Nov 12
The claimant brought a claim for damages for personal injury against his employer under the Pre-action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims. The employer admitted liability and the parties entered Stage 2 of the Protocol but were unable to agree damages and the case moved to Stage 3 set out in CPR Practice Direction 8B. At that stage the claimant wished to rely on evidence served out of time. The district judge held that that was a matter to be dealt with by the court under paragraph 7 of Practice Direction 8B. On the claimant’s appeal the judge held that it was a matter which led to automatic dismissal of the claim under the Protocol under paragraph 9 of the Practice Direction.
On the employer’s appeal—
Held, appeal allowed. The relevant provisions of the CPR were to be construed as follows: (1) At a Stage 3 hearing of a claim where the parties had followed the Protocol but were unable to agree the amount of damages, they could only rely on evidence as permitted under paragraph 7.1 of CPR Practice Direction 8B. (2) In the circumstances described in paragraph 9.1 of the Practice Direction, namely where the defendant opposed the claim because the procedure set out in the protocol had not been followed or because additional evidence had been served which had not been provided under the protocol, the court was under a duty to dismiss the claim under the Protocol. The claimant could then start proceedings under CPR Pt 7, provided the limitation period had not expired. If the claimant was ultimately successful in the Part 7 proceedings, the court under CPR r 45.24 could order the defendant to pay no more than the fixed costs in r 45.18 plus disbursements allowed under r 45.19. (3) In circumstances where the court considered that further evidence was required and that the claim was not suitable to continue under the Stage 3 procedure, paragraph 7.2 of the Practice Direction required the court to order that the claim be continued under Part 7. In that event, the claimant was not at risk of his claim being time-barred but under paragraph 7.3 the court would not allow the claimant to recover the Stage 3 fixed costs. (4) In all other circumstances, the court considering a claim under the Stage 3 procedure had a discretion under CPR r 8.1(3) to order the claim to continue as if the claimant had not used the Part 8 procedure, but in exercising that power the court had to comply with the overriding objective and the aims of the Protocol. In the present case, the employer at he hearing before the district judge had not been opposing the claim because the claimant had filed additional evidence. Rather, it had been objecting to the new evidence being considered by the court. It followed that paragraph 9.1 of the Practice Direction was not engaged and the district judge had quite properly dealt with the matter by reference to paragraph 7 of the Practice Direction. Accordingly, the decision of the circuit judge was set aside and the decision of the district judge was restored (paras 29–33, 36, 38, 39, 40).
Grace Cullen (instructed by BLM Solicitors, Southampton) for the employer.
Sarah Robson (instructed by Bakers Solicitors, Aldershot) for the claimant.