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Collins v Gordon, Court of Appeal, 21 January 2008

7 March 2008
The issues

Trial date – overriding objective – vacating Trial date.

The facts

The Claimant was 18 years old and a patient within the meaning of the Mental Capacity Act 2005. He brought his action through to official solicitor. In 1997 he was hit by the Defendant’s car when crossing the road and sustained serious injuries. In 1999 Susan Rodway was instructed to act for him and has represented him ever since. In 2003 proceedings were commenced. Liability was admitted but there was a dispute as to quantum. The Claimant’s case was that he should recover about £6 million. The Defendant valued the claim at about £800,000.00. The Trial was estimated to last 12 days. In October 2007 a Case Management Conference was conducted by the Master who ordered the parties to apply to the Clerk of the Lists by 2nd November 2007 for an appointment to fix a date for Trial in the trinity term 2008, Susan Rodway having indicated at the CMC that she would not be available for most of June 2008. When the matter came before the Clerk of the Lists the Claimant was not represented and Counsel was unable to explain that error. In the absence of representation for the Claimant the Defence succeeded in its submission that the Hearing should be in June 2008. The Defendant had a difficulty with its psychiatrist, Dr L E L Assra, who was on holiday for the months of July and August 2008. The Claimant sought to vacate the Trial and applied to Cranston, J in November 2007. The Claimant had other difficulties with the Hearing date, including the unavailability of their neuropsychologist, the partial unavailability of their care expert, the difficulties in attendance of their neuropsychiatrist and ear, nose and throat surgeon. The Judge refused to vacate.

The Claimant appealed.

The decision

The Judge had recognised the importance of the overriding objective but had sought guidance from Practice Direction 29 paragraph 7.46 which dealt with a situation where a party had failed to comply with case management directions. He had been wrong in this regard as that was not this case. However, he had relied on the observation in the Practice Direction that in such a situation postponing a Trial is an order of last resort.

That conclusion was wholly wrong on the evidence available to the Judge. In the context of this case the Clerk of the Lists should have been persuaded to accommodate the holiday dates of the newly instructed psychiatrist at the expense of leading Counsel.

It was surprising that the Clerk of the Lists had been persuaded to accommodate the holiday dates of the newly instructed psychiatrist to the expense of leading Counsel instructed in the case for many, many years. The Judge had the opportunity to put that right. The interest of justice plainly required the Trial to be fixed to begin on either the 14th July 2008, with the Defence making suitable travel arrangements for the attendance of Dr L Assra or instructing another psychiatrist or on the 24th November 2008, despite the obvious disadvantage of putting the starting date back by a few months.

Appeal allowed.

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