Thomas Spring reports on a case which Langleys successfully defended, recovering costs for our insurer client, despite having to overcome the hurdles of judgment in default and a refusal by the Claimant’s ATE insurers to provide indemnity.
The Claimant alleged that she had sustained a traumatic amputation to part of her index finger when she trapped it in a toilet cubicle door whilst attending the Defendant’s pub. She issued proceedings seeking damages of approximately £50,000 including £35,000 for prosthetics. The Particulars of Claim alleged that the Defendant was in breach of the Occupier’s Liability Act 1957 on the basis that the door was defective and dangerous.
By the time Langleys were instructed, judgment had long since been entered against the Defendant who failed to acknowledge service. However, our research revealed that the Defendant was in administration. Accordingly, the Claimant had required the permission of either the Court or the administrator to bring proceedings, neither of which had (at that stage) been obtained. This gave us grounds for applying to set the judgment aside but there was little point in doing so if we had no evidence with which to defend the claim thereafter.
However, we noted that the Claimant had told her medical experts that she could not recall exactly what had happened, only that she entered the toilet and left without the tip of her finger (and nothing in between times!). On that basis, despite only possessing one witness statement from the Defendant which was no longer trading, we decided to make an application to set aside the judgment in default followed immediately by an application for summary judgment on the grounds that the Claimant had no reasonable prospects of success.
Alongside that application, we made an offer to bear our own costs if the Claimant discontinued. The Claimant agreed to set aside the judgment by consent. However, the drop-hands offer was rejected. The Claimant would go on to obtain the administrator’s permission to continue with proceedings but before she was able to do so the Defendant entered liquidation, at which stage only the Court’s permission would allow the claim to proceed. The Claimant, therefore, countered our application for summary judgment with an application for permission to proceed.
At the hearing the Claimant was granted permission to proceed first, thus allowing our application to be heard. The judge found in the Defendant’s favour in that the Claimant’s statement of case disclosed no reasonable grounds for bringing the claim and, accordingly, the action was struck out in its entirety. The costs of defending the claim were summarily assessed in the sum of £3,400. Following a fairly substantial delay, the Claimant’s ATE provider refused to indemnify the Claimant, although they would not disclose the grounds for the refusal.
Accordingly, we put the Claimant’s solicitors on notice that it was our intention to enforce the costs order personally against their client. With no further delay, a cheque was received for payment in full from the Claimant’s solicitor’s office account.
Checking the trading status of the insured where default judgment has been entered is important to ascertain whether proceedings were served effectively.
We have had a number of successes with summary judgment applications, even when evidence has not yet been fully formed. This may indicate that the court is becoming more willing than previously to make an early assessment of the merits and strike out appropriate cases.
Early investigations and witness statements are crucial as years may pass and businesses may cease to trade, meaning witnesses are difficult to trace.