The Importance of Pre-Action Disclosure

Article

01 September, 2016

Nicole Chapman v Tameside Hospital NHS Foundation Trust (2016)CC (Bolton) (District Judge Swindley) 15/6/2016

The defendant received a letter of claim for personal injury following an accident in the defendant's A&E department. The defendant denied liability and wrote to the claimant stating that it had no documents to disclose. However, after proceedings were issued, the defendant disclosed a number of relevant documents, causing the claimant to discontinue her claim.

The claimant argued that had the defendant disclosed the relevant documents in accordance with the pre-action protocol she would not have issued proceedings and would not have incurred costs. The court was therefore required to determine the appropriate costs order after the claimant discontinued her claim against the defendant.

The Judge described the defendant's conduct of the litigation as "entirely unacceptable". The court was satisfied that the defendant was in the possession of the relevant documentation at the time they stated in writing that no such documentation was available. If the defendant had produced the documentation when they should have done, on the balance of probabilities the claim would not have gone any further.

The claimant's solicitors were awarded costs of £2,840 plus VAT, and the cost of the medical report. The costs of the instant hearing were to be assessed if not agreed

Forbes comment

This case reinforces the importance of full pre-action disclosure and the dangers of not complying fully with the protocol.

Under the Pre-action Protocol the defendant is under a duty to set out its case and to carry out a detailed and thorough search to provide "documents in its possession which are material to the issues between the parties, and which would be likely to be ordered to be disclosed by the court".

The Court took a very dim view of the misconduct in this instance; the Judge commented that cost sanctions are becoming increasingly important and will be applied to encourage parties to conduct litigation efficiently and to avoid parties wasting the courts valuable resources.

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