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Tomer v Atlantic Cleaning Service Ltd, High Court, 4 July 2008

15 August 2008
The issues

Unless Order – Schedule of Loss struck out – whether, when neither party had noticed that claim had been struck out, claim for special damages should be reinstated at Trial.

The facts

The Claimant was a self-employed plumber who had an accident in October 2002 when he fell from a ladder and broke his right ankle. Proceedings were commenced in October 2005 but it did not come on for Trial until January 2008. At Trial, the Judge drew Counsel’s attention to the terms of an Unless Order dated 9th March 2006 which ordered the Claimant to provide a medical report by 25th March 2006, failing which the claim would be struck out; and requiring the Claimant to provide a Schedule of past and future expenses or losses by the same date, failing which the claim for special damages would be struck out. After some research by the Judge it became apparent that the report had been served but, by letter dated 24th March 2006, the Claimant indicated that he did not seek to pursue the special damages claim. That position was apparently confirmed by a subsequent statement from the Claimant. The Judge therefore concluded that the claim for special damages had been struck out. Although subsequently Orders by the Court had been made referring to a claim for special damages, in the absence of any Application for relief from sanction under CPR 3.9 he concluded that those orders were “nugatory”. The Judge vacated the Trial date, declared the claim for special damages, which was the majority of the claim pursued by the Claimant, to be struck out but exercised his discretion in favour of the Claimant in that he allowed the Claimant to apply for relief from sanctions within 28 days. The Claimant was ordered to pay the costs. The Claimant sought permission to appeal that Order. No Application for relief was made within the 28 day period. The Claimant relied on the Defendant’s apparent acquiescence in the months before Trial in the bringing of a special damages claim. Counsel for the Claimant argued that the Defendant could not now jump on the Judge’s bandwagon and argue that the claim had already been struck out.

The matter came on appeal to the High Court Judge.

The decision

The Order of the 25th March 2006 had been entirely proportionate given that the accident had happened 3 ½ years before. No Schedule of Special Damage was served. In accordance with the principles set out in Marcan Shipping the claim was struck out without any further Order of the Court or any requirement on the part of the Defendants to do anything further about the special damages claim.

If the claim for special damages was withdrawn rather then struck out, did it make any difference? The Claimant had argued that, because the claim had been withdrawn and, as the Claimant argued, not struck out, it was therefore open to the Claimant to reactivate the claim at a later date. This could not be right. It would mean that a party who realised at the last minute that it could not comply with an Unless Order could withdraw that part of the claim and seek to reinstate it at a later date and it would be a way of flouting the effects of an Unless Order. In effect, by the letter of the 24th March 2006 the Claimants were acknowledging that they were not going to seek to comply with the Order and, in those circumstances, a striking out of the claim could be regarded as an order made by consent. If the Judge was wrong and the matter had been withdrawn rather than struck out, it would have made no difference. The Claimant would still have had to have sought permission from the Court to add back into his claim this principle head of loss and the Application would have given rise to the same issues – delay, prejudice, res judicata and arguments by analogy to withdrawal of an admission – which would all be similar, if not precisely the same, as the sort of matters a Court would have had to consider under CPR 3.9.

Had an Application been made to reinstate, either for relief from sanction or to reinstate the special damages claim, such an Application would have failed. It would have failed because of the delay – by then the accident was 5 years old – and for the absence of any explanation as to how and why such a long time had been allowed to pass before the claim was first made and no explanation for why the action had progressed so slowly. Secondly, there would have been a lack of any proper explanation for the radical change of mind on the part of the Claimant. Thirdly, the Court, considering such an Application, would have concluded that the claim would have failed in any event on the facts.

As to the Claimant’s argument that the Defendant had waived the breach by its conduct, or had acquiesced in it, the claim for special damages had never properly been before the Court and therefore the concept of waiver or acquiescence could not be directly relevant.

The Defendant’s conduct was not beyond reproach because the Unless point was never taken until Trial. That failure must mean that the Defendants were entitled to potentially less advantageous Costs Orders than they would otherwise have obtained. However, it was not possible to say that the Defendant had ever acquiesced in bringing the special damages claim, to which they had objected so fundamentally. This case was very different to Langtree v Richardson, where the breach was a technical breach, namely the service of a List of Documents which was not signed. Here the breach was fundamental because there was a complete failure to comply with an Unless Order.

In any event, on the facts, the special damages claim would have failed in any event.

Appeal dismissed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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