An expensive mistake: defendant to discontinued action sanctioned in costs for failure to comply with the pre-action protocol


By Frances Lawley

Although a first instance decision of a district judge, the case of Nicole Chapman v Tameside Hospital NHS Foundation Trust (Bolton County Court, 15 June 2016, Case number B74YM281) warrants some attention. The defendant was ordered to pay the unsuccessful claimant’s fixed costs on discontinuance because of its failure to comply with the pre-action protocol.

The claimant brought an occupier’s liability claim within the relevant portal. A denial of liability brought the claim out of the portal and into the Part 7 process. The Pre-Action Protocol for Personal Injuries Claims applied.

The defendant’s initial response to the claim denied liability and stated that it had no documents to disclose. The defendant’s case as pleaded in the defence was that there was a proper system in place including relevant risk assessments and that contract cleaners were employed to clean the area in question. No documents were supplied in support of this stance however it seems clear that it could not be supported in the absence of documentation.

During standard disclosure the list of documents included risk assessments, trip/slip policy and cleaning schedules. The claimant’s solicitors were then drip-fed various documents culminating in crucial documents documenting the cleaning schedule for the day of the index accident. This arrived with the claimant’s solicitors approximately 12 months after the initial letter denying any relevant documentation.

The claimant discontinued her claim but sought costs from the defendant as a result of the breaches of the pre-action protocol. There was evidence from the claimant’s solicitor that the claimant would have abandoned the claim earlier had she had earlier disclosure of the documentary evidence.

The claimant relied upon the provisions of CPR 44.2.4 and 5 in support of the claim for costs. District Judge Swindley accepted that the indemnity principle did not cause difficulties as this was a fixed costs claim (see Nizami v Butt [2006] EWCA 159 (QB)) and rejected the suggestion that 44.2 didn’t apply to fixed costs claims as ‘nonsensical’.

It was held that: The Defendant’s behaviour in the conduct of this litigation was entirely unacceptable. It’s exactly the type of conduct which Part 44.2 is designed to address. Under the modern costs provisions, of course, the costs sanctions become increasingly important.”

The claimant was therefore awarded fixed costs and disbursements.

The message is clear: a defendant who fails to put in the leg work early on and adopt the ‘cards on the table’ ethos of the CPR risks bearing the costs of unsuccessful litigation.



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