Failure to comply with a direction or order of the Court can still be fatal notwithstanding the softening of the Courts stance post Denton

Failure to comply with a direction or order of the Court can still be fatal notwithstanding the softening of the Courts stance post Denton –v- T H White Limited [2014] EWCA Civ 906.

The Court of Appeal considered the matter of Suiaya Jamadar v Bradford Teaching Hospitals NHS Foundation Trust (2016) on 21 July 2016.

The Claimant had received negligent treatment resulting in the amputation of one of his legs. Proceedings were commenced and the Defendant initially denied lability thus form N149C pursuant to CPR r26.3 was sent by the court to the parties stating the case was defended and the matter was considered suitable for allocation to the multi track with. Shortly thereafter the Defendant admitted liability a judge revoked form N149C and judgment was entered for the Claimant with damages to be assessed.

The parties received notice of case management in accordance with which the Defendant provided a costs budget but despite requests from the Defendant the Claimant did not provide a costs budget at or before the CMC.

At the hearing the district judge gave directions which included provision for five experts for each party with an anticipated 5 day Trial to deal with quantum.

The district judge noted that contrary to r3.13(2) the Claimant had not provided a budget and ordered, under r.3.14, the limitation of the Claimant’s costs to court fees only.

The Claimant unsuccessfully sought relief from sanctions. The circuit judge held the claim to be self-evidently a multi track case to which r3.13 applied and that the Claimant was in breach and having considered Mitchell v News Group Newspapers Ltd [2013] EWCA 1537 and Denton refused relief from sanction.

Jackson LJ and Lindbloom LJ considered the appeal noting the claim for damages was in the region of £3 million and considered that nobody could seriously think the matter could sensibly proceed as a fast-track case, adding that the fact that the matter was quantum only did not take the case out of the case management regime.

It was acknowledged by their Lordships that quantum only trials could be very expensive, particularly when five expert witnesses were allowed for each side. It was found that the automatic sanction in r.13.4 came into operation and that the circuit judge had been right to uphold the district judge’s decision. It was considered that whilst the district judge had been wrong to find that the instant case was factually so close to Mitchell that he was bound to follow it (which was described as the wrong approach following Denton) the circuit judge had followed the three part test in Denton noting that there had clearly been a serious breach which would have resulted in there having to be a further CMC, which would be costly and demanding of court time, and recording that both the district judge and circuit judge had rejected in strong terms the reasons advanced on behalf of the Claimant for the breach.

Whilst acknowledging that other judges might have been more lenient, the decision was within the ambit of the circuit judge’s discretion and the instant court would not overturn the decisions.