Posted by: John Brace | 30th October 2018

DJ Hennessy refers to “traffic chaos” and criticises Wirral Council for not complying with a court order

DJ Hennessy refers to “traffic chaos” and criticises Wirral Council for not complying with a court order

                                      

Birkenhead County Court entrance 5th October 2018

Birkenhead County Court entrance 5th October 2018

This continues from an earlier story about the adjourned hearing on the 5th October 2018.

Today was a hearing in the two linked cases (E14YJ013 & E24YJ652) brought by Ms Chalmers against Wirral Borough Council.

The hearing was scheduled for 10.00 am but I was told when I arrived (having walked about a mile and a half there which was faster than the buses and traffic were going) that the hearing was likely to start late due to the gridlocked traffic. Many people were ringing the Birkenhead County Court stating they would be late.

Attending today for the Defendant Wirral Council was Mr Bayatti (a solicitor working for Wirral Council) and two other Wirral Council employees who although present for the hearing did not speak during the hearing.

The hearing was held before District Judge Hennessy in Judges’ Chambers on the 4th floor.

At the start Wirral Council’s solicitor introduced his colleagues from Wirral Council and (as I have no right of audience) who I was too. The Judge said she had no problem with me being there as it was an open hearing.

DJ Hennessy explained that she had delayed the start of the hearing listed for 10.00 am to 10.40 am as the Claimant (Mrs Chalmers) was not there. She explained that notice of the hearing had been sent out earlier that month (4th October). She was not blind to the traffic problems, but pointed out it was not a “huge distance” for the Claimant to the Court but no communication had been received by the Court from the Claimant. The Judge had waited to twenty to eleven, hence the delay as it as it had been fair to wait to find out the circumstances.

The first application (of Wirral Council) was for relief from sanctions, the second application was to strike out the Claimant’s claim. The first application had come about as a result of the Council’s failure to file a directions questionnaire. The circumstances in respect of that had been that the Court had sent out a request to do so within an Order. The Order had required a directions questionnaire to be filed with the Court by 26th March and in the other case by the 23rd April. Wirral Council had sent in one directions questionnaire only along with a proposed directions order asking the Court to consolidate directions in respect of both cases.

Discussion then went on to discuss the libel case as the two cases had followed different routes. Wirral Council explained a brief history and referred to the “Denton case&rdquo ([2014] EWCA Civ 906) and the four stage test outlined in that case. Mr Bayatti said there was a good reason for the default although. He described it as a mistake as directions questionnaires should’ve been completed for both matters so there wasn’t a good reason but there was a reason for the mistake to have occurred. Moving to whether the fault was serious or significant he referred to the “unless order” sent out on the 3rd May.

The Judge said she would find that.

Mr Bayatti explained that he had a wrongful reading of the directions about the directions questionnaire.

The Judge asked him which case number he was referring to? The answer given was the E24YJ652 case.

Wirral Council continued that it had been his wrong view that it was a standard order and the fact that a directions questionnaire had not been sent in was wrong, but went on to his thoughts as part of the consideration as to whether or not it was significant or serious as to the effect on proceedings.

The Denton case [2014] EWCA Civ 906 had caused the trial date to be lost. However in this matter proceedings were at an early stage regarding the impact of the failure. Mr Bayatti said it was a genuine mistake and that it wasn’t intentional on the Council’s part not to submit a directions questionnaire. It had been unfortunate that the matters were separated. However the seriousness and significance was diminished by the early stage in proceedings.

He continued to say that these were the factors that the Judge needed to consider when determining whether to grant relief. Mr Bayatti appreciated that the Court had a right to expect all directions to be upheld, maintained and complied with. It was a shame the matter had not been fully complied with, however in his view the impact was so slight in terms of the way proceedings proceeding, that the court should have regarding to its overriding duties. Mr Bayatti clarified by saying that he was referring to the need to deal with litigation justly, efficiently and at a proportionate cost.

To enforce compliance with the rules, his argument was that whilst there had been some delay or additional work as a result in his view it hadn’t impacted on the course of the case. The two cases were on the same facts. The fault on the council’s part had been by not completing a procedural document. He concluded by saying that it summed up the position but he was happy to submit to questions and for the benefit of the doubt (in reference to his earlier references to Wirral Council) it was his actions that had led to where we are today.


The Judge thanked him and asked if there was anything else. Mr Bayatti said that there wasn’t unless there were questions.

District Judge Hennessy said that the two applications in two linked cases were both applications by Wirral Borough Council. They were not as yet due to be listed but they would be listed for the same day before the same judge. Mrs Chalmers was not at court although she had arrived for other earlier hearings. DJ Hennessy had purposefully not started till twenty to eleven in order to give her time to attend due to the “traffic chaos” in the area caused by problems in the Wallasey Tunnel.

However the Claimant was from an address not far away in Birkenhead although she may have come by car it was not a huge distance. DJ Hennessy had thought about what to do in her absence and what not to do in her absence.

She went on to refer to the letter from the Claimant’s GP, which didn’t give DJ Hennessey cause for concern that they couldn’t deal with it despite the letter not being the most comprehensive letter.

DJ Hennessy had had the benefit of speaking to Mrs Chalmers at a couple of hearings.

The first case in time was E14YJ013, the claim form had been served on the 25th January 2018 and was a claim for libel, the second in time was E24YJ652 served on the 15th February 2018 and was a claim for negligence.

The libel action which had been started first had required a directions questionnaire earlier than the second action. The Judge referred to a transfer of one of the cases to Liverpool and the failure of the Defendant to file a directions questionnaire.

The matter had been adjourned and sent back to Birkenhead, where it had been joined with the libel case so they would both be listed at the same time.

The other application before the court was for a strike out.

To follow what had been said by Mr Bayatti, yes there had been a reason given about the directions questionnaire as it was thought erroneously that only one was needed for both cases. The unless order of 3rd May had been missed and not actioned. However District Judge Hennessey had got to consider all the circumstances using the well-known Denton test.

DJ Hennessy’s analysis was that the breach was serious, significant as the failure to submit the directions questionnaire had derailed the litigation. Was there a good reason, DJ Hennessy was not convinced there was a good reason. Failure or oversight was not a good reason as litigation had to proceed efficiently in accordance with the Civil Procedure Rules and Practice Directions.

DJ Hennessy said she was not just there for disciplines’ sake but that Wirral Council had to bear in mind the knock on effect and court time being used when it need not to be used.

The directions questionnaire in one case had alerted her to the other case, but there was nothing on the other case to alert the other way round.

In her consideration it seemed to her that there were two cases with the exact same subject matter (but one libel and one negligence) albeit it seemed common sense it was not necessarily that the cases would be consolidated. She referred to the use of juries for trials in libel cases in the High Court. Therefore it wasn’t common sense for the cases to be managed together.

One case was heading to trial, the other was pending strike out.

However it seemed to DJ Hennessy that it seemed to her that in all the circumstances it was right and justifiable to grant the defendant relief from sanctions. While DJ Hennessy was critical of the Defendant’s inaction over the directions questionnaire which should have been filed, which is serious, she was satisfied that in all the circumstances a fair trial could still take place. Comparing one cases’ progress to another it seemed to her that proper exercise of her discretion for relief from sanctions was to dispose of the first application.

The Judge read out her order which included, “The Defendant is granted relief from sanctions pursuant to their application of 28th August 2018 (case number E24YJ652)” and a further part of the order reinstated Wirral Council’s defence and stated that the judgement dated 1st July 2018 was satisfied.

DJ Hennessy asked if there was anything else arising out of her order and said that that left the negligence action back on track.

She pointed out to Mr Bayatti that she’d just noticed that the court file had three copies of his application and asked if Mr Bayatti had received a sealed one back? He replied that he hadn’t just notice of the hearing.

DJ Hennessy asked Mr Bayatti if the application had been served on Mrs Chalmers?

Mr Bayatti said he had delivered a copy of the application but he couldn’t remember the date has he hadn’t got it with him. He had delivered it to her but he couldn’t confirm the date.

There was whispering between the three Wirral Council employees at this point.

Mr Bayatti said it was his mistake, Mrs Chalmers had been notified of the vacating of a previous hearing as a result he didn’t think the applications had been included in the letter that was sent out.

DJ Hennessy said that (referring to whether the application had been served on the Claimant) that if it hadn’t then she couldn’t hear the application or make an order.

Mr Bayatti asked if Mrs Chalmers had been sent a notice making her aware of the hearing?

DJ Hennessy said that the notice was not there and that if three copies had been served on the Court (but not one on the Claimant) then she couldn’t make the order and would not be going to. There would have to be a new hearing or a chance for Mrs Chalmers to have her say, otherwise it wasn’t fair. Whether Mrs Chalmers had been invited to the hearing didn’t effect that.

Mr Bayatti repeated that Mrs Chalmers knew the hearing date.

The District Judge replied.

Mr Bayatti said that Mrs Chalmers did have a copy of the application, because he had delivered a copy when delivering the applications to the court. He said he had delivered a copy the same day to her care of address to the person assisting her (McKenzie Friend). He thought Mrs Chalmers had had a copy.

DJ Hennessy said the hearing would be adjourned for a few minutes so that Mr Bayatti could make enquiries as there was the possibility it hadn’t been served on Mrs Chalmers. Mr Bayatti said he might not have a hard copy but would be able to receive one by email.

The Judge, myself and the Wirral Council employees left Judges’ Chambers for a short time.

Continues at After Wirral Council ask for libel case to be immediately struck out, DJ Hennessy gives Claimant 3 weeks and chance to amend her Particulars of Claim first.

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