Clyde & Co successfully strike out a clinical negligence claim erroneously brought via the HMCTS Online Money Claim portal

Clyde & Co were instructed to represent an NHS Trust in respect of a clinical negligence claim concerning a biopsy having allegedly been taken from the wrong area of the Claimant’s mouth.

The Claimant erroneously issued proceedings via the Online Civil Money Claims (OCMC) Pilot. 

We made an application for an order declaring that the Court has no jurisdiction to deal with the claim; or in the event the Court accepted it has jurisdiction, an order to strike out the claim and/or for summary judgment due to inadequate pleadings. 

Jurisdiction – use of OCMC

The OCMC Pilot is governed by the provisions of PD 51R. Paragraph 2.1(3) outlines the mandatory features of a claim for it to be suitable for this scheme including the following criteria:

• (d) Subject to paragraph (7), either –
  ii. “The Claimant and the Defendant are each represented by a legal representative who is registered with MyHMCTS, and the claimant will not, before submitting their claim, apply for remission or part remission of a fee prescribed by the Civil Proceedings Fees Order 2008;
• ii. “”The claimant is represented by a legal representative who is registered with MyHMCTS, the claimant believes that the defendant will not be getting help with defending the claim from a “legal representative”, and the claimant will not, before submitting their claim, apply for remission or part remission of a fee prescribed by the Civil Proceedings Fees Order 2008;
• (e) The claim is not for personal injury

The Claimant was a litigant in person, and not legally represented. Further, the Claimant’s claim also was in part for personal injury. 

We argued that the Claimant’s claim was not suitable to be commenced via the OCMC Pilot and argued that the Court did not have the jurisdiction to deal with the claim. 

Service of Claim Form

The Claimant served the Claim Form but not on the Defendant Trust directly. The Trust had not authorised or nominated any others to accept service on its behalf, including solicitors.  

The courts take a very strict stance to service of the Claim Form and the Civil Procedure Rules must be followed. The Claimant fell foul of CPR 6.9(2) by not serving the Claim Form to the Trust’s address. 

We again argued that the Court did not have the jurisdiction to deal with the claim. 

Inadequate pleadings 

We also sought an order, in the alternative, for strike out the claim in its entirety and/or for summary judgment for the Defendant, pursuant to CPR 3.4(2)(a) and CPR 24.3 due to inadequate pleadings. 

The Claimant’s Particulars of Claim did not specify how the Defendant caused the injuries for which damages were sought. Further, the Claimant failed to provide any medical evidence to support her case. 

Application 

The application proceeded to a hearing and the Judge held that the Court did not have jurisdiction to hear the claim; the OCMC scheme was not appropriate and service of the Claim Form had not occurred in accordance with the CPR. Further, the claim was struck out on the basis that the Claimant’s case had no reasonable grounds. 

In clinical negligence claims a Defendant cannot usually seek recovery of its legal costs if it successfully defeats a claim save for in certain circumstances (known as qualified one way costs shifting, or QOCS). As the claim had been struck out the court was invited to allow the Defendant to enforce an order for costs against the Claimant, effectively setting QOCS aside. The court agreed, and we were later able to recover costs for the NHS Trust from the Claimant. 

Comment

We are seeing an increasing number of Claimants, in particular Litigants in Person, seek to inappropriately utilise the OCMC for cases not designed for its use. Further, Claimants often fail to properly plead and evidence their case. Whilst the courts are often sympathetic to Litigants in Person, it remains the case that they are still required to comply with the Civil Procedure Rules. 

It is important for Defendants to consider jurisdiction, service and merit issues early on.  Appropriate applications should be made to the court at the earliest opportunity to dispose of procedurally defective claims, before costs increase. 

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