PI Brief Update

Caution given against misconceived appeals of case management decisions: Jennings v Otis Limited and Bristol City Council [2023] EWHC 2039 (KB) - Nancy Kelehar, Temple Garden Chambers

22/08/23. The appeal related to a case management order (CMO) made by Master Thornett at the RCJ in March 2023. The Master was critical of the pleadings and the Claimant’s Part 18 responses which, in his view, failed to adequately set out their case. The underlying claim related to an incident whereby the Claimant suffered a traumatic amputation of his arm when it became entangled in lift machinery on which he was carrying out maintenance.

The Claimant submitted that they would be prejudiced by the CMO which required a further reply to the Part 18 request and unilateral service of the Claimant’s witness evidence.

Decision

Cotter J held that the appeal was “misconceived” [11], that the Master was “very clearly acting within his discretion” [7], and that the court should “not be slow to rigorously apply” the provision at CPR PD 52A, paragraph 4.6 [10] which sets out the pragmatic approach the court should take in appeals of CMOs.

The court emphasised the importance of the parties being able to assess the issue of liability at an early stage and that, in order to do so, the other party’s case must be clear and “capable of being readily understood” [19]. Cotter J commented that it would have been “sensible, helpful and entirely in the spirit of the overriding objective” for the Claimant to have responded to the Part 18 request by disclosure of his witness statement [24]. The Claimant made reference in the Part 18 response to “a number of factors” which may have been at play in the incident, but the Defendants should not be left to guess what factors are being referred to [39].

Applying the test set out by Lord Neuberger in Global Torch Ltd v Apex Global Management (No.2) [2014] 1 WLR 4495, there was nothing “plainly wrong” with the approach of ensuring that the Claimant’s case was made clear before matters progressed further [42] and to make a CMO accordingly, even one which directs unilateral disclosure. It was not helpful to suggest that there should be mutual exchange of statements in the usual way as, in this instance, the Claimant was the only witness to the incident [40].

Comment

This case emphasises the importance of acting in accordance with the overriding objective even in high value claims, particularly with regards to making the case plain and clear to allow early identification of issues relating to liability.

Cotter J advised that a party aggrieved by a case management decision should “carefully assess whether an appeal is worth the candle” [42]. He also commented that directions are not a fait accompli just because they have been largely agreed between the parties; the judge does not have to make an order in the agreed terms [27].

Additionally, Cotter J did not accept that a solicitor’s policy of issuing all High Court personal injury and/or clinical negligence claims in the RCJ is “sensible, complies with the overriding objective or serves the interest of any party” [45]. A case-specific assessment of the suitable place to issue should be made to avoid the practical difficulties which will be created by issuing in London where a case has its “natural home” elsewhere [48].

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