Melanie Baker v The Queen Elizabeth Hospital Kings Lynn NHS Foundation Trust

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We recently dealt with a Telephone Hearing, whereby we had applied to the Court so that we could ensure that our Replies to the Defendant's Points of Dispute could still be relied upon, despite late service. 

Although we had been dealing with negotiations and liaising with the ATE provider for assistance with one of the Replies, the Defendant took issue with our late service of Replies, which were served 59 days after the Defendant had served their Points of Dispute. 

We subsequently applied for a Provisional Assessment Hearing in the case and made an application to ensure that we could rely upon our Replies at Provisional Assessment, despite late service.  Although no sanction is presently applicable for late service of Replies, it is within the Court's discretion to impose any sanctions in this regard and there was a possibility that our Replies may have been struck out and removed from the Court file.

During the Hearing, Master Leonard said that at a Detailed Assessment, if Replies were struck out then this does not have any effect on the Hearing, as oral submissions can still be made, but that at a Provisional Assessment this is not possible. 

During her submissions, Sarah touched on the distinction that Master Leonard had made with regard to Detailed Assessment and Provisional Assessment, and said that if we were unable to rely upon our Replies at Provisional Assessment, then this would have a potentially detrimental effect on her client as we would be unable to make oral submissions at Provisional Assessment.  Sarah further said that if we are allowed to rely on our Replies at Provisional Assessment, then this would avoid any possibility of us applying for a Detailed Assessment at a later stage for us to put our oral submissions forward, and consequently, this would save the Courts time and also save the additional costs in this regard. 

Although Master Leonard said that it would be unfair to award an extension of time for our Replies on the basis that we were obtaining further information from the ATE provider, he went on to say that there was no sanction in place for late service, and that if Replies were not allowed, then this would put the Claimant at a disadvantage as he was mindful that this was a Provisional Assessment case, and thus oral submissions would not be able to be made.  Master Leonard was also concerned with dealing with this in the most cost effective manner.

Master Leonard found in our favour and confirmed that he would make an order for service of Replies to be extended to 26 February 2014, which was the date when our Replies were served on the Defendant. 

Despite this decision, it is still advisable to ensure that we are seeking extensions of time for service of Replies and keeping to the deadlines prescribed in the CPR, this result does seem to show that the Courts are taking a sensible approach to dealing with breaches of the rules and highlights that they definitely seem to be focused on reducing costs.