Law v Raleys Solicitors

LADY JUSTICE MACUR: This is a renewed application to bring a second appeal against the order of District Judge Pema made on 23rd December 2014 in that he permitted the defendants in the claim to rely upon Facebook and surveillance evidence that was not disclosed prior to the service of witness statements.

The basis of the application is that the District Judge thereby permitted a breach of the rules without applying the sanction available to him in refusing to admit such evidence, it being apparent to him and found that the defendants had deliberately withheld the Facebook and surveillance evidence in order to obtain first the witness statement of the claimant.

In brief, the claimant was pursuing a service claim in relation to an industrial injury. Liability had been admitted but quantum was disputed. The surveillance evidence obtained as a result of investigation of the claimant's Facebook entries indicated that the claimant was not so disabled as was claimed to be the case. The overall claim was relatively modest; this was a fact that the District Judge took into account.

The grounds of appeal sought to be argued before the full court are nine in number. They relate, it has to be said, principally to the decision on the particular facts. I struggle to see that any of them, if accurately depicting the judgment of District Judge Pema in the respective manner described, raise anything but issues that are fact specific to the case.

CPR 52 rule 13 applies. Permission to make a second appeal should only be granted where there is an important point of principle or practice involved that is one not previously determined by the Court of Appeal or there is some other compelling reason to grant permission. I find that neither limb of the rule applies.

The contentions of Mr Elgot amount to this: in the case where the court is satisfied that the defendants, or in some cases one could say claimants, deliberately withhold documentary evidence, including surveillance evidence, in order to challenge the assertions of the other party and take their chances in failing to make timely disclosure in accordance with the rules and as urged by the now Master of the Rolls and Carnworth LJ in Watford Petroleum Ltd v Interoil Trading SA & others [2003] EWCA Civ 1417, then there must inevitably be a sanction imposed which is to prohibit the utilisation of that evidence. The authorities and the rules quite clearly do not lead to that conclusion.

The District Judge's judgment in this case was comprehensive, in some parts difficult to follow no doubt, but, given the strictures of time and applying the principles of Piglowska, it is not appropriate to apply a yardstick of exact and precise use of vocabulary. The principles that he adopted and the arguments made by Mr Elgot which succeeded are dealt with adequately in paragraphs 38 onwards. In those circumstances it seems to me that the applicant fails to make good any point of principle or practice, nor can he urge other than that this District Judge reached a decision that in his discretion was available to him on the facts and accorded with the overriding objective of the Civil Procedure Rules to deal with claims justly, proportionately and efficaciously. In those circumstances, this renewed application is dismissed.