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Richings v Gloucester Hospitals, Bristol County, Court 8 January 2004

12 January 2004
The issues

Amendment – special damages – allocation – re-allocation – Case Management.

The facts

The Claimant was employed as a part-time Theatre Nurse. She alleged she injured her back on the 18th February 2000 whilst pushing an operating table. She was off work for 2 to 3 weeks and thereafter complained of chronic continuing back pain. She issued a Claim Form on 11th February 2003, limiting the claim to less than £5,000.00. Particulars of Claim were served on 27th May 2003 with a Schedule limited to £1,237.93. The Defence admitted liability and Judgment was entered. The case was allocated to the Fast Track and a Trial Window and given standard Directions leading to a Trial on 20th January 2004. On 5th November 2003, the Claimant told her Solicitors for the first time that she had intended to return to fulltime work at 2009 when her youngest child would be 14 and now felt unable to do so. On 7th November, Claimant’s Solicitors told the Defendants of a potential claim for future loss of earnings and loss of pension. On 21st November 2003 further medical evidence was disclosed by the Claimant, supporting the claim for continuing loss. On 2nd December a witness statement was served, which had been signed on 11th November 2003, but which contained no mention of any intention to return to full-time work. On 9th December, a draft amended Schedule was served, totalling £106,000.00 including claims for care, future medical costs and future loss of earnings. The loss of earnings claim alone was for £92,875.00. There was a further claim for loss of pension, which had not been quantified. On 12th December 2003, the Claimant issued an Application to amend and rely on the new Schedule. On 19th December the matter came before the District Judge who allowed the Claimant to rely on the amended Schedule but struck out the claim for future loss of earnings and pension as having no real prospect of success. He ordered that the Trial Window should stand. The Claimant appealed to the Judge.

The decision

1. The District Judge had been wrong to strike out for having no reasonable prospect of success, claims which were supported by medical evidence.

2. However, the Appeal would be dismissed.

3. If the Claimant was allowed to bring claims for loss of earnings and pension, the Trial date would have to be vacated and the Defendant be given permission to obtain further evidence.

4. The purpose of the District Judge’s decision had been to deny the Claimant the opportunity of bringing the new claims, so as to preserve the Trial date.

5. CPR Practice Direction 28 paragraph (v) provides that the Court will not allow a failure to comply with Directions to lead to a postponement of a Trial unless the circumstances are exceptional. Litigants and lawyers should be in no doubt that the Court would regard the postponement of a Trial as an Order of last resort.

6. The Claimant had provided no reasonable excuse for not putting forward a claim for loss of earnings in May 2003 at the latest.

7. The Judge was not willing to overturn the decision of an experienced District Judge. The Claimant’s Application was to increase her claim from one pleaded at a maximum of £6,138.00 to one claiming a sum in excess of £100,000.00. It had been made too late.

Appeal dismissed.

For further information about this case please contact David Sanderson at sanderson@12kbw.co.uk or Mark Hammerton at markhammerton@veitchpenny.co.uk.

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