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Judgment in CDE v Buckinghamshire County Council

News | Tue 5th Apr, 2022

Judgment has been handed down in CDE v Buckinghamshire County Council

Katie Ayres, instructed by Mark Whittaker DWF LLP, successfully resisted an application to extend time for service of Particulars of Claim in an HRA 1998 and common law claim against social services.

The Claim Form was Issued as long ago as March 2017 and, following a period of without-notice extensions granted by the Court, was served in 2020 with Particulars of Claim to follow. No Particulars being served, the claim then came before Mr Justice Lavender in October 2020 who, noting that the Claimant was in the ‘last chance saloon’ and taking into account the effects of the Covid-19 pandemic, granted an extension of time in which to serve the Particulars of Claim until March 2021. The extension was granted so that the Claimant could obtain expert opinion on the issues of breach (social work) and causation (psychiatry); both, it was said, being necessary in order to plead the claim.

Notwithstanding the ‘substantial’ extension granted by Mr Justice Lavender, the Particulars of Claim were still not served. Upon the Defendant generously agreeing a further period of extension, taking into account difficulties with obtaining Legal Aid and expert instruction, the Claimant had until September 2021 to serve. Service was still not forthcoming. Eventually, a valid application to extend was made in February 2021 and it was this application that came before Master Thornett.

In a detailed and considered judgment the Master dismissed the application to extend. The judgment provides a thorough application of the principles set out in Denton v TH White Ltd [2014] EWCA Civ 906. Although many may be of the view that the Courts have in recent years rowed back considerably from the 2013/2014 move towards a more robust approach to granting relief from sanction (as heralded by Mitchell and Denton), this judgment provides some comfort that Denton is not completely dead, yet.

Of particular note also are the Master’s comments regarding the necessity for finalised expert evidence when drafting Particulars of Claim. Whilst the Master noted that some expert evidence on breach is clearly necessary when drafting Particulars of Claim (Pantelli Associates Ltd v Corporate City Developments Number Two Ltd [2010] EWHC 3189 (TCC)), it is not necessary in every case to have a full Part 35 compliant expert report at the stage of pleading the claim. Further, it is not necessary in all cases to annex a full report on injury at the stage of service of Particulars (Mark v Universal Coatings and Services Ltd [2018] EWHC 3206). This may be particularly relevant in Legally Aided cases where it might be considered, for funding purposes, that a ‘desktop’ report is sufficient at the stage of pleading the claim rather than incurring the costs of full (and often eye-wateringly expensive) social work or psychiatry evidence where a claim is as yet of entirely uncertain prospects.

Read the judgment in full here.

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