Mark v Universal Coatings & Services Ltd & Anor

Relief from sanction under CPR 3.9 is required only where a rule, practice direction or order imposes an express sanction, or where the default has a sufficiently significant implied consequence. Failure to serve a medical report and schedule of loss with personal-injury particulars does not ordinarily attract that regime, particularly in complex claims where early documents may be uninformative and later case management can regulate service. Strike-out for abuse of process is draconian. Procedural defaults should not lead to strike-out where proportionate measures, such as an unless order or costs, can address them. A finding that the court was misled by inconsistent solicitor evidence requires proper investigation where plausible explanations remain.

The claimant alleged that he had developed silicosis and massive pulmonary fibrosis through exposure to silica dust during employment with the first and second defendants. The primary limitation period expired on 27 June 2015. The claim form was issued before expiry but was served late, following an extension obtained without notice. The claimant later served the Particulars of Claim without a medical report or schedule of loss.

HHJ Mark Gargan struck out the claims against all three defendants. The claimant did not appeal in respect of the third defendant, but appealed against the strike-out of the claims against the first and second defendants. The central issues were whether the failure to serve the medical report and schedule engaged the CPR 3.9 relief-from-sanction regime, and whether the claimant’s procedural defaults cumulatively amounted to an abuse of process justifying strike-out.

1. Appeal allowed. The claims against the first and second defendants were reinstated. The claimant did not challenge the position of the third defendant.
2. CPR 3.9 concerns sanctions imposed for breach of a rule, practice direction or court order. An implied sanction may arise where the default has a significant procedural consequence. The court accepted the examples discussed in Altomart v Salford Estates [2014] EWCA Civ 1408 and Sayers v Clarke Walker [2002] 1 WLR 3095, where failure to obtain an extension could prevent an appeal or materially confine the grounds available on appeal.
3. Failure to comply with CPR 16 PD 4.2 and 4.3 by omitting a medical report and schedule of loss from the Particulars of Claim was not in that category. In complex personal-injury litigation, early reports and schedules may be largely uninformative, particularly where causation remains unresolved. The defendant may seek an order requiring service, and the court can provide for fuller evidence through case management. The mandatory word “must” did not itself create an implied sanction requiring an application for relief.
4. The three-stage approach in Mitchell v News Group Newspapers Ltd [2014] 1 W.L.R. 795 and Denton v TH White Ltd [2014] 1 W.L.R. 3296 therefore did not apply to this default. The failure to serve the report and schedule could not, without more, justify treating the claim as incapable of proceeding.
5. Strike-out for abuse of process is a draconian remedy. The principles in Biguzzi v Rank Leisure plc [1999] 1 WLR 1926 and Marstons plc v Charman [2009] EWCA Civ 719 required consideration of proportionate alternatives, including unless orders and costs. The alleged inconsistency between the solicitors’ evidence did not establish that the court had been deliberately or recklessly misled without further investigation and, if necessary, oral evidence. The remaining defaults, individually or cumulatively, did not justify strike-out in a significant personal-injury claim.

• High Court (Queen's Bench Division): On appeal, Mr Justice Martin Spencer allowed the appeal and reinstated the claims against the First and Second Defendants.
• Middlesbrough County Court: On 8 May 2017, HHJ Mark Gargan struck out the claims against all three defendants. The claimant appealed only in respect of the First and Second Defendants.