PI Practitioner, July 2020

16/07/20. Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. You can also receive these for free by registering for our PI Brief Update newsletter. Just select "Free Newsletter" from the menu at the top of this page and fill in your email address.

This recent case provides a useful reminder of the requirements associated with pre-action disclosure applications. It also highlights the need specifically to identify the documents which ought to have been provided, and why they are required, if applying for further disclosure.

Zenith Insurance Plc v LPS Solicitors Ltd [2020] EWHC 1260 (QB)

The Respondent law firm had acted for three individuals who brought claims for minor personal injuries following a road traffic accident in 2014. Their claims were settled and the Respondent insurance company paid out damages and costs for each claim. Subsequently, the three individuals named in the claims confirmed that the identification documents provided to the Respondent were not theirs and that they had not been involved in an RTA and had not received compensation. The Applicant contended, therefore, that the claims in relation to the 2014 accident were fraudulent and sought to recover the damages and costs paid out. The causes of action pursued by the Applicant were fraud and negligence.

The Applicant applied and obtained an order from Cockerill J for disclosure of all documents held by the Respondent in respect of the claims brought under the names of the three individuals in 2014. Nearly 500 pages of disclosure was produced as a result of Cockerill J's order. However, the Applicant argued that the disclosure was incomplete and sought the disclosure of 10 categories of documents, primarily on the basis that these documents ought to have been disclosed in compliance with Cockerill J's order. To the extent that the disclosure sought went beyond that order, the Applicant sought an order pursuant to CPR 31.36 or Norwich Pharmacal.

Mr Justice Freedman heard the application. He considered that the Applicant's application and statement in support had failed to set out:
1. Why the categories of documents sought fell within the order made by Cockerill J;
2. How the disclosure was incomplete and the extent to which the categories of documents sought had not been produced by the Applicant;
3. Why the additional documents were required; and
4. Why the Court ought to make an order for disclosure in respect of each category of documents, having regard to the criteria of CPR 31.16 and Norwich Pharmacal.
The Applicant's skeleton argument provided some more information as to the missing documents. Freedman J considered that this was completely unsatisfactory and that the Applicant ought to have specified the missing documents in correspondence with the Respondent prior to making the application. The documents which had not been provided ought also to have been detailed in the Applicant's application and accompanying evidence, and not its skeleton argument. If this had not been possible, the missing documents ought at least to have been specified well before the morning of the hearing. The Respondent had filed evidence in response, as well as a statement confirming compliance with the Cockerill order. The Applicant had failed to respond or make inquiries following receipt of this evidence.

Mr Justice Freedman went on to consider CPR 31.16, which provides that:
"The court may make an order under this rule only where--
(a) the respondent is likely to be a party to subsequent proceedings;
(b) the applicant is also likely to be a party to those proceedings;
(c) if proceedings had started, the respondent's duty by way of standard
disclosure, set out in rule 31.6, would extend to the documents or classes of
documents of which the applicant seeks disclosure; and
(d) disclosure before proceedings have started is desirable in order to--
(i) dispose fairly of the anticipated proceedings;
(ii) assist the dispute to be resolved without proceedings; or
(iii) save costs.
He was referred to Black and others v. Sumitomo Corpn and Others [2001] EWCA Civ 1819; [2003] 3 All E.R. 643; [2002] 1 W.L.R. 1562, which provides the following guidance on the application of CPR 31.16:
1. All subparagraphs of 31.16 have to be satisfied in order for the court to make an order.
2. There is a two-stage process for determining whether disclosure is desirable. The court has to consider whether there is a "real prospect in principle of such an order being fair to the parties if litigation is commenced, or of assisting the parties to avoid litigation, or of saving costs in any event". This jurisdictional threshold is low, and where it is passed, the court has discretion to determine whether disclosure is desirable, having regard to all the facts.
3. The order can only be made in respect of documents which would be disclosable under standard disclosure. Later case law established that the applicant has to satisfy the court that on the balance of probabilities the documents are within the scope of standard disclosure.
4. Judges are warned against encouraging "fishing expeditions to enable a prospective plaintiff to discover whether he has in fact got a case at all". The Applicant should therefore identify his/her cause of action with care and demonstrate real prospects.

Mr Justice Freedman then considered the conditions for making a Norwich Pharmacal order, as summarised in Mitsui v Nexen Petroleum [2005] EWHC 625 (Ch); [2005] 3 All ER 511:
1. A wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer;
2. There is a need for an order to enable an action to be brought against the ultimate wrongdoer;
3. The person against whom the order is sought is mixed up in, and facilitated, the wrongdoing and or is likely to provide the information necessary to bring an action against the ultimate wrongdoer.

Freedman J observed that the Norwich Pharmacal order is an exceptional jurisdiction and a remedy of last resort, and is not available where the information can be otherwise obtained. Likewise, if the applicant has sufficient information to start an action an order may be refused.

Freedman J applied the above principles to the categories of documents sought, and found that:
1. As regards CPR 31.16:
a. The Applicant had failed to show that the Respondent is likely to be a defendant in subsequent proceedings. The Applicant had insufficient evidence to advance any claim of fraud against the Respondent. There were also serious obstacles to a claim in negligence against the law firm.
b. The jurisdictional element of the desirability test had not been satisfied. Moreover, the Applicant's application and statement were unsatisfactory and the Respondent had cooperated significantly thus far.
c. In relation to some of the categories, the Applicant had also failed to show that the documents fell within the scope of standard disclosure.
2. As to the Norwich Pharmacal order:
a. The Applicant failed to show that the disclosure of certain categories was necessary in order to assert a right against the ultimate wrongdoer. There were "hallmarks of a fishing exercise" with "no attempt to have regard to the exceptional nature of the jurisdiction or to identify why it is necessary in the interests of justice to have such a wide ranging and time consuming order".
b. There had also been a failure to identify any breach of the Cockerill J order, and the Applicant had not established that there was reason to believe that any further documents would be provided. A bare statement that the disclosure was incomplete was insufficient. The court had no reason to disbelieve the Respondent's evidence that the categories sought had been disclosed in their entirety.

The application therefore failed. Freedman J finally noted the requirement to issue a Part 8 claim form when making a Norwich Pharmacal application. Due to the particular circumstances of the case, the application was heard without a Part 8 claim form. However, Freedman J noted that "parties in future might find that the Court might refuse to hear a Norwich Pharmacal matter without a Part 8 claim form and/or may insist that a Part 8 claim form is issued even when dismissing the application"

Olivia Rosenstrom
Temple Garden Chambers

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Section 33 of the Limitation Act 1980: Credibility and Prejudice - Andrew Roy & Nina Ross,12 King's Bench Walk

03/07/20. Under s.33 Limitation Act 1980, the court may disapply the limitation period in a personal injury claim if it is equitable to do so having regard to the prejudice to the claimant if precluded from bringing his claim and the prejudice to the defendant in being required to meet an out of time claim. In FZO v Haringey London Borough Council [2020] EWCA Civ 180 the Court of Appeal provided important guidance as to the assessment of evidential prejudice when limitation is determined alongside the substantive issues at the final trial.

Background

The claimant sought damages for personal injuries arising out of sexual assaults committed upon him by the first defendant schoolteacher between 1980 and 1988. The second defendant was the local authority responsible for the school and the first defendant’s employer.

It was the claimant’s case that, shortly after he had arrived at the school, the claimant had been raped by another man. The claimant confided in the first defendant about the rape. The first defendant told him that the incident meant that he was gay and that, if it became known, he would be thrown out of his family home. By this means, the first defendant groomed and manipulated the claimant into sexual activity with him, which included anal rape almost from the start.

In 1982, when he was about 16 years old, the claimant left the school, albeit he returned again for a short period in 1983/1984. He alleged that the first defendant continued to abuse him until 1988 when he was 21 years old. He then had ongoing contact with the teacher until 2011 when, after years of experiencing anxiety and psychological problems, he suffered a breakdown. In 2014, the first defendant pleaded guilty to counts of indecent assault and buggery when the claimant was aged between 13 and 15 years. He also admitted to raping the claimant when he was under 16. The claimant began the instant proceedings in 2016, which was between 25 and 30 years after the expiry of the applicable limitation period for each assault.

The key issues were:

1. Should the claim be allowed to proceed 25-30 years out of time pursuant to s.33?

2. Did the claimant consent to sexual activity with the first defendant after he left the school?

3. Was the school vicariously liable for the first defendant’s conduct after the claimant left the school?

4. What if any injury did the sexual abuse cause the claimant?

5. Whether the claimant was precluded from bringing a claim for the consequences of his breakdown in 2011 by the doctrine of ex turpi causa since his breakdown was related to his use of illegal drugs.

Decision at first instance

Cutts J held ([2018] EWHC 3584 (QB)) that:

1. The claim should be allowed the claim to proceed out of time:

a. The length of the delay was substantial. However, the claimant had good reasons for the delay. The claimant did not recognise, until his breakdown in 2011, that what happened to him at the first defendant’s hands was abuse. He failed to see it as abuse because of the first defendant’s grooming behaviour and emotional manipulation of him [179–186].

b. The delay had had little impact on the cogency of the evidence. Both the claimant and the first defendant had been able to give detailed evidence about what happened. Their memory had not been affected to such an extent that this matter could not be safely tried. It was difficult to see what other evidence that might have been available to the defendants which would have assisted them with disputing the abuse. Liability was largely accepted for the time that the claimant was at the school. The first defendant argued that he had been prejudiced by the absence of a particular witness but no attempt had been made to locate that witness. The issue of causation was now confined to whether the claimant could establish that the abuse was the reason for the mental health difficulties from which he suffered and his subsequent inability to work. Notwithstanding the delay, both psychiatrists had been able to reach confident conclusions. There would be some difficulty in determining the reason for the claimant’s mental health difficulties following a breakdown which took place some 24–31 years after the abuse occurred. Having said that, there would have been difficulty, perhaps even greater difficulty, in predicting when the claimant was 21 or 22 what the effects of the abuse would be on his future life. The burden of proving causation was on the claimant himself. The exercise of determining it would require a detailed scrutiny of the claimant’s past life and history, together with an examination of the available evidence and an assessment of the claimant’s reliability as a witness. The courts were well used to carrying out such assessments. [187–197].

c. Section 33(3)(c) required the court to consider the conduct of the defendants after the cause of action arose. The type of conduct relevant for these purposes would be any obstructive behaviour on the part of either defendant which might have prejudiced the claimant. In this case, the deputy head of the school had seen the claimant at the first defendant’s home address. This should have aroused suspicion and it presented the school with a contemporaneous opportunity to make further enquiry which it did not take. [198–199].

d. As to s 33(3)(d) and (e), there was a delay in the claimant instigating a civil claim after he reported the abuse to the police. However, it was reasonable for him to have waited until the conclusion of the criminal proceedings given that he was psychiatrically unwell at the time. His solicitors were entirely right not to have taken a witness statement from him and to have waited to receive his statement from the police. Had he instituted the civil claim before the criminal proceedings were concluded, it would have been stayed in any event. [203].

e. As to the merits of the claim, the defendants submitted inter alia that, by reason of the inconsistencies in the claimant’s account, the implausibility of a significant part of his evidence and his diagnosis of emotionally unstable personality disorder (‘EUPD’), the court should conclude that he was an incredible and unreliable witness. Although the happening of the abuse was not in issue, causation was. The diagnosis and opinions of psychiatrists was only as good as the information they received. As the information they received came almost entirely from the claimant this meant that causation could not be properly established and the claimant could not discharge the burden of proof. In those circumstances, the claim must fail and it would be unjust to disapply the limitation period. The court rejected these submissions. Whilst there was some inconsistency in the claimant’s evidence and he exaggerated or over-dramatised aspects of his evidence, this did not render his evidence so unreliable or incapable of belief that his claim must fail. These were matters to which, if the limitation period were disapplied, the court would have careful regard [161–178].

2. The claimant had submitted to the sexual activity after the age of 16, rather than actively consented to it.

3. The second defendant was vicariously liable for the first defendant’s conduct after the claimant left the school.

4. The evidence of the claimant’s expert psychiatrist was to be preferred; the claimant suffered from complex post-traumatic stress disorder (CPTSD) under ICD-11 caused directly by the first defendant’s abuse.

5. Public policy did not require that the claimant be deprived of his lost earnings claim by reason of a minor and transient contribution made by modest offending.

At a subsequent quantum hearing, the claimant was awarded damages of c. £1.1 million [2019] EWHC 1286 (QB); [2019] Costs L.R. 437.

The second defendant appealed in relation to issues 1 to 4.

Judgment in the Court of Appeal

The Court of Appeal dismissed the appeal. McCombe LJ gave the leading judgment with which Simon and Nicola Davies LJJ agreed.

As regards limitation, the second defendant had advanced two grounds of appeal. The first was that the judge had impermissibly factored into her decision on s.33 adverse findings regarding the first defendant’s credibility. The Court of Appeal held that this argument was “simply wrong” [105]. The judge considered fully and properly the factors arising under s.33. It was “wholly unrealistic” [101] to submit that the judge could not properly consider the respective credibility of both the claimant and first defendant when dealing with the limitation issue:

102. If a defendant chooses, in a case of this type, to argue that a limitation period should not be disapplied because of the total lack of credibility of the claimant he/she/it must take the risk that a judge will have to assess that credibility, even for limitation purposes, in the light of the credibility (or lack of it) of the rival witness or witnesses.

The next ground of appeal relied upon two statements from earlier appellate cases. The first statement was that of Lewison LJ in RE v GE [2015] EWCA Civ 287 in which he said that “I would regard the possibility of a fair trial as being as necessary but not a sufficient condition for the disapplication of the limitation period”. The second statement was that of Lord Hope in AS v Poor Sisters of Nazareth [2008] UKHL 32; [2008] UKHL 32 in which he held that: “proof that the defender will be exposed to the real possibility of significant prejudice will usually determine the issue of [limitation under s.33] in his favour”. The second defendant argued that the learned judge failed, contrary to evidence, to conclude that the second defendant was exposed to the real possibility of significant prejudice.

The court dismissed this ground of appeal. The two statements relied upon by the second defendant had to be seen in the context in which they were made. For example, in RE v GE, Lewison LJ was merely stressing that the ability to hold a fair trial is not "the be all and end all". There were other factors to be considered. In that case, the court was dealing with a matter in which there had been long delay on the part of the claimant which had been unsatisfactorily explained. That delay was a significant factor in the judge's decision not to disapply the limitation period and the Court of Appeal upheld that decision.

In the instant case, the judge was right to take into account that the second defendant had done little or nothing to make up the evidential deficiencies of which it complained. It could not give concrete examples of missing witnesses or point to any witnesses who were sought but not found [114-115]. Further, the judge was not wrong to prefer the claimant’s psychiatric expert whose view was that the difficulties caused by the passing of time and missing records were minor. The judge had heard the expert witnesses’ oral evidence and it was not right to "second guess" the judge's decision on whose opinion was to be preferred, absent a clear indication that there had been an error of principle or some logical flaw in the assessment process [116-118].

The second defendant’s arguments on consent, vicarious liability and causation were also dismissed.

Comment

This is an important judgment in relation evidential prejudice under s.33(3)(b). Defendants in stale claims frequently submit that they have suffered prejudice due to the degradation or loss of critical evidence. This case is another example of that submission being undermined by the defendant’s failure to show that proper investigations to seek to obtain evidence were undertaken and that any lost evidence might have made a difference to the issues in the case (see also Carroll v Chief Constable of Greater Manchester Police [2017] EWCA Civ 1992: [2018] 4 WLR 32).

The judgment also reinforces the need to balance the various factors listed under s.33(3). It will not be sufficient for the defendant to show that it has suffered the real possibility of significant prejudice for the s.33 to be exercised in its favour. The court must consider that factor in the context of the claimant’s reasons for the delay and all the other relevant circumstances.

A particular point which emerges from FZO is that if the evidence at trial goes heavily against a defendant it may be difficult to argue that the delay has caused any significant prejudice. Unless it can be shown than some important piece of evidence has been lost, once a judge has come to a clear view as to truth of the matter, it will be difficult to persuade them that the position would have been any different had the claim been brought earlier.

In FZO the defendants’ full frontal attack on the claimant’s credibility backfired when in came to limitation. Once the judge had comprehensively preferred the claimant’s evidence to that of the first defendant, the defendants were always struggling to show prejudice in circumstances where they had not demonstrated that, had the claim been brought earlier, there would have been any other material which could have made difference to this assessment.

We suspect that the defendants would have had better prospects on limitation had it been determined as preliminary issue. It might have been easier to have established a risk of significant prejudice at that stage. Their problem was that actual determination of the evidence at trial revealed that risk to be merely theoretical.

In fairness, the defendants in FZO probably had no choice in this respect. As the Court of Appeal recorded at [51] it was “in accordance with usual practice in cases involving alleged sex abuse, [that] the issues of the disapplication of the limitation period, liability and causation were tried together, in order to avoid the claimant having to give evidence twice, if the action were to be allowed to proceed outside the limitation period”. In our experience, applications for limitation to be tried as a preliminary issue in abuse claims are invariably refused.

However, it remains quite common outside the context of abuse claims for preliminary issue trials on limitation to be ordered. Those advising both claimants and defendants need to give careful consideration as to whether tactically it is likely to be more beneficial to their client for limitation to be determined separately or alongside the substantive issues.

Andrew Roy and Nina Ross are barristers specialising in personal injury at 12 King’s Bench Walk. They are the co-authors of the recently published fourth edition of Personal Injury Limitation Law (Bloomsbury Professional).

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Will Brexit affect PI Paralegals? - Amanda Hamilton, National Association of Licenced Paralegals

30/06/20.Brexit will undoubtedly have a knock-on effect for many different professions. I have friends and acquaintances who are involved in architectural design, architectural photography and construction and who have indicated that their business is already suffering. Many of their clients are EU nationals and they are holding back work to see what will happen as a result of the UK leaving the EU.

Whether there will be a similar effect within the legal profession is yet to be seen. Since we have a unique legal system in England and Wales it is probable that on a day-to-day level, Lawyers (including PI Paralegal Lawyers) will not be affected in the same way as other professionals mentioned above, since generally, they are dealing with matters relating to English Common Law. Of course, some PI law firms are multi-national and may have offices in EU locations and therefore, in such instances, there will obviously be changes to their daily operations.

As for the Paralegal Profession specifically, it is likely that it will be business as usual, although we have no idea at this particular moment in time what changes will be made and how soon they will be actioned.

Since Paralegal Practitioners tend to take up the slack left by the virtual eradication of legal aid, and therefore, tend to handle the lower end claims and matters that solicitors are not able, or indeed not financially viable to deal with, it is more likely that they will not be affected.

Of course, for those paralegals working in PI law firms which may have connections with the EU, there could be more of an impact. If such firms are going to be affected, then it is likely that the first victims of any economic consequences may well be paralegal jobs.

The difficulty that we find ourselves in within the legal sector is the same as everyone else in most sectors: we don’t actually know how Brexit will impact on us and how quickly or slowly the changes, if there are any, may occur.

Within the legal process itself and the court system in England and Wales, we are self-contained in that we have our own appeal hierarchy which will not change. As we currently stand, the European Court decisions still bind all British courts on matters relating to European Community Law.

However, a statute first proposed as The Great Repeal Bill in 2016, was given Royal Assent in June 2018 and is known as the ‘European Union (Withdrawal) Act 2018’. The statute will do several things: firstly, it will repeal the European Communities Act 1972 which provided legal authority for EU law to have effect as national law in the UK. Secondly, it brings all EU law onto the UK books meaning that all EU law implemented over the last 40 years or so while the UK was an EU member will continue to apply after Brexit, making it ‘EU retained law’.

Why keep laws made by the EU?

EU law has covered such areas as worker’s rights, including the tightening of law in respect of injuries occurring in the workplace, which has been covered by EU Directives on Health & Safety. The EU has also influenced laws in areas such as environmental regulations and the regulation of financial services. These Directives and Laws have already been integrated into our legal system and so to withdraw them would cause uncertainty and confusion.

It is becoming apparent that many areas of our legal system and daily lives have been positively affected by being a part of the EU. Our working lives have become better through human rights legislation and employment rights which directly or indirectly affects PI lawyers. Every employee has a human right to work and has benefited from employment law legislation in relation to accidents in the workplace as well as Health & Safety. We cannot ignore the overall positive input that the EU has provided over this long period of time.

What will be telling, is where we go from here. The question we need to ask is: Will we completely ignore elements of legislation coming from and implemented by the EU and do our own thing, or will we be guided and look to the EU and implement similar legislation but in our own way?

ABOUT THE AUTHOR
Amanda Hamilton is Chief Executive of the National Association of Licenced Paralegals (NALP), a non-profit Membership Body and the only Paralegal body that is recognised as an awarding organisation by Ofqual (the regulator of qualifications in England). Through its Centres, accredited recognised professional paralegal qualifications are offered for a career as a paralegal professional.

See: http://www.nationalparalegals.co.uk

Twitter: @NALP_UK

Facebook: https://www.facebook.com/NationalAssocationsofLicensedParalegals/

LinkedIn - https://www.linkedin.com/in/amanda-hamilton-llb-hons-840a6a16/

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