Taking the stress out of civil litigation – procedural tactics for early repudiation

With instances of occupational stress on the rise according to the Health and Safety Executive (HSE), a recent case highlights the dangers for claimants in issuing civil claims at the 11th hour and the strategic measures defendants can take to avoid liability where a claimant has not got their house in order in time. In this stress claim we acted for the defendant who had yet to receive a letter of claim but was aware that proceedings had been issued. The timeline was as follows:

• 2022 the claim was notified to the defendant and their insurer in line with the Disease Pre Action Protocol in 2022. Personnel and Occupational Health records were disclosed.
• November 2023 the claim form was issued (before a letter of claim was submitted).
• March 2024 the claim form was correctly served. An application for an extension of time to serve the particulars of claim was made on the grounds that it would provide time for the defendant to investigate and respond to the claim (without a letter of claim) and for the claimant to secure medical evidence.
• July 2024 the claimant’s application was approved despite the defendant’s formal opposition. The defendant made a subsequent application to set aside the order which provided for the  particulars of claim to be served on 31 October 2024.
• October 2024 shortly before the particulars of claim were due to be served, the claimant requested a further extension of time to serve so they could finalise their medical evidence. This was refused by the defendant. The claimant’s solicitor made an application for an extension of time for service of the particulars of claim. The letter of claim was submitted on 31 October 2024.
• The defendant opposed the claimant’s application for an extension and applied to strike the claim out pursuant to CPR 3.4(2)(c).

Judgment

It was noted that the particulars of claim must be served no later than the latest time for serving a claim form (CPR 7.4(1)(2)) which is four calendar months from the date of issue (CPR 7.5). 

Reference was also made to there being no sanction for failing to disclose a medical report with the particulars of claim (Mark v Universal Coatings & Services Limited & anor [2018] EWHC 3206 (QB)) – it being a key part of both extension applications that medical evidence was required/awaited.

The key elements of the judgment included: 

-    The claimant did not mention in their initial application that they had received significant disclosure and, as such, the judge making the order was not supplied with all relevant information.

• There was no good reason why the extension should be given and, as such, the first order granting the extension was set aside.
• In respect of the second application, it was of relevance that this was a fact heavy case. Cases need to be dealt with expeditiously in line with the Overriding Objective. The defendant needed to know the claim it has meet.
• There was no good reason for an extension when there was sufficient information provided to the claimant’s solicitor to serve the particulars of claim.
• The application referred to a vulnerability on the part of the claimant but no evidence in support of this was submitted to include why additional time was required.

The second application made no reference to the defendant’s outstanding application to set aside the July 2024 order which was a serious breach of the duty to be open. The claimant’s second application for an extension was therefore dismissed.

• When considering whether to strike out the claimant’s case for failing to serve the particulars of claim on time, the consideration was whether the defendant was prejudiced.
• The allegations in respect of this claim were initially said to arise in 2019, but allegations dating back to 2015 were made. The particulars of claim include allegations from 2017 to 2018.
• The defendant has been prejudiced by the way the claimant had behaved. There must be compliance with the rules, matters should proceed expeditiously and erroneous applications should not be made.
• As such, the claimant’s case was struck out.

Comment

This was a welcome result. Occupational stress claims, in particular, are factually and legally complex. Claims rarely relate to one off incidents; they arise out of a series of events making it crucial that the claimant’s allegations are set out formally so they can be investigated.

The delays on the part of the claimant in this case meant that the defendant was without a formal set of allegations for a prolonged period of time. The court agreed, that in a fact heavy claim such as this, the defendant was prejudiced by the claimant’s delay which ultimately led to the strike out.

The claimant’s problems were compounded by their two earlier applications for extensions which did not contain adequate explanations as to why the particulars could not be submitted, omitted key details from the history of events and were not accurate from a procedural and legal stand point. The court took a dim view of this approach, setting aside the first order and dismissing the application for the second extension on this basis.