Wadsley v Sherwood Forest Hospitals NHS Foundation Trust (2017)
In this case, the court was required to consider an application for relief from sanctions against the backdrop of a former solicitor lying about the breach and trying to cover it up.
Here, the claimant pursued a claim for clinical negligence against the defendant, liability was admitted but causation and quantum were in dispute.
The defendant commissioned surveillance evidence with a view to establishing that, at the very least, the claimant was exaggerating their symptoms. The surveillance evidence comprised video recordings and written commentary in the form of log books and witness statements of those who carried out the surveillance.
The defendant was ordered to serve and file all of its surveillance evidence, to include all written evidence, by 20 July 2016. The surveillance footage was served electronically on 20 July 2016 in accordance with the court order but not all of the written evidence was served at this stage. On 29 July 2016, the defendant served the remaining written evidence but this was nine days after the date that had been provided in the court order. Also, the defendant did not file the surveillance evidence at court until 5 August 2016, which was also in breach of the court order.
On 7 October 2016, the defendant made an application for relief from sanctions where it was revealed that a former solicitor that had been employed by them had lied about the breach.
The court noted that the facts of the case made this matter different to other applications for relief from sanctions. Here, a former solicitor, who had subsequently been dismissed by the defendant, had lied to the claimant’s solicitors concerning the reason why certain documents had not been received by the claimant’s solicitors on 20 July 2016.
The former solicitor had advised that the original email serving the surveillance footage had been deleted from her account to save memory space and that there was no reason for the claimant to not have been served with the written surveillance evidence at the same time as the video footage.
It was revealed that the former solicitor had delegated the task of sending the surveillance evidence to a legal assistant who had misunderstood the instructions resulting in the written surveillance evidence not being served at the same time as the video footage.
The court noted that the defendant had made clear from the outset of the application that the actions of the former solicitor were wholly unacceptable. HHJ Robinson specifically held that the defendant’s approach had been “…entirely correct and entirely in keeping with what I would expect of a highly reputable firm of solicitors…”
The three stage test in Denton v TH White Ltd, was applied in respect of relief from sanctions. In respect of stage one, it was held that there had been a serious and significant breach. Also, HHJ Robinson stated that a lie concerning the circumstances of the breach escalated a breach, which may not have been seen as serious on its own, to one which needed to be considered under stages two and three of Denton.
In respect of stage two, the court held that there was just about good enough reason for the breach. HHJ Robinson expressly stated that this was “… a borderline case but I am just prepared to accept that human error amounts to a good reason in this case.”
In relation to stage three, the court looked at all of the circumstances of the case and took into account that the video surveillance evidence had been delivered to the claimant in June 2016 and had again been served in accordance with the court order dated 14 July 2016. Also, it was noted that the delay in complying fully with the court order had been short, the progress of the litigation had not been compromised and the application had been made sufficiently promptly.
It was accepted that the claimant’s solicitors had been inconvenienced in respect of the explanation given but it was held, on balance, to be appropriate to grant the defendant relief from sanctions and to permit their application.
What this means for you
It is interesting to note that HHJ Robinson made clear that it was “absolutely correct” for the claimant to have declined to consent to the defendant’s application for relief from sanctions. It was noted that there had been serious conduct issues on the part of the former solicitor and there had been little evidence given to the claimant’s solicitors concerning the reasons why not all documents had not been served.
In granting the defendant’s application for relief, it can be seen that the court was influenced by the fact that the video surveillance evidence had been previously served on the claimant and again served in accordance with the court order. Also, the nine day delay in serving the remaining written evidence and statements had not impacted on court directions and had not compromised the progress of the litigation.
The courts have a lot of discretion when applying the three stage test as set out in Denton. As a result, there is no guarantee that an application for relief will be successful so it is essential that court orders, rules and practice directions are complied with. Also, under no circumstances should attempts be made to cover up or deceive your opponent or the court in respect of non-compliance with a court order, rule or practice direction and the reasons for the non-compliance.