Excalibur & Keswick Groundworks Ltd v Michael McDonald
| Jurisdiction | England & Wales |
| Judge | Lady Justice Nicola Davies,William Davis LJ,Peter Jackson LJ |
| Judgment Date | 17 January 2023 |
| Neutral Citation | [2023] EWCA Civ 18 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2021-003434 |
[2023] EWCA Civ 18
Lord Justice Peter Jackson
Lady Justice Nicola Davies
and
Lord Justice William Davis
Case No: CA-2021-003434
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT NEWCASTLE UPON TYNE
HHJ FREEDMAN
E27YY493
Royal Courts of Justice
Strand, London, WC2A 2LL
Paul Higgins (instructed by Clyde & Co) for the Appellant
Andrew Hogan (instructed by Winn Solicitors) for the Respondent
Hearing date: 9 November 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives.
The issues in this appeal concern the approach of the court to the setting aside of a Notice of Discontinuance pursuant to CPR 38.4 and the interpretation of the phrase “likely to obstruct the just disposal of the proceedings”, in CPR 3.4(2)(b) and 44.15(c).
Factual and procedural background
The claimant, born on 21 July 1965, was employed by the first defendant (“the defendant”) as a groundworker at Melbourne House in Newcastle upon Tyne. The second defendant was the main contractor who had engaged the defendant to provide a new drainage system to the wall of the house. It is the claimant's case that he was climbing up a ladder during the course of his employment when it slipped beneath him causing him to fall and suffer injury.
Proceedings were issued on 20 December 2018. The Particulars of Claim dated 12 April 2019 allege negligence and breaches of statutory duty on the part of the both defendants. As to the claimant's accident, at paragraph 1.2 it is pleaded that:
“In the course of his employment, the Claimant was climbing a ladder to put a string line on the roof in order to put drainage under the roof. The ladder was tied to scaffolding by a piece of string…”
In its Defence and Counter Schedule the defendant pleads that it did not provide the ladder, it provided a mobile scaffolding tower for the use of its employees. In its Defence, the second defendant pleads that ladders were not permitted to be used on the site, a scaffold platform had been provided.
In his witness statement, the claimant stated in respect of the ladder:
“I didn't try to move it because I assumed that it was tied on even though I do not subsequently believe it was…. I don't know if it hadn't anything on the bottom to keep in in place. I climbed up about 5 to 7 rungs (about halfway up) when my accident happened.”
Within the claimant's medical records one entry (4 May 2016) suggested that he had tripped over a pavement on the construction site, while another entry (5 May 2016) stated that he had fallen off scaffolding.
The trial was listed for a remote hearing. On the morning of the trial the District Judge raised issues as to the ownership of the ladder, and the inconsistency in the claimant's account as between his pleaded case, his witness statement and the entries in the medical records. The District Judge asked the claimant's counsel if the claimant wished to consider his position. The matter was adjourned for 30 minutes and the claimant made the decision to discontinue. As a result, Notices of Discontinuance were served on both defendants that morning. Following service, counsel for the defendants applied to set aside the Notices of Discontinuance ( CPR 38.4) and to strike out the claim on the grounds that the claimant's conduct had obstructed “the just disposal of the proceedings”, and as a result he was not entitled to the protection of qualified one-way costs shifting (“QOCS”).
The District Judge determined the application in the absence of any citation of authority. It would appear that she did not specifically address the question of whether or not the Notices of Discontinuance should be set aside but proceeded on the basis that they would be and considered the issue of the removal of QOCS protection pursuant to CPR 44.15(c). She noted that the claimant had dropped his claim at the “ eleventh hour and fifty nineth minute … the inevitable outcome of which would be to increase Costs and take up additional Court time and resources by virtue of additional listings and hearing, using time of both Court staff and the judiciary, in addition to the incurring of today's costs and use of court resources.” The District Judge stated that:
“I do not consider that his conduct in that context can be otherwise than to obstruct the just disposal of the proceedings. The matter has been drawn out and I am satisfied costs have incurred needlessly. I am entirely satisfied that had his case been pleaded in accordance with the facts known only to the Claimant, as clarified this morning by Counsel on his behalf, the inevitable consequences would have included, from a significantly earlier time, the prospects of either being struck out on application for summary judgment or, indeed, of the court's own motion.”
At [10] the District Judge concluded that the claimant, having at first put forward a conflicting account and at a very late stage clarified the position, should not be protected from QOCS exemption. She was satisfied that it was:
“… progressive of the overriding objective, including but not limited to dealing with matters proportionately having regard to the amounts involved, and use of court resources, …. that it is just and convenient that the court exercise its discretion to set aside the notice of discontinuance with the consequence of disallowing the Claimant protection from costs that would otherwise avail ….”
The claimant appealed the decision and the case was heard by HHJ Freedman (“the Judge”) in the County Court in Newcastle upon Tyne. On 29 November 2021 the Judge handed down a judgment allowing the appeal. The first two grounds of appeal concerned the interpretation and application of CPR 38.4, while grounds 3 and 4 related to the interpretation and application of CPR 3.4(2)(b) and 44.15. In a judgment, notable for its clarity, the Judge essentially addressed two questions: (i) was the claimant guilty of such conduct as to be likely to obstruct the just disposal of the proceedings? and (ii) when can or should the court set aside a Notice of Discontinuance?
As to the first question, the Judge noted at [56] that there is no definitive interpretation as to what amounts to: “obstructing the just disposal of proceedings” but stated that he derived “considerable assistance” from the Court of Appeal decision in Arrow Nominees v Blackledge and Others [2001] B.C. 591. The Judge stated:
“….. Adopting the approach of the Court of Appeal, in that case, the question is whether the Appellant's conduct in this case rendered a just or fair trial impossible. To put it another way, the question needs to be asked as to whether his conduct corrupted the trial process so that a just result could not be achieved.
57. Looking at the matter in that way, it seems to me that the Appellant's conduct in this case was very far removed from what can properly be described as conduct likely to obstruct the just disposal of the proceedings. What the Appellant did in this case was to offer a somewhat different account in his witness statement from that which appeared in the Statement of Case insofar as he was not able to confirm the averment to the effect that the ladder was tied to the scaffold with a piece of string. Indeed, to the contrary, it emerged from his witness statement that he rather thought that the ladder was untied. That was a material inconsistency which undermined the credibility and viability of his claim. It might well have been sufficient to justify judgment being entered pursuant to CPR 24.2(a)(i) on the grounds that the Claimant had no real prospect of succeeding on the claim. However, the mere fact that the claim became unsustainable because of differing accounts as to the precise circumstances of the accident, to my mind, is wholly outwith what is contemplated by conduct likely to obstruct the just disposal of proceedings…..
59. If the Appellant's conduct is to be regarded as such to obstruct the just disposal of proceedings, I tend to agree with Mr Hogan that the same could be said about the conduct of a multitude of litigants who present claims for personal injuries. As I have already observed, it seems to me that the Rules envisage conduct which jeopardises the fairness of the trial process not run of the mill conduct which amounts to no more than an unreliable or inconsistent account of an accident.”
At [61] the Judge observed that the court has a wide and unfettered discretion to set aside a Notice of Discontinuance but:
“…since a Claimant can discontinue as of right (subject to the exceptions laid down in CPR 38.2(2)) and the permission of the Court is not required, there would, as it seems to me, need to be powerful and cogent reasons why a notice of discontinuance should be set aside. Even in the absence of any authority, for my part, I would conclude that the mere fact that, if the Notice of Discontinuance was not set aside, a Claimant would be entitled to QOCS protection, without more, would not justify setting aside a Notice of Discontinuance.”
The Judge considered the authorities of Shaw v Medtronic & Others [2017] EWHC 1397 and Mabb v English [2018] 1 Costs LR 1, decisions respectively of Lavender J and May J. The Judge at [32] recognised that in Shaw the principal reason for serving the Notice of Discontinuance was to maintain QOCS protection but noted that Lavender J did not consider that to be a legitimate basis for setting aside the Notice of Discontinuance. He stated that Lavender J concluded that “…absent abuse of process or something similar, such as egregious conduct, a Court would not be justified in setting aside a Notice of...
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