Home / Jennings v Otis Ltd and Bristol City Council [2023] EWHC 2039 (KB)

Jennings v Otis Ltd and Bristol City Council [2023] EWHC 2039 (KB)


Keoghs acted for the defendant local authority in this matter. The claimant appealed case management orders that required the claimant to unilaterally serve his witness evidence and to provide proper responses to Part 18 questions. The claimant’s particulars of claim and previous Part 18 responses had not provided an adequate description of how he alleged the accident had occurred. The costs and case management conference (CCMC) was otherwise adjourned so that the claimant could comply with these orders to clarify his case. By the case management stage in a case, the defendants are entitled to know the case they had to meet.

Factual Background

The claimant was a lift engineer who sustained a severe injury resulting in a traumatic forearm amputation when his right arm came into contact with the moving parts of the lift drive machinery he was working on at the local authority’s premises. The claimant alleged the accident occurred when his arm accidentally bypassed the machinery guarding that was in place. He alleged the guarding on the machinery was inadequate. However, his particulars of claim was very unclear as to how this could have happened. The defendant’s response was that it was near impossible that the claimant’s right arm had bypassed the guard unintentionally.

It troubled the Master at the CCMC that the mechanism of injury still remained unclear. Hence, he ordered the claimant to serve his witness evidence unilaterally, rather than the more usual order for the parties to exchange their witness evidence simultaneously. This was despite all the parties seeking permission for expert engineering evidence and the defendants requesting the claimant’s attendance at a site visit with the experts to provide an explanation as to how his accident had occurred. Provision for a site visit by the trial judge was also sought.

The Appeal Court’s Decision

The orders for unilateral service of the claimant’s witness evidence on liability and that he respond to a request for information seeking clarification of his case as to how his accident occurred were the subject of the claimant’s appeal before Mr Justice Cotter.

The appeal on both aspects was unsuccessful.

Cotter J made no criticism of the Master’s orders and was supportive of the view that the claimant should make his case clear before the case progressed further.

He was similarly troubled by the vague way the claimant’s account of the accident was pleaded and the failed attempt by Part 18 questions to secure some clarity about how the accident had occurred, “The claimant is unaware of what caused him to stumble and/or lose his balance, although there may be a number of factors which could have done so, which will be explored in evidence in due course.” Cotter J described this response as “opaque”. His view was that it was wrong for the defendants to be left to guess what it might cover and that the claimant should have set out any potentially relevant causes. In the context of that response, the Master was entirely justified in making the case management orders he did requiring the claimant to explain exactly what his case was as to what caused him, or is likely in his view to have caused him, to stumble and/or fall.

Cotter J approved the view that in the circumstances of this case where the claimant was the only witness to his accident, unilateral service of the claimant’s witness statement was an obvious route to seek the necessary clarity for the defendants. The judge rejected the argument that it was wrong in this situation to order unilateral service of the claimant’s witness and that this would prejudice him. He thought the Part 18 request could simply have been responded to by early disclosure of the claimant’s witness statement and this would have saved a lot of costs.

The Master’s order under appeal was for unilateral service of all the claimant’s witness statements on liability, not just his. The appeal judge was not persuaded to limit the order to the claimant’s own evidence.

Neither did Cotter J accept the argument questioning whether it had been appropriate to order both unilateral service of the claimant’s witness evidence as well as a proper response to the Part 18 questions. The costs of the response should only be minimal if all that was needed was to refer to the content of the witness statements. To the extent the position was not made adequately clear in the witness evidence, then there needed to be a proper response.

In relation to the other steps the defendants were seeking to obtain clarification of the claimant’s case as to how his accident occurred, the judge emphatically resisted as “unwise” the suggestion that the claimant should attend a site inspection with the defendants’ engineering experts to explain how his accident came about. He could accept there was merit in the trial judge visiting the accident locus, particularly if the case was transferred from London to Bristol District Registry where he considered the case should properly have been issued. The premises where the accident occurred are very close to the Bristol Civil Justice Centre.

The judge was also critical of the claimant’s actions in appealing the case management decision and, thereby, causing further delay in the case.

In his judgment, Cotter J spent several paragraphs bemoaning the claimant’s solicitor's decision to issue proceedings on the case in London rather than Bristol where the accident had occurred, the claimant, second defendant and witnesses were based and the claimant’s solicitors have an office. He considered there was no proper basis for this practice and he considered it was contrary to the principle set out in the Civil Courts Structure Review reports that no case is too big to be resolved in the regions.

Keoghs Comments on the Practical Implications of the Judge’s Decision

  1. In a case where the mechanism of injury is relevant to liability and/or contributory negligence, potentially a defendant can successfully argue that it is appropriate to seek clarification by means of an order for unilateral service of the claimant’s witness evidence and a CPR 18 request for information.
  2. Careful consideration should be given as to whether it is appropriate to appeal a case management decision in circumstances where compliance with the decision will not cause undue prejudice and an appeal will cause further delay.
  3. Solicitors whose practice is always to issue proceedings in London should review whether issuing in London is appropriate in each individual case.
  4. Overturning a case management decision is a high hurdle for a party to overcome.

Author: Cynthia Watts - Partner