Andrew McLaughlin has succeeded in the High Court before Mr Justice Freedman on an appeal against a refusal of relief from sanction relating to three witness statements that were served 1 year late.
The case, Julie Tiernan-Spratt v Wolverhampton City Council [2023] EWHC 811, has received widespread publicity including in the Law Society Gazette because of its highly unusual facts. Andrew represented the defendant. The claim was started originally by Mr Spratt, an employee of the Council, who suffered a traumatic amputation of a fingertip. He alleged this triggered memories of horrific childhood sexual and physical abuse after he was allegedly taken into care at 6 years of age due to parental beating. His employment was terminated on the grounds of ill health due to complex PTSD. He served a psychiatric report in support of his claim.
The defendant then obtained a report from a separate psychiatrist who challenged the authenticity of Mr Spratt’s account. Two days after it was served he hung himself. His widow then took up the original claim and launched a fatal accident claim on behalf of herself and his dependants for well in excess of £1m. The defendant amended its defence to plead fundamental dishonesty on the basis he was not in care and the abuse he described could not have occurred. Exchange of witness statements took place on 4 March 2021.
There was no direct evidence from any of the witnesses on either side in relation to the deceased’s allegations. The defendant had no record of him ever being in care, but several of the claimant’s witnesses gave hearsay evidence about things he had said and disputed the absence of care records as proving anything. The defendant then approached the deceased’s mother and brother who gave statements to the effect the deceased had never left the family home and had never been in care.
The defendant’s solicitor produced a statement exhibiting copies of photographs taken of the deceased at different stages of his childhood, which his mother did not want to part with. The defendant served these statements one year late and applied for relief from sanction. District Judge Dickinson refused the application, she said it was finely balanced but there was no good reason for the delay and it should be dismissed. On appeal Freedman J held, following earlier High Court decisions in Soderberg v Essex Partnership NHS Trust and Razaq v Zafar, that a pivotal consideration was the impact of refusal on the position of the trial judge and the court’s ability to do justice between the parties. He held that the prejudice to the court due to being deprived of the evidence in circumstances where the issue was one of fundamental dishonesty, and that was no other direct evidence, was a very important factor.
His Lordship also decided that although the defendant’s reasons for not approaching the witnesses earlier were not good ones for the purposes of stage 2 of the Denton test, they were not at the worst end of the spectrum and were the product of a conscientious desire to avoid causing distress rather than a defiant breach of a court order. This kind of calibrated approach to the quality of the reasons for the delay was relevant at stage 3 of Denton.
It is of course already well established that, even where there is a serious breach at stage 1 [i.e. when considering the extent of the breach], the court is entitled to take into account at stage 3 whether the breach is at the lower or higher end of the scale of seriousness.
This decision confirms that a similar approach should be taken to the reasons for the delay even where they are not good ones. This is part of the stage 3 assessment of all the circumstances of the case. A link to the judgment can be found here.
Andrew was instructed by Joanne Mulvenna of Browne Jacobson.
You can also find further details about this case on the Law Society Gazzette website here.
If you would like to instruct Andrew on any related matter, please contact his clerks.