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Binks v Securicor Omega Express Ltd, Court of Appeal, 16 July 2003

22 July 2003
The issues

Statement of Truth – Pleadings – Alternative version of events

The facts

The Claimant suffered an injury at work, claimed to be substantial and with a pleaded value of £80,000. He was employed in the Defendant’s warehouse loading and unloading parcels from lorries. He was provided with a retractable conveyor belt to assist with the work. Once the vehicle was ready to go a signal would be given to the driver. In this instance it was given by a supervisor after the Claimant had finished unloading the lorry. The Claimant’s pleaded case was that the signal was given when he was still standing in the back of the lorry and hence he fell to the ground. The Defendant’s case was that the Claimant was riding (i.e. sitting on) the conveyor belt when the lorry moved off and it was that fact which caused him to fall. Riding the belts was a potentially dismissible offence under the company rules. The Claimant knew that he should not ride on the conveyor. The Judge accepted the Defendant’s evidence and found that the Claimant had not given a truthful account to the Court. At the conclusion of the evidence, the Claimant’s counsel asked the Judge, without seeking to amend, to consider the case on an alternative basis. That basis was that the Defendant was negligent through its supervisor in giving the signal for the lorry to leave when he knew that the Claimant was on the conveyor. The Judge refused to consider the alternative basis and dismissed the claim. The Claimant appealed.

The decision

1 There were two issues to be considered – the Statement of Truth point and the Discretion point.

2 The Statement of Truth point – the Claimant’s counsel before the Judge below had expressly not sought permission to amend because he had taken the view (and the Judge implicitly agreed) that the Claimant was not in a position to sign a Statement of Truth in relation to the alternative case. This was not correct. CPR 22.1(2) enables the Court to dispense with verification by Statement of Truth when the Statement of Case is amended. The Court took the view that amendment to plead an alternative case derived from an opponent’s documents, pleadings or evidence is capable of being such a case. To the extent that the Practice Direction to Part 17 suggests otherwise, Part 22 is to be preferred. Other cases may be where a Claimant in a personal injury case simply does not know what happened and relies on independent witnesses who prove unreliable and where the Defendant’s evidence provides him with a positive case; or where a Claimant has wrongly convinced himself of the truth but who can nevertheless advance a case based on the Defendant’s pleadings or evidence. In any event a broad approach should be taken to Part 22. It does not prevent a party from putting forward a pleading containing an allegation which he is not putting forward as the truth, provided there is an evidential basis for it. If it is in the form of an amendment it may be appropriate for the Court to dispense with the need for a Statement of Truth. Otherwise it might be possible for a Claimant to put forward an alternative version with a Statement of Truth, suitably drafted, making it clear that whilst his primary case is not an assertion of the truth of his opponent’s case, if that case is preferred it will be relied on as an alternative basis for liability. Whilst the purposes of Part 22 might be to deter Claimants from advancing untrue or speculative cases its purpose did not extend to relieving a Defendant of liability where his own evidence might establish a cause of action.

3 The Discretion point – the Judge had taken the view that the Defendant would have been prejudiced if he had considered the case on the alternative basis and that other witnesses could have been called. This was unlikely. One of the two witnesses who might have been called was thought to be dead and the other was unlikely to have been called as a witness because evidence had been given that he considered falsifying the circumstances of the accident allegedly to protect the Claimant himself from disciplinary proceedings but equally possibly to protect himself from an allegation of negligence. The potential prejudice to the Defendant was unsustainable.

4 Finally, the Judge had not considered the wider interests of justice and the extent to which he could have made amends to the Defendant by a consequential provision as to costs.

5 The Claimant’s medical evidence had been rejected and the claim was now worth considerably less than the amount pleaded. Quantum was assessed at £27,000 in total. The Court would allow the appeal but would not remit the case back to the Leeds County Court. On the Judge’s unchallenged findings of fact the Court was in no doubt that negligence on the alternative basis was established but that contributory negligence should be assessed at 50%.

6 The costs of the Appeal would be paid by the Defendant along with half of the Claimant’s costs of the trial below.


For further information please contact Defendant’s counsel Nicholas Baldock at Njbaldock@aol.com

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