Derby County Court – Deputy District Judge Maybury 12 May 2016

Discontinuance following non - compliant medical evidence, means QOCS protection lost.

The Issues

Proceedings were served in December 2015 together with a screening audiogram, however no medical evidence was served with the Particulars of Claim at that time.

The Defendant applied to strike out the claim under CPR r.3.4(2)(c) in light of the failure to any serve medical evidence in support of his claim pursuant to paragraph 4.3 of the Practice Direction 16; the Defendant arguing that the audiogram alone did not constitute a medical report as it did not comply with CPR r.35.10 and the requirements set out in Practice Direction 35. The Defendant also maintained that the audiogram did not satisfy the criteria of Coles Lutman & Buffin in any event.

The Claimant’s solicitors purported to serve a notice of discontinuance and the hearing (for the Defendants application) was vacated. However, that was not the end of the matter as a hearing was still required to determine the issue of costs, the Defendant arguing that the case satisfied the grounds set out in CPR r.44.15 so the Claimant should automatically lose that protection.

Because the Claimant had served the proceedings without sufficient medical evidence the:

• Claimant disclosed no reasonable grounds for bringing the proceedings; and/or
• the proceedings constituted an abuse of process; and/or
• the conduct of the claimant's legal representative was likely to obstruct the just disposal of the proceedings.

Held

The court agreed with the Defendant and held that the notice of discontinuance had not been effectively served as it had been sent by email, and DWF LLP does not accept service in that format.

The Claimant’s case being struck out as requested in the Defendant's original application meant that the Claimant automatically lost QOCS protection.

Comment

Have you ever served proceedings in a claim for NIHL without medical evidence? Well a word of caution if you do.

Defendants will usually apply to strike out such claims for failing to comply with the CPR, but in the case of Acierno v Robinson Plc & Anor the claim was struck out and the Claimant automatically lost his QOCS protection as this was a post-LASPO case.

So a word of caution for Claimant lawyers;

1. Do not serve your Particulars of Claim without fully compliant medical evidence; and
2. Do remember the rules of service;

As pre LASPO claims are now reducing in number, QOCS is becoming far more relevant and Defendants will continue to look for ways for it to be dis-applied, either for significant breaches of the CPR and/or due to fundamental dishonesty.

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