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Ms Veena Kamari Sharma v Cropz of London Limited - Gavin Redman, Express Solicitors

08/10/15. Ms Sharma attended a London Beauty Salon to have a procedure known as threading. This involves a technique to remove unwanted hair. As a result of this treatment, she sustained an adverse reaction. Sarah Mawdsley, Partner of Express Solicitors acted on her behalf.

The Defendant was identified as Cropz of London Limited and a letter of claim was sent on 7th May 2014. No response was received, further letters were subsequently sent requesting a response to the letter of claim. These included warnings that if a response was not received within the 3 month time frame set out for such a response in the Pre-Action Protocol for Personal Injury Claim that an application would be made to court for pre action disclosure.

As no response was received and on the 12th September 2014 an application was made to Manchester CC for Pre-Action Disclosure and a hearing was listed for 18th November 2014.

Helen Murdoch, Trainee Solicitor, attended the Hearing at Manchester County Court before DJ Iyer, the Respondent did not attend. DJ Iyer made an order requiring that the Respondent disclose the relevant documentation or a disclosure statement within 14 days.

On the basis that the application was successful, the Claimant sought the costs of the application pursuant to 46.1(3) CPR 1998. DJ Iyer did not feel that a breach of the Pre-Action Protocol for Personal Injury on its own was sufficient to justify him ordering the Respondent to pay the Claimants costs of the application and went on to make no order as to costs but ordered that the Claimant pay the Respondents costs of complying with the order within 14 days of receiving a written request for the same. He suggested that the Claimants costs of this application could be recovered as disbursements in any subsequent claim.

The decision was appealed on the basis DJ Iyer placed too much emphasis on CPR 46.1(2) and gave insufficient consideration and weight to CPR 46.1(3), gave insufficient weight to the Pre-Action Protocols, failed to attach any adequate weight to the unreasonable conduct of the Respondent and wrongly understood that the costs of the application and the costs of the Respondent complying with the order would be recoverable as a disbursement by the Claimant in any subsequent claim. The Claimant sought to rely on the case of Sherred v Western Challenge Housing Association (unreported 13/10/2009), a case which was on all fours with this matter and had previously been heard in Manchester by HHJ Holman and dealt with the same issues.

His HHJ Armitage QC heard the appeal on 25th June 2015.

Counsel for the Claimant, Lee Nowland of Cobden House attended the hearing along with Miss Murdoch and the appeal was allowed. The Judge submitted that there was no other course of action the Claimant could have taken when faced with an uncooperative Defendant and that the only correct order was that the Respondent pay the Claimants costs of the application. The original order of DJ Iyer was varied and the Respondent was ordered to bear the costs of the order and the appeal which were summarily assessed.

The Judgement emphasises the important of the Pre-Action Protocols especially where a faced with an uncooperative Defendant. HHJ Holman’s reasoning in Sherrard was adopted in the current case and HHJ Armitage stated that unless the Claimant is going to take a chance on issuing there is no option but to make an application and costs should follow the event.

Gavin Redman
Associate Partner (non-lawyer)
Business Development
Express Solicitors

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