REUTERS | Stefan Wermuth

Defendants bringing an additional claim: fortune favours the brave?

Brief facts

The case of Dubad v Gans & Co Solicitors LLP and another involves an initial claim made against a bus driver’s employers. The claimant, Mr Dubad, had suffered serious injuries after a collision with a bus.

The defendant (Gans & Co Solicitors) was the claimant’s solicitors at the time of the initial claim. The defendant instructed Dr John Orme, of counsel, to advise them.

On 18 June 2012, the claimant settled his initial claim against the bus driver’s employers following advice from Dr Orme and the defendant. Following advice, the claimant agreed to take a 51% apportionment of the sum to be agreed.

The claimant then took on new solicitors, who advised the claimant on the quantum of the settlement and agreed a sum just exceeding £1 million. The claimant’s new solicitors questioned the advice given in relation to apportionment and sent the defendant a letter of claim on 26 February 2013.

Proceedings were issued on 28 April 2017 and the defendant defended the claim. Following a number of directions given by the court, all of which were complied with, the matter was delayed in May 2018 when the defendant’s insurers were declared bankrupt.

As it was unclear whether or not the defendant was indemnified, the parties agreed a stay until the position was clarified. The position was indeed clarified in July 2018, when indemnity was confirmed. Neither party was in a position to go to trial at this point, as key directions ahead of trial had not been complied with during the stay. An application was made to vacate the trial.

Together with an application to vacate, the defendant made an additional claim to join Dr Orme as a third party, seeking a contribution in the event that the defendant was found liable.

Applicable rules

Although the judgment itself does not pick up on the applicable CPR provisions, the court clearly had decisions to make in relation to CPR 20 and the applicable practice direction.

Under CPR 20.4(2), the defendant must seek the court’s permission to make an additional claim, unless the defendant issues the additional claim before or at the same time as his or her defence.

When the court is deciding whether to permit, dismiss or join an additional claim, under CPR 20.9, the court may have regard to:

(a) the connection between the additional claim and the claim made by the claimant against the defendant;

(b) whether the additional claimant is seeking substantially the same remedy which some other party is claiming from him; and

(c) whether the additional claimant wants the court to decide any question connected with the subject matter of the proceedings –

(i) not only between existing parties but also between existing parties and a person not already a party; or

(ii) against an existing party not only in a capacity in which he is already a party but also in some further capacity.

The issues

In this case, the issues in the additional claim were very much the same as the issues in the main claim. The defendant made this strongly and also claimed that they could not make a decision on whether or not to bring Dr Orme into proceedings until the claimant had clarified his case on causation. Neither the expert evidence, nor the amended particulars of claim (which were ordered to be served to set out the case on causation in more detail), had been served until February/March 2018.

What ultimately decided the case, however, was that the application would not impact the existing trial date, which had just been vacated. It was hoped that future delay would be minimal.

In judgment, HHJ Platts stated that, had the trial date of November 2018 remained, then the application would have been dismissed. The delay prior to the insolvency position being determined was not sufficiently explained by the defendant and the application could and should have been made earlier.

It is, of course, worth noting that it is up to the costs and case management conference (CCMC) judge to determine whether or not the cases should be heard together.

Practical impact

This case was decided in the context of a claim which had suffered delays from the start. The time taken for the claimant to bring proceedings (around four years after the initial letter before claim) and the defendant’s insurance position are clearly unusual factors.

A word of caution should be given that there were many factors that were out of the control of the defendant. These ended up being decisive. Many defendants wishing to make an additional claim will not be fortunate enough to have these.

This is less a case of fortune favouring the brave and more lady luck smiling on this particular defendant.

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