Misconduct will be punished

Few people would argue that generally speaking misconduct should be punished. In dispute cases claimants and defendants can act unreasonably and this can have serious punishing consequences.

Let us consider a recent county court case involving a claim by a lady who had slipped and injured herself when she attended an accident and emergency department at her local hospital. Let us forget the irony of that for the moment, but this was a case which appeared to be a fairly straight forward slipping case. Apparently the floor was not clean and the claimant slipped on a leaflet that had been left on the floor.

In these types of cases the usual defence would be that there was a reasonable, safe system of cleaning and monitoring in place (the system does not have to be perfect, just reasonable). However, when the claimant, following normal practice, served a letter of claim, the opponent denied that the accident had ever taken place and stated that they had no documents to disclose.

A formal response denying liability should be accompanied by voluntary disclosure of all relevant documents in the case whether they support the defence or not. The claimant therefore took the response made by the National Health Service Litigation Authority (on behalf of the NHS Trust) at face value. No doubt the claimant therefore thought that the opponent had no documents available to show that they had a safe system of cleaning/monitoring in place and so the claimant may well have also thought that her case against the NHS Trust was likely to succeed.

Imagine the claimant’s surprise when following the commencement of a court action the defendant actually then disclosed relevant documents which previously they had stated did not exist!

Unfortunately, for the claimant the disclosed records seemed to show that the defendant had a reasonable system of cleaning and monitoring in place and therefore the defendant was likely to have a valid defence to the claim.

The claimant discontinued the claim, but applied for costs against the defendant on the grounds of their misconduct. Normally on discontinuance a claimant cannot recover any costs (and currently in cases not involving personal jury a claimant will have to pay the defendant’s costs too).

The judge deciding the case took the view that there “clearly was misconduct on the part of the defendant”. He also stated “there has been abuse here by the trust and possibly by the litigation authority initially representing them”.

In the usual way the trust had been initially represented by the National Health Service Litigation Authority who had earlier wrongly stated that there were no documents to disclose. Hence, the judge awarded the claimant her costs even though she had discontinued her claim thereby punishing the defendant for its misconduct.

We are all enjoying the Olympics at present and much has been said about misconduct by some athletes and indeed some officials. To use a sporting metaphor it is clear that the court in this case is warning defendants that the court expects them to “play with a straight bat” and if they do not they will be punished. Who could disagree with this clear message?


Gerard Sanders

Partner, Head of Personal Injury & Clinical Negligence

Gerard qualified with a large regional firm in 1991. Since 1995 he has specialised exclusively on claimant personal injury work. More recently he has focused...

Partner, Head of Personal Injury & Clinical Negligence

Gerard Sanders

Gerard qualified with a large regional firm in 1991. Since 1995 he has specialised exclusively on claimant personal injury work. More recently he has focused on complex higher value clinical negligence and personal injury claims.

His greatest success has been winning the high profile case of Delaney-v-The Secretary of State for Transport where after almost 9 years of litigation involving two Court of Appeal hearings and an application to the Supreme Court he was finally able to establish that the Motor Insurers’ Bureau Agreement was incompatible with EEC law. As a direct result of the decision in this case the agreement has had to be amended to the benefit of many future victims of uninsured drivers.

Gerard is a member of the Law Society’s Personal Injury Panel and he appears in the latest Legal 500 rankings in the fields of personal injury and clinical negligence.

Gerard’s other professional qualifications include a Diplome D’Etudes Juridiques Francaises from Strasbourg University.

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