EWJ Dec 2023 - Journal - Page 49
‘Exceptional Circumstances’ – Emma Woods
Considers a Rare Example of Departure
From the Fast Track Fixed Costs Regime
The recent matter of Tsuneyama v Wheels Logistics SRO, Swindon CC (12.9.23) was a
rare example of the application of CPR 45.29J, in which ‘exceptional circumstances’ justified
a departure from fixed costs of an application in fast-track matter.
HCC Solicitors acted for the defendant, instructing
counsel from Gatehouse Chambers.
Tsuneyama was an RTA quantum-only claim, which
was due to be listed for a half-day trial/assessment of
damages, two weeks after the application hearing. D
had applied for an Unless Order for disclosure, concerning a second RTA, which had also resulted in a
claim being made, but in respect of which C had failed
to give disclosure.
Author
Emma Woods
Emma specialises in personal injury and clinical negligence, and is also developing her experience in Inquests work.
Some disclosure was provided in the intervening
period between the application and the hearing.
She is regularly instructed to appear in the County
Court, dealing with a range of hearings, including
Small Claims, Fast Track Trials, CCMCs, and interlocutory applications arising out of personal injury
and clinical negligence claims. Emma has also recently
represented Defendants in Clinical Negligence cases
at CCMCs in the High Court.
D argued that the failure to provide disclosure
concerning the second accident, which was listed before a different court but with an associated solicitor’s
firm, rendered a fair trial almost impossible. It did not
appear that C’s medico-legal expert had been provided with medical records post-dating the second
accident.
D argued that the court could not therefore properly
assess to contribution of the second accident – which
was ten months after the first – on C’s claimed ongoing symptoms. D suggested that a fair and proportionate way to deal with the matter, would be to permit
the trial to proceed, but to limit C’s recovery of all
damages to the date of the second accident.
Mr Kim Hakin
FRCS, FRCOphth
Mr Kim Hakin is a Consultant Ophthalmic Surgeon providing
District Judge Humphreys described D’s proposal as
‘attractive’ but ultimately declined to adopt it as it may
unduly tie the hands of the trial judge.
ophthalmic services (NHS & Private.)
He undertakes medicolegal work at:
25 Harley Street, London, W1G 9QW and
Nuffield Health Taunton Hospital, Taunton TA2 6AN
The DJ adjourned the trial “with great reluctance” on
‘Unless Order’ terms concerning the disclosure, in default of which the general damages claim would stand
struck out. He said that the fault appeared to be with
the claimant solicitors left hand not knowing what the
right hand as doing.
He can deal with most ophthalmological issues with special
interests in cataract surgery, ocular trauma, eyelid & lacrimal
surgery including cosmetic eyelid surgery, facial laser surgery.
Mr Hakin holds the Expert Witness Certificate from Bond
Solon/Cardiff University, is a member of the Expert Witness
The DJ awarded D the costs of the application but declined to be confined to the £250 permitted under the
fast-track fixed costs regime (CPR 45.29H). The DJ
determined that CPR 45.29J came into play, and the
claimant’s failure to give proper disclosure of material
documents concerning second accident – which was
currently before a different court – had rendered a
fair trial impossible and occasioned an avoidable adjournment at a late stage.
Institute, and formerly advisor to Nuffield Hospitals and the
Healthcare Commission. He regularly undertakes work for
organisations such as the General Medical Council, Medical
Defence Union, Medical Protection Society, NHS Resolution,
as well as many solicitors' firms and legal agencies.
Tel: 01823 250614 Mob 07887 651551
Email: kimhakin@aol.com, or kimhakin 1 @gmail.com
Web: www.kimhakin.com
All correspondence to
This amounted to ‘exceptional circumstances’ and the
defendant was awarded £3,000 by way of the costs of
the application.
EXPERT WITNESS JOURNAL
Nuffield Health Taunton Hospital, Staplegrove Elm
Taunton, TA2 6AN, or by email.
47
DECEMBER 2023