Failure to use Damages Claims Portal by Claimant Leads to Strike Out

On the 28 May 2021 HM Courts and Tribunals Service launched the Damages Claims Pilot supported by Practice Direction PD 51ZB. It provides a Damages Claims Portal (DCP) for the issuing of proceedings covered by PDZB. On the 4 April 2022 it became mandatory for legally represented claimants in such claims to issue proceedings in the DCP.

PD51ZB covers claims for damages only, that do not fall within one of the other online procedures or exceptions set out in PD51ZB, and is a claim by either 1 claimant and up to 2 defendants or up to 2 claimants against 1 defendant.

Forbes have been acting for an employer in relation to a claim by an employee who sustained a nasty shin laceration with complications when she slipped on what she says was a defective jump box in the gym. She alleges that the edges of the box were worn and it should have been taken out of commission, as that would have prevented her using it and ultimately slipping off the edge.

Proceedings were issued for damages up to £15 000 on the cusp of expiry of limitation. On the face of it this is a claim that falls to be dealt with in the mandatory DCP.

The Claimant, who was legally represented, issued direct in the County Court Money Claims Centre (CCMCC) in November 2022, rather than using the DCP. These proceedings were not served at the time and a request for an extension of time for service was received. This was agreed and a consent order was signed. Proceedings were then served within the agreed extended timescales.

On receipt of the proceedings, and in the absence of any attempt by the Claimant's legal representatives to explain why they had not used the DCP, we disputed jurisdiction in the Acknowledgment of Service and filed a defence also disputing jurisdiction on the basis that the DCP should have been used. As far as we could tell, these proceedings fell within the types of claims that must use the DCP.

We expected the Claimant's Solicitors to respond to that with at least a Reply to Defence setting out their reasoning, but they did not do so. We followed up on our submissions by filing an application to strike out the claim. Again, incredibly, they didn't respond to that either, let alone cross-apply for relief from sanctions. It went to a hearing recently and the Judge struck their case out, on the basis that he could not really use his inherent jurisdiction under CPR 3.10 to correct the mistake, given that the Claimant had not filed any evidence or made any attempt to rectify the situation. We were also granted an enforceable costs order as an exception to QOCS.

It is for the court to decide what sanction should be imposed if it determines that the DCP should have been used. Had the claimant's solicitors tried to correct their procedural failure they may have been able to rectify matters. As limitation has passed there is now no chance for that.

This obviously isn't any kind of precedent for how the courts will deal with a failure to use the DCP in every case. The Judge made it clear that he could have corrected matters if he had the opportunity to do so, but it is certainly an interesting lesson in how failing to hold your hands up and deal with a mistake head-on can end up making everything far worse!