Recent Court Of Appeal Personal Injury Decisions

• Published date: 26 January 2023
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury
• Law Firm: Deka Chambers
• Author: Mr Richard Collier

The issue

How to approach setting aside of a Notice of Discontinuance pursuant to CPR 38.4 and the interpretation of the phrase 'likely to obstruct the just disposal of the proceedings', in CPR 3.4(2)(b) and 44.15(c).

Relevant CPR

Power to strike out a statement of case

3.4 - (2) The court may strike out a statement of case if it appears to the court -

1. that the statement of case discloses no reasonable grounds for bringing or defending the claim;
2. that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or
3. that there has been a failure to comply with a rule, practice direction or court order'.

Right to discontinue claim

38.2 - (1) A claimant may discontinue all or part of a claim at any time.

(2) However'

1. a claimant must obtain the permission of the court if he wishes to discontinue all or part of a claim in relation to which'
   1. the court has granted an interim injunction; or
   2. any party has given an undertaking to the court;
2. where the claimant has received an interim payment in relation to a claim (whether voluntarily or pursuant to an order under Part 25), he may discontinue that claim only if'
   1. the defendant who made the interim payment consents in writing or
   2. the court gives permission; '

Right to apply to have notice of discontinuance set aside

38.4 - (1) Where the claimant discontinues under rule 38.2 (1) the defendant may apply to have the notice of discontinuance set aside.

(2) The defendant may not make an application under this rule more than 28 days after the date when the notice of discontinuance was served on him.

Liability for costs

38.6 - (1) Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom he discontinues incurred on or before the date on which notice of discontinuance was served on him'.

Effect of qualified one-way costs shifting

44.14 (1) Subject to rules 44.15 and 44.16, orders for costs made against a claimant may be enforced without the permission of the court but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for damages and interest made in favour of the claimant.

Exceptions to qualified one-way costs shifting where permission not required:

44.15 - (1) Orders for costs made against the claimant may be enforced to the full extent of such orders without the permission of the court where the proceedings have been struck out on the grounds that -

1. the claimant has disclosed no reasonable grounds for bringing the proceedings;
2. the proceedings are an abuse of the court's process or
3. the conduct of -
   1. the claimant; or
   2. a person acting on the claimant's behalf and with the claimant's knowledge of such conduct,

is likely to obstruct the just disposal of the proceedings.

Background

The claimant brought a personal injury claim against his employer, alleging that he was climbing a ladder at work when it slipped.

At the outset of a remote trial the judge noted that there were inconsistencies in the claimant's description of the accident across his pleaded case, witness statement and medical records. The judge briefly adjourned the hearing to allow him to consider his position. Shortly thereafter the claimant served Notices of Discontinuance.

The defendant applied to set the Notices aside pursuant to CPR 38.4 and strike out the proceedings under CPR 3.4(2)(b) arguing that his conduct has obstructed 'the just disposal of the proceedings' and consequently should not be entitled to QOCS protection per CPR 44.15(c).

Lower courts

The district judge at first instance granted the defendant's application. She did not specifically address the question of whether the Notices were set aside but proceeded on the basis they would be, focusing on whether QOCS protection should be removed. The judge noted that the claimant dropped his claim at the 'eleventh hour and fifty ninth minute' causing a significant waste of costs and court time.

HHJ Freedman allowed the claimant's appeal. The first question should have been whether the Notices should be set aside, which depends on whether there was anything 'about the conduct of the Appellant which was so out...