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Necati v Metropolitan Police Commissioner, High Court, 18 February 1993

1 February 2001
The issues

Civil Procedure Rules – Civil Procedure – Striking Out

The facts

The Claimant brought an action in the High Court for personal injuries as a result of an incident on 2nd November 1992. Judgment was entered on 18th February 1993. Pleadings had closed in December 1992. The Claimant served a List of Documents in June 1993. In January 1995 the Claimant’s solicitors indicated the Claimant intended to claim damages for loss of earnings and handicap on the labour market. In January 1999 Lawfords took over the Claimant’s case. In December 1999 the Defendant applied to Master Turner to strike out for want of prosecution. On appeal to Wright J (by whom is unclear in the report) an Order was made allowing the action to continue and that the Claimant serve witness statements including details of employment history and a full schedule of past and future losses together with any further medical evidence, GP notes and employment consultants reports.

The sanction for non-compliance was debarral from calling further evidence on the matters to which non-compliance related. Costs ordered to be paid by Claimant in the sum of £4,278.75 by 4.00 p.m. on 5th May 2000. No sanction provided for non-compliance with costs Order.

The costs were not paid. The matter came back before the Court for consideration of how the claim was to proceed. Before Master Ayre the Claim was struck out.

On appeal to Popplewell J.

The decision

If strike out could be avoided “by flexibility” and a fair trial would follow, that course should be followed.

The Court retained the power to strike out and should do so where appropriate see Biguzzi and UCB Corporate Services v Halifax.

The Claimant had failed to serve full details or medical reports and records in time. They had however been substantial compliance with the Judge’s Order. Equally there were failures for which no acceptable explanations were given. If the issue of service of documents was the only matter to be considered, the claim should be allowed to proceed without debarral. However, the Claimant had also failed to pay the Defendant’s costs in time. No explanation was given and no extension of time had been sought. The delay from the Claimant’s solicitors Affidavit was clearly not unavoidable. In the circumstances the time had come for the ultimate sanction to be applied and the claim would be struck out.

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