A Bad Rule, Misunderstood: 8BPD9.1 and Applications to Dismiss

Over the past months, a number of Claimant solicitors have approached the author seeking representation at hearings to oppose dismissal of Part 8 (RTA and EL/PL Protocol “Stage 3”) Proceedings. In these cases, Defendants have sought dismissal mostly due to a failure of the Claimant to file a relevant document with the Court, or provide a document at Stage 2. The document is often of trivial significance in the grand scheme of the case – an uncontroversial disbursement invoice, or the Defendant’s letter under the Rehabilitation Code 2015. However, and despite Claimants’ efforts to rectify the default (either by filing the document subsequently with their apologies, or even withdrawing their claim for the relevant sum) the Defendant still presses for dismissal.

Court staff, evidently recognising that this is a rather extreme course of action, are listing the applications to be determined by a judge. Counsel is thereby instructed to oppose.

The Rule:

It is important to remember that, as stated in The White Book introduction to the Practice Direction at 8BPD.0:

“The RTA and EL/PL Protocols differ from all the other Pre-Action Protocols. Normally the rules themselves are paramount and are supplemented by Practice Directions and, pre-issue, by protocols. But here the process is reversed. The Protocols are paramount and PD8B should be seen as part of the process.”

With this in mind, 8BPD9.1 reads:

Where the defendant opposes the claim because the claimant has—

(1)   not followed the procedure set out in the relevant Protocol; or

(2)   filed and served additional or new evidence with the claim form that had not been provided under the relevant Protocol, the court will dismiss the claim and the claimant may start proceedings under Part 7.

The Rationale

This appears, on the face of it, a sensible rule. Claimant solicitors cannot and should not be allowed to benefit from supplying the Court with incomplete information, or by surprising Defendants with brand new evidence to support their claim at Stage 3. The rule also ensures that the parties have all the documentation and information to be able to reach settlement at Stage 2.

The penalty for the Claimant’s non-compliance is threefold:

1.     The Claimant will not be entitled to recover their Stage 3 costs in the Part 8 Procedings [The White Book, Commentary at 45.24.1];

2.     The Claimant will have to go through the rigamarole of Part 7 Proceedings; and

3.     The Claimant’s costs of those Part 7 proceedings may be limited by CPR r45.24.

The fact that this is an extreme result should not come as a surprise – the Protocol is meant to be a tightly drawn, stand-alone code with tight deadlines and draconian sanctions, all of which are designed to strongly encourage compliance.

The Problems

The issues which have arisen are these:

(i)  Defendants have recently recognized, and are consistently successfully arguing, that the rule as currently drafted is absolutely mandatory – if the Defendant opposes, the Court will dismiss – there is no scope for the Court to determine whether or not there was in fact non-compliance;

(ii) The White Book Commentary to the rule suggests that it is not open to the Claimant to seek relief from sanctions under CPR r3.9 / Denton. The most trivial non-compliance therefore always incurs the most extreme consequences;

(iii) There is no automatic sanction against a Defendant for abuse of the rule and having the Part 8 claim dismissed unnecessarily or wrongly, aside from the Court’s general discretion as to costs (sparingly used, particularly in low-value PI cases);

(iv)  Court staff dealing with these acknowledgments of service do not understand the rule and are listing hearings to determine either (i) whether there was non-compliance, or (ii) whether relief should be granted. These two questions are not applicable. The Claimant is guaranteed to lose; the Court will dismiss the claim;

(v)  As The White Book Commentary notes, starting proceedings under Part 7 may be of no use to the Claimant where the limitation period has run.

The Result

The implications of the above stand as bleak reading for Claimant solicitors; they cannot contest the dismissal, they must start Part 7 proceedings (and may be faced with a limitation defence), and they are reliant on the Court to disapply the costs consequences at 45.24. Further, Defendants often make interim payments to the tune of their Stage 2 offers, which might in turn reduce the value in dispute between the parties to below the Small Claims threshold, thereby limit the Claimant’s Part 7 recoverable costs.

Should the Claimant’s solicitor or counsel attend the hearing listed by virtue of (iv) above, the Defendant is in the position to dictate terms, and may press for acceptance of their Stage 2 offer – with the Claimant incurring the costs consequences at CPR r45.26, but avoiding the dismissal. If the Stage 2 offer is even remotely capable of acceptance, this becomes rather an attractive proposition.

The Answer

It appears to the author that this rule must be urgently reviewed. The Court should not be forced to simply take the Defendants word that there has been non-compliance, and should be permitted to, on the papers at least, consider the extent of the prejudice caused. Further, there should be equivalent, automatic costs consequences for the Defendant if they have or attempt to have proceedings dismissed unnecessarily or incorrectly. The rule as it currently stands permits exploitation, leading to unnecessary and extended proceedings, and ultimately a waste of both costs and time. This is contrary to the Overriding Objective and the function of the Protocol. It should not be tolerated.

In the meantime, the most obvious precaution a Claimant can take is to comply with the protocol meticulously. The word should now be out that Defendants have recognized their potential advantage, and that an application to dismiss will be made and maintained if given any excuse. Further, Defendants may not comply with their obligation to review the Court Proceedings Pack and return it to the Claimant together with their objections. There is no sanction, so far as the author can see, for this failure, nor does it factor into the decision making process at 8BPD9.1.

As to the practical steps for a Claimant faced with a dismissal request, or if listed for hearing to decide the issue, these are case-specific. Barristers at 9 Gough Chambers are able to give straightforward, pragmatic advice as to how to proceed.

Article by: Theodore Bunce