Forbes resist relief from sanctions application leading to strike out of the claim

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29 June, 2020

Siobhan Hardy
Partner, Head of Housing and Regeneration (Litigation)

Forbes successfully acted for Calderdale Council to defend a case arising from an accident in January 2013 in which the driver of a commercial vehicle was injured. The circumstances of the accident were such that there was no issue on liability. The driver's claim was settled by insurers.

Forbes were instructed when the owner of the vehicle brought proceedings against Calderdale Council very close to the 6-year limitation period, for loss of fuel and loss of use of his vehicle. The losses were pleaded at over £30,000. Negligence was admitted and the matter proceeded on quantum only.

Attempts were made to ascertain how the sum claimed had been calculated to enable a settlement discussion to take place. Unfortunately, no information was forthcoming, and we were informed that the claimant intended to seek permission from the court to rely on accountancy evidence which the court gave permission for, although we still hoped to save our client some costs by considering the claimant's evidence and witness statement as to how his claim had been calculated.

The Claimant's statement did not materialise despite us chasing and granting extensions of time and so we made an application to strike out the claim. The Claimant was initially given more time for his statement but still did not serve it, nor any accountancy evidence. The Claimant then made an application for relief from sanctions which we resisted and applied for the claim to be struck out. The District Judge found that there was a serious and significant breach for which no good reason had been provided. She found that the claimant's explanation for the delay just did not withstand scrutiny as he was clearly on notice of matters given that we had sent various reminders.

The Judge said that looking to all of the circumstances of the case, the application was made at the 11th hour and there had been multiple opportunities to make the application; that is in the context of a claim that was issued at the 11th hour. The matter had not been dealt with efficiently and this was an unacceptable way to conduct litigation. If the application were allowed the directions would effectively have to be re-set. Accordingly, the application was refused, and the Defendant's application allowed as it followed that the Claimant now had no evidence on which he could rely and there were no reasonable prospects of success.

Calderdale Council were awarded the costs of both applications and the action.

A deciding factor in this case was our persistence in chasing the claimant's solicitor and being able to show, not only that we had done all we could to progress matters but that the claimant's solicitor was aware of their default but did nothing to remedy this. It was important that we did not make our application too early. It was always a possibility that the court would make an unless order rather than striking out the claim on the first occasion but the longer the claimant was in default, the less likely it was that the claimant would be able to satisfactorily explain their default. We were also able to produce a comprehensive statement setting out the history of the matter with evidence of what the claimant's solicitors knew and when to defeat their contention that this was not a significant default and that there was no prejudice to the defendant.

Forbes Comment

Even in a claim where liability is not in dispute success can be achieved by keeping a close eye on directions and making a well-timed application to strike out claim for default by the claimant. In this case we saved our client in excess of £80 000 including costs.

For more information contact Siobhan Hardy in our Insurance department via email or phone on 0113 386 2686. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Learn more about our Insurance department here

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