The Personal Injury and Medical Law Teams’ Case Law and ...

January 2014

The Personal Injury and Medical Law Teams’ Case Law and Practice Update

AA (by his mother and litigation friend

BB) v (1) CC (2) MIB [2013] EWHC 3679

(QB) Swift J.

− PPO for Court of Protection costs − Damages (Variation of Periodical

Payments) Order 2005 − Possibility of C regaining capacity − Uncertain commencement and

termination dates of PPOs − Power of the court to approve

Tomlin Order C, age 28, lacked capacity and a deputy was to be

appointed by the Court of Protection to manage

his affairs.

The court approved settlement of his claim which

comprised payment by the MIB of a substantial

lump sum and periodical payments of £11.500

per annum in respect of future costs of the Court

of Protection and other associated expenses. C

however was expected to regain capacity to

manage his finances, in which event the parties

agreed that those payments would then cease

but would re-commence if he subsequently lost

capacity at a future date.

C submitted:

i) when construing the rules for periodical

payments under the Damages Act 1996 (ss 2,

2A and 2B) and the requirements of CPR

r.41.8(a) to specify the annual amount of a

periodical payment and at what intervals this

would be paid, “intervals” did not merely

refer to frequency of payments but could be

construed as meaning an interval during

which a claimant lacked capacity; as such a

“stop/start” form of periodical payments

could be awarded [paragraphs 9 - 12]

ii) that if such an order was outwith the powers

of the CPR Rules Committee as conferred by

s.2A of the DA 1996, the court should declare

the rule as drafted ultra vires and make a

different order under s.2A

iii) the proposed order under the settlement was

within the Damages (Variation of Periodical

Payments) Order 2005 but no application

would need to be made to the court for

variation as this would follow automatically

once the Court of Protection amended the

status of C’s capacity.

Held: C’s proposals rejected under CPR 41 and

the 2005 Order but Settlement Order approved in

a Tomlin form:

1. Read within the context of r.41.8(1)(a), the

word “intervals” plainly referred to the

intervals of time within the period of a year

at which each periodical payment would be

made. The drafter was not referring to

intervals of years or intervals between

changes in the amount of payments to be

made. The provision of r.41 did not therefore

enable a court to make orders starting and

ending on a date which was uncertain and

Swift J was sceptical of C’s counsel’s

suggestion that under r.41.8 there could be a

total suspension of an order as opposed to a

(Continued on page 2)

January 2013

Capacity and PPOs

7. Further, since the proposed periodical

payments formed part of an agreement

approved by the court, the periodical

payments made under it would be exempt

from taxation [paragraphs 24 to 25]

Comment: This case exemplifies the limitations

imposed by the codification of the Periodcial

Payments scheme which were clearly set out and

recognised by Mrs Justice Swift. The Periodical

Payments Scheme implemented under the

Damages Act 1996 and the 2005 Order,

anticipated continuous periodical payments

without interruption where the interval related to

the regularity of payments, not when or if these

were to be made on some indeterminate

occasion or occasions in the future.

When the 2005 Order was implemented, criticism

was made of the arbitrary (as perceived by some)

restriction to one application for variation over a

claimant’s lifetime. This implementation

coincided with coming into force of the Mental

Capacity Act 2005 introducing greater latitude in

definition of ‘capacity’. Since then, it is possible

to have capacity in some areas (such as

authorising payment of school fees for a

dependant) but not in others such as possessing

appropriate understanding to manage finance in a

broader context especially where a significant

fund of money is involved.

Counsel for D acknowledged that this was a case

which is very different from that envisaged by

CPR 41 which anticipated the court making an

order in the face of opposition from one party

(possibly even both parties) but not dealing with

an agreed order placed before it for approval as

in the index case.

There was recognition of the increased number of

agreements embodied in a Tomlin order, where

the Schedule contains terms that the court could

not of itself order. Provided that the court was

satisfied as to the taxation position, as well as the

continuity of payment and about any other

matters that directly affect the interests of the

claimant, it could approve the order.

The situation that arose in this case, is likely to

recur and while Mrs Justice Swift’s decision is a

model of equitable resolution and benign

casuistry, it does highlight the difficulties posed in


reduction or an increase as referred to under

r.41.8(3) [paragraph 16]

2. The court was therefore not satisfied that it

had the power to order periodical payments

in the form suggested [paragraphs 14 - 16]

3. The ultra vires argument had not been

developed and the court had insufficient

material before it to make what would be “a

far reaching finding” [paragraph 17]

4. The 2005 Order gave the court power to

provide, in an order, for periodical payments

to be varied where there was a chance that

at some definite or indefinite time in the

future C would, as a result of an act/omission

giving rise to the cause of action, suffer some

serious deterioration or enjoy some

significant improvement in his condition. The

circumstance for which it was intended to

cater was a case where there was to be a

reduction of or an increase in the amount of

periodical payments rather than a “stop/

start” change. It was intended for the sort of

case where it was necessary for there to be

re-assessment of damages in the future.

5. It is undoubtedly possible within the

framework of the 2005 Order to dispense

with the need for an application to vary but it

would not be open to the court to dispense

entirely with the need for an application to

the court. Article 7 of the Order therefore

presents “a serious problem” since it

provides that a party could only make one

application to vary in respect of each

specified disease or type of deterioration or

improvement. For both these reasons it was

not appropriate to make such an order

[paragraphs 18 - 21].

6. The parties could however agree a Tomlin

order with a schedule embodying their

agreement in relation to the periodical

payments. If it was in C’s interests, as it

plainly was, and if it satisfied the

requirements for C’s protection, the court

was not precluded from approving the order,

notwithstanding that it was one which the

court could not itself make under r.41.8 or

the 2005 Order.

(Continued from page 1)

Capacity and PPOs continued

January 2014

a strict interpretation of the provisions of r.41 -

and r.41.8 in particular - as well as Order 2005.

The time has come for a review of the Periodical

Payments framework to meet the modern

demands of serious PI damages awards and the

encouragement by courts and a government for

PPOs to be used not only in respect of care claims

but also more creatively for other areas of future

loss including accommodation and loss of

earnings claims. [Deirdre Goodwin]

Coles v Hetherton & Ors [2013] EWCA Civ

1704 [Moore-Bick, Aikens and Vos LJJ]

− Credit Hire

− Measure of Loss

− Reasonableness of hire charge

− Recoverable amount

− Courtesy car costs

The Claimants had chosen to have their motor

vehicles repaired under their Royal & Sun

Alliance’s repair scheme following minor road

traffic accidents. RSA provided for the

policyholder to choose RSA's system for repairing

cars, which entitled the policyholder to the use of

a courtesy car, or to choose another repairer. The

Claimants had opted to use RSA's system, which

involved the repairs being undertaken by a

company (M) which was a member of the same

group of companies as RSA. M owned and

operated a number of repair garages or sub-

contracted repair work to independent garages

outside the group.

The Defendants challenged RSA's repair system

submitting that it increased the overall cost of

repairs to be borne by the Defendants. What RSA

presented to the negligent driver's insurer as the

basis of claim was a breakdown of invoice charges

setting out the figures payable by RSA to M,

which in most cases exceeded the sums paid by M

to the sub-contractors. The Defendants calculated

that the overall effect of this was to increase costs

by about 25%. RSA maintained that fees charged

by M to it were no more than any individual


policyholder would have had to pay to a garage

and in most cases were somewhat less, because

of the discount which M could obtain by virtue of

its bargaining power and the volume of work

produced by it.

The High Court (Commercial) was asked to

consider the following questions:

i) Measure of loss: Where a vehicle is

negligently damaged and is reasonably

repaired (rather than written off), is the

measure of the claimant’s loss taken as the

reasonable cost of repair?

(ii) Test of “reasonable repair charge”: If a

claimant’s insurer has arranged repair, is the

reasonableness of the repair charge to be

judged by reference to:

a) what a person in the position of the

claimant could obtain on the open

market; or

b) what his or her insurer could obtain

on the open market?

Judgment 1

Mr Justice Cooke (2012) EWHC 1599 (Comm)

held:

(i) Measure of Loss: Where a vehicle is

damaged the correct measure of damages is

the diminution in value of the chattel, which

is taken to be the reasonable cost of repairs.

The reasonable cost of repairs is not

necessarily the repair cost actually incurred

and can be proved by any evidence, not

limited to invoices, which can properly

discharge the burden of establishing the

relevant amount.

(ii) The reasonableness of the repair charge:

Measure of the diminution in the value of the

damaged car was to be assessed by reference

to the position of the individual claimant,

without reference to his insurers or to any

benefits which he obtained under his

insurance policy. As a matter of principle, the

loss was suffered by the policyholder and

that loss was suffered at the outset when the

collision occurred, before any decision was

made about repair, whether by the Claimant

or by RSA or M. The Defendants’ argument

fused the insurer and the insured long before


Capacity and PPOs continued

January 2014

Credit Hire

could not benefit from this benefit that was

available to the Claimant by dint of his having

paid the insurance premiums.

The Defendants appealed to the Court of Appeal

against all four findings of the judge.

Held: dismissing the appeal

1. Measure of Loss: Mr Justice Cooke was

correct in his analysis. Where a vehicle is

damaged the correct measure of damages is

the diminution in value of the chattel, which

is taken to be the reasonable cost of repairs.

The correct jurisprudential analysis of a claim

for diminution in value even if measured by

the reasonable cost of repairs, is that it is a

claim for general damages not special

damages. Questions of mitigation therefore

do not apply (the remarks to the contrary in

Darbishire v Warran (1963) 1 WLR 1067 were

an “aberration” as described by Cooke J).

The reasonable cost of repairs is not

necessarily the repair cost actually incurred

and can be proved by any evidence, not

limited to invoices, which can properly

discharge the burden of establishing the

relevant amount. If a claimant decides to

have his vehicle repaired at a cost which is

not reasonable then the reason why he

cannot recover that unreasonable cost as

damages is because it does not represent the

diminution in value of the chattel. The

diminution in value will always be a question

of fact for the trial judge.

2. The reasonableness of the repair charge:

This second question arose because of the

subrogated nature of the claims and the use

of the RSA scheme. The first question is

whether there is any difference between an

insured or uninsured chattel. The answer to

this question is no. It is settled law that even

where the loss is settled by an insurer the

cause of action remains in the insured unless

specifically assigned to the insurer. Secondly

benefits from an insurance policy are

irrelevant in assessing the correct measure of

damages recoverable. The Defendants would

have to take the present cases out of these

general rules to succeed. The Defendants

argued that the insurer was the claimants’


the insurer was involved. The repair costs

incurred were simply part and parcel of the

arrangements made by RSA as insurer to fulfil

its obligation to indemnify the Claimant by

reinstatement of the vehicles. The principles

set out in the authorities meant that the

Claimants’ dealings with RSA and RSA's

actions in relation to the indemnity granted

were res inter alios acta, in the context of

assessment of diminution in market value or

costs of repair, and "behind the curtain" for

any tortfeasor who sought to argue about

mitigation of loss in payment of repair costs,

Bee v Jenson [2007] EWCA Civ 923, [2007] 4

All E.R. 791 followed and Copley v Lawn

[2009] EWCA Civ 580, [2010] Bus. L.R. 83 and

W v Veolia Environmental Services (UK) Plc

[2011] EWHC 2020 (QB), [2012] 1 All E.R.

(Comm) 667 considered.

Judgment 2

In Judgment 1, Mr Justice Cooke was asked to

refrain from passing judgment on a third issue

namely:

Recoverable amount: Where a vehicle is not a

write-off and an insurer indemnifies the insured

by having repairs performed and paying charges

for those repairs, and where the amount claimed

is no more than the reasonable cost of repair (on

the correct legal test determined under (2)

above), is that amount recoverable?

At a subsequent hearing to determine whether to

strike out/give summary judgment on various

parts of the Defendant’s defences ((2012) EWHC

2848 (Comm) (“Judgment 2”) Mr Justice Cooke

held:

(i) the answer to the third question was yes. The

overall figure for repairs was what the court

was concerned with and whether this

reflected the reasonable cost of repair. It was

not concerned with the individual charges

which made up the total.

(ii) In relation to a subsidiary point about the

recoverability of a courtesy vehicle which was

supplied free of charge as an adjunct to the

RSA scheme, the judge found that this was

recoverable because it was a fruit of the

contract of insurance and the Defendant


A Credit Hire continued

January 2014

Credit Hire continued

agent but that was not borne out by the

facts. There was no agency relationship

created by the insurance contract. They also

argued that in certain circumstances the

court does take into account the position of

the insurer for example in the case of Copley

v Lawn (2009) EWCA Civ 580. However

Copley did not change the basic principles

above and simply recognised that where a

claimant receives an offer to make amends

then a claimant should be credited with the

advice he could have been expected to

obtain from professionals. Mr Justice Cooke

was right to find that the reasonableness of

the repair charge is to be judged by reference

to what a person in the position of the

claimant could obtain on the open market.

3. Recoverable Amount: If a claimant claims

that the reasonable cost of repairs is that

which the insurer has arranged and paid for,

the court has only to consider whether this

actual sum claimed is equal to or less than

the notional sum this claimant would have

paid if he had the repairs done on the open

market. To do so it needs to consider what

the components of the overall notional figure

would be, stripped of an unreasonable

components and then compare that sum

with the total sum representing the actual

cost to the insurer i.e. the sum claimed by the

claimant. The court will not thereby have to

examine the details of administrative charges

or sundry service charges. The question is

whether the overall cost charged by the

insurers repair scheme is reasonable.

4. Courtesy Car Costs: It was common ground

that if a claimant is deprived of his chattel for

a time, he can recover a sum by way of

general damages for that deprivation. Where

a claimant hires a vehicle on a credit hire

basis, this can be recovered as damages.

Likewise, if under his insurance policy a

claimant is entitled to a courtesy vehicle, he

is entitled to claim general damages for the

deprivation of his own vehicle to be held for

the benefit of his insurer. In practice the

amount of these general damages will be the


January 2014

sum it would have cost the claimant to hire

(on non-credit terms) a comparable vehicle.

Comment: Stuart Nicol commented on Judgment

1 in the July 2013 edition of PIMLU. He described

Cooke J’s decision as “hugely controversial”. He

noted that, “Defendant insurers are rightly

concerned that this will lead to inflated claims

resulting in higher insurance premiums”. He

concluded that there would be an appeal, This

appeal, however, clearly has not been favourable

to the Defendant insurers because the decision of

Cooke J has in effect been upheld in full.

Defendant insurers will be forced to instruct

independent assessors where repair costs are

considered to be inflated which will add further

costs to such claims. Alternatively more

Defendant insurers may be persuaded to offer

their own preferred repairers and vehicle

providers where possible to avoid such arguments

and costs. [Murray Grant]

BMG (Mansfield) Ltd v Galliford Try

Construction Ltd & Aedis Architects Ltd

[2013] EWHC 3183 (TCC) HH Judge

Edwards-Stuart

− Instruction of experts

− Legal advice and litigation privilege

− Expert shopping

− Extent of disclosure required

In a construction case, C sought damages from

D1, the design and build contractor and the D2

firm of architects in connection with the cause of

a fire in a shopping centre, which had occurred in

2004. C's case was that the damage was much

more extensive than it should have been owing to

inadequate fire protection in the roof space and

eaves canopies.

C instructed an expert architect (S) in his early

60’s who reported in 2005. The case proceeded

slowly with an unsuccessful mediation following

meetings of the respective parties’ experts,

including S in 2012.


Experts - Legal Privilege

Experts - Legal Professional Privilege continued

C sought a second opinion as to the correctness

of S’s advice and following his 70th birthday, S

retired and withdrew from the case.

D refused to agree the appointment of a new

expert witness, finding the timing suspicious,

occurring as it did after a bruising experts

meeting and a failed mediation.

D argued that C had waited until they found

another more favourable expert and that the

request for a new expert, shortly after a failed

mediation, amounted to “expert shopping”. As a

condition of permission to call a new expert, D

required disclosure of any documents in which

the retiring expert had expressed an opinion. The

application extended to disclosure of solicitors’

notes made during discussions with experts.

Held: Application refused:

1. There was no evidence before the court from

S so it was not possible to say whether his

wish to retire was driven by his age or by the

possibility that he had had a bruising time at

the experts' meeting and/or the mediation.

On the face of it, there was nothing

unreasonable about an expert of his age

wishing to be relieved of his duties in

litigation which might have been expected to

have been concluded some years earlier

(paragraphs 15, 19, 35-36 of judgment).

2. C did not require permission to call a new

expert because no party had yet applied for

permission to call any expert. The instant

application therefore pre-empted the

application that would inevitably be made at

the first case management conference under

CPR r.46.4(1) (paragraphs 16-18, 22).

3. Imposing a condition of disclosure of any

previous reports ought to be the usual

practice where the change of expert came

after the pre-action protocol procedure had

started. That principle applied to all reports,

not only those prepared for use in

litigation, Edwards-Tubb v JD Wetherspoon

Plc [2011] EWCA Civ 136, [2011] 1 W.L.R.

13732 and Vasiliou v Hajigeorgiou [2005]

EWCA Civ 236, [2005] 1 W.L.R. 2195 applied.


January 2014

4. The court was not limited to ordering

disclosure of an expert's "final" report; its

powers extended to ordering disclosure of

other reports containing the substance of the

expert's opinion. In the instant case, it was

appropriate to order disclosure of any report

prepared by S in which he expressed opinions

or indicated the substance of such opinions.

5. The court was not, however, prepared to

order disclosure of documentation falling

short of a report, such as C's solicitors'

attendance notes of telephone conversations

with experts which might record expert

opinion. As well as being privileged, such

notes might not recite the expert's actual

words; also they might contain material

which was not expert opinion and redaction

would not always be an effective solution.

Difficulties might also arise if the expert did

not agree that the attendance note correctly

recorded what he had said.

6. There had therefore to be a very strong case

of expert shopping to justify a condition that

solicitors' attendance notes should be

disclosed, otherwise there would be a

significant and unjustified invasion of

privilege and a considerable increase in

litigation costs.

7. The instant case was nothing approaching a

strong case. At best there might be an

appearance of expert shopping, but any such

appearance was faint. There was no evidence

that the second expert had been approached

before S indicated his resignation and the

court was not prepared to draw such an

inference.

8. The need to change experts at such a late

stage was justified and not, as was alleged, a

case of seeking a different opinion, though it

was commented that a statement should

have been obtained from the outgoing expert

explaining his decision to step down. It could

not however be assumed that the absence of

a witness statement was the result of a

tactical decision by C.

“I appreciate that the policy of imposing a

condition requiring disclosure of a previous

expert’s reports is to deter the practice of


Experts - Legal Professional Privilege continued

‘expert shopping’, but it seems to me that

there has to have been ‘expert shopping’ or

at least a very strong appearance of it, before

disclosure of the type sought on this

application should be ordered.”

(paragraphs 23-25, 28-38)

Comment: Legal advice privilege and litigation

privilege entitle a party to withhold disclosure of

documents or communications with legal advisers

provided these are created for the express

purposes of seeking or obtaining legal advice

when litigation is contemplated or once this has

begun. These are well-established principles but

checks and balances are required to ensure that

legal professional privilege is not used as a cloak

to withhold documents that may be detrimental

to the party’s case.

Efforts have frequently been made to erode this

privilege with a qualified measure of success: in

Edwards-Tubb v J D Wetherspoon [2011] EWCA

Civ 136 it was held that it was within the Court’s

discretion to require one party to waive privilege

of a previous expert’s report before allowing

them to adduce evidence from a new expert.

BMG would appear to have taken this further and

it is now suggested, albeit obiter, that in cases

where there is very strong evidence of “expert

shopping” attendance notes of discussions

between solicitors and experts may be disclosed

to the court.

These two authorities are a valuable reminder

regarding communications with experts, and that

any such communications must be treated as

potentially disclosable and therefore approached

with care.

It is of note that the costs of instructing the new

expert were not recoverable.

Whether acting for claimants or defendants, the

suggestion that in some circumstances (although

not on the facts of the instant case) a party may

have access to Attendance Notes and emails,

must be a worrying concern as it strikes at the

fundamental basis of trust between lawyer and

client. [Deirdre Goodwin]


January 2014

Nemeti and ors v Sabre Insurance Ltd

[2013] EWCA Civ 1555 [Sir Terence

Etherton (Chancellor); Hallett & Sharp LJJ]

− No substitution out of time after bad claim against insurers

In 2007 a road traffic accident occurred in

Romania. The Claimants (Cs), all Romanian

nationals, were passengers in a vehicle driven by

B, who had borrowed his father's car. His father

was insured by Sabre (S). Claims were brought, in

time under Romanian law, directly against S

under Regulation 3 of the European Communities

(Rights Against Insurers) Regulations 2002. The

Regs allow a claim such that an insurer becomes

directly liable “to the entitled party to the extent

that he is liable to the insured person”.

S supplied to strike out the claims: B was not the

insured person, and the accident occurred

outside of the UK. Realising their mistake, and

not being able to bring a fresh claim against the

Estate due to the expiry limitation (which is not

extendable in Romania), Cs' legal advisers applied

to add/substitute B's Estate arguing it would

cause no prejudice to the Estate or S, each of

whom had had ample notice of their possible

liability. They hoped to take advantage of the

“relation back” principle in section 35 of the

Limitation Act 1980 to have the proceedings

against the Estate deemed to have been

commenced on the same day as the proceedings

were issued against S. Thereafter they would rely

on section 151 of the Road Traffic Act 1988 to

oblige S, as insurer of the vehicle, to satisfy any

judgment. In those circumstances the Estate had

not been given notice of the application. The only

amendments required to the original Particulars

of Claim were the deletion of the paragraph in

which reliance was placed on the 2002

Regulations, and the substitution of the Estate for

S as Defendant. The road traffic accident, the

alleged wrongdoing, and the relief sought

(damages for personal injury) all remained the

same.

The matter came before Master Eastman, who

noted all these features and concluded the claims


Limitation - substitution

Court might sympathise with Master

Eastman's approach. However, this was not a

matter of discretion, but of statutory

construction.

3. Cs' analysis of the original cause of action was

flawed, as it stopped at the negligence of the

driver and the relief sought. A vital element

in the original claim against S was the

application of Regulation 3. The cause of

action was based on the negligence of B, but

was derived from statute. It was effectively a

claim for an indemnity under statute (as the

claim form made clear) limited to S's liability

to their insured. The new claim was a claim

in negligence against the alleged tortfeasor B,

for damages payable by the Estate. There

were two separate causes of action. A

decision had been taken, either for tactical or

financial reasons, not to bring the claim

against the Estate but against the insurer.

The proposed substitution was not therefore

to maintain the original claim, but to found

an entirely new cause of action against a new

party.

Comment: This case reminds us of the four

categories where substitution will be permitted

out of time:

− Category 1: cases of succession.

− Category 2: cases where the Claimant wants

to add a fresh cause of action which arises

out of the same facts or substantially the

same facts as are already in issue on any

claim made in the original action.

− Category 3: cases where it is necessary to

substitute a new party for a party whose

name was given in any claim made in the

original action in mistake for the new party.

− Category 4: cases where any claim already

made in the original action cannot be

maintained by or against an existing party

unless the new party is joined or substituted

as Claimant or Defendant in that action.

In the present case, the only category which could

have been applicable was Category 4, the Court

commenting that while there was plainly a

mistake, it was not one of a type which could be

remedied by substitution (under category 3).


Limitation - Substitution of Parties continued

advanced against the Estate and the claims as

previously advanced against S were the same

claims in negligence for damages for personal

injury. He therefore allowed the substitution. On

appeal to HHJ Cotter, the decision was reversed

and the claims struck out. Cs appealed to the

Court of Appeal.

They relied upon the application of section 35(5)

(b) of the Limitation Act 1980 which permits

substitution outside of the limitation period in the

case of a claim involving a new party, if the

addition or substitution of the new party is

necessary for the determination of the original

action. As to whether the substitution was

"necessary", they relied on s35(6)(b) (any claim

already made in the original action cannot be

maintained by or against an existing party unless

the new party is joined or substituted as plaintiff

or Defendant in that action). CPR 19.5(2)(a) uses

similar wording to s35 and it was agreed has the

same meaning. It was argued that the "original

action" was essentially the claim for damages for

personal injury caused by the negligent driving of

B, and this had not changed. That action could

not be continued without the substitution of B's

Estate, therefore s35(5)(b) was satisfied.

Held Appeal dismissed:

1. Regardless of the application of s151 RTA

1998, the appeal required adding a party

without representations from them, in

circumstances where they would be deprived

of a statutory limitation defence, they would

be open to a real liability to pay damages to

Cs, or may otherwise be required to repay

sums to S if the judgment was satisfied under

s151.

2. The limitation regime is designed to ensure,

within reason, that potential defendants and

their insurers are put on notice within a

reasonable time so that an effective

investigation of the claim can take place and

that books can be closed after a reasonable

time. Subject to the interests of the Estate

and provided the ultimate target was S,

neither of those principles would be

offended. If this was simply a matter of

“doing justice” and discretion, therefore, the


January 2014

On 15th November 2010 a claim form was issued,

giving four months to serve the claim form. On

18th February 2011 a photocopy of the claim

form was served, however this did not comply

with the requirement in CPR 6.3(1) for an original

sealed claim for to be served.

At 15.30 on 15th March Aegis asserted that the

claim form had not been properly served, while

consenting to an extension to serve Particulars of

Claim until 10th May. C applied for a further

extension of time, which was not agreed. An

application to extend time or to dispense with

service altogether was listed on 20th June, by

which time the claim form had still not been

served. The application was dismissed, and an

appeal against that decision was also dismissed.

C was advised to instruct fresh solicitors, who

issued a new claim in April 2012, served in May

2012 together with an application to extend time

under section 33 of the Limitation Act. The

application was refused. By that time the Aegis'

operation in Iraq had ended, and a container of

documents had been stolen. Some documents

were later retrieved but were so illegible as to be

useless. The judge found that the prejudice of C

having to pursue an unanswerable claim against

his former solicitors was slight compared to the

prejudice which would be caused to Aegis in

allowing the claim to proceed. The judge applied

McDonnell v Walker [2009] EWCA Civ 12573,

which contained dicta to the effect that it should

not be easy for a claimant, who had failed to

serve proceedings in time, to commence a second

action and obtain a disapplication of the

limitation period under s.33.

On appeal to the Court of Appeal, C argued that

McDonnell was inconsistent with the later

authority of Aktas v Adepta4 [2011] QB 894 [2010]

EWCA Civ 1270; that it was wrong to give any

weight to the fact that C may have a claim against

his former solicitors; that the judge was wrong to

find that there was any prejudice to Aegis after

the expiry of limitation; and if there was no such

prejudice, it was wrong to take into account

prejudice before the expiry of limitation.

Held: Appeal dismissed:

1. Aktas commented on the McDonnell case but

was not inconsistent with it. Essentially, in


It is becoming more and more common for

claimants to issue proceedings against an insurer

of a vehicle rather than its driver, particularly

where there has been non-cooperation or there is

some other element in the case which makes it

unusual. The present case was even more bizarre

in that, had it been allowed to proceed against B's

Estate, there would have been a claim before an

English court for an accident in Romania involving

only Romanian nationals. It was commented in

passing that nobody had considered the

jurisdictional aspects of such a consequence.

That scenario, if nothing else, should have been

sufficient to set alarm bells ringing. The case

therefore highlights all too well the dangers of

simply relying on the statutory indemnity. There

must be a good underlying claim before it bites.

[Sarah Keogh]

Davidson v Aegis Defence Services (BVI)

Ltd [2013] EWCA Civ 1586 [Longmore LJ,

McFarlane LJ, Vos LJ]

− Claim form served out of time

− New claim commenced

− s.33 disapplication refused

C was a protection operative engaged by Aegis as

a security enforcement team member in Iraq, on

a project for the United States government. He

suffered a back injury during training exercises in

November 2007. Aegis reported the accident to

the United States Department of Labor in

December 2007, which led to substantial

payments being made to C. However, C

maintained the total value of his claim was

£1.71m. He therefore had a residual claim, and

instructed solicitors in March 2009 to pursue the

claim against Aegis in the UK. Once medical

evidence was obtained, a letter before action was

sent in December 2009. It was July 2010 before

Aegis notified that it contested liability. C’s

solicitors chased for disclosure under the pre-

action protocol, and were informed by Aegis in

October 2010 that their enquiries were

incomplete. Limitation was due to expire on 22nd

November 2010.


Limitation - Substitution of Parties continued

January 2014

the judge had taken into account. While he

did not explain in detail why Aegis could not

be criticised for delaying in searching for

documentation when they knew in 2009 a

claim was being brought, C's advisors

themselves were dilatory. He accepted that

the loss of documentation occurred without

any fault on Aegis' part. What did concern

him was that it would now be difficult or

impossible to discover who the other six

people on the training course were, who

might have given evidence as to the training

given. The judge clearly did not accept that

the case would turn almost entirely on expert

evidence as submitted by C.

4. The judge was also well aware that for the

purpose of section 33(3)(a) and (b), it was

delay after the expiry of the limitation period

that was important. As to delay prior to the

expiration of limitation, while this was not

relevant for section 33(3)(a) or (b), this was

still relevant to the overall picture.

5. In the circumstances the judge correctly

applied the guidance in Cain and was entitled

to come to the view that the limitation period

should not be disapplied.

Comment: There is now a weight of authority and

comment on when it is appropriate to disapply

the limitation period for a second claim in

circumstances where a first claim fails under CPR

7.6. This case confirms a common sense

approach - a court should not be trying to steer

between the Scylla of McDonnell and the

Charybdis of Aktas, but simply considering all the

factors relevant to the particular case. This is

likely to be a combination of prejudice to the

parties and criticisms which might be made in

relation to the conduct of the proceedings on

either side. [Sarah Keogh]

See however contrasting approach taken by

Phillips J in Hall v MOD digested below .

Hall v Ministry of Defence [2013] EWHC

4092(QB) [Phillips J]

− First claim struck out on application to

extend time for service of Claim Form

− Second claim issued


discussing the interplay between section 33

and CPR 7.6, McDonnell said that it should

not be too easy to disapply the limitation

period in circumstances where a first claim

had been brought out of time, Aktas said that

it should also not be too difficult. In either

case, the court did not question the guidance

in Cain v Francis [2009] 3 WLR 551:

"...in the exercise of the discretion the basic

question to be asked is whether it is fair and

just in all the circumstances to expect the

defendant to meet this claim on the merits,

notwithstanding the delay in commencement.

The length of the delay will be important not

so much for itself as to the effect it has had. To

what extent has the defendant been

disadvantaged in his investigation of the claim

and/or the assembly of evidence in respect of

the issues of both liability and quantum? But it

will also be important to consider the reasons

for the delay. Thus there may be some

unfairness to the defendant due to the delay in

issue, but the delay may have arisen for so

excusable a reason that, looking at the matter

in the round, on balance it is fair and just that

the action should proceed. On the other hand,

the balance may go in the opposite direction,

partly because the delay has caused procedural

disadvantage and unfairness to the defendant

and partly because of the reasons for the delay

or its length are not good ones."

2. On an examination of the authorities, having

to litigate a claim against a former solicitor is

not ideal, but is something which a judge can,

and normally should, take into account when

considering whether to exercise discretion

under section 33. In the present case, it was

clear the judge had in mind that the claim

would be for loss of a chance of success in

the original proceedings. However,

evaluating the merits of a personal injury

claim was common place for personal injury

lawyers.

3. As to the prejudice to Aegis, C submitted that

it was not known whether or not the stolen

container held any relevant documents, and

Aegis should have been searching for

relevant material during the six month

protocol period, therefore no prejudice could

be shown. However, these were all factors


Limitation - issue of new s.33 claim continued

January 2014

− S.33 disapplication sought

− Whether liable to be struck out as an

abuse of process

Cases considered: Aktas v Adepta [2011]

QB 894, Icebird v Winegardner [2009]

UKPC 24, Horton v Sadler [2007] 1 AC 307.

H was a soldier who sought to bring a claim

against the Ministry of Defence for damages for

personal injury arising out of negligent medical

treatment given to him between September 2007

and July 2008. H issued a Claim Form in time on

27 August 2010. On 28 April 2011 H issued an

application for an extension of time for service of

the Claim Form. The application was treated as

made prior to the expiry of the time for service on

account of the MoD having offered an extension

of time for service to 28 April 2011. H did not tell

the MoD that the application had been issued

until 11 April 2012.

The application was eventually listed for hearing,

after some administrative failings on the part of

the Court, on 30 July 2012. Master Yoxall refused

to extend the time for service of the Claim Form

and struck out the Claim. H was also ordered to

pay the MoD’s costs of the Claim and the sum of

£3,000 by way of an interim costs order payment

on account of those costs.

In December 2012 H issued a second Claim Form

seeking the same relief on the same basis and

also seeking to dis-apply the 3 year primary

limitation period applicable to the claim, in

reliance on s.33 Limitation Act 1980. That Claim

Form was served in time and after the service of

the Particulars of Claim in February 2013, MoD

applied to strike out the Claim as an abuse of

process.

Deputy Master Eyre considered that H’s

indifference to the payment of the sum of £3,000

in accordance with the Order made by Master

Yoxall and indifference to the need to conduct the

claim against MoD promptly and fairly rendered

the second Claim an abuse of process and in

consequence the second Claim was struck out.

H appealed.


Limitation - abuse of process continued

January 2014

Held: Allowing the appeal:

7. Following the House of Lords decision in

Horton v Sadler [2007] 1 AC 307, the fact that

an earlier claim issued within the limitation

period had been struck out for delay in

relation to service did not debar H from

seeking to bring a second claim out of time in

reliance on the provisions of s.33 of the

Limitation Act 1980.

8. Following the Court of Appeal decision in

Aktas v Adepta [2011] QB 894, the fact that H

had issued an earlier Claim Form in time and

the circumstances in which the same came to

be struck out fell to be considered as part

and parcel of all the circumstances of the

case in the exercise of the discretion given to

the Court to dis-apply the primary limitation

period pursuant to s.33 Limitation Act 1980.

9. Where a second claim is itself an abuse of

process it is liable to be struck out before any

consideration of s.33 arises.

10. A second claim is not an abuse of process

simply because an earlier claim was struck

out as an abuse of process. For a second

claim to be struck out as an abuse of process

there must be something more than a single

negligent oversight in timely service of the

earlier proceedings. The second claim may

be an abuse of process if there has been

inordinate and inexcusable delay, or

intentional and contumelious default, or

wholesale disregard of the Rules.

11. H’s failure to serve the first Claim Form in

time did not of itself render the second Claim

an abuse of process. The root of the failure

on the part of H to pay the interim costs

ordered in the first Claim lay with H’s

solicitors or insurers and could not be said to

amount to contumelious or intentional

default on the part of H or a wholesale

disregard of the Rules. Following Icebird Ltd

v Winegardner [2009] UKPC 24, a long delay

for which H could be held to be responsible

did not of itself amount to inordinate and

inexcusable delay. There had to be

something else which transformed the delay

into an abuse e.g. H had lost interest in the

claim and allowed the first Claim to fall by the


H as an abuse of process but it would seem that

the application notice was, in all probability,

issued before 1st

April 2013 with the consequence

that Phillips J followed the sort of approach

adopted before 1 April 2013 where the Rules

were treated as the handmaiden, rather than the

mistress, of justice (quoting from para. 26 of the

18th Implementation Lecture of the MR [Lord

Dyson])

Leaving those grumblings on one side, however,

there is a clear distinction to be drawn between

conduct which amounts to an abuse of process

and conduct which amounts to a breach of a CPR

rule or a Court Order. Whilst the latter may

attract a sanction of comparable consequence to

a strike out, and a sanction which the Court will

not now relieve, it is plain enough that to

constitute an abuse of process there must be

something amounting to contumelious and

intentional default or a wholesale disregard of the

CPR rules or Court Orders or some inordinate and

inexcusable delay which strikes at the root of a

fair adjudication of the issues between the

parties.

It is also plain enough that the gap between “the

high standards required of the parties as regards

promptness and fairness” in the conduct of

litigation and the claimant having fallen so far

below those standards that the claim must be

struck out, to which Phillips J referred, is now

considerably narrower than prior to 1 April 2013.

Although this case holds out the prospect that the

consequences of a procedural default in an earlier

claim can be lost in the wash of a s.33 application,

after 1 April 2013 the procedural default is likely

to weigh more heavily against dis-applying a

primary limitation period in the balancing of the

scales of justice on a s.33 application.

[Charles Scott]

Rehill v Rider Holdings Ltd (2014) CA (Civ

Div) [Lewison and Floyd LJJ]5

− C dishonestly exaggerated claim

− Part 36 offers

− Reasonableness of refusal


wayside, or prejudice to MoD arising from

the delay.

12. The Deputy Master erroneously considered

whether H had failed to meet the high

standards required of parties as regards

promptness and fairness and not whether H

had fallen so far below those standards that

his conduct could be categorised as

contumelious and intentional default or a

wholesale disregard of the Rules or

inordinate and inexcusable delay.

13. Given that the application for an extension of

time in the first Claim would have taken

some months to deal with and the fact that

the listing of the application was delayed by

the Court the period of 15 months which

elapsed in that application did not render the

second Claim an abuse of process. Similarly,

the 4½ months delay between the striking

out of the first Claim and the issue of the

second Claim could not be considered

abusive delay going beyond what would be

considered in a s.33 application in relation to

the second Claim. Such delays as there had

been could not be said to be inordinate and

inexcusable delays justifying the strike out of

the second Claim as an abuse of process. The

failure to satisfy the interim costs order was

not sufficient of itself, or in conjunction with

anything else, to render the second Claim an

abuse of process.

14. Even if the second Claim did amount to an

abuse of process the appeal court considered

that it would not be appropriate to exercise

its discretion to strike out the second Claim

but would be appropriate to direct the

matters in question be considered in the

context of the s.33 application which H was

obliged to make.

Comment: This case has to be viewed with a rosy

hue of nostalgia from those days prior to 1 April

2013 when the courts sought to do justice

between the parties rather than exact retribution

for a failure to comply with a CPR rule or an Order

of the Court.

It is unclear from the judgment when MoD

applied to strike out the second Claim brought by


Limitation - abuse of process continued

January 2014

Procedure - Part 36 - Penalties

as to C's prognosis which continued until July

2008.

Although C’s conduct had been reprehensible, it

was not so egregious as to warrant a penal costs

order.

D appealed submitting that the recorder had

(1) been wrong to conclude that it had been

reasonable for P to refuse the April 2007 and

November 2007 offers;

(2) (2) erred in not imposing a costs penalty for

P's dishonest conduct.

Held: Appeal allowed:

1. The question for the recorder was whether P

had been reasonable in not accepting the

offers. By virtue of r.36.14(4)(c), the court had

to have regard to the information available

when an offer was made. The recorder had

considered the medical evidence available at

the time of the offers and noted that in

retrospect it had been prudent and

reasonable to await P's medical progress and

that there had been issues of contributory

negligence that had yet to be raised.

2. If P had indeed misled the lawyers, what was

reasonable had to be based on what P knew,

and not on what the lawyers knew. P had

reached the end of his recovery period when

the November 2007 offer was made; he was

discharged from hospital in December 2007,

and P knew in 2007 that he did not have a

genuine claim for adapting his home. The

reality was that there was no significant

uncertainty concerning P's orthopaedic

injuries when the November 2007 offer was

made, and those injuries formed the bulk of

P's financial claim. The only uncertainty

surrounding P's injuries at that time were his

abdominal injuries, which formed a minimal

part of his financial claim.

3. It was clear that the recorder had overlooked

the medical evidence and his findings about

P's mobility. The recorder had failed to

evaluate the consequences of those findings

in financial terms which in turn vitiated his

conclusions. It had been unreasonable for P

not to accept the November 2007 offer;


Procedure - Part 36 - Costs Penalties continued

− Imposition of costs penalties

C crossed the road when the pedestrian crossing

light were red and was hit by one of D's buses.

The bus driver did not apply the brakes quickly

enough. P sustained injuries that impaired his

mobility. Liability was apportioned equally

between both parties.

In April 2007, D offered £75,000 to settle C’s

claim. C refused. In November 2007 D made a

Part 36 offer which was also refused and D

withdrew the offer in January 2008 by which

stage C had reached the end of his recovery

period.

C’s schedule included adaptation costs exceeding

£71,000 to adapt his home owing to his impaired

mobility.

In June 2009 D made a further Part 36 offer of

just below £40,000 which remained open for 21

days. C refused.

Just before the quantum trial in April 2013, C

accepted D’s offer of £17,500.

Costs were not agreed and a hearing was held

before a recorder who ruled that the June 2009

offer had not been beaten and ordered C to pay

P’s costs up until July 2009 and C to pay D’s costs

from July 2009 on the standard basis.

The parties could not agree costs, and the

recorder held that the June 2009 offer had not

been beaten and ordered R to pay P's costs up

until July 2009 and for P to pay R's costs from July

2009 on the standard basis.

The recorder noted that C:

i) had dishonestly inflated his case

ii) had exaggerated his injuries

iii) lied about where he had stepped into the

road so as to minimise his culpability,

iv) had disputed the expert evidence concerning

his recovery,

v) had embellished his claim for building work

to his home

He found that C should have accepted the

November 2007 offer. The recorder did not order

C to pay D's costs before July 2009 as when the

April 2007 offer was made there was uncertainty


January 2014

Procedure - Part 36 - Costs Penalties continued

however the same could not be said of the

April 2007 offer as there was still uncertainty

surrounding his orthopaedic injuries at that

time.

4. Accordingly, P was ordered to pay R's costs

from 21 days after the date of the November

2007 offer.

5. If the overall effect of the recorder's decision

had been that P received his costs for being

dishonest then that would have been wrong;

however that was not its effect: Ultraframe

(UK) Ltd v Fielding (Costs) [2006] EWCA Civ

1660 considered.

6. The recorder held that the costs incurred in

promoting a dishonest case could not be

reasonably incurred. Further, the recorder's

observations on P's conduct did not bind the

costs judge. Very little remained given that P

had been ordered to pay R's costs from

November 2007 and that the litigation had

commenced in July 2008.

7. Although the recorder had been generous in

not imposing a penalty for dishonesty and

other judges might have taken a stricter

stance, that decision was within the ambit of

the recorder's discretion.

Comment: The full judgment is not yet available

and is likely to repay reading in full. There are

many such claims where the claimant’s own

knowledge of the state of his health and recovery

differs from that which is reported to the

examining doctors (including medical experts)

and his legal representatives. This appears to be

the first reported decision that has focused on

this aspect of ‘date of knowledge’ in the

consideration of dishonesty/exaggeration and the

wide ambit of discretion available under r.44.2

which includes considering when Part 36 should

have been offered. In this regard, this discretion

is an inroad into an otherwise encapsulated Part

36 code as many recent authorities have sought

to reinforce.

PIMLU may revisit this case when the judgment is

available but for the present the message must be

that whilst not wishing to displace the trust an

injured claimant places in his legal team, this


January 2014

must be balanced against a forensic duty to ‘test’

the evidence which includes the claimant’s

reportage of the nature and extent of his disability

and to raise appropriate enquiries with the

medico-legal experts.

Careful explanation must be given to claimants of

the effect of Part 36 offers which are rejected,

should the ultimate finding of the court be that

the stage of recovery and level of disability differs

to that represented by a claimant. Not only is a

claimant at risk of a penalty for dishonesty but his

damages are likely to be eroded if not exhausted

by the defendant’s costs that he is required to

meet. Those acting for him should also appreciate

that the inevitable effect of such a finding is that

there will be no surplus funds to meet their own

costs of representation of such a claimant: see, for

example Hussain v Chartis digested below)

Those acting for defendants also need to ensure

that their medico-legal experts - whilst being

sensitive to a claimant who has suffered injury

through no fault of his own - must be prepared to

probe the reported history of subjective

symptoms with principal reliance being upon

objective signs of the state of recovery as elicited

upon clinical examination. [Deirdre Goodwin]

MacLennan v Morgan Sindall

(Infrastructure) Plc [2013] EWHC 4044

(QB) Green J.

− P I Case Management

− Court’s power to regulate nature and

extent of witness evidence

− Guidance: CPR parts 32 and 38

C, an employee of D, suffered a severe brain injury

in an accident at work. Liability was admitted

with 25% contributory negligence conceded and

judgment was entered with damages to be

assessed.

The quantum case was estimated to last 5 days

with a trial window commencing at the end of

March 2014. During case management D applied

for an order limiting the number of witnesses C

could call at trial.


Procedure - PI Case Managet

Procedure - PI Case Management continued

C proposed to tender the evidence of 43

witnesses concerning loss of earnings, their

statements covering four broad issues:

i) whether, but for the accident, C could have

worked abroad and earned more than he

would have in the United Kingdom;

ii) whether he would have retired at 65 or 70;

iii) what his promotion prospects might have

been; and

iv) what earnings he could reasonably have

expected.

D submitted that those issues were common in

personal injury cases, and it sought an order

pursuant to CPR r.32.2(3) limiting C to calling no

more than eight witnesses as earnings

comparators.

Held: The court gave directions setting out a

number of considerations that the court was to

be guided by when dealing with such applications:

1. The 43 witness statements covered a range of

matters relating to the four broad issues. They

were extremely brief; they did not attach

corroborative or supporting documentation;

and they included assertions about the

availability of work in the UK and abroad,

rates of pay, typical retirement ages, and C's

qualities and employment prospects

generally. There was material duplication,

though the repetition of a proposition by a

variety of witnesses could be said to add to its

weight, and it was possible that the sum of

the evidence might exceed the probative

weight of its parts (see para.5 of judgment).

2. Under CPR 32.2(3), which came into effect as

a result of the Jackson reforms, the court had

the power to deploy a range of possible

solutions in order to reduce costs and ensure

that the trial was conducted effectively. The

following considerations were relevant to the

exercise of that power:

(a) CPR r.32 had to be read as a whole. The

court had to use all the powers at its

disposal to ensure the efficient and fair

conduct of the trial, and it would only

consider prohibiting the calling of


January 2014

witnesses after less intrusive measures

had been considered and rejected;

(b) a court seeking to regulate the nature and

extent of witness evidence would

generally wish to do so at an early stage,

before the preparation of witness

statements. At that stage it might also be

possible for the parties to identify matters

which might be admitted;

(c) while the power to exclude or control

witness evidence was best exercised

before the preparation of witness

statements, the court was not precluded

from exercising it after statements had

been drafted;

(d) before exercising its power to prohibit the

adducing of witness statement evidence,

the court had to have the fullest possible

information, adequate preparation time,

and guidance from the parties as to which

parts of which statements were said to be

otiose, prolix, or otherwise inadmissible;

(e) where the court did exercise its power, it

might be necessary to give the parties

liberty to vary the order by consent or to

apply to the court for a variation. In that

regard, the court would be entitled to

expect a considerable degree of co-

operation and good sense. A lack of co-

operation could not be justified by an

assertion that the relationship between

the parties' legal advisers was not good

(paras 11-12).

3. In the instant case, some form of case

management was required. One possibility

would be to impose a process which required

C to identify the specific facts and propositions

relied upon from the witness statements; D to

identify which were agreed and disagreed; and

C to indicate which witnesses he intended to

call. However, that was not appropriate in the

instant case: time was short, the parties had

not exhibited any great ability to cooperate,

and there was a real risk that a process

involving multiple stages could delay the

preparation for trial.

4. The preferable course was as follows.


Procedure - PI Case Management continued

i) C would be permitted to call 14 witnesses

to address the issue of comparative

earnings. That was the minimum number

the Judge considered necessary, and D did

not demur;

ii) C was to write to each forthwith

requesting certain specified details of their

earnings, with supporting documentation;

iii) If a witness declined to co-operate, C was

to write to D's solicitor, setting out the

steps he had taken and the response he

received;

iv) C could call 14 additional witnesses to

cover matters other than comparative

earnings. That was the critical mass the

Judge considered necessary, and it was

likely that their evidence could be heard

swiftly. Any fewer risked causing injustice.

The evidence of C and his wife could also

be tendered;

v) C was to identify the witnesses and serve

any documents as directed; he could not

rely on statements from witnesses who

had not been identified, though there was

nothing to stop him from seeking to rely

upon evidence following service of a valid

hearsay notice if it was proper to do so;

vi) Where any expert evidence relied on the

statements of individuals who were not on

the list of identified witnesses, there was no

need for the experts to exclude reliance on

those witnesses;

vii) Finally, both parties had liberty to vary the

scheme by agreement or to apply to the

court for a variation (paras 15-27).

Comment: This seems to be the first reported

High Court decision in which the court’s new

powers to limit factual witness evidence have

been exercised. Accordingly, although the

exercise in this case was fact-specific, this

guidance should be heeded in the proposals for

factual witness statements made in all personal

injury claims post-1 April 2013 and not just those

involving catastrophic injuries as in the instant

case.


January 2014

Although the number of witnesses the C wished

to call was significant (even by pre-1 April 2013

standards) the loss of earnings issue was clearly

significant . Equally important, however, was the

need to avoid the repetition that so often

characterises such supporting ‘comparator’

evidence and to both define and refine the issues

which this evidence is intended to address. Such

reasoning was apparent in the tenor of the

judgment and the continuing need for strong case

management to ensure the trial proceeded in a

fair and efficient manner. [Deirdre Goodwin]

Smith v Secretary of State for Energy &

Climate Change [2013] EWCA Civ 1585

Longmore LJ, Underhill LJ, Floyd LJ

− Noise induced hearing loss claim

− CPR 31.16 application for pre-action

disclosure

− Whether documentation sought was

a ‘speculative punt’

The appellant, a former coal miner, believed he

had suffered hearing loss as a result of working

without hearing protection in a noisy work

environment. Before any proceedings were issued

the Appellant sought documents from the

Respondent: documentation relating to noise

tests, documentation relating to the

Respondent‘s consideration of the problems

caused by noise and their decision to supply ear

protection, copies of warning notices and safety

committee meeting minutes.

A district judge allowed the appellant’s

application for pre-action disclosure under CPR

31.16.

Judge Langan reversed the district judge’s

decision, holding that he was bound by the

decision in Kneale v Barclays Bank Plc (t/a

Barclaycard) [2010] EWHC 1900 and accordingly

that the Appellant had to show, in Flaux J‘s,

words, ‘some kind of prima facie case which is

more than a merely speculative punt’. The issue

for him was whether the Appellant had

surmounted what he described as ‘this modest


Pre - action Disclosure - r.31.15

Procedure - Pre-action Disclosure continued

jurisdictional threshold’. Judge Langan found that

in the absence of an opinion to the effect that the

appellant‘s hearing loss is more probably noise-

induced than constitutional, the factual

foundation of his potential claim was so fragile

that it has to be regarded as what Flaux J called ‘a

punt’.

The appellant appealed to the Court of Appeal.

Held: leading judgment given by Underhill LJ:

1. There is no jurisdictional ‘arguability

threshold’. The jurisdictional requirements

for the making of an order under CPR 31.16

are expressly set out at heads (a)-(d) in para.

(3) of the rule, and they say nothing about

the applicant having to establish some

minimum level of arguability; Kneale v

Barclays Bank Plc (t/a Barclaycard) [2010]

EWHC 1900 overruled in part.

2. As to the court’s discretion under CPR 31.16:

3. It falls to be considered in the exercise of the

court’s discretion under CPR 31.16 whether

the applicant has shown some reason to

believe that he may have suffered a

compensatable injury; and, if so, with what

degree of likelihood. The language of

‘arguability should be avoided’. Black v

Sumitomo Corporation [2002] 1 WLR 1562

([2001] EWCA Civ 1819) followed.

4. If, in the present case, there was no reason

to believe that the appellant might have

suffered noise-induced hearing loss then it

would not be right to order pre-action

disclosure; and even if he had got over that

hurdle but the claim could nevertheless be

characterised as ‘speculative’ it might be

wrong to require any disclosure which was

onerous.

5. The District Judge did not exercise his

discretion wrongly. The evidence that the

Appellant had suffered hearing loss was

indeed very short on detail, and those

advising potential claimants in similar

circumstances would be encouraged to

provide the Court, if they can, rather fuller

evidence than was proffered in this case.

Nevertheless the District Judge was not


January 2014

obliged to ignore the evidence proffered

without an audiogram or a medical opinion.

6. Per Longmore LJ: Applications for pre-action

disclosure are not meant to be a mini-trial of

the action and should be disposed of swiftly

and economically. Elaborate arguments are

to be discouraged.

Comment: Underhill LJ observes at paragraph 22

of his judgment this decision is unlikely to be of

much importance in practice. One could argue

that the ‘arguability threshold’ is simply moved

from the jurisdiction stage to the discretion stage.

However the tone of the Court of Appeal has

noticeable changed since Rose v Lynx Express Ltd

[2004] EWCA Civ 447 [2004] 1 BCLC 455. The

Court held in Rose that it ‘will normally be

appropriate’ to approach the conditions in CPR r.

31.16(3) on the basis that the substantive claim

pursued in the proceedings needs to be ‘properly

arguable and to have a real prospect of success’.

In contrast Underhill LJ in Smith merely asks

‘whether the [applicant] has shown some reason

to believe that he may have suffered a

compensatable injury; and, if so, with what

degree of likelihood’; the language of ‘arguability

should be avoided’. It is submitted that the

language of ‘real prospect of success’ should also

be avoided.

The ‘threshold’ does appear to have been

lowered. [Paul Gurnham]

Harrison v Black Horse Ltd (2013) Sen Cts

Costs Office (Master Gordon-Saker) 20

December; [2013] EWHC B28 (Costs)

− CFAs

− Notice of Funding not served

− Application for relief from sanction

− Guidance given post 1 April 2013

Cs’ claim against the D Bank for recovery of

premiums in respect of mis-sold PPI was

dismissed following a County Court hearing.

Cs appealed unsuccessfully to the High Court and

the Court of Appeal. Cs then obtained permission


Procedure - CFA default - Costs

to appeal to the Supreme Court, at which point

the case was settled with D agreeing to repay the

premiums with interest, and pay Cs’ costs but not

any ATE premiums.

There were 4 CFAs in place between the Cs and

their solicitors (M) in respect of the original

County Court hearing and each of the three

appeals [paragraph 7]. Notice had been given of

the County Court and the Supreme Court appeal

premiums. M admitted failure to give notice of

the High Court appeal premium but there was

dispute whether notice had been given in respect

of the Court of Appeal hearing where Cs’ costs

were £1,483,284.70.

M maintained they had sent the Court of Appeal

proceedings funding notice via the DX.

In Points of Dispute served in February 2013, D

denied receiving the notice and claimed that

under the operation of CPR r.44.3B(1) the Cs were

not entitled to recover any success fees or

counsel’s fees incurred under the CFA relating to

the Court of Appeal:

CPR 44.3B (in its pre 1st April 2013 form)

provides:

“(1) Unless the court orders otherwise, a party may

not recover as an additional liability—

…..

(c) any additional liability for any period during

which that party failed to provide information

about a funding arrangement in accordance

with a rule, practice direction or court order;”

The sanction is automatic.

In July 2013 Cs applied for relief from sanction

under CPR r.3.9.

Held: Relief refused:

1. M’s file contained a copy of the letter to D

purporting to enclose an “updated notice of

funding” and a copy had been faxed to the

Civil Appeals Office but M was unable to

prove service under CPR r.6.26.

2. The sanction in r.44.3B(1) was automatic and

since the requisite notice had not been given,

Cs could not recover success fees in relation

to the Court of Appeal hearing unless the

court granted relief from sanction.


Procedure -CFA default - sanction relief continued

January 2014

3. The relevant version of r.3.9 was in force.

While it was clear that M had intended to

give D notice of the CFA, and there was no

reason to doubt that they believed that they

had done so, the purpose of the notice was to

alert the other party to the possibility of its

having to pay success fees or insurance

premiums if it was ordered to pay costs.

4. D's unchallenged evidence was that it had had

no reason to assume that the appeals were

funded by CFAs and that, had it known, its

approach to settlement might have been

different. That evidence, which had to be

taken at face value, was sufficient to show

that D had been prejudiced by the failure to

give notice.

5. Under the pre-April 2013 version of r.3.9, the

case for relief would have been borderline: Cs

had given notice of the first CFA, and their

failure to give notice of the third was

inadvertent [paragraph 42]; on the other

hand, they had failed to give notice of the

second CFA and had not applied for relief

promptly [paragraph 43].

6. Under the new version of CPR 3.9, the

circumstances of the case, while still relevant

factors, must now play second fiddle to the

factors specifically listed in the new rule

which has introduced a tougher approach to

relief applications. If the failure to give notice

could properly be regarded as trivial, relief

would usually be granted provided that the

application had been made promptly. If the

failure could not be characterised as trivial,

the defaulting party bore the burden of

persuading the court to grant relief. The court

had then to consider whether there was a

good reason for the default, Mitchell v News

Group Newspapers Ltd [2013] EWCA Civ

15266, paragraphs 40 and 41 followed [see

paragraphs 44 and 45 of the judgment].

7. Cs’ failure could not be said to be trivial: no

notice had been given at all. The burden was

therefore on the Cs to show a good reason for

the default and they had not shown this

[paragraphs 347 to 48]

8. While that might seem harsh, M should have

known that r.3.9 was to be amended so as to


introduce a tougher approach, and an

application for relief could have been made

before April 1. Once again reference was

made to the 5th Implementation Lecture by

Jackson LJ and the 18th Implementation

Lecture by the Master of the Rolls [paragraph

49].

Comment: A reminder, if any was needed, that

any residual discretion vesting in the court -

whether on substantive issues or costs - will be

sparingly exercised, requiring overt evidence of

triviality before the presumption of automatic

refusal of relief from sanction is rebutted.

The irony is that a prompt application for relief in

February may well have resulted in the court

deciding (under former r.3.9) that relief could be

granted (see line of cases including Rayaan7

considered in October/November 2013 PIMLU).

Indeed, Master Gordon Saker had mentioned in

March 2013 that the Cs may wish to pursue an

application for relief from sanction (paragraph 14]

The result on the issue of principle however is

that even at the stage of costs following

consensual settlement, the procedural

Damoclean sword remains poised. Under new

r.3.9 the reported decisions have been to the

benefit of defendants and the detriment of

defaulting claimants, as Mitchell amply

demonstrates. The platitudinous murmurings of

the courts that such decisions may be viewed by

some as harsh will be but cold comfort to those

who succeed on the merits only to find such

success rendered a Pyrrhic victory by the

outcome on costs. [Deirdre Goodwin]from

Adlington & 133 others v Els

International Lawyers LLP (in

administration) [2013] EWHC B29 (QB)

HHJ Oliver Jones QC, sitting as a High

Court Judge

− Strike out of claim

− Relief from sanction granted


− Conduct not egregious but matter of

form rather than substance

− Pressure of work is not an excuse

In a group professional negligence action arising

out of losses allegedly suffered in respect of failed

investment in the purchase of ‘off-plan’ property

in Spain, the Particulars of Claim had been drafted

by the deadline but 8 out of 133 claimants were

unable to sign their statements of case because

they were abroad or otherwise unavailable.

The Cs in question sought relief from sanction,

namely strike-out of their claim.

Held: Application granted:

1. The judge reminded himself that under CPR

1.1 and amended 3.9 with effect from 1st

April 2013, cases not only have to be dealt

with justly but at proportionate cost.

2. As the decision in Mitchell underscores, we

are now in a new ’era’ or ’culture’ that must

take a ’no-nonsense approach’ and Jackson LJ

had made it clear in Fred Perry (Holding) Ltd v

Brands Plaza Trading Ltd [2012] EWCA 224

that there was concern that relief from

sanction was being granted too readily with

’such a culture of delay and non-compliance’

being injurious to the civil justic system and

litigants generally. That decision was

reinfored by Edwards-Stuat J in Venulum

Property Investment Ltd v Space Architecture

Ltd [2013] EWHC 1242 (TCC)8 [para 22].

3. The case had an unhappy history with the Cs

and their solicitors not being well-organised

and not having a clear command of the Civil

Procedure Rules or the management of the

case when breach of an ‘unless order’

became almost inevitable [paras 29-30].

4. However, the starting point was to consider

the nature of the non-compliance which in

this case arose through the lawyers not being

aware of the holiday dates. Further, with the

claimants split into three tranches with

different deadlines, had D agreed to transfer

them to a later tranche, as had happened

with some other claimants, there would have

been full compliance. The relationship

between justice and procedure


Procedure -CFA default - sanction relief

January 2014

Procedure - Sanction Relief

on ‘pressure of work’ as an excuse, although

he clearly was under great pressure. If he had

advanced these excuses, then it would have

been likely that they would have been

rejected.

“The real reason for the failure to comply was

the fact that Mr Cotter did not realise that a

few of his clients would be simply unavailable

to sign their particulars of claim when the

time to do so arrived. The arrangements for

holidays made by the eight relevant claimants

were outside Mr Cotter’s control.” [para 33]

9. HHJ Oliver-Jones QC emphasised that he had

not ignored the wide range of interests

affected by compliance failures and the need

to be more robust about them,

“ … nor focused exclusively, or even primarily,

on doing justice between the parties in this

individual case, although clearly I have had to

consider the latter in the context of the

former” … “I bear in mind that in reaching the

conclusions he did in his final report, Sir

Rupert Jackson rejected what he described as

‘the extreme course which was canvassed as

one possibility in [the preliminary report]

paragraph 43.4.21 or any approach of that

nature’ (my emphasis added), namely that

non-compliance would no longer be tolerated

save in ‘exceptional circumstances’.

Thus the circumstances do not have to be

exceptional to attract the granting of relief,

but a decision as to whether or not relief

should be granted does involve the ‘change of

balance’ implicit in the new wording of CPR

3.9.

I have undertaken that balancing exercise and

given great weight to the two factors

identified expressly in the rule. However,

bearing in mind that the relationship between

justice and procedure has not changed so as

to transform rules and rule compliance into

trip wires, and ‘nor has it changed it by

turning the rules and rule compliance into the

mistress rather than the handmaid of

justice’ [quoting from the Master of the Rolls

8th Implementation speech], I am satisfied

that relief should be granted in all the

circumstances of this case.” [para 34]

10. If pressure of work was cited as the reason

for non-compliance, relief from sanction

would not be granted, but a lack of


“has not changed so as to transform rules

and rule compliance into trip wires”.

[paras 23 and 26(b)(ii) (quoting from Lord Dyson

(MR) 18th Implementation Lecture para 26) and

paras 30-34]

5. The application for relief was made promptly

and had an application for an extension been

made before the deadline had expired, “it

would almost certainly have been

granted” [para 32(a)].

6. The ‘nature’ of non-compliance cannot be

divorced from consideration of the

‘consequences’ of non-compliance. Whether

or not a failure to comply with an order is

‘significant’ or ‘insignificant’ must involve

having regard to consequences.

“In these cases there were no adverse

consequences at all, either to the defendant

or to the efficient conduct overall of this

litigation.”

In particular a two-month stay took effect

following service of the particulars of all the

claimants to allow the defendant the

opportunity of considering all 134 of them,

and at the time this commenced, there were

no “stragglers”. [para 32(b)]

7. The court therefore accepted’ Cs’ submission

that this was a failure of form rather than

substance’. As such, this failure could

‘properly be regarded as an insignificant

failure that in the context of the court’s order

as a whole and the reasoning underlying the

sanction, can properly be regarded as trivial.

In these circumstances, to refuse relief would

be a ‘disproportionate response’ on the basis

of the solicitor’s ‘regrettable but not

egregious’ errors. [para 32(a)]

8. Even if the court was wrong to consider the

non-compliance trivial, it would have been

persuaded to grant relief in the

circumstances:

“Applying the guidelines in Mitchell, the

question then becomes, was there a good

reason for the default? The claimant’s solicitor

does not suggest he overlooked or otherwise

disregarded the deadline; on the contrary, he

was very acutely aware of it. Nor does he rely


Procedure - Relief from Sanction continued

January 2014

dismissed by Hildyard J who found serious failures

to comply. On the r.3.9 application for relief from

sanction he drew on Tarn Insurance Services Ltd v

Kirby & Others [2009] EWCA 19 which required

the court to take a ’rigorous approach’. He

referred to “remarkable instances” where the Ds

had not provided evidence. He therefore refused

relief from sanction and debarred the Ds from

defending the claim; their defence and

counterclaim were struck out. This Order was not

appealed nor the earlier ‘unless’ orders.

Two days before trial the Ds applied for relief

from sanction which led to the trial being relisted

5 days later with a time estimate of 5 days, with

the relief application to be heard on the first day

of trial which was in October 2013.

The deputy judge allowed 4 of the 5 days to be

taken up with the relief application. He granted

relief on the basis that the Ds had complied with

the unless order albeit “belatedly” [paragraph

15]. He rejected C’s submission that the

application for relief was an abuse of process

relying upon Woodhouse v Consignia Plc [2002]

EWCA Civ 275 as ‘clear authority’ that the

application for relief was permissible [paragraph

17].

C appealed.

Held: Appeal allowed, Mitchell guidance

reinforced:

1. The deputy Judge had been wrong to rely on

the decision in Woodhouse for authority that

a second application for relief was

permissible. Woodhouse was not to be read as

displacing the normal operation of CPR r.3.1

(7) in a case involving CPR r.3.9. D1's "second

bite" application was in substance an

application under CPR 3.1(7) for the setting

aside of the provisions of the earlier order

refusing relief under CPR 3.9, and had first to

satisfy the criteria in Tibbles v SIG Plc (t/a

Asphaltic Roofing Supplies) [2012] EWCA Civ

518, which it manifestly did not, Tibbles was

followed and Woodhouse distinguished on the

ground that it did not involve setting aside a

previous order refusing relief from sanction

[see paragraphs 23 to 31 of judgment]:

“The reasoning [in Woodhouse] does not sit

altogether comfortably with the policy of the


knowledge of holiday arrangements could be

treated with a tolerant approach [para 33]

Comment: There may be some comfort to be

derived from this clearly expressed and reasoned

judgment in which HHJ Oliver Jones QC

specifically lays emphasis upon the 18th

Implementation Lecture to state that only

allowing relief from sanction in ‘exceptional

circumstances’ was not the intention of the

Jackson reforms.

The suspicion must be however that his is a lone

stand against the inexorable tide of appellate

determination that the circumstances must

indeed be ‘exceptional’ - not low tolerance but

no tolerance. The general trend of the appellate

decisions on r.3.9 allows no room for doubt that

other than in ‘exceptional circumstances’ (and

which in fact existed in this case), there will be no

hiding place for those in default. This approach is

starkly demonstrated in the subsequent Court of

Appeal decision Thevarajah v Riordan digested

below. [Deirdre Goodwin]

Thevarajah v Riordan, Burke, Prestige

Property Develop UK Ltd and Barrington

Burke [2014] EWCA Civ 15 [Richards,

Aikens and Davis LJ]9

− Disclosure - non-compliance

− Unless orders

− Strike-out

− Relief from sanction

− Appropriate approach to CPR r.3.9

In a property dispute involving the purchase of a

public house,, C applied for injunctive relief and a

worldwide freezing order on D1’s assets. D1

failed to comply with disclosure obligations and

only partially compled with a subsequent ‘unless’

disclosure order made by Henderson J. D1 failed

to comply fully.

C issued an application seeking a declaration that

the sanction in the unless order had come into

effect and strike out of the defence and

counterclaims. The Ds cross-applied for relief

from sanction pursuant to CPR 3.9 which was



January 2014

(3) Thirdly, by allocating more than four of

the five days allotted to the trial to be

spent on the relief application, the deputy

judge had allowed the application for

relief from sanction hearing to take up a

disproportionate amount of court time

[paragraphs 10, 37).

(4) Fourthly, the deputy judge had also

questionably observed that even if D1

remained debarred from defending the

claim, they would be entitled at trial to

require C "to prove his claim, to cross-

examine and make submissions" but the

authorities to which he had referred did not

support so sweeping a proposition, Culla

Park Ltd v Richards [2007] EWHC 1687

(QB) and JSC BTA Bank v Ablyazov [2012]

EWCA Civ 1411, [2013] 1 W.L.R.

1331 considered [paragraph 38].

Comment: The Lawtel summary is slightly

misleading as on occasions this refers to the

decision of a district Judge whereas the order

appealed by D1 was made by Andrew Sutcliffe

QC, sitting as a deputy High Court Judge in the

Chancery Division.

It is of note that the deputy judge derived the

principles he applied from the first instance

decision in Raayan al Iraq Co Ltd v Trans Victory

Marine Inc [2013] EWHC 2696 (Comm)

[paragraph 13]. In fairness, this decision was

good law at the time of his judgment in which he

also referred to the first instance decision of

Master McCloud in Mitchell. The approach by

Andrew Smith J in Raayan however was expressly

disapproved by the Court of Appeal in Mitchell as

having applied the wrong test under the new

r.3.9; in particular, having sought to do justice

between the parties, rather than taking account

(as now required) of the wider implications of the

likely impact of non-compliance and delay upon

the administration of justice as a whole.

Not only does the judicial ‘dressing-down’ in this

decision unequivocally reinforce the guidance in

Mitchell but it is a significant judgment in its own

right, drawing together, as it does, preceding

decisions which might otherwise have been

considered as providing judicial ‘wriggle room’ to


April 2013 rule changes … as underlined by the

Mitchell judgment in relation to CPR 3.9 in

particular

2. The deputy judge had been wrong to hold

that D1's subsequent compliance with the

unless order amounted to "a material change

of circumstances" since the date of the order.

D had failed to satisfy the criteria in Tibbles

[paragraphs 30 and 31] and there was no

other basis for an application under CPR 3.1

(7) to vary or revoke the order [paragraph 31].

Obiter

3. The court addressed other concerns about the

deputy’s judge’s decision:

(1) Firstly, even if the deputy judge had been

entitled to give fresh consideration to the

question of relief from sanction, his

general approach to the application of

CPR 3.9 in its current form was wrong in

principle. It lacked the robustness called

for by the guidance subsequently given

in Mitchell v News Group Newspapers Ltd

[2013] EWCA Civ 1537, [2013] 6 Costs L.R.

1008. His judgment gave insufficient

consideration to the need:

a) for litigation to be conducted

efficiently and at proportionate cost,

and

b) to enforce compliance with rules,

practice directions and orders,

considerations which "should now be

regarded as of paramount importance

and be given great weight":

There is a … striking contrast between

the deputy judge’s approach and that of

Hildyard [which] sits well with the

guidance in Mitchell”

[paragraph 35]

(2) Secondly, the deputy judge had paid

insufficient attention to D1's lack of

promptness in bringing the second

application (see paragraphs 18 and 19

where his decision is quoted]: Tibbles,

Mitchell, and Durrant v Chief Constable of

Avon and Somerset [2013] EWCA Civ

1624 followed (para.36).



January 2014

side-step the guidance in Mitchell perceived (by

some) to be unduly and unnecessarily draconian

Mitchell (see Adlington digested at pp 17-19

above)

At paragraph 34 of the judgment, Richard LJ

emphasised that they had not heard oral

submissions in respect of those matters upon

which they made obiter observations and that

they did not need to base their decision upon

these matters as the operative reasons for

allowing the appeal are those given at paragraphs

23—33 [see paragraph 39].

The obiter observations however not only

reinforce the construct and obligation to comply

with the new r.3.9 but emphasise once again the

obligation to consider each case in the efficient

and resource-aware conduct of litigation across

the whole judicial system.

There is truly now no procedural hiding-place: the

message is simple - not low or no tolerance (save

in certain circumstances but absolutely no

tolerance save in the most unusual and

exceptional of circumstances. Those who

continue to console themselves with the belief

that the current approach of the judiciary is akin

to that of the zealousness of newly appointed

school prefects which will soon settle down to

‘business as usual’ - as was the position in the

aftermath of the introduction of the CPR in 1998

- will be deluding themselves. This punishing

regime, in all senses, is here to stay and everyone

should include in their New Year Resolutions a

check on the level of their professional indemnity

insurance cover. [Deirdre Goodwin]

Hussain v Chartis Insurance UK Ltd

[2013] EWHC, Simler J 9th Dec

(unreported)

− Road traffic accident resulting in

brain damage

− Causation disputed

− CFA

− Part 36 offer and success fees


Road Traffic - Part 36 - CFA

C sustained very serious injuries in a road traffic

accident including a head injury that resulted in

brain damage. D1 contended that C had

physically attacked him and in attempting to drive

away a collision had occurred. Accordingly,

liability and causation were in dispute.

The D2 insurer made a Part 36 offer of £350,000

which was accepted prior to trial.

C was funded by 2 CFAs with a fixed success fee of

12.5% but sought a higher success fee under CPR

r.45.18(2)(c) which permits a higher success fee if

it was reasonable to expect that “if” the court had

awarded damages they would have been greater

than £500,000, ignoring any reduction for

contributory negligence.

The Master refused the application because he

was not satisfied that if C had established

negligence he would have established causation

and so it was not reasonable to expect that the

court would have awarded damages greater than

£500,000.

C appealed to the Judge submitting that the

assumption from which the master should have

started was that liability, including causation, had

been established.

Held: Appeal allowed:

1. In construing CPR r.45.18(2)(c) primary

liability was assumed. From first principles,

and in the absence of authority, primary

liability encompassed the question of breach

of duty and causation. In order to be an

actionable tort, there had to be a breach of

duty that caused recoverable loss. Causation

was not a separate issue. There was blurring

between contributory negligence and

causation; for example, a road traffic accident

where a claimant had not been wearing a

seatbelt. That was often seen as a

contributory negligence issue but could

logically be dealt with as causation. However,

it was difficult to think of scenario where

failure to wear a seatbelt caused the accident.

The critical word in CPR r.45.18(2)(c) was "if."

There could not be an award of damages

unless the court found not only breach of

duty but that the breach caused some

recoverable loss. If the court had been



January 2014

This Personal Injury and Medical Law

update provides summary and

comment but is not a substitute for legal

advice. For further information on

contents, please contact Deirdre Goodwin

or Adrian Higgins or email:

[email protected]

ENDNOTES 1

see Coles v Perfect [2013] EWHC 1955 Teare J digest and

comment in October/November PIMLU pp 1-3

2digested in March / April 2011 PIMLU p17

3See digest and comment upon this case by Sarah Keogh in

November 2009 PIMLU, pp 12-14

4 digested by Sarah Keogh in December 2010 PIMLU pp12-13

5 digested in June 2012 PIMLU pp 11-12; see too

Paramasivan v Wicks - CA (Civ Div) (Judges LJ, Aikens LJ)

23/01/2013 where reference was made to Rehill - digested

in February/March 2013 PIMLU by Deirdre Goodwin at pp 22-

24

6 see digest and comment on Mitchell by Deirdre Goodwin in

December 2013 PIMLU pp 7-10 as well as Biffa Waste

Services v Dinler [2013] EWHC 3582 (QBD) Swift J. at p6 and

Durrant v Chief Constable of Avon & Somerset

Constabulary [2013] EWCA Civ 1624 at pp11-126

7 see digest and comment on Rayyan Al Iraq at pp 17-19 of

the October / November 2013 PIMLU

8 See digest in May/June 2013 PIMLU, pp 4-5

9 see digest and comment by Deirdre Goodwin upon first

instance decision of Andrew Smith in Thevarajah [2013]

EWHC 3179 [Ch] in September / October 2013 PIMLU pp18-

19

required to assess whether C could prove that

there was a duty of care or causation, then

the wording of the rule would have been

different.

2. Further, it would mean that claims that had

prospects of success by the time of

settlement of 50 per cent or less could never

have the benefit of an increase in the success

fee. That was not what was contemplated by

the rule, the rationale behind which was to

provide an exception for bigger, riskier claims.

3. The master was right to say that he was

entitled to consider all the evidence in making

the best assessment of the likely damages

that would have been awarded at trial, on the

assumption that primary liability and

causation had been established. However, his

conclusion that C would have failed to

establish that negligence caused his brain

injury, and thus had failed to establish that he

would have been awarded over £500,000,

was an error of law. Liability assumed

causation, and causation should have been

assumed on the proper construction of the

rule.

4. However, it was quite possible that the

master would have come to the same

conclusion as to the level of damages had he

not made such an error. It was therefore

appropriate to remit the application to the

master for determination assuming that

liability and causation had been established

and the claim awarded.

Comment: The full judgment is not yet available

but the Lawtel summary indicates that the Court

of Appeal upheld the High Court’s findings in all

material respects. This decision is now of historic

interest save for those claims funded by a pre

April 2013 CFA. It is however a sensible decision

and it would be prudent in pre April 2013 claims

to make a CPR r.45(18)(2) application at an early

stage where the damages appear likely to exceed

£500,000 on full liability. [Deirdre Goodwin]

____________________


Road Traffic - Part 36 - CFA continued

January 2014

January 2014

Chambers of Nicholas Syfret QC 13 Kings Bench Walk Temple

London EC4Y 7EN DX 359 London/Chancery Lane Tel: 020 7353 7204

Fax: 020 7583 0252 and in Oxford 13 KBW 32 Beaumont Street Oxford OX1 2NP DX 145Oxford 6 Tel: 01865 311066 Fax: 01865 311077 [email protected] www.13kbw.co.uk

Subscription

If you have not received this e-mail directly from 13 KBW but would like

to in the future, or if you do not wish to receive future editions, please

email Deirdre Goodwin [[email protected]]

Privacy

If you ask to be added to the mailing list, you will receive an emailed

copy of the PI and Medical Law Update approximately once per month

until you request otherwise. Your email address will not be used for any

other purpose, nor will it be passed on to any third party.

Disclaimer

Please note that this case and practice update is intended to provide a

summary and comment of the subject matter covered. It is not intended

to be comprehensive or to provide legal or other professional advice.

Any views or opinions presented in this publication are solely those of

the authors and do not necessarily represent those of Chambers.

Feedback?

Please email either Deirdre Goodwin on [email protected] or

Adrian Higgins on [email protected]

Team Members

*denotes those who are also members of the Medical Law Team

Our members provide a range of skill and experience in all aspects of personal injury work, including

catastrophic injury, employers' liability, industrial diseases, road traffic accidents, occupiers' liability and tripping

& slipping cases. The team and our Clerks understand the importance of selecting the right individual for the

professional and lay client.

If you have any queries, the initial points of contact are Kevin Kelly [[email protected]] and Stuart Ritchie

[[email protected]]

Deirdre Goodwin [Team Leader]* 1974 Alexander Dawson* 1969 Anthony Higgins 1978 Charles Scott* 1980 Neil Vickery 1985 Mark Maitland-Jones* 1986 Sinclair Cramsie* 1988 Adrian Higgins* 1990

Susan Chan 1994 Stuart Nicol* 1994 Christopher Mann 1998

Clare Harrington* 1998

Daniel Hobbs 1998

Sarah Keogh* 1999 Murray Grant 2003 Paul Gurnham 2004 Matthew Corrie* 2006 Ben Stimmler* 2009 Richard Williams 2009 Samson Spanier 2009

Stephen Hackett 2011

Shiv Haria-Shah 2012

The Personal Injury and Medical Law Teams’ Case Law and ...

Documents

Transcript of The Personal Injury and Medical Law Teams’ Case Law and ...