In Chapman v Tameside Hospital NHS Foundation Trust the County Court decided that a claimant’s costs of an occupiers’ liability claim was to be paid by the defendant (an NHS trust) following the claimant discontinuing her claim. The reasoning for this unusual outcome was the defendant’s disclosure was considered by the court to be “entirely unacceptable” and went completely against the way parties are meant to conduct themselves in accordance with the Civil Procedure Rules and the Pre-Action Protocol.
The claimant sent a letter of claim to the defendant in accordance with the Protocol, to which the defendant responded, denying that it was liable and stating it had nothing to disclose. Later in the proceedings, the defendant disclosed some documents on which it relied to prove the existence, implementation and operation of a system to ensure the safety of the premises. Following this disclosure, the claimant decided to discontinue her claim near to the trial date.
The judge set out that the disclosure that was made by the defendant under the protocol should have included all documents in their possession that were material issues and would have been ordered to be disclosed by the court. The purpose of these requirements, as with others set out in other protocols and the CPR generally is to avoid the need for litigation if at all possible.
Deciding on the balance of probabilities, the judge concluded that had this disclosure been made at the outset, there would have been no proceedings.
This case serves as a useful example to any parties who have to make disclosures as part of any litigation proceedings of the difficult balance to be achieved between disclosing documents unnecessarily and exposing themselves to penalty through failure to give disclosure that should be given.
For more information, contact our Dispute Resolution team on 0345 070 6000.