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Naomi McLoughlin

Naomi McLoughlin discusses the case of Stephen Mark v (1) Universal Coatings & Service Limited (2) Barrier Limited


Spencer J held that the requirement to serve a medical report and schedule of loss with the particulars of claim under CPR PD 16 paragraph 4.3, in personal injury claims did not contain an implied sanction for non-compliance. As a result the principles of relief from sanctions were not engaged. The requirement under the practice direction was aimed at simple personal injury claims and in complex cases the requirement could lead to service of documents which were unhelpful and uninformative.


Mr Mark claimed to have sustained silicosis and massive pulmonary fibrosis as a result of inhaling silica dust during his employment with the First and Second Defendants. A Claim Form was issued shortly before expiry of the limitation period in June 2015. The Claimant obtained an order, without notice, extending time for service of the claim form, particulars of claim and supporting medical evidence. That order was not served on the Defendants within the required time. The Claimant’s Solicitors then went into administration and new ones were appointed. The claim form and particulars of claim were served in February 2016; a medical report and draft schedule of loss followed a few weeks later. The Defendants made an application to strike out the claim form.

First instance

The Judge held that the obligation in CPR PD 16 para 4.3 that the claimant ‘must’ serve the medical report and schedule of loss with the particulars of claim contained an implied sanction and the principles of relief from sanctions applied. He denied the Claimant relief from sanctions. He further held that various rule breaches amounted to an abuse of process and struck out the claim.


It was argued that the Judge had been wrong to hold that the principles of relief from sanctions applied.

On appeal, it was found that CPR PD 16 para 4 set a benchmark because it was a practice direction that covered all personal injury claims. The failure to serve a medical report and/or a schedule of loss with the particulars of claim was not in the same category as a failure to serve a notice of appeal within the time, or a failure to serve a respondent’s notice where the respondent wished to resist an appeal on grounds other than those relied on below; both of which carried an implied sanction by reference to the consequences of the rule not being observed. It was found that paragraph 4 of the practice direction was intended to be directed towards simple personal injury litigation rather than a complicated clinical or personal injury action. PD 16 para.4 was not in the category of the kind of rule or practice direction to which the implied relief from sanction doctrine should be applied. The word “must” was used liberally in the CPR, but to imply the need to apply for relief from sanctions in all cases where a rule or practice direction used “must” would result in the courts being inundated with applications quite unnecessarily.


The failure to serve a medical report and schedule of loss with the particulars of claim does not mean that an application for relief from sanctions is required. However, it is clear that in simple personal injury claims there is an expectation that the requirement will be complied with. It was acknowledged by the Court that the practice direction is not always followed in complex cases and parties sensibly recognise the limitations of what could be achieved at the early stage of service of the particulars of claim. However, if the point is taken then failure to comply with the requirement can be justified on the basis that the case at hand is complex in nature or that at the time the particulars of claim were served helpful or informative medical evidence could not yet be achieved.

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