McDonald (claimant/respondent) v Excalibur & Keswick Groundworks Ltd (defendant/appellant) & anr
Wednesday 9 November 2022
By Appellant’s Notice filed on 20 December 2021, the First Defendant appeals the Order of HHJ Freedman (County Court – Newcastle Upon Tyne) dated 29 November 2021 made at a rolled up permission to appeal and appeal hearing in respect of the Claimant’s appeal against the order of DJ Searl dated 17 June 2021, made on the first day of trial, which set aside Notices of Discontinuance filed by the Claimant and struck out C’s personal injury claim. The DJ’s order related to both Defendant 1 and Defendant 2.
The appeal involving D2 was compromised and the hearing before HHJ Freedman only involved D1 and C.
Facts: Workplace Personal injury claim. The claim arises out of an alleged fall from a ladder at work on 4 May 2016. D2 was the main contractor on the work site and had engaged D1 to provide a new drainage system on site. A number of discrepancies as to the nature and circumstances of the fall were discovered in the written medical reports by D, when those were provided (3.5 years after the fall).
At trial an issue arose whether the particulars of claim had to be amended in light of the discrepancies (specifically whether paragraph 1.2 should be amended to say that C does not know whether the ladder was secured or not) an adjournment of 40 minutes was granted for C to seek instructions. After the adjournment, C indicated an intention to serve a Notice of Discontinuance and D successfully applied for the Notice of Discontinuance to be set aside under CPR 38.4 and to strike out the claim the claim on the grounds that that the conduct of C was such as to frustrate the just disposal of the proceedings (thereby disapplying QOCS).
C appealed and HHJ Freedman allowed the appeal.