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In most personal injury cases a large part of an insurance litigation lawyer's task is to use interlocutory applications as effectively as possible to expose any weaknesses in the plaintiff's claim. Sadly, however, there seems to be no consistency in the decisions of district judges on numerous important interlocutory issues, leading to frustration and wasted costs. Let me give three examples:
Often plaintiffs fail to file with proceedings medical evidence and a special damage schedule, and by order 6 rule 1 (6)(b) the court may stay the proceedings pending compliance with the new rules. Many district judges will grant a stay upon an ex parte letter pointing out the breach, while others insist upon an inter partes application.
Order 13 rule 7 gives the county court jurisdiction in third-party discovery in personal injury actions, equivalent to RSC order 24 rule 7A. It is now absolutely clear from the Court of Appeal decisions in Dunn v British Coal (1993) 1CR 591 and Elliott v MEM (unreported, March 1993) that all medical records are discloseable direct to solicitors. Yet many district judges will seek to restrict disclosure, leaving defendants to appeal to the circuit judge.
Since the Court of Appeal decision in Rasfin v British Steel (1994) 2 AER 641 there is no doubt that if a trial date has not been applied for within the requisite period, then the action is struck out automatically by operation of order 17 rule 11. Yet many courts refuse to treat claims as struck out, on the directions of their district judge, and at least one court allows ex parte applications by plaintiff's solicitors giving extensions under order 17 rule 11, avoiding the automatic strike-out provisions.
What then is to be done? Consistency, certainty and fairness must be to all parties' benefit.
One possibility would be an appeal system from district judges not to the local circuit judge, but to specifically designated senior circuit judges whose judgments could be binding upon district judges.
Furthermore, that body of senior circuit judges should be empowered to issue practice directions and have a considerable input into the Green Book, in much the same way as the High Court Masters do into the White Book. What is required is district justice, not a national lottery.
Richard Foster is a partner in specialist insurance litigation at Vizards.