Claim pursued on causation alone resulting in last minute discontinuance, following pressure from the Defendant’s Solicitors to disclose documents’

It was decided at the outset of our instruction that this claim was one for settlement, however, there were causation issues to be explored fully before any offers could be made or considered.

The Claimant suffered a fracture to the fifth metacarpal on his right hand. He was treated at hospital but did not attend for 10 days which raised causation concerns – along with the fact that the accident occurred at 00:30am.

A request was made for the Claimant’s medical records from his Solicitors to verify causation. Three months later, three pages of records were disclosed. After subsequent requests were made for the full records, one further page was disclosed. Despite continuing to chase, the Claimant’s Solicitors were adamant all records had been received. This was challenged on the basis that the Claimant’s records surely extended beyond four pages.

Attempts were then made to obtain the medical records directly from the Claimant’s GP and Hospital, however, the signed Form of Authority to do so was never returned by the Claimant. It was threatened that an Application for Specific Disclosure would be made on behalf of the Defendant if the Claimant did not provide copies of the records they had in their possession and would seek to recover the costs for doing so – however, the Claimant’s Solicitors refused.

The Claimant then did not serve any witness evidence by the agreed deadline. When queried, the Claimant’s Solicitors advised – rather unusually – that they were waiting for a settlement offer from the Defendant first. It was pointed out that the Claimant could not decide not to comply with Directions in the event that the matter settled, but that was the unusual stance they took.

Again, rather unusually, the Claimant’s Solicitors then served a witness statement one month after exchange - despite being out of time and having made no Application to the Court. The statement was rather vague when it came to the treatment received post-accident and also stated he had not been involved in any previous accidents and had not made a claim before. It materialised from our searches, however, that the Claimant had made previous two claims.

A witness statement on behalf of the Defendant was prepared disclosing the search results for the Claimant’s previous claims and Part 18 Questions were to put to the Claimant. The Claimant’s Solicitors simply replied asking if the Defendant intended to settle the claim.

There were significant recoverable benefits of £33,380.54 payable to the DWP. However, the Claimant’s medical expert stated in his report that the Claimant was not in work for reasons unrelated to the index accident and that the Claimant was not disadvantaged on the open labour market. As such, a mandatory reconsideration request was made to the DWP. This was a further reason as to why the full medical records were required – to determine if there were any other reasons as to why the Claimant may have been prevented from working.

Despite continued chasers for the Part 18 Replies, the Claimant’s Solicitors advised that due to the Claimant’s mental health issues he could not complete the Defendant’s request. This placed the Defendant in a difficult position, as the Claimant’s situation was unknown. It was decided, however, that the Defendant would defend the case to Trial on the causation issues alone and put the Claimant to proof.

A week before the Trial, the Claimant’s Solicitors were keen to discuss settlement. The Defendant’s position was maintained. Three days before the Trial, the Claimant discontinued his claim.

This was a great result for the Defendant, especially in light of the potential payment to the DWP for the recoverable benefits. This case demonstrated the importance of challenging inconsistences in the evidence and exploring all avenues of possible discrepancy. This case shows that a claim can still be defended on the issue of causation alone. Due to our persistence, tenacity in litigation and being robust throughout handing of the claim, this resulted in a discontinuance by the Claimant and the best outcome for our client.