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Articles | Fri 1st Mar, 2019
Relief from sanctions applications remain an all too common part of litigation, particularly in the personal injury sphere.
In a recent case before DDJ Sadd in Croydon County Court, relief from sanctions was obtained by a Defendant in circumstances where it had failed to comply with all directions save for the filing of a defence and a pre-trial checklist, for no good reason and with the application for relief dated the day before the trial was due to be heard.
This was a road traffic case where the Defendant driver came into contact with the rear of the Claimant’s vehicle in slow moving traffic, in early 2018. The Claimant instigated a claim for personal injuries limited to £5,000 which was supported by a passenger who alleged that they had been in the vehicle at the time, also sustaining injuries.
The Defendant driver, whilst accepting that contact between the vehicles had occurred, took photographs at the scene of the accident which appeared to show no damage to either vehicle and maintained that he did not believe that there were any passengers in the vehicle.
For reasons which remained unexplained, the Defendant’s insurer failed to respond to correspondence from the Claimant’s representatives or the section 151 notice with which they were served, and also failed to pass the file to their solicitors until two days before trial.
As a result of this, the Defendant, acting in person, filled a hand-written defence raising the issues of the speed of collision and the occupancy of the Claimants vehicle.
Directions were given in April 2018, the majority of which the Defendant failed to comply with, including those relating to disclosure, witness statements and Part 35 questions. The matter was listed for a 1 day trial on 15 November 2018. The court issued an unless order in September 2018 requiring the Defendant to file a pre-trial checklist, which the Defendant did.
Two days before the trial, the Defendant’s insurer provided the file to their nominated solicitors, who filed a notice of acting and made an application for relief from sanctions dated 14 November 2018 (the day before trial).
Coincidentally, on 14 November 2018, the trial was taken out of the list due to a lack of judicial availability.
Application for Relief
The Defendant’s relief application was subsequently listed for a 30-minute hearing in February 2019 before DDJ Sadd (by which point a new trial date had not yet been obtained).
The application essentially sought to re-set the directions issued in April 2018 to allow the Defendant to participate in the proceedings. In the circumstances it had to be conceded that there had been (numerous) serious and significant breaches, for which there was no good reason. Further, the application was not made promptly, being dated the day before the trial was due to take place and several months after the various breaches.
The application was, unsurprisingly, opposed by the Claimant.
The Defendant submitted that regardless of the failings thus far, in all the circumstances of the case, relief should be granted. The issues raised in the defence were serious ones, which if made out could lead to the considerable injustice of the Claimant (and potentially her passenger) obtaining damages to which they were not entitled.
The contemporaneous photographs of the vehicles, which appeared to showed no damage to the rear of the claimant’s vehicle or the front of the defendants, raised serious questions as to the veracity of the claim; it could only be in the interests of justice that the trial judge have a full picture before them if issues of potential fraud were to be properly explored.
The Claimant highlighted the considerable failings by the Defendant, noting the very late stage at which the application had been made. It was submitted that there would be significant prejudice to the Claimant given the time which would now have passed before the matter came to trial. The judge’s attention was also drawn to the need to avoid a detailed assessment of the merits of the case when considering applications for relief. Finally, it was said that on any view, this as litigation which had not been conducted efficiently or at proportionate cost.
The judge found that the Defendant had been right to concede that there had been serious and significant breaches for which there was, clearly, no good reason.
Whilst mindful of the need for litigation to be conducted in accordance with the overriding objective, the judge held that this was a case where there were serious issues raised which may lead to the claim being shown to be false or exaggerated. Those issues were in play as they had been set out in a properly filed defence and in order to deal with them justly, the trial judge ought to have the benefit of the full picture.
It is noteworthy that the fact that the matter had no trial date at the time the application was heard (and therefore no trial date which could be disrupted) formed part of the judge’s reasons for allowing relief and setting directions. The Defendant was ordered to pay the Claimant’s costs of the application.
This decision, whilst potentially anomalous, serves to highlight that the exercise of judicial discretion when it comes to relief applications remains somewhat unpredictable.
Low velocity impact cases such as this one, with the potential for findings of fundamental dishonesty, remain common place and this decision is perhaps an indicator that judges are receptive to ensuring that such cases receive proper scrutiny in the courts.
One has to ask however, what the result in this instance would have been had the original trial date not been lost and the Defendants application fallen to be heard on the morning of trial.
Christopher Pask acted for the Defendant in the above case.
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