News Category 2
Elgamal v Westminster City Council [2021] EWHC 2510 (QB): When Exaggeration Does Not Amount To Fundamental Dishonesty - Nicholas Dobbs, Temple Garden Chambers
24/11/21. In Elgamal v Westminster City Council, the Defendant appealed a judgment following trial to pay the Claimant £125,321.33 in damages for personal injury. The central issue on appeal concerned the judge’s decision that the Claimant had not been fundamentally dishonest in relation to his claim, and accordingly whether the provisions of s 57 of the Criminal Justice and Courts Act 2015 applied. A further issue arose as to the way in which the trial judge had dealt with the costs of the proceedings (the subject of a previous PIBU article published last month).
The claim arose from an accident on 27 January 2012. The Claimant injured himself on an air track at the Defendant’s gym in London when he performed a flip, landed awkwardly and violently twisted his left knee. At the time of the accident, he was 22 and had been heavily involved in free running and parkour. He had also worked on a number of film projects as a trainee stunt man. It was his intention fully to qualify as a stunt man and then to develop his career in that role, which his injury had curtailed. Liability was compromised at 65% in the Claimant’s favour.
At trial, the judge found that there was exaggeration as to the level of the ongoing disability arising from a very serious base injury; the Claimant believed that he was disabled to a greater extent than was found by the judge at trial. The judge went on to say: “From his perspective he was not lying. However objectively he was exaggerating and so as a fact was lying.” The judge described the ways in which the Claimant was exaggerating, including that there was a clear difference between his presentation at a medical examination and the surveillance video taken minutes after it.
However, the trial judge went on to find that the exaggeration was not fundamental to the case: the relevant findings did not result in a reduction in general damages to the level the defendant submitted or anywhere near that level, nor did they result in the failure to recover the Smith v Manchester award claimed. The major head of claim, for future loss of earnings, was not recovered due to the failure to produce sufficient evidence to establish a difference between what he would have earned as a stuntman and what he would now earn.
On appeal, the court reviewed...
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Findings of Fact in Mesothelioma Case - Jim Hester, Parklane Plowden Chambers
25/10/21. This is another case where the court (and parties) have had to consider findings of fact in relation to historic events, in this case with respect to a fatal mesothelioma claim.
Jackman v Harold Firth [2021] EWHC 1461 (QB) per HHJ Bird, sitting as a Judge of the High Court.
The Facts
Mr Jackman died in November 2016 of mesothelioma. The claim was brought by his widow.
The dispute centred on whether Mr Jackman had been exposed to asbestos when working for the Defendants at premises owned by ICI.
Evidence from the era included the HMRC Schedule. Accordingly to this, Mr Jackman had worked for a number of employers between 1961 and 1975.
Mrs Jackman had made some notes as to her husband’s employment between 1972 – 1983.
The Claimant relied on witness statements from two of the Deceased’s colleagues. Sadly both witnesses had also died prior to trial.
The contemporaneous notes showed that the Deceased worked for the Defendants from about April 1969 – April 1972. It was possible that the Deceased had also worked for the Defendants later in 1972. By 1973 he was working elsewhere.
The witness statements of his colleagues suggested that whilst working for the Defendants at ICI Huddersfield, labourers, laggers and maintenance engineers would be exposed to asbestos fibres. Pipes were said to be insulated with asbestos. If they were in need of repair, then the asbestos would need to be removed to effect a repair. The asbestos was then swept up and disposed of. Overalls were covered in asbestos.
Mrs Jackman said that her husband (upon receiving the mesothelioma diagnosis) stated that he would have been exposed to asbestos with the Defendants at ICI. The Deceased mentioned his job at ICI over the years, and described it as a ‘filthy job’. It is said that he did not like the job, nor his boss – Eddie Firth.
Mrs Jackman accepted that the Deceased could be resentful towards Eddie Firth and others, and that Eddie Firth was ‘one of his things’.
Consideration of Historical Evidence
The court considered how it should approach such historical evidence.
Bannister v Freeman was considered and paragraphs 73 – 77 were set out.
The court considered paragraph 1.3 of the Appendix to PD57 AC. This gives the court guidance as to principles considering witness evidence and memory. Though intended for the business and property courts it was considered to be of general application.
Further, the court was mindful not to ‘allow the tragedy inherent in every mesothelioma case’ to lead to a lax approach to fact finding (Sienkiewicz).
The court considered that the Claimant still needed to prove her case, notwithstanding the lack of evidence from the Defendants.
The Findings
The court noted the contemporaneous medical note created when the Deceased received his diagnosis of mesothelioma. This made reference to working with pipes at ICI in the 1970s.
The court further considered that Mrs Jackman recalled that Mr Jackman stated that he had been exposed to asbestos with the Defendants at ICI, between diagnosis and his death.
It was further noted how the Deceased ‘exploded’ on the mention of the word ‘Firth’ with his complaints centred on the nature of the job and how dirty it was.
The court found Mrs Jackman to be a careful, honest and impressive witness. She had corrected part of one of her witness statements by pen before signing it. The Judge was cautious as to her recollections from the era (1968 – 1973) itself, but found the evidence from 2016 to be more reliable. This was collaborated by medical notes. This evidence (about what Mr Jackman said) could itself be inaccurate, but the court found that it was.
The court found that the Deceased was exposed to asbestos, not from cleaning asbestos pipes, but when dealing with the lagging from pipes and the removal of the same.
Accordingly, since liability was accepted if exposure could be proved, the Claimant’s case was allowed.
Quantum
The court needed to determine 3 heads – PSLA, care and loss of services of a husband.
PSLA was determined on the facts of the case, as was the claim for care.
As to the claim for loss of services of a husband, the Judge accepted that this was a head of loss which was recoverable. A sum of £2,000 was allowed since though the Deceased helped around the house, this was not to a great extent.
Conclusion
It now seems that the caselaw in relation to how courts should approach evidence in historic cases is somewhat settled.
Memories are considered to be fallible and so any supporting evidence (even in this case evidence of what the Deceased said on diagnosis) was considered helpful, as, of course, was documentation.
In a future article I shall provide an overview as to how courts approach such cases involving historical evidence.
This article was originally published at https://jimhester.me
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West v Burton [2021] EWCA Civ 1005 - Fixed Costs & Disbursements Payable Under The Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents - Nicholas Dobbs, Temple Garden Chambers
20/10/21. The appeal in West v Burton concerned the fixed costs and disbursements payable under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (‘the Protocol’). The Court of Appeal framed the issue at the heart of the matter in this way: where a person gives notification of a claim under the Protocol but thereafter dies before its conclusion and the notified claim then, without legal proceedings being issued, proceeds to settlement between the deceased’s personal representative and the defendant’s insurers, are the costs and disbursements payable by the defendant to be calculated by reference to Section IIIA (or, as the case may be, Section III) of Part 45 of the Civil Procedure Rules (CPR), or are they to be calculated by reference to Section II of Part 45 of the CPR?
The Court of Appeal reviewed the applicable parts of the CPR and the Protocol, including the scope of Sections II and IIIA, as well as relevant provisions in the Law Reform (Miscellaneous Provisions) Act 1934. The Court was referred to a number of decisions in which CPR Part 45 and the Protocol were considered, noting that the general approach had been to treat the relevant provisions as “comprehensive and not readily to be subject to judicial amplification or implication” (see paragraphs [26] to [30]). It was noted that previous authorities had emphasised the comprehensive nature of the fixed costs regime, the small category of exceptions, and the fact that there will inevitably be swings and roundabouts as there are in any regime designed to deal with high bulk, low value claims.
The Court held that if a ‘claim’ and ‘claimant’ for the purposes of the fixed costs regime were equated with the meaning that they conventionally bear in the context of legal proceedings, then the force of the appellant’s arguments was clear-cut. However, that was not how the scheme worked: the words ‘claim’ and ‘claimant’ were not being used in the Protocol in a formal sense, but rather as descriptive of a demand for damages prior to the start of any legal proceedings. Notably, under the Protocol, a defendant was defined so as primarily to connote the insurer. The definition of ‘claim’ in paragraph 1(6) of the Protocol was therefore not to be equated with the definition of a ‘claim’ in CPR 2.3. The Rules and the Protocol were drafted on the footing that the claimant throughout remained the person who issued the Claim Notification Form.
Accordingly, for the purposes of the Protocol, the claimant was to be regarded as the person who was involved in the road traffic accident. As an executor could not have started such a claim, given paragraph 4.5(3) of the Protocol, the claim in this case, for the purposes of assessing costs, could not come within the ambit of Section IIIA. Accordingly, costs fell to be assessed by reference to Section II. The outcome would have been the same even had the claim not exited the Portal: the provisions of Section III would not have come into play and the matter would still have remained within Section II. The appeal was dismissed, with the court adding, “It will be a matter for the Rules Committee to consider whether it would be advantageous to set out the desired outcome for situations such as these in express terms.”
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Covey v Harris [2021] EWHC 2211 (QB) - Rochelle Powell, Temple Garden Chambers & Rebecca Henshaw
18/10/21. The Defendant was successful in amending his defence to plead a positive case of fundamental dishonesty, as it was both sensible and in keeping with the overriding objective to do so, and had not prejudiced the Claimant.
Background
This was a personal injury claim for £8.8 million, primary liability had been admitted and agreed at 80/20 in the Claimant’s favour, subject to an issue of contributory negligence due to the Claimant’s failure to wear a seatbelt.
John Bowers QC, sitting as a Deputy Judge of the High Court, found that the Claimant had, for some time, known the Defendant’s case was that she was fundamentally dishonest. The Defendant served their amended defence on 14 June 2021, With the trial due to start on 12 July of the same year. The amended defence averred that the Claimant had been fundamentally dishonest and invited the Court to dismiss the claim entirely, pursuant to s.57 of the Criminal Justice and Courts Act 2015. In the alternative, the Defendant pleaded that the Claimant’s account of the index accident was unreliable and had exaggerated her symptoms, whether consciously or unconsciously.
The Claimant opposed the amendment on the grounds of lateness, lack of necessity and that the defence had no reasonable prospects of success. The Claimant particularly relied on Mustard v Flower & Ors [2021] EWHC 846 (QB).
The Decision
The judge considered the following pertinent issues:
1) The procedural history of the case was important. The Claimant had, at various stages, sought the...
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A costly error: the failure to file a schedule in Mahandru v Nielson [2021] EWHC 2297 (QB) - Rochelle Powell, Temple Garden Chambers
16/09/21. This was an appeal brought by the claimant in the underlying action, Mr Rajeve Mahandru, against an order of Ms Recorder Frost, by which she refused his application for an interim injunction requiring the defendant, Dr Ejiro Nielson, to readmit the claimant to the property where he had been living before he was admitted to hospital. Applying the “balance of convenience” test in American Cyanamid v Ethicon [1975] AC 396, the appeal was dismissed. The judge then went on to consider costs.
Judgment on Costs
The defendant, who had been successful in defending the appeal, brought an application for costs in the sum of £3,960. However, no schedule of costs was served. The claimant argued that the appropriate order in such circumstances was to make no order for costs. Mrs Justice Steyn stated that making such an order would be unjust, given the ordinary rule that the successful party is entitled to their costs. Nevertheless, the judge held at [28] that:
“the fault for not providing a schedule of costs clearly lies with the defendant and it seems to me, in the circumstances, the only sums that I can properly summarily assess are the costs which I am told have been incurred in respect of counsel’s appearance at the hearing today and drafting of the skeleton argument.”
Accordingly, the order made was that the claimant to pay the defendant’s costs summarily assessed in the sum of £1,250, a reduction of almost 70%.
Civil Procedure Rules
Mrs Justice Steyn’s judgment serves as a helpful reminder of the duties of parties and legal representatives under Practice Direction 44 9.5:
“Duty of Parties and legal representatives
(1) It is the duty of the parties and their legal representatives to assist the judge in making a summary assessment of costs in any case to which paragraph 9.2 above applies, in accordance with the following subparagraphs.
(2) Each party who intends to claim costs must prepare a written statement of those costs showing separately in the form of a schedule –
(a) the number of hours to be claimed;
(b) the hourly rate to be claimed;
(c) the grade of fee earner;
(d) the amount and nature of any disbursement to be claimed, other than counsel's fee for appearing at the hearing;
(e) the amount of legal representative's costs to be claimed for attending or appearing at the hearing;
(f) counsel's fees; and
(g) any VAT to be claimed on these amounts.
…
(4) The statement of costs must be filed at court and copies of it must be served on any party against whom an order for payment of those costs is intended to be sought as soon as possible and in any event –
(a) for a fast track trial, not less than 2 days before the trial; and
(b) for all other hearings, not less than 24 hours before the time fixed for the hearing.”
Conclusion
The lesson is that if seeking costs make sure details are provided to both the Court and opposing party at least 24 hours prior to the hearing. The failure to do so may be fatal to any application for costs.
Image ©iStockphoto.com/sompong_tom
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- Increases in hourly rates amount to 'special circumstances': Raydens Ltd v Cole [2021] EWHC B14 (Costs) - Rochelle Powell, Temple Garden Chambers
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