Insights - Claims set to fail when they do not comply with the Civil Procedure Rules

Clinical Negligence -

This article was first published on Lexis®PSL Personal Injury on 13 February 2014.

 

Personal Injury analysis: Francesca Lewis, a barrister at Old Square Chambers, advises that the judgment in Murrills is a reminder that failure to serve proceedings in compliance with the Civil Procedure Rules can lead to downfall.

 

Original news

Murrills v Berlanda and another [2014] EWCA Civ 6, [2014] All ER (D) 238 (Jan)

In a personal injury claim brought against a cosmetic surgeon who resided and worked in Italy but who carried out an allegedly negligent procedure at a clinic in London, the Court of Appeal, Civil Division decided that the claim form had not been validly served at his place of business as he was not sued as an individual in a business name and he should in any event have been served in Italy.
 
What were the circumstances of the case?
This was a clinical negligence case relating to cosmetic surgery. The cosmetic surgeon was Italian and worked in England only intermittently. When a letter of claim was written the response was posted from a clinic in Kent
 
Proceedings were issued just before the expiry of the limitation period. The claimant's solicitor wrote to the defendant in Italy asking for an address for service. The letter stated that, if no response was received, then the clinic address would be used. A response was received denying liability, but not stating anything about where the surgeon was presently based or which address proceedings should be served at.
 
When proceedings were issued, they were therefore sent to the clinic. The clinic returned them, stating that the defendant no longer practised at the clinic and they did not have a forwarding address. Several months later the claimant's solicitors wrote to the defendant in Italy asking for an address for service. That letter asserted that the previous address for service had been given as the clinic (which was not the case--it had not been given at all). The claimant obtained an order for service by email and duly sent the documents by email.
 
To what extent is the judgment helpful in clarifying the law in this area?
This remains an area where a potential claimant can fail in a claim, regardless of the merits. Before issue (let alone service) a claimant has to be absolutely certain who should be served, how service should take place and where proceedings should be served. In a way this is trite law--this judgment simply provides us with a further reminder that failure to serve proceedings in compliance with the Civil Procedure Rules 1998, SI 1998/3132 (CPR) can lead to downfall.
 
Any thoughts on whether this case is as a result of judges applying procedural rules more stringently in light of Jackson, or would this case have been decided the same pre-Jackson?
It's more a question of how civil procedure mistakes can scupper a case even more easily in the post-Jackson, post-Mitchell era. Errors in service could be fatal before Jackson, but this decision simply reminds us that it is still the case.
 
What are the implications for clinical negligence lawyers acting for claimants and defendants?
The implications are clear--if you have surgery done by a foreign doctor who does not habitually practise in the UK, you need to make use of the rules pertaining to service out of the jurisdiction. The correct procedure was not followed--the claimant's solicitors knew the correct address for service in Italy which had been provided but did not make use of CPR 6.4 when it was clearly appropriate. This would not be confined mere-ly to clinical negligence cases either but any case where the appropriate party is located outside of the jurisdiction.
 
PSL practical point: Doctors practising in the UK must be registered with the General Medical Council (GMC). If a doctor is no longer registered with the GMC, clinical negligence practitioners should consider whether the doctor is now practising abroad and service outside of the jurisdiction will be appropriate. As this case indicates using an old UK professional address for service or indeed service by email may not be appropriate.
 
What are your predictions for future developments?
My prediction is that judges will be happier to see claims fail if solicitors do not comply with the black letter of the law of procedure. The post-Jackson world is unforgiving.
 
Francesca Lewis has a busy practice in all areas of work undertaken by Old Square Chambers, with a particular focus on personal injury, clinical negligence, health & safety, insurance, and immigration.
 
Interviewed by Kate Beaumont.
 
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
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