Foreman v Williams

Relief from sanctions requires the court to consider the seriousness and significance of the breach, why it occurred, and all the circumstances so as to deal with the application justly. Where a party’s own conduct has prevented service and participation, a failure to comply with trial directions may not be serious or significant in the particular context. The court may proceed in that party’s absence where there has been proper notice and an opportunity to participate. Even in an undefended quantum assessment, the claimant must prove the claim. Damages must provide fair, just and reasonable compensation without producing injustice or an unreasonable award. General damages are assessed globally rather than by mechanically adding awards for separate injuries.

The claimant was injured when a microlight aircraft piloted by the defendant crashed shortly after take-off. Judgment on liability had previously been entered for the claimant in the defendant’s absence. The matter proceeded before the court as a quantum-only assessment.

The defendant had moved abroad, had not engaged meaningfully with the proceedings and did not attend the trial. The claimant sought relief from sanctions for late service of witness evidence, expert evidence and the schedule of loss, and applied to proceed in the defendant’s absence. The central issues were whether those applications should be granted and the appropriate damages for the claimant’s injuries, losses and future disadvantage.

1. Relief from sanctions. CPR 3.9 required consideration of the seriousness and significance of the breach, the reason for it, and all the circumstances. Applying the three-stage approach in Denton v TH White Ltd [2014] EWCA Civ 906, the breaches were not serious or significant in the specific circumstances. The defendant had notice of the proceedings and trial, but had frustrated attempts to serve the documents and had apparently sought to avoid the litigation. The claimant obtained relief from sanctions.
2. Trial in the defendant’s absence. The court granted the application under CPR 39.3. The defendant had received notice and opportunities to participate or apply to the court. His conduct justified proceeding in his absence, subject to his potential right to apply to set aside under CPR 39.3(3).
3. Quantum. The claimant still had to prove his losses. Compensation had to be fair, just and reasonable to both parties and not beyond what society would regard as reasonable. The court assessed the injuries and losses on the evidence, awarding general damages globally rather than adding separate injury brackets mechanically. The 10% uplift following Simmons v Castle was taken into account.
4. The court awarded £42,500 for general damages, £23,000 for a Smith v Manchester award reflecting a real risk of future disadvantage on the labour market, and damages for earnings, care, travel and miscellaneous expenses. Future gratuitous care was discounted by 25% and limited to the claimant’s 70th birthday.
5. The total award was £99,449.08, inclusive of interest. The claimant was awarded costs on the standard basis, subject to detailed assessment if not agreed.

The judgment describes earlier procedural orders but no appeal.

• High Court (Queen’s Bench Division): judgment on liability had been entered in the defendant’s absence on 8 February 2017. The court later granted relief from sanctions, permitted the quantum trial to proceed in the defendant’s absence, assessed damages and awarded costs.