BRIGHTSIDE GROfUP LTD & OTHERS V RSM UK AUDIT LLP & OTHERS (2017) EWCH

Background / proceedings

The claimant issued a claim form on the 26 April 2016 but did not serve immediately.

On the 27 May 2016 the defendant gave notice to the claimant under CPR 7.7 to serve the claim form or discontinue the claim within 14 days (i.e. by the 10 June 2016).

In accordance with CPR 7.5(1) the "step required" to effect service was the delivery of the claim form to the relevant place, or the leaving of the claim form there, within four months of the claim form being issued. A trainee solicitor from the claimants solicitors attended upon the defendants premises on the 10 June to effect personal service but could not gain entry so the documents were left with a member of security on reception.

The defendants applied under CPR 7.7(3) to dismiss the claim on the grounds that the claim form had not been served at all, or that in the alternative, had been served late. The defendants claimed that service occurred on 14 June, because CPR 6.14 provided that a claim form served within the UK in accordance with CPR 6 was deemed to be served on the second business day after completion of the "step required" under CPR.7.5(1).

The claimants submitted that they had left the claim form at the relevant place on 10 June, and that was sufficient to comply with the requirement of the CPR 7.7 notice, notwithstanding CPR 6.14.

The defendants argued that the purpose of CPR 7.7 was to entitle a defendant to shorten the validity of a claim form which would then replace the obligation to satisfy CPR 7.5 with an obligation to comply with the notice. The defendants therefore submitted that a failure to serve within the time limit set by a valid r.7.7 notice should be the same as a failure to comply with r.7.5 and that therefore in this case the claimant was out of time to serve the claim form.

Judgment

In what appears to be a first decision of its kind, the court held the following in this case:

(1) That service did not take place on the date when the claimants took the "step required" under CPR 7.5(1). Rule 6.14 provided that service took place on the second business day after completion of that step. CPR 6.14 created a fixed rule as to when service of a claim form occurred. The rule applied to all claim forms served anywhere within the UK, and operated independently of any enquiry into when the claim form was in fact received by, or otherwise brought to the attention of, the defendant. Rule 7.5(1) did not create a different regime to that of r.6.14 and did not treat service as having occurred upon the happening of the "step required.

(2) The CPR 7.7 notice required the claim form to be served by 10 June. The date of service set by CPR 6.14 was therefore 10 June at the latest. The "step required" for the purpose of CPR 7.5(1) was completed on that date and therefore the date of service was 14 June. the claimant had therefore failed to comply with the CPR7.7 notice so that the court was entitled to dismiss the claim or make any such other order as it thought just.

(3) However, the court found that the claimants' position was not to be assimilated to that of claimants who failed to comply with CPR 7.5. The claimants' solicitors had in good faith thought that completing the CPR 7.5(1) "step required" on 10 June would comply with the CPR 7.7 notice. The defendants received early confirmation, less than halfway through the period of validity of the claim form, that the claim was to be pursued, and had sight of such detail of the claim as they were entitled to at that stage. The failure to comply strictly with the deadline set by CPR 7.7 notice meant that the defendants received that confirmation one or two working days later than they might otherwise have done. That had not caused them any prejudice or difficulty.

The court therefore applied its discretion and the application for dismissal of the claim was rejected.

KOVACIC V PERSONAL REPRESENTATIVES OF THE ESTATE OF NORMA WROE (DECEASED) (2016) EWCA

Background

The claimant was involved in a car accident and liability was admitted by the defendant.

Having assessed damages, the judge had taken against the claimant because of video surveillance that the defendant's insurers had undertaken which suggested that the claimant was more capable than he was making out in his claim for example the claimant could drive a car and he appeared to be much fitter than he claimed to be. The judge therefore decided that the claim was exaggerated. Nevertheless the claimant was still awarded a total sum awarded of £95,114.

The claimant applied for permission to appeal.

Claimant’s case for appeal

The claimant raised 2 issues with the first instance hearing:

(i)he claimed that the judge had not permitted him to call witness evidence when he wished to do so because the judge had insisted that they should be called on day one when those witnesses were not available, despite the fact that the claimant and defendants solicitors had previously agreed a trial timetable which allowed for those witnesses to be heard at a later stage in the proceedings. The claimant submitted that the video evidence therefore should not have been relied on by the judge as evidence of any lies on his part because it was edited and selective and did not show his daily routine. The claimant said that he could have called witness evidence to counteract the surveillance, but was denied that opportunity by the judge; and

(ii)no award has been made for scarring.

Decision

The application was dismissed.

(1)The CA said that a judge conducting a trial, a very expensive matter both in time and in money, had to have control how the case proceeded. If the witnesses were not there when the judge was ready to hear them, that might be unfortunate but was not a sufficient ground for granting permission to appeal when the only consequence would be that there would have to be a retrial with all the difficulties of witnesses having to remember events even longer ago.

(2)It had to be a question as to whether the judge would really have been much helped by the witness himself coming to give that general evidence. The judge had to deal with the case on the evidence that was before him. He did allow the statements to be read. The fact is that the video surveillance evidence was, in the judge's view, very telling. Had the judge allowed the claimant to call witnesses, it wasn’t apparent that this would have made any difference to his judgment. Therefore the CA found that it would not be right to devote its resources to a full appeal in the case when the likely outcome would be that the appeal would be dismissed, requiring further expenditure for the claimant.

(3)There had been extensive scarring as a result of the accident and that it appeared that no separate award had been made for that. However, the overall figure of £35,000 for PSLA, when the judge had been fully aware that the scarring had occurred because he mentioned it in his extensive judgment and therefore taken this into account in his valuation of the claim.