Wickes Building Supplies Ltd v Blair

A defendant does not oppose a Stage 3 claim merely by objecting to late or additional evidence being considered. Mandatory dismissal under paragraph 9.1 of Practice Direction 8B applies only where the defendant opposes the claim continuing under the Protocol for the specified non-compliance.

Evidence not served in accordance with the Protocol and Practice Direction cannot ordinarily be relied upon. The court may permit it only where it cannot properly determine the claim without it. If the evidence is not needed, the court should disregard it and determine the claim on the admissible material.

Mr Blair brought an employers’ liability personal-injury claim under the Pre-Action Protocol for Low Value Personal Injury Claims. Liability was admitted, but damages were not agreed and the claim entered the Stage 3 Procedure.

At the Stage 3 hearing, Wickes objected to a witness statement which had not been provided under the Protocol. District Judge James excluded the statement and awarded Mr Blair £2,000 damages. HHJ Hughes QC allowed Mr Blair’s appeal, set aside that order and dismissed the claim under paragraph 9.1 of Practice Direction 8B. Wickes brought a second appeal concerning whether an objection to late evidence triggered mandatory dismissal.

1. Appeal allowed. Baker LJ, with whom Holroyde and Hamblen LJJ agreed, restored the district judge’s order. Wickes had objected to the late statement being considered; it had not opposed the claim continuing under the Stage 3 Procedure.

2. Paragraph 9.1 of Practice Direction 8B concerns a defendant who objects to the claim proceeding under the Protocol because of procedural non-compliance or new evidence. It does not apply merely because the defendant asks the court to exclude material which was served late. A defendant served with such material may either oppose the claim continuing under the Protocol or continue with the process while objecting to the evidence. Wickes had plainly taken the latter course, as its acknowledgement did not object to the Stage 3 Procedure.

3. The district judge therefore correctly applied paragraph 7.1. Evidence not served in accordance with the Protocol and Practice Direction must be disregarded unless the court cannot properly determine the claim without it and orders otherwise. The judge excluded the statement and assessed damages on the remaining evidence. That course furthered the Protocol’s aims of inexpensive and speedy resolution.

4. The court also gave general guidance on the scheme. In the circumstances in paragraph 9.1, dismissal is mandatory and a claimant may begin a Part 7 claim, subject to limitation and the costs regime. Where paragraph 7.2 applies, the court must order continuation under Part 7 and Stage 3 fixed costs are unavailable. In other cases, the residual discretion under CPR rule 8.1(3) must be exercised consistently with the overriding objective and the Protocol’s aims.

5. Phillips v Willis [2016] EWCA Civ 401 did not assist the contrary interpretation. It did not preclude all use of CPR rule 8.1(3); it held only that a transfer in that case would have been impermissible.

• Court of Appeal (Civil Division): Wickes’s second appeal was allowed and the order of District Judge James was restored: [2019] EWCA Civ 1934.

• Winchester County Court (HHJ Hughes QC): Mr Blair’s appeal was allowed. The district judge’s order was set aside and the Protocol claim was dismissed under paragraph 9.1 of Practice Direction 8B.

• Winchester County Court (District Judge James): The late witness statement was excluded. Wickes was ordered to pay £2,000 damages and £1,080 costs.