The Court of Appeal gave guidance on the consequences of filing late evidence in advance of stage 3 hearings.
Full judgment, dated 12 November 2019
The Respondent had filed a statement which was non-compliant with the protocol rules by reason of its lateness in advance of a Stage 3 hearing. The question between the parties became, through two appeals, whether that should have triggered merely the debarring of reliance on the same pursuant to PD8B 7.1 or whether it should have triggered the dismissing of the claim pursuant to PD8B 9.1.
The Court of Appeal ruled that the choice was the Defendant’s in any given case. Defendants could choose to object merely to evidence being admitted, citing 7.1, or to the claim entirely, under 9.1.
This appeal concerned whether or not evidence served out of time in the portal process, and upon which a claimant seeks to rely at stage 3, should be dealt with under paragraphs 7 or 9 of PD 8B.
Baker LJ (giving the judgment of the court) began by setting out the relevant provisions (2-11). After a brief explanation of the protocol process at stage 1, he set out the entirety of paragraphs 7.30 and 7.31 of the pre-action protocol for EL and PL claims. He then summarised stage 3 and quoted various provisions wholesale, being paragraphs 6.1, 6.1A, 6.4, 7-9 and 11. The two key sections are as follows:
“Evidence – general
7.1 The parties may not rely upon evidence unless –
(1) it has been served in accordance with paragraph 6.4;
(2) it has been served in accordance with paragraph 8.2 and 11.3 [which relate to certificates of recoverable benefits, not relevant to this case]; or
(3) (where the court considers that it cannot properly determine the claim without it), the court orders otherwise and gives directions.
7.2 Where the court considers that –
(1) further evidence must be provided by any party; and
(2) the claim is not suitable to continue under the Stage 3 Procedure,
the court will order that the claim will continue under Part 7, allocate the claim to a track and give directions.
7.3 Where paragraph 7.2 applies the court will not allow the Stage 3 fixed costs.”
“Dismissal of the claim
9.1 Where the defendant opposes the claim because the claimant has –
(1) not followed the procedure set out in the relevant Protocol; or
(2) filed and served additional or new evidence with the claim form that had not been provided under the relevant Protocol,
the court will dismiss the claim and the claimant may start proceedings under Part 7.
(Rule 45.24 sets out the costs consequences of failing to comply with the relevant Protocol.)”
The judge then summarised the factual background of the claim (14-16). In short, the Respondent claimed against the Appellant for injuries and a stage 3 hearing occurred. A preliminary issue was a witness statement from the Respondent that the Appellant said had not been served in time. DJ James ruled that it had not and debarred the Respondent from relying on it. He went on, however, to hear the claim and assess damages and costs in the Respondent’s favour. (17-18)
The Respondent then appealed on the basis that PD8B 9.1 and 9.2 meant that the judge should have dismissed the part 8 claim, with the Respondent then free to commence part 7 proceedings. HHJ Hughes QC allowed the appeal. He stated that in the situation where the statement was served late, the Claimant had a choice. Either abandon the evidence, in which case the hearing proceeds, or retain the evidence, in which case the claim should be dismissed under 9.1. The judge allowed the appeal and dismissed the claim under 9.1. (22)
The Appellant then appealed that decision. Its ground of appeal was that the judge had properly decided the issue of the admission of the statement under paragraph 7.1 and therefore there was no need for any consideration of 9.1. Indeed, the Appellant had not opposed the claim on 9.1 grounds at the hearing, it had merely objected to the statement going in. (24)
The key procedural point made by the Appellant was that HHJ Hughes’ interpretation would leave Defendants in the invidious position “of either objecting to the document, which would result in the claim being taken out of the Protocol, or keeping quiet and running the risk of being found to have undervalued the claim for damages, thereby suffering a costs penalty.” (25)
The Respondent’s response was founded upon a passage from paragraph 8BPD.0 of the White Book 2019 which emphasises that whereas practice directions and pre-action protocols are normally subsidiary to the rules, in the portal the PAP is paramount. It was submitted that the PAP is a “tightly drawn and stand-alone code” which rigidly enforces compliance. (26-27)
Phillips v Willis  EWCA Civ 401 was cited, in which the Court of Appeal had overturned a DJ’s ruling that a credit hire portion of a portal claim should be heard as a small claim, on the basis that even using such discretion as was given to the court by the PAP, it was impermissible to take out of the portal a claim that obviously fell within its ambit.
The Court of Appeal in this claim preferred the Appellant’s case. It opined that “[t]he provisions of the Protocol are regrettably not drafted in a way which makes interpretation entirely straightforward” but Baker LJ was nevertheless sure that the Appellant’s argument was correct, because the Appellant had never opposed the claim in its entirety (so as to engage 9.1) but had rather opposed the admission of certain evidence (so as to engage 7.1) (30). To rule otherwise would be to rule that all claims where evidence was served otherwise than in accordance with the rules would fall out of the protocol, thus thwarting the objective of the protocol, namely the speedy and cost-efficient resolution of claims. Defendants have a choice whether to oppose the late evidence (relying on 7.1) or the claim itself (relying on 9.1). (31-33)
Baker LJ set out the correct interpretation of the various provisions as follows:
“(1) At a Stage 3 hearing of a claim where the parties have followed the Protocol but are unable to agree the amount of damages, they may only rely on evidence as permitted under paragraph 7.1 of the Practice Direction.
(2) In the circumstances described in paragraph 9.1 of the Practice Direction, the court is under a duty to dismiss the claim under the Protocol. The claimant may then start proceedings under Part 7, provided the limitation period has not expired. If the claimant is ultimately successful in the Part 7 proceedings, the court under CPR r.45.24 may order the defendant to pay no more than the fixed costs in r.45.18 plus disbursements allowed under r.45.19.
(3) In the circumstances described in paragraph 7.2 of the Practice Direction, the court is under a duty to order that the claim will continue under Part 7. In that event, the claimant is not at risk of his claim being time-barred but under paragraph 7.3 the court will 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 has a discretion under CPR paragraph 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 must comply with the overriding objective and the aims of the Protocol.”