So you want to litigate? Well, get on with it!

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We consider the court’s approach to delays and abuse of process in Zaman v Paradise (UK) Limited (2014).

Lord Woolf wanted to create a situation where the use of pre action protocols made litigation a last resort. Having said that, if pre action “exchanges of fire” did not resolve the dispute, parties were expected to act promptly in bringing subsequent litigation to a conclusion, the courts largely removing from their control, the lengthy procedural timetables parties had been in the habit of constructing. In the case of Zaman v Paradise (UK) Limited (2014) the court considered the impact of delay on the delivery of justice and even though the defendant had admitted liability, struck out the claim for repeated failures to progress the case.

Facts

In 2007 the claimant suffered from personal injury during the course of his employment as a waiter for the defendant. The claimant injured himself whilst unloading a lorry where a glass plate fell onto him. He claimed to have suffered from concussion, a fracture and post-traumatic stress disorder.

Liability was admitted by the defendant before the issue of proceedings. When proceedings were issued by the claimant, the claim form indicated that damages would be in excess of £100,000. The Defence confirmed that liability was no longer an issue.

Judgment was entered in favour of the claimant with damages to be assessed by the court. Therefore the remaining issues related to quantum.

The defendant was of the view that the claimant was dishonestly exaggerating his symptoms and being untruthful in relation to his loss of earnings claim. The defendant had obtained surveillance evidence showing the claimant capable of working without any restrictions.

Litigation become protracted and hostile. The defendant twice applied for unless orders for non-compliance with court orders. The straw that broke the camel’s back was when the claimant served a witness statement from a friend out of time. The defendant applied to strike out the claim on the basis that it was dishonestly exaggerated, there had been non-compliance with court orders and the claimant’s conduct amounted to an abuse of process.

The decision

Master Yoxall heard the defendant’s application and struck out the claim on the basis that there had been non-compliance with court orders over an extended period relating to significant aspects of the claim and because of the Claimant’s failure to take necessary steps to bring the case to trial. This amounted an abuse of process by the claimant and/or his solicitors (although Master Yoxall did strongly suspect this was mainly due to the incompetence of the claimant’s solicitors). Master Yoxall was not prepared to strike out the claim on the basis that the claim was dishonest and grossly exaggerated. The claimant appealed.

The appeal

The appeal was dismissed by HHJ Seymour QC.

HHJ Seymour QC accepted that it was a bold decision for the master to strike out the claim as, on the face of it, the claimant was entitled to a damages award (but perhaps not to the extent pleaded).

The defendant had clearly set out on a number of occasions that unless the claimant got on with matters, they would seek to have the claim struck out. These warnings had been ignored by the claimant and/or his solicitors.

HHJ Seymour QC accepted that Master Yoxall gave adequate reasons for his decision and had considered all of the circumstances of the case. The decision, although bold, was not outside the acceptable range within which the master could exercise his discretion. At the time of the strike out hearing, liability had been conceded six years earlier and the claimant had taken no effective steps to bring the matter to an assessment of damages hearing despite numerous warnings.

Comment

This case is a warning to all claimants who persistently delay and fail to comply with court deadlines. Even though liability may not be in dispute, the courts are prepared to take tough action against claimants who fail to comply with court orders and where their conduct is considered to be an abuse of process.

It should also serve a reminder to defendant litigators that a robust and forthright approach should be adopted in cases where dubious losses are pleaded which are unsupported by evidence and/or where the claimant is dragging his feet instead of proceedings ahead to trial.

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