Wickes Building Supplies Ltd v William Gerarde Blair
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lord Justice Holroyde,Lord Justice Hamblen |
| Judgment Date | 12 November 2019 |
| Neutral Citation | [2019] EWCA Civ 1934 |
| Docket Number | Case No: B3/2018/2349 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 November 2019 |
[2019] EWCA Civ 1934
Lord Justice Hamblen
Lord Justice Holroyde
and
Lord Justice Baker
Case No: B3/2018/2349
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Winchester County Court
HH Judge Iain Hughes QC
DO0AF649
Royal Courts of Justice
Strand, London, WC2A 2LL
Grace Cullen (instructed by BLM Solicitors) for the Appellant
Sarah Robson (instructed by Bakers Solicitors) for the Respondent
Hearing date: 24 October 2019
Approved Judgment
This appeal concerns the interpretation of one aspect of the Pre-Action Protocol for Low Value Personal Injury (Employers' Liability and Public Liability) Claims (hereafter “the Protocol”).
The aspect of the Protocol in issue concerns the procedure to be followed if a claimant seeks to rely for the purpose of the Stage 3 Procedure of the Protocol on evidence served out of time, and in particular whether this is a matter to be dealt with by the court under paragraph 7 of Practice Direction 8B (as District Judge James held at first instance in this case) or whether it leads to automatic dismissal of the claim under the Protocol under paragraph 9 (as HHJ Hughes held on appeal).
As explained in the editorial introduction to the Protocol at paragraph C15A-001 of the White Book 2019, the Protocol was introduced following the undoubted success of the Pre-Action Protocol in Road Traffic Accident claims to provide a relatively inexpensive and speedy process for the resolution of employer's liability and public liability claims valued at no more than £25,000 where liability is admitted by the defendant. The aims of the Protocol, as set out in paragraph 3.1 are:
“… to ensure that
(1) the defendant pays damages and costs using the process set out in the Protocol without the need for the claimant to start proceedings;
(2) damages are paid within a reasonable time; and
(3) the claimant's legal representative receives the fixed costs at each appropriate stage.”
The structure of the Protocol is broadly the same as for RTA claims and can be summarised briefly as follows.
The process is divided into three stages. At Stage 1, the claim is made by sending a form, known as the Claim Notification Form (“CNF”) to the defendant's insurers, if known, or, if not known or the defendant is known not to hold an insurance certificate, to the defendant's registered office or principal place of business. Under paragraph 5.1, where the Protocol requires information to be sent to a party it must be sent via the on-line Portal, save that under paragraph 6.2 if the CNF cannot be sent to the defendant via that address, it must be sent by first-class post. The defendant must complete the “Response” within the time limit prescribed in the Protocol (paragraph 6.11). If the defendant does not admit liability, or alleges contributory negligence, or raises other objections specified in paragraph 6.13 of the Protocol, or fails to complete the Response, the claim will no longer continue under the Protocol but, instead, will proceed under the relevant Pre-Action Protocol and the CNF will serve as the letter of claim (6.15). If, on the other hand, the defendant admits liability, the claim stays within the Protocol and moves on to Stage 2. Unless the claimant is a child, where liability is admitted the defendant must pay the Stage 1 fixed costs under CPR 45.18 within a prescribed time period (6.16). If he fails to do so, the claimant may give written notice that the claim will no longer continue under the Protocol (6.17).
The aim of Stage 2 is to try to resolve the claim by agreement. The claimant collates the evidence needed to prove the claim. Section 7 of the Protocol contains detailed provisions regarding medical reports and other evidence. Under the heading “Submitting the Stage 2 Settlement Pack to the defendant”, paragraphs 7.30 and 7.31 provide:
“7.30 The Stage 2 Settlement Pack must comprise
(1) the Stage 2 Settlement Pack Form;
(2) a medical report or reports;
(3) evidence of pecuniary losses;
(4) evidence of disbursements (for example the cost of any medical report);
(5) any non-medical expert report;
(6) any medical records/photographs served with medical reports; and
(7) any witness statements.
7.31 The claimant should send the Stage 2 Settlement Pack to the defendant within 15 days of the claimant approving
(1) the final medical report and agreeing to rely on the prognosis in that report; or
(2) any non-medical expert report,
whichever is later.”
The Stage 2 Settlement Pack Form includes a schedule to be completed by the claimant setting out the initial offer. The Protocol prescribes the procedure for consideration of offers and counter offers (7.32 to 7.42). There is a prescribed time for the defendant to consider the settlement pack and accept the claimant's offer or make a counter-offer on the Stage 2 Settlement Pack Form (7.32). There is provision for the claim to leave the Protocol in certain circumstances, for example if the defendant withdraws the admission of causation or fails to respond within the consideration period (7.36 and 7.37). There is provision for further consideration and negotiation. Any offer to settle at any stage by either party must include certain items, including the Stage 1 and Stage 2 fixed costs in rule 45.18 (7.41). There are provisions governing the settlement of the claim during Stage 2 (7.44 and 7.45).
If the parties do not reach an agreement on damages through the Stage 2 procedure, the case moves on to Stage 3, the determination of the claim by the court. By way of preparation, the claimant must send to the defendant the Court Proceedings Pack, comprising two parts – Part A, containing the final schedule of the claimant's losses and the defendant's responses, together with supporting comments and evidence from both parties on any disputed heads of damage, and Part B, the final offer and counter-offer from the Stage 2 Settlement Pack Form (7.48). Comments in the Court Proceedings Pack (Part A) Form must not raise anything that has not been raised in the Stage 2 Settlement Pack Form (7.49). Except where the claimant is a child, the defendant must now pay to the claimant the final offer of damages, plus other sums defined in the Protocol, including any unpaid Stage 1 fixed costs and the Stage 2 fixed costs (7.53).
Under paragraph 7.59:
“Where the claimant gives notice to the defendant that the claim is unsuitable for this Protocol (for example, because there are complex issues of fact or law or where claimants contemplate applying for a Group Litigation Order) then the claim will no longer continue under this Protocol. However, where the court considers that the claimant acted unreasonably in giving such notice it will award no more than the fixed costs in rule 45.18.”
The Stage 3 Procedure is set out not in the Protocol but in Practice Direction 8B under CPR Part 8 which provides the alternative procedure for claims. Under r.8.1(2)(b) and (6), a practice direction may, in relation to a specified type of proceedings, require or permit the use of the Part 8 procedure and disapply or modify any of the rules set out in Part 8. Under r.8.1(3), the court may at any stage order the claim to continue as if the claimant had not used the Part 8 procedure and, if it does so, the court may give any direction it considers appropriate. Practice Direction 8B sets out the Stage 3 Procedure for the Protocol and the RTA Protocol. Paragraph 2.1 provides that the claim is made under the Part 8 procedure as modified by the Practice Direction and subject to paragraph 2.2 which stipulates that the claim will be determined by the court on the contents of the Court Proceedings Pack. As permitted by r.8.1(6), paragraph 2.2 also disapplies several rules within Part 8, although not r.8.1(3).
Paragraph 5.1 of the Practice Direction provides that an application to the court to determine the amount of damages must be started by a claim form. The contents of the claim form are prescribed by paragraph 5.2. They include whether the claimant wants the claim to be determined by the court on the papers or at a Stage 3 hearing.
Paragraph 6.1 identifies the documents which must be filed with the claim form, which in claims of the sort under consideration in this case are as follows:
(1) the Court Proceedings Pack (Part A) Form;
(2) the Court Proceedings Pack (Part B) Form (the claimant and defendant's final offers) in a sealed envelope;
(3) copies of medical reports;
(4) evidence of special damages; and
(5) evidence of disbursements.
Paragraph 6.1A makes further provision for medical reports. Paragraph 6.3 provides:
“Subject to paragraph 6.5 [which relates to child claimants], the claimant must only file those documents in paragraph 6.1 where they have already been sent to the defendant under the relevant protocol.”
Paragraph 6.4 provides:
“The claimant's evidence as set out in paragraph 6.1 must be served on the defendant with the claim form.”
Paragraphs 7, 8 and 9 of the Practice Direction are central to the issue in this appeal. They provide as follows:
“Evidence — general
7.1 The parties may not rely upon evidence unless —
(1) it has been served in accordance with paragraph 6.4;
(2) it has been served in accordance with paragraph 8.2 and 11.3 [which relate to certificates of recoverable benefits, not relevant to this case]; or
(3) (where the court considers that it cannot properly determine the claim without it), the court orders otherwise and gives directions.
7.2 Where the court considers that —
(1) further evidence must be provided by any party; and
(2) the claim is not suitable to continue under the Stage 3 Procedure,
the court will order that the claim will continue under Part 7, allocate the claim to a track and give directions.
7.3 Where paragraph 7.2...
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