Be bold and strike out!

  • Market Insight 04 July 2023 04 July 2023
  • UK & Europe

  • Healthcare

In 2012, a claim was issued and stayed in the county court, following allegations that the Claimant had suffered personal injury and other losses arising out of the Defendant’s use of Poly Implant Prothese (PIP) implants. PIP was a well-known French breast implant company, involved in significant controversy after it was found that they had fraudulently manufactured the implants with unapproved silicone gel and were prone to rupture.

The claim was stayed pending the outcome of the PIP Implant Group Action. In 2020, the Defendant was contacted and advised by the Claimant’s Solicitors that they were ready to settle the claim. The Claimant’s medical records and details of the initial surgery were requested. No such information was provided and all attempts at obtaining that information from the Claimant’s Solicitors were strongly resisted. The Defendant made a successful application to the Court to have the stay lifted (which the Claimant’s lawyers vehemently resisted) and for the Claimant to provide medical records and a properly particularised claim by 05 April 2022.

Particulars of Claim were served by the Claimant, but they were woefully inadequate and provided no details of where or when the Claimant’s initial breast augmentation surgery was carried out. Her GP records also contained no reference to breast augmentation surgery, or the subsequent replacement.

In May 2022, we made an application to strike out the Claimant’s claim, given that no reasonable basis for bringing a claim was demonstrated in the pleaded allegations. This was heard on 17 March 2023, and Judgment handed down immediately.

The Judge held that the Claimant’s Solicitors had failed to plead their client’s claim adequately and that the Claimant Solicitor’s witness statement, served in response to the application but less than a working week before the hearing, failed to address the many issues identified with the Particulars of Claim, nor were steps taken by them to address those issues. The Claimant’s claim was struck out pursuant to CPR 3.4.2, with no permission to appeal. Costs for the Defendant were also ordered and will be enforced.

It remains the Claimant’s clear obligation to prove, and properly plead, the basis of any claim. Failing to do so, and failing to engage with the concerns raised by an application despite being on notice for approximately 10 months, will expose a Claimant to the risk that the claim will be struck out – and with enforceable costs consequences and a potential claim in negligence against them.

Clyde & Co's healthcare group is recognised for its extensive industry knowledge, offering a range of legal services covering public and private sectors as well as inquests, advocacy, professional regulation, product liability and pharmaceuticals / life sciences.

If you would like to find out more please contact Claire Petts or Amy Dickson.

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