“High Court claim conduct produces Judge’s feeling of disappointment”

A High Court judge has expressed her “dismay” that there was no pre-trial review in a case that was discontinued on day four of a trial that had been listed several months earlier.

Mrs Justice Lambert was critical of the parties in Drummond v Keolis Amey Docklands Ltd [2023] EWHC 853 (KB) for not dealing earlier with the claimant’s application to re-amend his particulars of claim, which was made on the first day of the trial listed for seven days.

The claimant suffered life-changing injuries from being hit by a Docklands Light Railway train after he went onto the tracks at Canary Wharf station. He had spent the evening celebrating the end of his exams.

His particulars of claims were non-committal about how he had got onto the track – he could either have gone through a gate at the end of the platform or sidled around it.

On the first day of the trial, Mr Drummond sought to re-amend the particulars to plead that the defendant had failed to ensure the gate was locked and alarmed. The defendant strongly opposed the application.

Lambert J decided that this issue would only be relevant if the claimant could establish he had used the gate.

She dealt with that question as a preliminary issue, giving the parties a day to prepare for it, and eventually held that she was not satisfied the claimant had used the gate.

The claimant then sought the approval of the court to discontinue the claim with no order for costs.

“There were, in reality, no other viable allegations against the defendant,” the judge observed and she approved the discontinuance.

Lambert J continued: “I must record my dismay that it was only on day four of a trial which had been listed for several months and after litigation had been ongoing for over two years that this litigation was resolved.

“I make no comment concerning the progress of the litigation before the application to amend the particulars of claim. No doubt there were difficulties arising from disclosure which made it difficult for the claimant’s team to crystallise its case.

“However, after the application to amend the pleadings had been made, the case was crying out for a pre-trial review before the trial judge.”

This was not an application which “tinkered with the outer edges of the claim”, she went on – the proposed amendments went to its root.

“If, as I am informed, there was to be no joint meeting for the purpose of narrowing the issues, then a pre-trial review would have saved some costs and no doubt the claimant’s family much stress and anxiety.

“Both parties should have ensured that the amendment issue was resolved, or at least case managed, before the beginning of the trial.”

Photo: Roel Hemkes, CC BY 2.0 <https://creativecommons.org/licenses/by/2.0>, via Wikimedia Commons

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