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Injured? What to do. (5)

Suppose a plaintiff fails to comply with the pleading requirements of Section 10 of The Civil Liability and Courts Act 2004. What will happen to the plaintiff or his/her claim? The Section provides as follows;

“(3) Where a plaintiff fails to comply with this section—

a)              the court may—

(i)             direct that the action shall not proceed any further until the plaintiff complies with such conditions as the court may specify, or

(ii)           where it considers that the interests of justice so require, dismiss the plaintiff’s action,


b)             the court shall take such failure into account when deciding whether to make an order as to the payment of the costs of the personal injuries action concerned, or the amount of such costs.

(4) Where a plaintiff fails to comply with this section, the court hearing the personal injuries action concerned may draw such inferences from the failure as appear proper.”

These are very strange ideas. Remember that the plaintiff has pleaded the essentials of the claim; that the plaintiff was injured; that the injury is the fault of the defendant.

Prior to 2004, for not less than fifty years, plaintiffs were not required to give any further details on the issue of proceedings. The plaintiff was, however, obliged to give the details to the defendant before the trial. It was, (and still is), in the plaintiff’s interest to find out those details and to communicate them to the defendant. Only when the defendant knows these things can the defendant readily agree to settle the claim. Settlement is the best outcome of personal injury litigation; there are insufficient judges to adjudicate on all or most claims for personal injury.

Section 10 has changed the focus. It has done this by changing the tone. Take the subject of injury. How should an injury be pleaded? Is it sufficient to say that the plaintiff’s right leg was broken? Or that he suffered a burn on his right arm?

The answer might be yes, but in practice the pleading of these injuries will rely upon the description given in an available medical report. So, the exact site of a break in an arm will be pleaded (because doctors mention these things) and the form and degree of the break will be pleaded. So, too, for the burn; where it is and how deep and how long it took to heal will be pleaded.

But suppose some of these things are not yet known? Then there is a temporary insufficiency of pleading. Time will usually cure this and the plaintiff will become enabled to plead in full.

Section 10 will have none of this. How dare the plaintiff issue proceedings when full details are not pleaded?

Look at the sanctions for this attitude problem. The judge can prevent the case from proceeding until the plaintiff conforms to the new standard. Or, the court can dismiss the claim. Or the plaintiff’s entitlement to costs may be imperiled. Or the court can be portrayed as having a huffy attitude, at trial, to plaintiffs whose pleading does not meet the standard the court might be persuaded to adopt on these questions.

These disputes will emerge long before the trial. They will, usually, emerge before the close of pleadings.

What does that mean?

Currently, it means that the pleadings are closed when the defendant serves a defence.

So, the defendant will harass the plaintiff so that the defendant’s obligation to serve a defence can be evaded.