafness against a number of Defendants.

The Claimant’s Solicitors instructed Audiological Measurement and Reporting Plc (“AMR”) to prepare a report and in May 2017 the Particulars a Claim accompanied by the AMR report were served on each Defendant’s nominated solicitors.

The First Defendant alleged that the Claimant had failed to serve compliant medical evidence in accordance with CPR 35 and CPR PD 16 paragraph 4.3 and in February 2018 applied to strike out the Claimant’s claim.

Thereafter the Claimant’s Solicitors commissioned a report from Mr Zeitoun, a consultant ENT surgeon, and this report was served in April 2018.

 

THE PARTIES’ SUBMISSIONS

The First Defendant argued that the Claimant failed to comply with CPR PD16 Para 4.3 as the report served with the Particulars of Claim was not that of a medical practitioner and/or were not compliant with CPR 35.

The application was resisted by the Claimant on the basis that there is no breach of the rules. In the alternative, the Claimant submitted that the Court should extend the time for service of a medical report until Mr Zeitoun’s report was served thereby granting relief from sanctions.

 

THE JUDGMENT

His Honour Judge Gosnell rejected the Claimant’s argument that the AMR report was compliant with the rules, or that there was no need to serve a medical report in these circumstances. However, he also rejected the Defendant’s argument that the action should be struck out because of the failure to comply with the rules.

He said: “Whilst I do not agree with the way the Claimant’s solicitors have sought to interpret the rules I accept their motivation in using the AMR report was to attempt to find a more proportionate way of providing expert evidence in NIHL cases. To that extent they were attempting to conduct litigation at proportionate cost although I think they were misguided in not obtaining a conventional medical report before issuing proceedings. Although this dispute has meant that the litigation has not been conducted efficiently it is sometimes necessary to put an issue before a court for a decision, particularly where the issue is new, and it may be relevant to a number of similar claims either now or in the future… In my view, it would be a harsh application of the rules to strike out the particular case which was chosen as one of the first ones to be put before a court just because the interpretation of the rules favoured by the Claimant did not find favour with the Judge. Taking into account all the relevant circumstances I have decided it would not be just or proportionate to strike out the Claimants’ claim.”

As such, relief from sanctions was granted up to the date when the Claimant did, in fact, serve an appropriate medical report.

 

IMPLICATIONS

This Application was heard before His Honour Judge Gosnell, Designated Civil Judge, with the intention of providing an authoritative determination of the issue in the future.

Whilst this is not a High Court decision, it is significant in that it brought to light an important procedural issue in noise induced hearing loss cases.

The Judgement also shows that it is possible to comply with paragraph CPR PD16 Para 4.3 by service of an expert report from someone other than a medical practitioner, however the report must be CPR Part 35 compliant.

 

Tanya Bland, Law Costing Ltd 6th July 2018