[2025] EWHC 1680 (KB)

I shall summarise only the relevant parts of the judgment. The Judge found that the Claimant’s cost budget, which was due on the 18th of January 2021, (para. 4(a) of the order dated 16.10.2020) was filed two years and four months late, on the 30th of May 2023. This was the day before the CCMC. He found that this was a serious and significant breach. Considering the witness statement of the Claimant’s solicitor and the explanation that he thought that he did not need to file it until 21 days before the CCMC (relying on para. 4(b) of the order dated 16.10.2020), and that he became distracted by the Defendant’s strike out application and the process of joining DB to the proceedings and determining DB’s capacity, the judge found these were not good reasons for the default. Therefore, limbs one and two of the test in Dentonv White [2014] EWCA Civ. 906, were satisfied. These findings are not appealed.

In paras. 10-14 the judge then turned to limb three of the Denton test for relief from sanctions and described the sanction in CPR r.3.14 as “harsh” because, if relief was not granted, the Claimant would not be able to recover any costs for the claim other than court fees, despite perhaps needing to take it to trial. The judge took into account the case had been running for four years and that the CCMC had not even been reached yet. He took into account the delay in issuing the application for relief which he found was between May and September 2023. He found there was a lack of promptness which was a “critical factor”. He considered the decision in British Gas v Oak [2016] EWCA Civ. 153 and stated that he was concerned that the case had become sidetracked into satellite litigation. He considered the case of Diriye v Bojaj [2020] EWCA Civ. 1400, and reluctantly refused relief from the sanction in CPR r.3.14.

In relation to the application to amend the Particulars of Claim to include a claim under S.117 of the Act, he considered that CPR rules 17.3 and 17.4 allowed the court the power to admit amendments. He noted that the applicability of the Act was admitted in the Defence. He considered that the words in the pleading relating to “residence” did not indicate a claim under S.117. He ruled that the Claimant was bringing a new claim. He considered the new claim was statute barred (para. 22) because the sums sought to be recovered under S.117 started accruing in 2015 and so the six year limitation period under S.9 of the Limitation Act 1980 would expire in 2021 for those sums. He considered Martlet Homesv Mulalley & Co. Ltd [2021] EWHC 296, para. 20, and the guidance therein to the effect that the matters raised in the defence in that case enfranchised the claimant to amend the particulars of claim. However, he ruled that the Claimant in this appeal was pleading a new claim. The Judge then considered whether the new claim arose from the same facts or substantially the same facts. He described that as the key question. He considered the S.117 claim and the issues within it about the scope of the statutory duty. He decided that resolving them would require the responsible bodies who determined the scope to be included in the action and that was a “tangent” to the contract claim. Factors that he found weighed against allowing amendment were: (1) that the NHS would have to be joined, and (2) further investigations would be required, and (3) that the application was made very late. Finally, (4) he considered that the prospects of success for the new claim were very poor passing his view about whether S.117 and the duty therein extended to paying for ordinary accommodation and relying on R, Afework v Camden Borough Council [2013] EWHC 1637 (Admin) in which Mostyn J held that “normal accommodation” was not within the S.117 duty relating to “aftercare services”. Therefore, the Judge refused the amendment application.