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'Litigation Is Not a War or Even a Game': Recent Decision Is a Timely Reminder for Parties to Put Their 'Cards on the Table' - Andrew Cullen, Barrister

21/10/16. The first instance decision in Nicole Chapman v Tameside Hospital NHS Foundation Trust [2016] highlights the importance of compliance with the pre-action protocol. A failure to do so can have substantial cost consequences.


The Claimant brought an occupier’s liability claim, alleging that she had slipped on a leaflet on the floor of the trust’s A&E department. The Defendant denied liability and alleged that they had a proper system in place. The Defendant averred they had no documents to disclose to support their position at this stage.

Once proceedings had been initiated, the Defendant eventually disclosed documents, some 12 months after initially denying they had any relevant document in their possession, which identified the cleaning schedule for the day of the index accident. As a corollary of the Defendant’s disclosure, the Claimant discontinued their claim. The Claimant’s contention was that had they had sight of those documents earlier, as they properly should have under the Pre-Action Protocol for Personal Injury Claims, then the claim would have been discontinued much earlier, saving costs associated with proceedings.

The issue before the Court was what was the appropriate costs order after the Claimant had discontinued its claim...

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