21 November, 2019
Wickes Building Supplies Ltd v Blair (2019) EWCA Civ 1934
The Court of Appeal has provided guidance on the Pre-Action Protocol for Low Value Personal Injury (Employers' Liability and Public Liability) Claims ("the Protocol") procedure to be followed if a claimant serves evidence for the purpose of the Stage 3 Procedure out of time.
The employee, Mr. Blair, had an accident at work. He submitted a Claim Notification Form, and liability was admitted. The parties entered Stage 2 of the Protocol but they were unable to agree damages and the case moved on to Stage 3.
At the Stage 3 hearing before a district judge, the employer argued that the statement had not been served in accordance with the Protocol and should not be considered by the court. The judge agreed that the employer had not served the statement in time, and did not allow the employee to rely on it. He ordered the employer to pay £2,000 in damages and £1,080 in costs.
The employee appealed on the basis that, in accordance with PD 8B para.9.1, once the judge had made a finding that the employee had not filed and served additional evidence as provided under the Protocol, he had to dismiss the claim and the employee could start proceedings under CPR Pt 7.
The circuit judge allowed the appeal, and dismissed the claim under the Protocol pursuant to para.9.1, and reserved the questions of costs until the conclusion of the employee's claim under Pt 7.
The employer appealed the decision to the Court of Appeal. The Court of Appeal found that the employer was not opposing the claim because the employee had filed and served the statement; rather, it was objecting to the court considering the new evidence and therefore PD 8B para.9.1 was not triggered. The district judge had correctly dealt with the matter, he had decided that the statement should be disregarded and proceeded to determine damages.
The Court of Appeal noted that if the circuit judge's interpretation of paragraph 9.1 was correct, it would mean that, whenever a defendant objected to the late filing of evidence, the claim would be removed automatically from the Stage 3 Procedure, which would leave the court without any discretion to deal with the late service of evidence.
This decision provides useful guidance to parties. The court stressed that a defendant served with a late statement which had not been included in the material served under Stage 2 had the choice of either opposing the claim proceeding under the Protocol or continuing with the process but objecting to the evidence being considered by the court.
If the claimant had been permitted to have his claim dismissed because of his own failure to comply with the protocol, then this would have allowed the claimant to relitigate the entire claim under Part 7 in the hope of getting a better result. This goes against the aims of the Protocol to deal with straightforward, low-value claims quickly, and without having to resort to formal court proceedings.