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Case No: 3BM90107IN THE BIRMINGHAM DISTRICT REGISTRY QUEEN’S BENCH DIVISION

33 Bull StreetBirmingham B4 6DS

Date: 23/06/2017

Before:

DISTRICT JUDGE TRUMAN - - - - - - - - - - - - - - - - - - - - -

Between:

RUSSELL ADRIAN KNIBBS Claimant - and -

HEART OF ENGLAND NHS FOUNDATION TRUST

First Defendant

DR G KOSHY Second Defendant DR P MEHTA Third Defendant

- - - - - - - - - - - - - - - - - - - - -

Dr Simon Fox QC Counsel (instructed by Irwin Mitchell LLP) for the ClaimantMr Hugh Evans Counsel (instructed by DAC Beachcroft LLP and Clyde & Co) for all three

Defendants

- - - - - - - - - - - - - - - - - - - - -

APPROVED JUDGMENT

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Approved Judgment District Judge Truman

KNIBBS v. HEART OF ENGLAND NHS TRUST

DISTRICT JUDGE TRUMAN :

1. This matter concerns what order a court should make in respect of a Part 36 offer accepted out of time. In this case proceedings were issued on 9th April 2013 in respect of alleged clinical negligence occurring between September and November 2010; the claim is said to be unlimited. The special damages schedule served at that time essentially set out a number of heads of loss but these were unquantified.

2. All three defendants denied causation, although there were some partial admissions on breach of duty. Defences were entered dated 23rd September and 25th September 2013.

3. A CMC was held on 6th March 2014, when directions were given regarding disclosure in November 2013, exchange of witness statements by March 2014 and exchange of medical evidence by June 2014, although in the finish this took place in July 2014.

4. The claimants served a revised schedule, dated 5th September 2014, in which they claimed £1,048,544.54. A counter schedule from the first defendant was served dated 19th December 2014 which valued the claimant’s claim at £49,451.30. The counter schedule of the second and third defendants of 22nd December 2014 valued the claimant’s claim at £27,168.51.

5. There were meetings between the various experts in January and February 2015. They issued joint statements. The claimant then served an updated schedule of loss, dated 11th March 2015, in which the claim had increased to £1,129,415.072. The first defendant served a counter schedule on 8th April 2015 valuing the claim in the sum of £19,825.043 and the second and third defendants served a counter schedule, dated 7 th

May 2015, valuing the claim in the sum of £19,514.046.

6. When the medical evidence was exchanged on 10th July 2014, the defendants made a joint Part 36 offer in the sum of £75,000. This was not accepted nor otherwise responded to. It is apparent that there were some discussions about whether or not there should be a round table meeting. On 24 th September 2015, the defendants made a joint Part 36 offer of £200,000. This should have been accepted, if it were going to be within the 21 day period, by 16th October 2015.

7. The claimant made a counter offer, this was not accepted, and eventually the claimant settled by agreeing to the offer of £200,000 on 12 th November 2015. If he had accepted within the usual 21 day period this matter would never have come before the court. However, because of the fact that he accepted outside the 21 day period, the defendants felt that it was appropriate to issue an application with regard to the question of costs and from when they should be paid.

8. The application was apparently made on behalf of all three defendants, but was actually made by Clyde & Co, who only act for the second and third defendants. They sought an order that the defendants pay the claimant’s reasonable costs up to and including 10th July 2014 (when the medical evidence was served) and that the claimant do pay the defendants’ reasonable costs on an indemnity basis from 11 th July 2014 onwards.



9. The defendants say the claimant only made it plain when he served his medical evidence that he was only pursuing an acceleration claim. The defendants say the claimant must have known prior to this (and basically by the time of issue) that it was actually an acceleration claim, as it would be extremely unlikely that one had only got a condition and prognosis report at that stage. One would expect to have evidence from the medical expert that there was indeed a clinical negligence claim to be pursued in the first place. The defendants therefore say, with some justification, that the claimant must have had expert evidence on liability and causation prior to the time of issue.

10. As part of their application, the defendants say the claimant did talk to them about ADR or having a round table meeting, but had made it very plain that the claimant would not actually consider any lesser valuation of his (in excess of) £1 million claim. The defendants therefore took the view that they could not really have a round table meeting because of the fact that the claimant was insisting on his extremely high valuation when, on their case, and as set out in their counter schedules, the claim was worth considerably less.

11. The claimant’s own medical evidence in the joint statement accepted that the claimant would have had some unavoidable damage to his left hip joint, which would have occurred between 16th and 26th or 28th September 2010, in any event due to the developing infection process. The expert says the claimant would have required his first hip replacement in 2020 and his need for a hip replacement, which was eventually done in May 2012, was accelerated as a result of the alleged delay in treatment, and this was about nine and a half years.

12. The defendants’ joint case was that the primary hip replacement would have taken place between two to five years after injury, i.e. between 2012 and 2015, with a maximum acceleration of five years and a possible minimum acceleration of nothing. The joint discussion established there was no significant discrepancy between the likely functional condition of the claimant even if his case on acceleration was accepted and further deterioration with what his functional condition would have been with timely treatment.

13. The defendants say that the quantum loss was manifestly over-exaggerated. Their basic premise is that had the claimant conducted his case in a proper and reasonable manner settlement would have been achieved without significant and disproportionate costs being incurred in circumstances where the claimant accepted an offer more than five times smaller than his pleaded case. The inference is that the claimant accepted or was advised that his case was exaggerated in the extreme.

14. The second and third defendants did not serve a witness statement with their application. On 7th December 2015, District Judge Griffith said that the application could not be made for all three defendants as Clyde & Co were only on record for the second and third defendants. He gave the second and third defendants permission to file and serve witness statements in support by 29th January 2016, with the claimant to file a witness statement in response by 19 th February 2016 and leave being given to the second and third defendants to file further evidence, if so advised, by 4 th March. The matter was then to be listed before a regional costs judge on 13th May 2016 with a four hour time estimate.



15. The first defendant then made an application on 8th January 2016 in the same terms as the second and third defendants to essentially regularise what had always been intended to be the position. Witness statement directions were then given and both matters were listed together to be heard on 13th May.

16. Unfortunately, it had to be adjourned part heard. It was re-listed for 19th September 2016, but that was vacated and the matter re-listed for 10 th October 2016. The judge was unfortunately unwell and it proved not to be possible to re-list the matter as part heard. It was therefore re-listed to be heard entirely afresh with a time estimate of one day on 31st January 2017. It was then considered that the time estimate was inadequate and it was adjourned yet again with a time estimate of one and a half days and reading time and listed to be heard on 21st and 22nd June. It can therefore be seen that this matter has regrettably been considerably delayed.

17. We need to start with what the law basically is. The relevant section is CPR 36.13 :

“ (1) Subject to paragraphs (2) and (4) and to rule 36.20, where a Part 36 offer is accepted within the relevant period the claimant will be entitled to the costs of the proceedings (including their recoverable pre-action costs) up to the date on which notice of acceptance was served on the offeror.”

“(3): Except where the recoverable costs are fixed by these Rules, costs under paragraphs (1) and (2) are to be assessed on the standard basis if the amount of costs is not agreed.

“(4): Where (a) a Part 36 offer which was made less than 21 days before the start of a trial is accepted; or

(b) a Part 36 offer which relates to the whole of the claim is accepted after expiry of the relevant period; or,

(c) subject to paragraph (2), a Part 36 offer which does not relate to the whole of the claim is accepted at any time, the liability for costs must be determined by the court unless the parties have agreed the costs.

“(5): Where paragraph (4)(b) applies but the parties cannot agree the liability for costs, the court must, unless it considers it unjust to do so, order that

(a) the claimant be awarded costs up to the date on which the relevant period expired; and

(b) the offeree do pay the offeror’s costs for the period from the date of the expiry for the relevant period to the date of acceptance.”

“(6): In considering whether it would be unjust to make the orders specified in paragraph (5), the court must take into



account all the circumstances of the case including the matters listed in rule 36.17(5).”

18. It appears to be agreed that, in fundamental terms, the only relevant part of 36.17(5) is paragraph (d), which is the conduct of the parties and all the circumstances of the case. None of the other factors appear to be relevant in this particular instance.

19. The notes in the White Book make it plain at page 1152 that there is no presumption that the court would order a late accepting party to pay the other party’s costs on an indemnity basis. The usual basis would be the standard basis unless, say, conduct is an issue, in which event Rule 44.2 would apply and the case cited is Fitzpatrick Contactors Limited v. Tyco Fire and Integrated Solutions.

20. The fundamental basis of the defendants’ application is that the claimant’s schedule of loss was so exaggerated that it impeded early settlement in the claim and therefore the defendants should have their costs from 10th July 2014, being the service of their medical evidence and their first Part 36 offer in the sum of £75,000. On the face of it, that might be a slightly unusual premise to put forward, when the matter settled on a Part 36 order for £200,000 in November 2015.

21. It is for the defendants to show that it would be unjust to make the usual order with regard to costs. The defendants allege a number of factors under the heading of “all the circumstances of the case and the claimant’s conduct” which they say mean that the claimant’s behaviour was such that they should be entitled to their costs from that earlier date. They say the claimant’s particulars of claim did not refer to the fact that this was an acceleration claim, nor did the schedule of loss, nor the condition and prognosis report served with the pleadings. They say the claimant must have known when he issued that this was an acceleration case and he should have pleaded the matter appropriately.

22. I entirely accept that the schedule of loss was less than helpful. Under practically every heading it merely said that the claimant would serve a full schedule in due course and gave a valuation of “to be quantified”. There was no mention of acceleration in the schedule of loss nor the condition and prognosis report.

23. The claimant disagrees that he did not advise the defendants it was an acceleration claim. Under the heading of “The claimant’s case on causation” he said: “It is the claimant’s case that if he had been managed appropriately as pleaded above, on the balance of probabilities the damage to the hip joint is likely to have been much less significant, such that he is likely to have avoided undergoing total hip replacement when he did.”

24. In my view, whilst it does not say specifically this is an acceleration case, the wording does confirm that this is an acceleration case, otherwise the words “when he did” would not have had to been included.

25. The defendants also complain that the claimant did not specifically set out the period of acceleration. I accept counsel for the claimant’s submissions that he did not need to do so at that particular stage. Liability and causation expert evidence is usually exchanged simultaneously. The claimant did not have to reveal his hand to any



greater degree prior to that stage, which could have influenced a defendant’s expert and potentially prejudice the claimant’s claim.

26. The defendants are unhappy that the claimant did not respond to their Part 36 offer of £75,000 and did not make any counter offer. I understand that, but I accept the claimant’s submissions that there is no obligation on the claimant to take either step. The defendants are, however, essentially saying that that was part and parcel of the claimant’s failure to take proper stops to try and achieve settlement. It cannot really be said to relate to, on the defendants’ case, the exaggerated schedule of loss, because no formal schedule of loss had been served when the first Part 36 offer was made; it was not served until September 2014.

27. It is obviously the schedule for in excess of £1 million and then the updated schedule of loss in excess of £1.1 million that the defendants criticise. Their main criticism relates to the future loss of earnings claim which was for over £650,000. They do this for a number of reasons: they say that it was a loss of chance claim and not an outright claim for loss of earnings, that that was not factored into the claim at all. They say there was no proper witness evidence to support the claim; at best, the claimant might have had an opportunity to on to become a supervisor with Mitie according to the witness statement served from the comparator. There were two short letters which were not attached to witness statements which also set out that it was a possibility (but not definite) that the claimant might have gone on to be a supervisor.

28. Thirdly, they say the claimant’s witness statement made no reference to the possible career path of becoming a supervisor and indeed showed that he intended to stay with Mitie for only a few more years and then set up in business with a friend. The defendants fourthly say that the schedule failed to take account of the claimant’s failure to mitigate his losses because he had refused two alternative job offers with Mitie and that he spent some time in prison post the alleged negligence by the defendants, which would again affect his job prospects.

29. The defendants had quite a lot of difficulty in understanding how a claim for nine years’ acceleration could result in such a huge loss of earnings claim, especially for a man who was and is capable of working. The claimant says that nothing in the schedule impeded settlement or the defendants’ ability to value the claimant’s claim and deal with the matter. By the time of the first schedule, the defendants had the documents and medical evidence in support of it. He says that the points the defendants make might well be entirely valid if the matter had proceeded to trial when the evidence would be tested and the judge could decide what had been proven on the balance of probabilities.

30. The claimant says the letters, although not attached to any witness statement, would have been admissible at trial. I accept that, but it would have been for the trial judge to give whatever he considered was the appropriate weight to them in view of the fact that they were not part of formal evidence and there was no one to be cross-examined about them. The letters also said that there was only a possibility that the claimant could have gone on to be supervisor; they plainly do not reach the height of saying that he would have gone on to be a supervisor.

31. The first letter at page 299 of the bundle says: “At the time he was taken ill Russell was working as a roofer showing promise for the future. Within Mitie there is a



culture of recognising and developing a talent from our own people. Russell showed potential to move on within the business and may have undertaken supervisory training in the future, which could have led to a variety of different roles within the business.” The second letter at page 300 says: “It is possible that Russell, had he not been ill and subsequently his employment terminated on the grounds of capability, would have developed the right skills and aptitude to be considered for such a role,” which was a reference to the supervisor’s role. Those letters cannot, in my view, be elevated to the fact that the claimant would have gone on to be a supervisor, only that he could have gone on to be a supervisor.

32. The factual basis put forward (that the claimant would have been advised by his consultant, if there had been no negligence, of the fact that his damaged hip would require hip replacement in the future and he should seek a different career path and thus he would have had time to plan going into a supervisory role) was clearly set out in the medical evidence of Mr MacDonald on behalf of the claimant. The basis of the claim was reiterated in the schedule of loss. Whilst the claimant’s counsel had to accept that the claimant did not refer to this alternative career in his witness statement, he did rely on the schedule of loss signed with a statement of truth as the claimant’s authorisation that this claim was being put forward on his behalf and by him. The statement of truth was signed by the claimant’s solicitor and not the claimant himself.

33. He felt that the defendants’ perceived difficulties with the schedule would have been dealt with prior to trial, although he had to accept that there was plainly no guarantee that a court would allow a later witness statement to be put in to deal with the difficulties. He says that the claimant would also have been able to deal with the alleged failure to mitigate his loss and the fact of the conviction could not be overlooked, but all parties’ psychiatric experts agreed that the conviction would not have occurred but for the alleged negligence. It apparently arose out of the claimant being insulted due to his physical difficulties after the hip replacement and matters escalating thereafter.

34. In short, counsel said: “We put forward the maximum claim. It had a basis in the evidence disclosed. It might well have been reduced by any trial judge after hearing all the evidence, but the extent of such reduction would be a matter for the trial judge depending on what he heard.”

35. The defendants also took me through the correspondence that had been sent with regard to the issue of a round table meeting, which they considered showed clearly how the contents of the schedule had impeded any reasonable settlement taking place. This is important correspondence and I therefore feel it necessary to go through it in some detail.

36. At page 836 of the bundle there is the letter of 9th September 2014, when the claimant’s solicitors write to the defendants suggesting it is reasonable to agree a date for a joint settlement meeting on a date from January 2015 onwards following the joint expert meetings and, if the defendants agreed, would they please provide details of any dates on which they proposed that the meeting should be held.

37. There is then an email of 19th September 2014 from the first defendant’s solicitors to the claimant’s solicitors. As part of that email it is said:



“Whilst there are differences of opinion between the defence experts on causation with regard to your client’s attendances on 26th September 2010, you will appreciate that liability overall in respect of all defendants is denied. In particular, a breach of duty in respect of your client’s attendance on my client on 26th

September is denied.

“The upshot of this is that your client’s case against the Trust is doomed to fail regardless of Mr Rowles’ opinion on your client’s earlier attendance.”

38. It goes on to say:

“Your assertion, therefore, that my client’s assessment of quantum based on Mr Rowles’ opinion in any counter schedule will be hard (inaudible) assessment is misguided. Nevertheless, I understand that we are not going to reach agreement here and am mindful that any application is unlikely to be considered prior to the forthcoming deadline and service of our quantum evidence.

“In the meantime I note your recent request for dates on which a potential round table meeting can be held. Whilst the defendants are not averse to ADR in appropriate case, detailed consideration does need to be given to whether or not this would prove fruitful given the costs involved as above liability is denied and it is currently unclear how far apart the parties are on quantum given that we are yet to serve our quantum evidence. I understand that Tristan,” (who is the solicitor for the second and third defendants), “takes the same view. We will therefore revert to you on this point once again when we have served our evidence and counter schedule.”

39. On 11th May 2015 the claimant’s solicitor writes to the second and third defendants’ solicitors to enquire about dates for a round table meeting. The reply on 12 th May 2015 said:

“I’m still discussing the point with my client and awaiting instructions. That said, both my client and I have serious reservations about attending a round table meeting at the present time as it is not entirely clear what benefit this will serve.

“Taking aside the litigation risks faced by your client, the claimant’s hugely inflated schedule of loss does not indicate an appreciation of the issues in what in its simplest form is an acceleration claim. It is very difficult to conclude how the claimant has reached a view that the joint discussions necessitated an increase in the value of the claim.



“The defendants have put forward a reasonable and sensible proposal for settlement and one which I feel is generous in the circumstances. If your client retains unrealistic aspirations then an RTM will serve little purpose except to lead to an unnecessary escalation of costs. An RTM is a suitable forum to discuss settlement proposals at the appropriate time when it is realistically going to assist the parties achieve a conclusion of this matter. That will not happen if your client’s position remains as it is. I would invite you to reconsider the position with your client.”

40. The claimant’s solicitor wrote back saying that he thought that the defendants’ valuation to the claim were pitched at a significant undervalue. He said that litigation risk to the claimant in this matter was particularly low given the admissions made and the severity of damage suffered as a result of the admitted breaches of duty. He said:

“Even your own experts agree that the damage suffered by the claimant would have been significantly less with diagnosis and treatment on 26th September 2010 as opposed to 15th October. The claimant’s case will remain as pleaded and we would not entertain any form of re-evaluation of quantum.

“Given the defendants’ low valuation in this case it is presently more favourable for the claimant to proceed to trial for a fair assessment of the value of his claim. Even on a poor assessment it is highly unlikely that the claimant will achieve settlement at about £19,000 or even the £75,000 at which you value this claim.

The claimant is not concerned with proceeding with this matter and we are confident with the expert evidence we hold both on causation and quantum, which has remained consistent throughout this case. The same cannot be said for the defendants’ expert evidence.

Your co-defendant is willing to engage in ADR and if your clients are not willing to it would seem appropriate a witness statement is filed at court outlining the reasons why. In any event, let it be clear we are happy to proceed this matter to conclusion.”

41. A chaser is then sent to the second and third defendants’ solicitors on 27th May. On 10th June 2015 the second and third defendants’ solicitors said that they had agreed to attend a round table meeting on a limited basis and they looked forward to receiving confirmation of a date in due course. They sent a second letter on the same date about the round table meeting. They said:

“We confirm our instructions to attend a round table meeting. Please note only counsel will be attending on behalf of the second and third defendants, we will not be attending nor will our client. Counsel’s attendance will be limited to two hours.



He is there to listen to what counsel for the claimant has to say and more specifically to obtain a better understanding of how the claimant continues to pursue a claim at the level it is currently pleaded and indeed with an outright refusal to appreciate any litigation risk whatsoever.

“We put you on notice now that you should be prepared to come to the meeting prepared to have this discussion. Simply put, we will not accept a sit and wait approach. Counsel will have no authority to put forward any proposals.

“Recent correspondence has only served to confirm my clients’ reservations about attending where it is said by the claimant that ‘The claimant’s case will remain as pleaded and we will not entertain any form of re-evaluation of quantum.’ Nevertheless, in an effort to explore every available option and in the hope that counsel-to-counsel discussion may bring about a more realistic approach, we are happy to attend on the basis above.”

42. The claimant’s solicitor wrote back on 12th June 2015. He was disappointed by the second and third defendants’ suggested approach to the process of ADR. He said that the defendants had not made any attempt to qualify the assertion within the correspondence that this was an inflated claim. He said:

“In any event, we cannot make it any clearer that the claimant’s case is based and pleaded upon his served expert and witness evidence. Requesting that the claimant reassess his pleaded position and whether or not he consents to doing so is irrelevant as to whether the parties are capable of reaching a negotiated settlement at a joint settlement meeting. The entire purpose of such a meeting is to discuss and attempt resolution and the claimant has made every attempt to participate in ADR.

“We must point out that the claimant’s email response to your email dated 12th May 2015, which you have kindly appended to your witness statement, has been entirely misconstrued as to paint the claimant in an unreasonable light. Within this correspondence the claimant is purely setting out that he will not reassess his pleaded case, which is based on evidence, while you seek to impress on the court that the claimant will not negotiate under any circumstances in order to justify your clients’ reluctance to engage in ADR. This is not the case and the very reason for the claimant suggesting a joint discussion take place is to explore whether settlement can be reached.

“Just so it is abundantly clear, despite your request for him to do so, the client will not re-present his pleaded case. However, he will attend a JSM with a view to attempting to reach a negotiated settlement. You will note there has been nothing



within the claimant’s correspondence to suggest that he will not negotiate.

“We do not accept the assertion that ADR would be fruitless and we trust that you will note that your co-defendant has already provided dates to attend a full scale round table meeting with a view to negotiating settlement. Our view is that such a meeting would allow for an adequate forum to resolve this matter.”

43. The letter was quite a detailed letter and proceeded to set out the claimant’s views on why they felt the claims that they were making were justified on the information provided. They also set out why they felt that there were difficulties with the defendants’ expert evidence. They said:

“We note that you consider it would be favourable for your clients’ counsel to meet with the claimant’s. However, the above reflects exactly why the claimant’s pleaded case on causation and quantum is as it is. We do not consider a meeting between respective counsel will take the matter any further.

“However, as clearly stated, we are not averse to negotiation and appreciate this will ultimately form part of any settlement discussions. We suggest that after consideration of the above and consultation with your counsel the parties meet for a joint settlement meeting on a mutually convenient date with a view to reaching settlement.

“We do not wish to waste time in meeting if your counsel is without authority to settle this matter. Please do not agree to attend a meeting without authority to settle and a genuine intention to do so as this will only serve to escalate and ultimately waste time and legal costs. Please confirm whether your client would reconsider refusal to engage in ADR. In the absence of agreement we will proceed to trial.”

44. The first defendant’s solicitors wrote back on 26th June 2015 and said that they considered it necessary to set out their client’s position in advance of the round table meeting for the avoidance of doubt. They said that they had their client’s instructions to attend an RTM, as previously stated, but only their counsel would be attending. The solicitors would not be attending, nor the client.

“As with our co-defendants’ counsel, our counsel’s attendance will be limited to two hours and he will have no authority to put forward any proposals. Our counsel will be instructed to discuss this claim with your counsel in order to obtain a better understanding of how your client continues to pursue this claim at the level that is currently pleaded. It is hoped this will result in your client taking a more realistic approach to this case.”



45. The claimant’s solicitors wrote back on 29th June 2015 and felt that the defendants’ solicitors had adopted a very strange approach to the proposed RTM. The main message the claimant wished to convey was that he would not revalue his claim, which was based on expert evidence and had remained consistent throughout the matter. He said that the defendants’ only offer of £75,000 was not sustainable and would be beaten at trial. Without an RTM or indeed any reasonable proposal for settlement the claimant had little option but to proceed to trial. They hoped the defendants would reconsider their approach.

46. The defendants only wished to pursue the matter on the basis of having a round table meeting as they had suggested and not otherwise. Further correspondence took place between the solicitors on 2nd July 2015. The claimant’s solicitor said:

“The claimant’s view is that attending a meeting with the prior knowledge that all defendants are without instructions is utterly pointless. We have furnished all defendants with a detailed letter of clarification in order to avoid the wasted costs in respect of counsel attending for a discussion without instructions. Our position, as set out in that letter, will not be deviated from.

“Following a consideration of this correspondence, please request clarification of any matters which remain unclear which continue to preclude you from attending an RTM with instructions and we will do our very best to provide further information.

“When dates of availability were provided by your client to attend an RTM we were under the genuine impression that this was your client’s intention. However, following your client’s co-defendants’ reluctance to attend a second meeting in the true sense of such a meeting, i.e. some form of instructions, you have changed your position to confirm that counsel will be attending for a couple of hours without instructions. This is not the impression provided when dates of availability were provided and it is clear you have changed your approach to an RTM based on the conduct of your co-defendants.

“For the avoidance of doubt, we have discussed matters with our client and the claimant will not attend a meeting where it is predicated on the defendants attending without any instructions. We cannot see that this will assist in any way in bringing this matter to a conclusion. However, please be under no illusion, we are prepared to negotiate a settlement in this case if your client is minded to attend a full scale RTM.

“Should the claimant proceed to trial he will beat the combined offer of settlement of £75,000 and as such we see no value in discussing matters further if the settlement will not be attended by all parties with instructions.



“As set out previously, if your client and co-defendants’ clients will not provide instructions to attend an RTM with instructions on settlement we will proceed to trial.”

47. The defendants’ solicitors wrote back on 10th July 2015.

“The repeated reference to the defendants attending an RTM without instructions is incorrect. We have confirmed the basis of our instructions, as indeed has our co-defendant, and can add nothing further at this time.

“We can only derive from your letter that you consider instructions to mean that a party must attend with authority or instructions to make offers. If so, this view is without basis. Our instructions are clear, to attend a round table meeting in an attempt to narrow the issues and obtain a better understanding of the rationale behind the claimant’s position. We are also instructed not to increase or alter in any way the Part 36 offer of £75,000 previously made.

“Your client should be aware that considerable thought was given by my client to withdrawing the £75,000 offer following the service of the claimant’s orthopaedic evidence liability, where we now consider his claim to be worth below that level even on a full liability basis. Your client is advancing, on his best possible case, an acceleration claim.”

48. The letter then proceeds to set out the defendants’ views on certain quantum aspects and why they felt the claimant’s views to be unreasonable. The penultimate paragraph says:

“Finally, we note that it is now your intention to negotiate a settlement. This is, of course, in stark contrast to your correspondence at 12th May 2015. Whilst the change in stance is encouraging, if this is truly your client’s intention then please provide us with a figure that he would be prepared to settle his claim for. We can see no legitimate reason to withhold this information and to refer enigmatically to a willingness to accept a lower sum.”

49. The second defendant’s solicitors wrote to the claimant’s solicitors by a letter dated 24th September 2015. They expressed their continued dismay at the claimant’s failure to engage in negotiations. This is, of course, despite indicating an intention to do so some months ago. They maintained the view that the claimant had fundamentally misinterpreted the available evidence and the proper basis for pleading a claim for damages. They said that they felt the claim was grossly exaggerated and they referred to a number of relevant authorities, including Painting v. Oxford University and Hullock v. East Riding County Council, together with Duncum v. Churm. They felt that even if the claimant were to establish liability, given the conclusion of the experts at the joint meeting, that he would be limited to recovering damages for specific heads of loss and for a finite period.



50. They said that they were prepared to offer the claimant the sum set out in their first letter of the same date in full and final settlement of the claim against the defendants. They said that this took into account all the factors raised and the credibility of the claimant as a witness at trial. They said that the offer was made on a full valuation basis and thus costs protected in any event; it was not to be understood as any admission of liability. They said:

“Please be advised and so there is absolutely no misunderstanding, there will be no further offers. This offer is deliberately pitched at a level we consider to be comfortably over the full valuation of this case even on the claimant’s best possible day in court.

“Should your client take the decision to reject the offer, he needs to be advised that he is doing so in the knowledge that a trial would be inevitable.”

51. The letter of the same date was obviously the Part 36 offer of £200,000.

52. I have been referred by both parties to a number of cases. The defendant relies in particular on Duncum v. Churm, a circuit judge decision, and Worthington v. 03918424 Limited, a district judge decision. In Duncum v. Churm the claimant was injured in a road traffic accident. The defendant obtained surveillance evidence relevant to the claimant’s mobility. Shortly after that was served, the claimant served a schedule of damages seeking well over £1 million. The defendant, understandably, regarded the £1 million as a great deal too high a figure. There was a joint settlement meeting, then a heavily modified schedule reduced to something over £500,000 was served. The defendants made a Part 36 offer of some £202,500. That was accepted some six months or so after it was made.

53. At paragraph 12 of his judgment the judge said as follows:

“In the light of the provisions in this CPR and the authorities to which I have referred, it appears that the situation is as follows: one, the claimant’s claim was originally cast at far beyond its true value and this was done even though the claimant was in possession of an adverse surveillance report.

“Two, the Part 36 offer, which was not the first offer the defendant had made, though I was not put in possession of the full picture here, was clearly a reasonable offer and it was made after the claim had been halved in value.

“Three, the claimant does not have the protection of a CPR automatic costs consequence provisions when an offer is accepted within 21 days and so the court may order otherwise than the prima facie CPR Part 36.10(4) order if it considers the prima facie order to be unjust or (which may be the same thing) not what the fairness of the situation or the circumstances demand.



“Four, there has been no trial and thus no explicit judicial finding that the claimant has been deliberately and dishonestly exaggerating her claim.

“Five, that it is lucidly clear from what transpired that the claim was put much too high on her behalf and I will refer to this fact further in paragraph 13.

“Six, the fact that a claimant ends up accepting much less than was originally sought does not in itself, of course, cause unfairness to a defendant.

“Seven, that when it can legitimately be inferred that a case would have settled much sooner than it did if the claim had been reasonable there is no reason why that factor should not be reflected in costs and every reason why it should be. This does appear to be the situation here.

“Eight, the defendant was clearly the winner in the parties’ rival contentions as to the value of the claim.”

54. At paragraph 13 he said:

“It is appropriate to observe that when composing schedules of damages in personal injury cases the authors of such schedules will, of course, put the case towards the top end of the bracket which it may legitimately inhabit. It is tactically unsound to cast a case too low at an early stage and all professional litigators clearly understand that reductions are likely to be necessary from theoretically arguable calculations, in order to quantify a realistic view of the value of the claim, in order to negotiate productively and in order to appear reasonable, and thus persuasive, should the case come to trial.

“But there must be a sound and honest evidential basis for an initial schedule. It is not appropriate as a tactic to quantify, for example, a case with a true worth of £200,000 at £1 million, five times as much. This is because, questions of honesty apart, which are, of course, important, such a discrepancy will be unsupported by evidence and will go far beyond putting a valuation at the top end of a legitimate bracket and because such an approach is likely to produce an unfruitful negotiation and an unnecessary trial.

“A defendant might, quite understandably, say, ‘Well, if that is what you are after there’s no point in our talking.’ Another consequence, though not an inter partes matter, is that an honest claimant is likely to be acutely disappointed.

“It does seem to be self-evident in this case that, for whatever reason, the original £1 million plus schedule must have been



very greatly in excess of the arguable value of the claim. It was abruptly halved without any satisfactory explanation and then settled at approximately one fifth. The final figure accepted must be a strong indication that even the second schedule was unrealistically high and since no additional evidence appears to have been served by the defendant between the submission of the two schedules it is reasonable to find that the January 2014 schedule could have been served in May 2013. I have concluded that the figure of £1 million is likely greatly to have inhibited the prospect of an earlier negotiated settlement.”

55. He then proceeded to order the claimant to pay the defendant’s costs from the date of service of the initial schedule. He felt that it would be unjust for the defendant to have to bear the costs incurred at a time when the claimant was seeking roughly five times what she finally accepted was the true value of her claim.

56. The case of Worthington concerns an accident as well. Liability does not really appear to have been in dispute, although there were issues with regard to causation. The matter ultimately settled on a Part 36 offer of £40,000. The judge said at paragraph 6:

“The claimant had allowed the Part 36 offer to stand on the table beyond 21 days. He had pursued a claim which he valued at approximately half a million pounds. Whilst I accept that the exact quantification of the claim was not possible at this juncture, the claimant had advanced his claim as one of high value in the order of half a million pounds. Following service upon him of the surveillance evidence and the reports showing the changed views of the experts which the defendant had obtained, the claimant in short order accepted the offer which was still on the table.”

57. The judge said that he was required under the rules to make an order for costs and, in doing so, he had regard to Part 44. He had little difficulty in reaching his conclusion. He said:

“A claimant who pursues a claim in excess he says of half a million pounds but settles for £40,000 attracts suspicion. When he does so in short order after service upon him of evidence which goes so far as seeing what the experts said previously, though with some reservation and some confusion support his case, then one necessarily would look to find from the claimant some clear and convincing explanation as to why he should sell himself so short.

“The most I have in that regard is by way of a statement from the claimant’s solicitor on his behalf which indicates that the claimant had been given advice that the court might reach a conclusion that he had not sustained all of the injury or for all of the period which he alleged. To move from a claim where I say, ‘My case is worth half a million pounds,’ to settling for



£40,000 in those circumstances invites the inference that the claimant indeed accepted that his case was exaggerated in the extreme and that is the inference which I draw upon this evidence.”

58. Counsel for the defendants says that whilst there is surveillance evidence in both cases, that does not put the matter in a different league to the case before me. He says that this is because in Duncum the surveillance evidence was served before the schedule of loss and was therefore not causally relevant, and, in the case of Worthington, there were no findings of dishonesty.

59. The claimant says that this is neither a Duncum nor a Worthington type of claim. There is no suggestion here that the claimant has been dishonest or has exaggerated the effects of his injuries so as to try and increase the size of his claim. The claimant, it is said, has put forward a claim on losses which the defendants consider to be far too high, as they are entitled to do, but that does not, of itself, make the claim improper. Counsel for the claimant says the claim had a proper factual basis; that was the medical evidence of Mr MacDonald and the employer’s letters and the witness statement from the comparator. The defendants might think that that evidence was less than compelling, but that is a trial point and a negotiation point.

60. It did seem to me to be highly relevant in this particular case that the claimant had not exaggerated his actual injuries and the impact of those injuries upon him. This was a schedule of loss based on a true picture of his injuries but with different interpretations between the parties as to what was appropriately claimed. Whilst I entirely accept that there was no finding of dishonesty in either the Duncum case or the Worthington case, it is apparent that the judges were viewing the matter from the point of view that surveillance evidence had been served which plainly showed that the claimant’s injuries were not as the claimant had stated. That is not the case here.

61. One of the cases referred to by the parties was Sugar Hut Group v. AJ Insurance. The defendant relied on this case as showing that the court could consider issue based orders. But it also contains at paragraph 25 the following:

“The judge suggests at paragraph 21 that the conclusions set out in his main judgment are themselves indicative that the overall claim and certain individual components were very much exaggerated. Nowhere in his main judgment does the judge describe the claim or any part thereof as exaggerated. It is true that significant parts of the business interruption claim failed for the reasons which I have briefly summarised, but that does not mean the claim is exaggerated. The P2 exercise was potentially relevant and contemplated by the policy but failed for the reasons explained. The undoubted downturn in turnover at Fulham and Hertford after the fire could not on the basis of the evidence be established to be properly attributable to the fire. However, in the happy phrase once coined in this context by a distinguished maritime arbitrator, the question is whether the claim exceeded the balance of permissible optimism. In my judgment, the judge made no findings upon a basis of which it could be said that it did.”



62. This is a recognition again of the fact that a claimant’s claim will be pitched at a different level frequently than might end up being awarded at trial. The claimant also relied on the matter of Fox v. Foundation Piling Limited, which is a Court of Appeal decision. The claimant had had an accident whilst at work. The defendant obtained a video showing that the claimant was able to walk normally and that his general mobility and the mobility of his lumbar spine were generally good. There was no evidence of limping and he was able to get in and out of a car on several occasions with ease. The claimant commenced proceedings. He obtained a medical report which said that he was still suffering from severe back pain and pain in both legs. It was said that it was unlikely that he would be able to return to his previous employment.

63. The defendants obtained some medical evidence. They did not disclose at that point the surveillance evidence. Their expert thought that the claimant had suffered from degenerative changes of the spine and the effect of the accident was to accelerate a disc prolapse which was inevitable. The defendant then applied for permission with regard to the surveillance evidence. The defendant obtained video surveillance evidence of the claimant’s conduct when attending the appointment. This again showed the claimant to be generally free of disability except when he approached the spine clinic and at that point he started to use a walking stick and was limping. Both parties’ experts reviewed their opinions in light of the surveillance evidence provided.

64. The defendants had previously made a Part 36 offer which had been refused. They withdrew that and offered a lower sum of £31,702 plus the CRU payments. The claimant accepted that Part 36 offer. There was an argument about costs and the circuit judge held that the defendant was the successful party in respect of the period after 20th October 2008----

COUNSEL ONE: Your Honour, I do hesitate to interrupt. I think that may not have been a Part 36 offer.

COUNSEL TWO: I think that is right.

COUNSEL ONE: I think it was an offer which came on the basis that costs would only be paid up to an earlier date rather than it was a Part 36 offer. If I have that wrong I apologise for interrupting.

DISTRICT JUDGE TRUMAN: In practical terms, I am reading from the judgment, so whatever the judgment says will be the correct position.

COUNSEL ONE: Thank you.

DISTRICT JUDGE TRUMAN: He ordered the claimant to pay the defendant’s costs in respect of that period. The judge said that if he were wrong on that issue, nevertheless the claimant’s conduct warranted an order that the claimant should pay costs after 20 th

October 2008. The claimant was aggrieved and appealed to the Court of Appeal. He felt that he should be regarded as the successful party and that his conduct did not justify any departure from the normal order that the defendant as losing party should pay the entire costs of the action.

65. The Court of Appeal went through the relevant case law. At paragraph 46 it was said:



“A not uncommon scenario is that both parties turn out to have been over-optimistic in their Part 36 offers. The claimant recovers more than the defendant has previously offered to pay, but less than the claimant has previously offered to accept. In such a case the claimant should normally be regarded as ‘the successful party’ within rule 44.3 (2). The claimant has been forced to bring proceedings in order to recover the sum awarded. He has done so and his claim has been vindicated to that extent.

“In a personal injury action the fact that the claimant has won on some issues and lost on other issues along the way is not normally a reason for depriving the claimant of part of his costs. For example, the claimant may succeed on some of the pleaded particulars of negligence, but not on others. Indeed the fact that the claimant has deliberately exaggerated his claim may in certain instances not be a good reason for depriving him of part of his costs: see Morgan v UPS. A defendant who has obtained video surveillance evidence is perfectly well able to protect his position on costs by making a modest offer under Part 36.

“Nevertheless, in other cases (as stated above) the fact that the successful party has failed on certain issues may constitute a good reason for modifying the costs order in his favour. This is commonly achieved by awarding the successful party a specified proportion of its costs. In Widlake the facts were so extreme that the successful party was ordered to bear all of its own costs.”

66. He went on to say:

“When I survey the whole timetable of the litigation, which the judge helpfully sets out in his judgment, it can be seen that both parties were somewhat dilatory at different stages. Indeed the defendant might have speeded matters up if, at an earlier stage, it had disclosed the crucial video of 29th September 2004 or at least allowed its own expert to see that video. There is nothing remarkable in the claimant's conduct of the action, which justifies a departure from the normal order that the claimant should recover the costs of the action.

“The next point taken by the defendant is that the claimant had exaggerated his claim. The claimant's original schedule of loss claimed £280,000 plus general damages for pain, suffering and loss of amenity. The claimant ultimately recovered only £31,702.59 in total.

“I readily accept that the claimant's ultimate recovery fell far short of the original pleaded claim. This was in part because the video surveillance evidence showed the claimant to be less



disabled than he alleged. Also it was in part because the accident of 11th April 2003 had accelerated pre-existing degenerative change, rather than caused an injury which the claimant would otherwise have escaped. The claimant realistically faced up to these matters when he accepted the defendant's final offer of £31,702.59 net. Furthermore, the judge declined to make a finding that the claimant was guilty of any misrepresentations either by omission or commission. It is perhaps surprising that the judge made no such finding. However, this court cannot substitute a finding of fact which the judge expressly declined to make.

“In my view this case has much in common with Morgan v UPS. The defendant had video evidence from an early stage which showed that the claimant was exaggerating his disabilities. Yet the defendant failed to make any realistic offer reflecting the true value of the claim until 25th November 2009. The claimant promptly accepted that offer and the action then concluded, subject to argument about costs.

“In my view, there is no justification for departing from the usual starting point as set out in rule 44.3 (2) (a), namely that the unsuccessful party should pay the successful party's costs. The judge exercised his discretion on the wrong basis, namely the assumption that the defendant was the successful party. It therefore falls to this court to re-exercise that discretion.”

67. The judge saw no reason to depart from the starting point that the claimant as the successful party should recover all his costs assessed on the standard basis. Moore-Bick LJ and Ward LJ agreed.

68. He also set out:

“There has been a growing and unwelcome tendency by first instance courts and, dare I say it, this court as well to depart from the starting point set out in rule 44.3 (2) (a) too far and too often. Such an approach may strive for perfect justice in the individual case, but at huge additional cost to the parties and at huge costs to other litigants because of the uncertainty which such an approach generates. This unwelcome trend now manifests itself in a (a) numerous first instance hearings in which the only issue is costs and (b) a swarm of appeals to the Court of Appeal about costs, of which this case is an example.”

69. The claimant’s counsel also referred me to other extracts such as from Brit Inns Limited (In liquidation) v. BDW Trading, where it was said:

“The pursuit of exaggerated claims might deprive the claimant of some or all of its costs, but it was usually only where exaggeration was deliberate that the claimant would be ordered to pay the defendant’s costs. In general terms, for the costs to



be shifted as result of conduct, so that the claimant who recovered something at trial still has to pay the defendant’s costs, there needs to be a more or less total failure on the issues that went to trial.”

70. He also referred to Widlake v. BAA, where it was said:

“The claimant accepted that the past and future loss of earnings claims was worth very much less than had been originally contended. The court held that this did not of itself show that there had been exaggeration. Rule 44.3 (2) (b) could not have been intended to be satisfied merely because a genuine claim was overestimated.”

71. That is taken from the note of the White Book at 44.3 (18) (4) under the old rules.

72. Counsel for the claimant also referred to Purfleet Farms v. Secretary of State, where it was said:

“Exaggeration alone was not enough in the event of a large disparity between the sum claimed and the sum awarded. The tribunal had to have regard to the reasons for the disparity and their effect upon the conduct of the claim. As to (a) if the reasons are defensible, in the sense that there was a legitimate albeit unsuccessful argument put forward in support of the figure concerned, there could be no good reason to regard the claim as exaggerated in the pejorative sense necessary to justify a sanction in costs. As to (b) if in any event the effect on the proceedings in terms of the time spent and the costs incurred in disposing of the argument or issued concerned is relatively insignificant, then again an adverse order is unlikely to be appropriate.

73. The claimant said that the defendant needed to prove that there was a large disparity between the sum claimed and awarded. That is plainly the case here because the claimant claimed over £1 million and accepted £200,000. The claimant says the defendant also needs to show that it is not a case of a legitimate but ultimately unsuccessful argument being put forward to support the figure claimed and that it has had a significant effect on proceedings in respect of time and costs.

74. I have already set out that I do consider that the claimant’s claim was adequately pleaded and did show that this was an acceleration case. I accept counsel for the claimant’s submissions that if the defendant was unclear they could have asked for clarification pursuant to Part 18, but in my view, although the case did not expressly state that it was an acceleration claim, it did make it plain that it was with the addition of the words “when he did”. I have also set out why I do not consider that the claimant at that stage needed to set out the period of acceleration.

75. The claimant also raised counter complaints about the defendant’s behaviour to try and justify a claim that the defendant should pay indemnity costs to the claimant. There is no formal application in that regard. It was not something that the claimant



apparently even thought was relevant until the defendant started to say that they wanted their costs from early date. As there is no formal application I do not deal with the point.

76. I have considered this case and the case law carefully. I find that the claimant through his solicitors and counsel was doing no more than claimants do normally. He was pitching his claim at the higher level and expecting a bit of horse trading to occur on the weak elements to take account of the risks of litigation etc. I consider that the correspondence is clear and is not to be interpreted the way the defendants did.

77. The claimant refused to recast his schedule of loss and there was plainly no obligation on him to do so. In my view, however, it was made plain that whilst the pleaded case remained at in excess of £1 million the claimant was willing -- and said so on a number of occasions -- to discuss the matter and explore at a round table meeting all those issues on loss of earnings etc which the defendants, with some force, in my view, on the current evidence, were going to be able to express.

78. The claimant’s solicitors were doing what is perfectly usual and proper behaviour for claimant solicitors. They set out their open case, which is seen by the judge at £X, and then have without prejudice discussions with the other side, when negotiations and comments on the strengths of evidence may mean a lower settlement is agreed, but if it does not result in settlement the judge does not know those areas where the claimant may have himself perceived weakness.

79. The schedule is enthusiastic. It might well be categorised as overly enthusiastic, because I think it would undoubtedly not have succeeded in full at trial, but being over enthusiastic is not the same as behaving improperly. It was a schedule which had some basis in the medical and lay evidence. It was not a case where the claimant had deliberately exaggerated his injuries and thus the claims resulting.

80. This was a case where the defendants knew the claimant’s medical evidence from July 2014 and his quantum position and evidence from September 2014. I do consider that the defendants misunderstood the claimant’s position on the refusal to recast his schedule of loss and failed to appreciate what was the claimant’s actual position about a round table meeting, which was the usual claimant’s position of: “This is our open case. Please come and talk to us on a without prejudice basis to see what might be resolved.” I do not consider that the claimant’s schedule or the claimant’s conduct has impeded settlement or prolonged the case.

81. The defendants had made one Part 36 offer of £75,000. They could have stuck with that and gone to trial to see if they could get their costs from 31st July 2014 onwards. They could have made the £200,000 Part 36 offer much earlier than they did. Nothing had changed from September 2014 when the claimant served his first schedule of loss and September 2015 when the defendants made their second Part 36 offer. When they made that offer the claimant tried to persuade them to offer a bit more, they said no, and the claimant accepted the offer four weeks out of time. The process of settlement was not prolonged by the claimant’s solicitor or conduct because the defendants could have done that much earlier. When they did do it, the case settled.



82. The claimant’s solicitors did what claimant solicitor are supposed to do, which is to try and get an appropriate settlement for their client. They did not wish to settle at £75,000. When a higher offer was made they considered it and that was accepted.

83. It is apparent that discussions were held with the claimant on the risks of litigation. He needed to prove a number of issues. He would have had to have shown that in the absence of negligence with less joint damage and no immediate need for a joint replacement, as in fact was required, he would have been able to return as a roofer with his employer. He would have needed to have shown that he would have progressed to a supervisory or office job before his arthritis and the actual need for a hip replacement forced him to give up roofing work. He would have needed to have shown that he would be able to continue to work for his employer in a supervisory capacity with his later hip replacement. He would have needed to have shown that he would be promoted on a number of occasions, that his income would have increased with each promotion and would have had to have shown to what degree his hip degeneration could have impacted on his promotion and earning ability in any event, even with prompt diagnosis.

84. He would also have had to have dealt with his depression and convictions, what job he was now capable of doing, his likely residual career path, likely increases in income over time, the impact of hip arthritis now and the impact of mental health problems or convictions now.

85. It is counsel for the claimant’s submission that the future loss of earnings was essentially an all or nothing head of loss. Depending on which way the court went, it could be a lot of money or much less money.

86. After consideration of the risks of litigation the claimant decided to accept the offer put forward. That, in my view, is a sufficient and proper explanation of why we have such a discrepancy between the original case and what the case was settled for.

87. The defendants are unhappy that the claimant did not ever tell them what he might settle the case for, but that has nothing to do with whether not the schedule of loss was so out of line that it impeded settlement.

88. The claimant can say, and did say in oral submissions, that he thought the round table meeting was actually the proper place to give figures if that were going to occur. I appreciate he was saying through his solicitors that a figure would be supplied in correspondence after instructions were taken and in the event that did not occur, but this is in the context of correspondence starting in May 2015 regarding, on the defendant’s case, an excessive schedule of loss and the second Part 36 offer being made in September 2015.

89. In conclusion, for the reasons given above, I hold that the usual order under CPR Part 36.15 (5) applies and there is no injustice in making that order.

(Discussion followed)

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