News Category 2
PAL (A Child) v Davison, MacPherson & Colburn Ltd T/A Westbourne Motors and Aviva Insurance Ltd [2021] EWHC - Harry Peto, Temple Garden Chambers
12/05/21. This was an application for an interim payment made on behalf of the Claimant, a 13-year-old girl who suffered severe brain injury. She already received payments totalling £1,025,000 and seeks a further sum of £2m to enable a property to be purchased and adapted to provide for long-term accommodation needs.
Background
Liability is not in issue. The sole issue was the appropriate amount of an interim payment. The Defendants were willing to agree to £1,250,000. There was medical uncertainty as to matters such as life expectancy at this stage, which would be relevant in assessing awards for future loss.
A tenancy of a property suitable for the Claimant to live in was shortly to come to an end. An accommodation expert recommended the purchase of a bungalow which would be extended and adapted to provide what was required by the Claimant. The price would be between £800,000 and £1,250,000, and the cost of the works £570,000. A property was found and a price agreed at £1,190,000, with cost of works at £612,000.
The Parties’ Positions
A sum in excess of £500,000 remained from the previous interim payments but was reserved for the Claimant’s immediate needs. The Defendants accept the Claimant requires funds to meet immediate needs other than accommodation. Their approach anticipates that the Claimant would have the funds to purchase a property but there would be a need for a further payment to complete the necessary works.
The Court’s Approach
Eeles v Cobham Hire Services Ltd [2009] EWCA Civ 204 summarises the approach to periodical payments of an interim payment. The first stage is to assess the likely...
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Wormald v Ahmed - Part 36 Offers and the Death of a Protected Party - Paul Stagg, 1 Chancery Lane
05/05/21. The sudden death of the claimant in a personal injury claim where there are substantial claims for future losses may cause the value of the claim to reduce radically overnight, leaving parties regretting that they made, rejected or accepted offers to settle. The judgment handed down on April 21st 2021 of Ms Clare Ambrose, sitting as a Deputy High Court judge, in Wormald v Ahmed [2021] EWHC 973 (QB) exposes some of the clashes of competing objectives of the CPR that can arise in such a situation.
Facts
The claimant was seriously injured in a road traffic accident in 2009 at the age of 20. He suffered a traumatic brain injury. He lacked capacity to litigation and his mother was appointed as litigation friend for the purposes of his claim against the defendant driver who had hit him. Proceedings were commenced in 2013. Liability was contested. On October 15th 2014, the defendant made a Part 36 offer in the sum of £2 million in respect of the whole claim. In November 2014, a liability trial took place. The claimant succeeded in establishing negligence, subject to a reduction of 40% for contributory negligence. An appeal to the Court of Appeal was dismissed. The defendant’s offer of £2 million remained in place.
The claimant was wheelchair-bound and had a stent in his trachea. He had been admitted to hospital on a number of occasions with respiratory problems, and the defendant’s solicitors had been aware of those episodes. On September 14th 2020, he was admitted to hospital having had a choking fit and suffered what his mother told his solicitors was a “cardiac episode”. On the following day they were told that he was in a critical condition. They carried out an urgent review of the claim and the offers on the table. On September 17th, the defendant’s solicitors were told that the claimant had been hospitalised. Counsel was consulted about the proper valuation of the claim and in the evening, the claimant’s mother gave authority to accept the £2 million offer.
On the morning of September 18th, the claimant’s solicitors sent notice of acceptance of the Part 36 offer by e-mail. The defendant’s solicitors replied later asking for confirmation that the claimant was alive and for details of his condition and prognosis. A reply confirmed that the claimant was in a critical condition. On that evening, the claimant passed away. The claimant’s solicitors were notified of the death on September 21st. On September 25th, they sent notice purporting to withdraw the 2014 offer.
Applications were made by the claimant for a declaration that the offer had been validly accepted and for approval of the award. The defendant’s position was that the settlement should not be approved and that permission should be granted for the withdrawal of the offer.
Decision
The deputy judge defined the issues in the following terms, at [29]:
i) Where a protected party accepts a Part 36 offer is the other party subsequently able to withdraw that offer before approval of the settlement?
ii) When the court is asked to approve a settlement, on what grounds (if any) can a Part 36 offer be withdrawn?
iii) Should the court grant permission for withdrawal of the Defendant’s offer of 15 October 2014 or approve the settlement in the amount offered?
The deputy judge pointed out at [31] that it has always intended that CPR Part 36 was a self-contained code. This was first made explicit in the current 2015 version of Part 36: see CPR 36.1(1). Another important factor which Part 36 sought to promote was certainty: at [32]. By contrast, the provisions of Part 21 were designed to protect the interests of children and protected parties, to ensure that defendants could obtain a valid discharge from a claim, to ensure that awards were properly managed and to ensure that dependents are protected: at [35].
At [36]-[40], the deputy judge noted pre-existing case law, which had consistently held under predecessor rules that a compromise reached by or on behalf a child or protected party (or patient, as they were formerly known) was not valid unless approved by the court: Dietz v Lennig Chemicals [1969] AC 170; Drinkall v Whitwood [2003] EWCA Civ 1547, [2004] 1 WLR 462; Revill v Damiani [2017] EWHC 2630 (QB).
The claimant argued that the position was different under the new Part 36, because it provided expressly that the defendant could not withdraw the offer once accepted. The settlement should be approved, since even if there was a windfall benefit to the claimant, the court was not concerned with that. The offer had been deliberately left on the table by a defendant who had known of the claimant’s illness. The defendant relied on the pre-existing case law to suggest that a binding settlement could not be reached until approval had been granted under CPR 21.10.
The deputy judge concluded that there was no reason to hold that the wording of CPR Part 36 “trumped” the operation of Part 21: at [51]-[54]. Part 36 did not promote certainty at the expense of justice. In her conclusions on the first point at [59] she began by appearing to favour the defendant’s position:
a) A compromise made on behalf of a protected party by acceptance of a Part 36 offer requires the approval of the court under CPR 21.10 (CPR 36.11 & 36.14).
b) Where a protected party accepts a Part 36 offer, the offer and its acceptance are not binding to make a valid settlement until approved by the Court (CPR 21.10).
c) The proceedings are not stayed until the court approves the settlement (CPR 36.14).
d) Until the settlement is approved the other party may resile from its offer by giving notice of withdrawal (Drinkall). The withdrawal serves a purpose in giving notice that the settlement is challenged.
However, she then appeared to row back from the logical conclusion from those findings in her next sub-paragraph:
e) However, the notice of withdrawal will not in itself be valid for the purposes of Part 36 (CPR 36.9), in particular in relation to costs consequences.
f) Either party may apply for approval of the settlement (Practice Direction 21). A party resiling from the settlement may raise its position on that application. The court will decide whether the withdrawal is to be given effect or the settlement is to be approved.
g) Further consequences were not explored but that party could probably issue an application to resolve any issue as to how the proceedings continue, including the effectiveness of its withdrawal from the settlement.
The deputy judge then went on to look at the second of the three issues. She concluded that the court could confirm whether or not to grant approval of the settlement: at [60]-[63]. She said that investigation into whether the compromise amounted to over-compensation was undesirable, but then went on to state that “it may go in the balance” if it was a “clear case”: at [63]
On the evidence, she decided that in light of the inequality of knowledge, it would be unjust to hold the defendant to the settlement: at [64]-[69]. In the final paragraph of her judgment, she decided to give the parties the option to make further submissions as to whether the settlement offer should be approved: at [70].
Discussion
The problems in this case were caused by a lack of clarity as to the interaction between CPR 21.10 which requires approval of any settlement reached on behalf of a protected party and the terms of CPR Part 36. Neither Part is expressly made subject to the other. The only reference to CPR 21.10 in Part 36 is in CPR 36.11, which states (in part):
(1) A Part 36 offer is accepted by serving written notice of acceptance on the offeror.
(2) Subject to paragraphs (3) and (4) and to rule 36.12, a Part 36 offer may be accepted at any time (whether or not the offeree has subsequently made a different offer), unless it has already been withdrawn.
(Rule 21.10 deals with compromise, etc. by or on behalf of a child or protected party.)
(Rules 36.9 and 36.10 deal with withdrawal of Part 36 offers.)
The CPR commonly adopt that technique of referring in parentheses to other relevant rules after a statement of a rule. The aim is to make the rules more user-friendly, but it does not assist in determining which rule takes precedence if there is a conflict between them.
It is suggested that the deputy judge’s attempt to navigate between the submissions of the parties before her leads to unsatisfactory uncertainty all round. It appears to give the court a discretion as to whether the settlement should bind the parties or not. The criteria on which the court is to judge that issue are left wholly unclear.
It was incumbent on the deputy judge to decide categorically between the two submissions made before her rather than try to adopt a compromise solution. Both have a good deal to be said for them. The defendant’s stance is reflected properly in the historic case law. However, it is suggested that the claimant’s position is better reflected in the wording and purpose of the rules. The effect of accepting the defendant’s position is to require words to be read into CPR 36.9 and 36.11 which are not there. The right interpretation is that contended for by the claimant. Provided that the solicitors have authority to act on behalf of the claimant, the service of notice of acceptance amounts to acceptance of the Part 36 offer, as CPR 36.11(1) expressly states. The court’s permission to accept it is only required in the circumstances set out in CPR 36.11(3). The offer cannot then be withdrawn, as CPR 36.9(1) expressly provides. The role of the court is then to decide whether the settlement is in the best interests of the claimant under CPR 21.10. If it provides for more than fair compensation, approval should plainly be given. If it does not, then clearly the court’s approval must mean that the acceptance of the offer does not take effect, and to that extent the wording of CPR 36.9(1) and CPR 36.11(1) is abrogated. However, the claimant’s position undoubtedly does less violence to the wording of the rules than the defendant’s stance.
It is also suggested that the overall justice of the situation favoured the claimant here. There is force in the point made on behalf of the claimant that the defendant had a considerable degree of knowledge of the claimant’s condition and of his regular hospitalisations, and that any Part 36 offer involves the risk that the claimant will die prematurely and his estate will have a windfall as a result.
It is unknown whether the claimant will seek to challenge the deputy judge’s decision. The circumstances will probably not occur that frequently. Where a claimant dies before an offer is accepted, his solicitors will not have authority to accept it after his death: see eg Williams, Mortimer and Sunnucks, Executors, Administrators and Probate (2018 edn) para 59-17. They will not acquire authority until the claimant’s estate has an administrator who can re-instruct the solicitors, which will give the defendant time to withdraw the offer if appropriate. The Civil Procedure Rules Committee ought to give further consideration to the interaction between CPR 21.10 and Part 36 so that a clear and principled position as to cases like this is reached.
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High Court rejects submission that the objective evidence should be taken as the primary source of reliance compared with witnesses' recollection, even in a road traffic accident from over five years ago: Barrow & Ors v Merrett & Anor [2021] EWHC 792 (QB)
22/04/21. This case will provide a helpful guide to how a court assesses the evidence in a trial on liability in a road traffic accident where the events happened some time ago. In particular, it demonstrates that the recollection of witnesses will typically be the evidence of primary importance.
Relevant facts
On 7 October 2015, Felix Barrow, a child, was crossing the road on his way to school when his life was changed by a car hitting him. However, it was disputed whether the Defendant was at fault for this accident. Each party had fundamentally opposing recollections. The time of trial, there was considerable expert evidence to assist the Court in deciding what happened.
The questions for the Court were simple:
“(i) Was Felix running or walking across the road immediately prior to the collision?
(ii) What was Felix's likely body position at the time of impact?”
The Claimant asserted that Felix was walking across the road when he slipped backwards. It then took several seconds for him to start getting to his feet, and while he was doing so he was struck by the Defendant’s car.
The Defendant stated that he was running across the road at the time of the accident. While running, he likely slipped forwards and moments later he was struck by the car: it was too late to take evasive action.
How to analyse the evidence in this case?
As mentioned above, by the point of trial, over five years later, there was significant expert accident reconstruction evidence, and memories had faded. Counsel for the Claimant, Susan Rodway QC, therefore submitted that the witness evidence in the case should be treated as a secondary source because the contemporaneous documentation and expert evidence provided a more objective and reliable source of evidence.
She cited the judgment of Leggatt J in Gestmin SGPS (SA) v Credit Suisse (UK) Ltd & Anr [2013] EWHC 3560 (Comm), in which he observed that in complex commercial claims, the existence of substantial amounts of contemporaneous documentation will often provide a more reliable source of evidence than the recollection of witnesses many years later.
The judge considered that there was no need to extend the principles of Gestmin to this case. He noted that in a commercial case there is a substantial amount of documentation, an 'electronic footprint', detailing contemporaneously what the parties said and thought in meetings about the relevant transactions. A road traffic accident is clearly...
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Costs: Sir Henry Royce Memorial Foundation v Mark Gregory Hardy [2021] EWHC 817 (Ch) - Harry Peto, Temple Garden Chambers
20/04/21. The general law is that costs are in the discretion of the court, but if the court makes a costs order, the general rule is that the unsuccessful party in the proceedings pays the costs of the successful party – CPR r.44.2.
The Defendant argued that the Claimant failed to succeed on all matters. The Judge held that this did not matter and that the Claimant should receive their costs on account of succeeding on the claim
Basis of Assessment
The Claimant sought costs on an indemnity basis, relying on Excelsior Commerical and Industrial Holdings Ltd v Salisbury Hammer Aspen and Johnson [2002] EWHC Civ 67: some conduct or circumstance which takes the case out of the norm.
In support of its position, the Claimant pointed to the fact that the Defendant took every possible point and used offensive language in correspondence. Further, the Defendant had breached case management orders, adduced irrelevant evidence, sent excessive correspondence, and made serious allegations of deceiving the court, perverting the course of justice and fraud which were...
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Case Summary: H v P - Mary Kay, Spencers Solicitors
05/04/21. Case Name : H v P
Accident Date : 14/07/2014
Settlement Date : 04/09/2020
TOTAL GROSS SETTLEMENT : £100,000.00
Background
The Claimant was aged 34 at the time of the accident. The Claimant had parked her car on the driveway outside her home and opened her door to get out of the car. There was a hole in the ground along the edge of the driveway and our client’s foot was caught in the hole and she fell landing heavily on her bottom and left arm/ hand resulting in injury and psychological issues.
The owners of the neighbouring property had been doing some work on their garden and their servant or agent had dug the hole earlier that day, in order to put in a new fence but had not filled it in. It was the Claimant's case that when she left her property, earlier in the day, the trench was not present; although when she returned it had been dug on the boundary between the two properties and it was not evident when she returned and alighted from her vehicle.
Liability
Primary liability was admitted by the Defendant but contributory negligence was raised.
Quantum
The Claimant suffered with pain, bruising and swelling to her arm and hand and had immediate pain in her back and bottom. Her arm and hand developed a burning pain and the limb became very stiff. She also suffered with a constant ache.
The Orthopaedic expert diagnosed a coccyx injury causing coccyx pain, and a soft tissue injury to the left hand and forearm precipitating into complex regional pain syndrome (CRPS). The Claimant took regular prescriptive medication to help alleviate the pain. Medical records indicated a fracture to the coccyx, but no x-ray was taken.
As at February 2015 symptoms were improving and whilst acknowledging the lack of predictability of CRPS the medical expert was hopeful of a full recovery by early-mid 2016. Coccyx pain had improved considerably and was likely to resolve within the same timescale. The Claimant underwent physiotherapy and further expert evidence was considered. A pain report was obtained which opined that psychiatric evidence was necessary. A Psychiatric report was therefore obtained. Psychiatric rehabilitation was arranged. Prognosis for the physical symptoms was 2-3 years. The Claimant suffered a significant psychological reaction as a result of the index accident and the injuries sustained. She was diagnosed as suffering from a Major Depressive Disorder and a Chronic Pain Disorder. The Claimant also suffered from Post-Traumatic Stress symptoms and pain related anxiety symptoms. The Claimant’s psychiatric difficulties had a significantly negative impact on the Claimant’s quality of life; her ability to function in the workplace and was potentially at a disadvantage on the open labour market. She suffered with anxiety and panic attacks and received regular sessions of psychological therapy. The prognosis was agreed that with the conclusion of litigation, this would remove a source of stress and should give rise to a degree of further psychological improvement.
The Claimant was unable to work for a period of 1 month and returned on light duties. She was also unable to drive for the same period of time. Being part of a family of 7, this made things very difficult. The Claimant needed a fair amount of help from family with domestic and personal chores for the first 2-3 months. The Claimant’s sleep was disturbed, getting on average 4 hours of sleep. This in turn made her irritable.
The Claimant aged 40 at the time of settlement, received the sum of £100,000. No formal breakdown was provided however, general damages were estimated at £30,000, past losses at £33,000 and future losses at £39,500.
Solicitors for the Claimant : Mary Kay of Spencers Solicitors Limited
Solicitors for the Defendant : Clyde & Co Claims LLP
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