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The Dekagram 17th April 2023

Articles, News | Mon 17th Apr, 2023

We were interested to read the surprise news that the start date for the extension of the fixed costs regime has now been confirmed, although naturally the rules themselves, and the fixed sums, have yet to be publicised. Meanwhile, a recent case has raised the intriguing prospect that there might be such a thing as ‘prejudice to the court’, as opposed to prejudice to the parties, which, if correct, opens up an avenue of argument hitherto under-utilised by litigators. And in other news, the team is bravely experimenting its way through the mocktails and cocktails suggested by our readers last week – any last orders should be with us this week, before we announce the winner in next week’s Dekagram.

Delay in Obtaining Witness Statements: Tiernan-Spratt v Wolverhampton City Council [2023] EWHC 811 (KB)

In a recent case Freedman J took the unusual step of allowing the production of witness statements a year after the date set for exchange. In doing so, he referred not only to the prejudice to the parties in granting or dismissing the application for permission to rely on the statements, but to the prejudice to the court in not having before it cogent evidence as to dishonesty when making its findings of fact.

The facts of the case are (thankfully) highly unusual.

The Respondent’s husband (S) had been injured at work, and had issued a claim against the local authority for damages limited to £50,000. His psychiatric report stated that he had developed post traumatic stress disorder in relation to the accident and in relation to childhood abuse he claimed to have suffered. He told the expert that he was removed from his family home at the age of six after being physically abused by his father and that he had been physically and sexually abused by several foster carers throughout the rest of his childhood. The expert concluded that the accident had triggered post traumatic stress disorder in relation not only to the accident itself but to the childhood abuse, which but for the accident would not have occurred.

The local authority obtained a medical report in which the expert challenged the veracity of S’s claims of abuse. A few days after it was served, S killed himself. His widow continued the proceedings as administratrix and expanded the claim to encompass a dependency claim under the Fatal Accidents Act 1976, increasing its value to over £1,000,000. There was no documentary proof that S had been in care, but his widow submitted that the relevant documents might have been lost.

Witness statements were exchanged in March 2021. A year later, the local authority’s solicitors obtained statements from S’s mother and brother to the effect that in fact S had never been in care, that he had lived at home until he was 17, that he had visited his parents after leaving home, and that they had looked after his son.

The local authority applied for relief from sanctions to enable the additional witness statements to be admitted out of time. It explained that the statements had not been sought earlier because of the tragic circumstances of S’s death, the age of his mother, and because of the allegation that his suicide was connected to the medical report it had served. It said that it had changed its approach to defending the claim upon review by counsel, and this explained why it now sought to rely on the evidence of S’s family members.

The District Judge considered CPR3.9(1), applied the test set out in Denton v TH White Ltd [2014] 1 W.L.R. 3926, and concluded that the twelve month delay in respect of the witness statements was serious or significant and there was no good excuse for it. She did not grant permission for the local authority to rely on them.

The local authority appealed, and the appeal was allowed.

Although Freedman J accepted that a different judge at first instance might have found that there was a good reason for the failure to serve the statements earlier, he was unwilling to disturb the District Judge’s finding in this regard. Nonetheless, in evaluating all the circumstances of the case under the third limb of Denton, he considered the reason for the local authority’s decision making to be important. It had not defied the order for exchange, but had taken a conscientious decision not to add to the tragedy of S’s death by exacerbating his mother’s distress by asking her for a statement about her son’s truthfulness.

There was no deliberate flouting of a court order. There was no consideration not to seek a witness statement and to reserve the right to come back at a later stage with a witness statement from the mother. On the contrary, it was a conscientious belief that it would be too gross an intrusion into the mother’s life to seek a statement. This was perceived not simply to be the case of a bereaved mother. It was a family who believed (whether rightly or wrongly does not matter for this purpose) that the suicide of the deceased was brought upon by the litigation conduct of the Defendant in serving an expert psychiatric report from Professor Maden a couple of days before the suicide. A request of the mother or other members of the family against that background was “a very difficult decision”. The passage of two years from the first consideration to approach the mother without reconsideration was because that conscientious view was maintained until Counsel’s advice led to the Defendant reconsidering their position in early 2022.

The District Judge had also failed to consider adequately or at all that not granting relief would prejudice the court and the administration of justice by depriving it of direct evidence. Without the direct evidence, the court still had to determine at trial whether the allegations of abuse and being in care were made up fraudulently in order to inflate S’s claim. It would become a matter of indirect evidence, comprising the local authority’s expert’s evidence and the absence of documentary proof about S being in care. That might be sufficient, but it was unsatisfactory for such an important issue, particularly one involving fraud or dishonesty, to be determined in this way when there was direct evidence available. The judge had erred in regarding the prejudice to the local authority of relief not being granted as the only relevant prejudice; there was also the prejudice to the administration of justice in having to reach a fair decision without direct evidence.

During the course of argument Freedman J had asked the parties’ legal representatives whether there was any authority as regards prejudice to the administration of justice in the context of a Denton application for relief from sanctions. He was told that there was only one authority, Soderberg v Essex Partnership NHS Trust [2022] QB 003381, a decision of Soole J, in respect of which only a case summary was available. A transcript of the judgment was obtained from Soole J himself and found that in that case the court had determined that:

the fact that weighs most significantly with me is the position of the court. This is a complex and difficult case and the court will want to have all the potentially relevant information before it…in any event the records and documents which underpin the new statements will be before the court. They have been supplied in February 2022 in accordance with the defendant’s continuing obligation of disclosure. It must assist the court to have those witnesses who can also speak to those notes.

In conclusion:

I conclude that relief from sanctions should be granted. The result of the decision is that the difficult position for the Court at trial will be avoided of having to decide such important issues as the dishonesty in the case based on indirect evidence despite the fact that direct evidence was available. The Court can and should ensure that this does not occur by giving relief so that the evidence sought to be adduced may be admitted. This does not open up any floodgates for other cases or indicate that there will be laxity in the operation of relief from sanctions: still less that appeals will be readily allowed in such cases. It is a response to the very peculiar circumstances of this case.

Fixed Costs Regime Extended: Details yet to Come

The moment has finally arrived. Minutes released last week by the Civil Procedure Rule Committee confirm that from 1st October 2023 the existing fixed costs regime is to be extended, although for personal injury practitioners there has been a partial reprieve. The headline changes:

  • The fixed costs regime will be extended to all claims issued on or after 1st October 2023 other than claims for personal injury;
  • The regime will then apply to disease claims where the letter of claim is sent on or after 1st October 2023;
  • The regime will apply to other personal injury claims where the cause of action accrues on or after 1st October 2023;
  • The regime will not apply to clinical negligence cases;
  • It will, however, capture almost all other claims worth up to £100,000.

The rules have now been drafted but are yet to be circulated, and as ever, the devil will be in the detail. In particular, there is no indication as to the likely amount of the costs deemed appropriate or the mechanism for uprating them – this will not be an automatic process, leaving practitioners to wonder whether the costs set in 2023 will continue to be applicable in 2043. We’ve been here before, after all. The minutes of the Committee meeting do provide a crumb of comfort insofar as this is concerned, making specific mention of the fact that the new fixed costs will be set out in a Practice Direction for ease of amendment; but only time will tell whether, and if so when, there will be an appetite for uprating.

The minutes (here: CPRC: 3 February 2023 minutes ( did give this author one moment of genuine amusement; the Committee were told that ‘disclosure in PI is not voluminous’. If that is really the basis on which the fixed costs have been calculated, practitioners may feel that they have cause for concern.

About the Author

Called to the Bar in 1997, Sarah Prager KC has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at Deka Chambers, Matthew Chapman KC, Jack Harding, Dominique Smith, Tom Yarrow and Henk Soede, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases. She was appointed a KC in March 2023.

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