News Category 2
Special measures in the civil courts: IMX v Bicknell [2024] EWHC 2183 (KB) - Philip Matthews, Temple Garden Chambers
15/10/24. Whilst it is not unusual for special measures to be imposed in criminal and family law trials involving vulnerable parties, they are a less common feature in the civil courts. IMX v Bicknell [2024] EWHC 2183 (KB), however, provides a rare example of their use in the personal injury context. The case is illustrative of the practical issues thrown up by special measures, particularly where one of the parties is unrepresented.
Background
The Claimant sought compensation for sexual abuse perpetrated against by her the Defendant, her then stepfather, when she was a young child. Summary judgment was entered against the Defendant in respect of assaults for which he had already received criminal convictions. An assessment of damages hearing was subsequently listed. The Claimant was represented by counsel; the Defendant appeared as a litigant-in-person.
Special Measures
Th Claimant applied for special measures. These were granted by the trial judge, Deputy Master Marzec. The Claimant was found to be a ‘vulnerable person’ pursuant to CPR PD 1A by virtue of the following factors: the impact upon her of the subject matter of the hearing; the relationships between her and the Defendant, who was her abuser; and her psychological vulnerability. The latter point was supported by a report from an expert psychiatrist.
The measures imposed were that the Claimant could give her evidence from a remote location, namely her counsel's chambers; that the Defendant would submit his questions for cross-examination of the Claimant to the judge two weeks before the trial; and that such questions as were approved would be verbalised by the judge, who would, in effect conduct the cross-examination, and not put by the defendant himself. In addition, the Defendant was not permitted to address the Claimant directly, and the parties would not see each other during the hearing.
The imperative to protect Claimant, however, was to be balanced against the need to ensure the integrity of the proceedings. To this end, the Claimant was not shown any questions prior to cross-exanimation, and it was ordered that when the Claimant gave evidence, she should have with her only her solicitor (who was to remain on camera).
Practical Challenges
Deputy Master Marzec noted that “the [special] measures presented a number of unforeseen practical challenges,” listing them as follows (§17-19): -
- Firstly, there were presentational and format issues with the Defendant’s list of questions.
- Secondly, the wording of the Defendant’s questions was not appropriate given that the judge, and not the Defendant, would be verbalising the,. For example, they were drafted in first-person and included expression of regret.
- Thirdly, the list of questions was very long, repetitive and focused on matters which were not directly relevant to the quantum dispute (e.g., the continuing relationship between the parties after the abuse).
Despite these issues, “[the Defendant]did not express any dissatisfaction with the way the hearing had gone, and appeared pleased with what it had elicited and with the fact that, as he put it, the Claimant had given truthful answers”.
IMX will no doubt become key reading for all personal injury practitioners involved in child sexual abuse compensation claims.
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Managing the costs of costs management brought into sharp focus - Andrew Ratomski, Temple Garden Chambers
20/09/24. Case: Peter Jenkins v Thurrock Council [2024] EWHC 2248 (KB)
Date of judgment: 9 September 2024
Managing the costs of costs management is brought into sharp focus by the recent decision of Master Thornett in Peter Jenkins v Thurrock Council [2024] EWHC 2248 (KB). The Claimant was seeking damages arising from a significant right foot and ankle injury suffered whilst at work as a refuse collector and for alleged consequential psychological sequalae. The Claim Form certified that damages would exceed £200,000. Liability was admitted and the Provisional Schedule of Loss was said to be typical of higher value claims and costs managed outside of the High Court’s jurisdiction. At a Case Management Conference (“CMC”) a five-day quantum trial was listed for the first-half of 2026 with a Costs Management Hearing (“CMH”) to follow.
The issue
At the CMH on 17 July 2024 the claimant’s budget was considerably reduced and at the conclusion of the hearing, the defendant sought that an order other than costs in the case should be made.
Background
The claimant had maintained at the CMC that another CCMC should be listed and then a trial with a full budget for all issues totalling almost £1.2 million in contrast to the defendant’s position of a budget to trial of £380,000. Strikingly the Claimant’s incurred costs were said to be £356,000. The court recognised that straightforward comparisons are often difficult in personal injury cases. By the CMH, the claimant’s updated budget was revised to a little under £950,000. The parties were agreed that they would be unable to present any agreement as to costs at the CMC and so the CMH was said to be inevitable (although the court was unimpressed by such suggestions).
At the CMH the court concluded that the claimant was maintaining an unrealistic and inappropriately ambitious budget, and preferred the defendant’s submissions on proportionality and what a reasonable range was. The claimant’s figures proposed for Trial Preparation, Trial and ADR phases were all criticised. Costs were reserved by the CMH judge having had regard to the “significant percentage reductions” to the claimant’s budget.
Key principles
At para. 2 Master Thornett observed that the issues were similar to the recent...
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New Clinical Negligence Agreement Launched - Philip Matthews, Temple Garden Chambers
16/09/24. The updated ‘Clinical Negligence Claims Agreement 2024’ has been launched, replacing the ‘Covid-19 Clinical Negligence Protocol’ established in 2020. This updated agreement was developed through collaboration between NHS Resolution, the Society of Clinical Injury Lawyers (SCIL) and Action against Medical Accidents (AvMA), a patient safety charity. The purported aim is to “further improve claims management practices”.
Key points for practitioners include: -
- The agreement extends the limitation period where it was already extended under the Covid-19 clinical negligence protocol by a further 12 months from 27 August 2024.
- Parties are encouraged to provide full disclosure in a “spirit of collaboration”, including mutual (without prejudice) exchange of liability evidence prior to the issue of proceedings. Claimants are specifically encouraged to disclose all documents relevant to their special damages claim to allow for early quantification.
- In terms of communication, there should be reciprocal acceptance of encrypted email by all parties. NHS Resolution has requested that correspondence is sent by email only.
- If proceedings are to be issued, claimant lawyers have agreed to provide NHS Resolution with ‘reasonable notice’ (28 days, if possible) to allow the parties to explore alternative dispute resolution. In the absence of early settlement, parties should further consider participating in a ‘stock-take discussion’ to review their positions.
- In cases where liability is admitted, the NHS should provide a ‘meaningful letter of apology’ to the claimant as soon as possible. This letter should also identify any patient safety lessons that have been learned from the case and any measures that have been put in place as a consequence.
See more: Clinical Negligence Claims Agreement 2024
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Expert witnesses and apparent bias: Biggadike v El Farra & Anor [2024] EWHC 1688 (KB) - Philip Matthews, Temple Garden Chambers
21/08/24. This case provides an interesting commentary on the issue of expert witnesses and apparent bias.
Facts
Biggadike was a clinical negligence action against two defendants originating from allegedly mismanaged urinary stress incontinence.
On liability, all sides called expert witnesses in urogynaecology.
Two of those experts, Mr Toozs-Hobson and Mr Robinson, were subject to cross-examination which sought to undermine their integrity on the basis of their attendance at the same clinical conference during the trial.
The questioning implied, in the words of Carmwel Wall J at §126, that the experts had “some personal, professional and/or financial interest in the outcome of the trial, and/or had a financial interest in the supply of vaginal mesh products”.
Judgment
The judge, whilst commenting that it may have been preferable for the mutual commitment to have been volunteered, rejected the suggestion that the experts’ attendance at the conference had any effect on their evidence. She held, at §129-130:
“Mr Robinson and Mr Toozs-Hobson knew each other before being instructed as experts. Each of them already knew each of the defendants. It is entirely artificial to think that the organisation and attendance at the weekend seminar would have any effect or impact on their evidence. Mr Robinson and Mr Toozs-Hobson had each already provided written reports and then a Joint Statement addressing a detailed agreed agenda. The quality of the substance of their opinion could be and was properly explored through the trial process.
I reject the suggestion that either Mr Robinson or Mr Toozs-Hobson has approached the task of giving evidence in this trial other than in accordance with the duties owed by an expert to the court. I reject the suggestion that either has given evidence that has been improperly influenced by any hidden agenda of protecting personal, professional or financial interests. I reject the suggestion that either has a personal stake in achieving any particular outcome in this litigation or has manipulated his evidence for any improper reason or purpose, including the suggested motivations of defending mesh claims made against him or financial connections with the mesh industry.
I entirely accept and endorse Mr Toozs-Hobson's pithy response to cross-examination attacking his independence when he said, "This case isn't about me". That applies equally to Mr Robinson.”
Comment
This is notable for personal injury practitioners more generally. Just as the sub-specialist world of urogynaecology is a small one, it will likewise often be the case, within niche areas of technical expertise, that few people are expert in the topic, and, those that are, know each other. This alone is not enough to ground a proper allegation of bias, however, and counsel should think very carefully before suggesting the same.
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Defendant's own YouTube posts provided evidence of contempt: Wye Valley NHS Trust v Murphy [2024] EWHC 1912 (KB) - Philip Matthews, Temple Garden Chambers
20/08/24. This case, an application for committal for contempt of court, is noteworthy for the extent of evidence which came from the Defendant himself in the form of social media (YouTube) posts.
Facts
Mr Murphy was the claimant in the underlying clinical negligence action against the Trust. He alleged breach of duty in surgical repair of a left bicep tendon rupture in 2017. He claimed that he had suffered permanent damage to his left arm, which rendered him unable to return to work as a builder and incapable of playing rugby and lifting weights. He claimed past loss of earnings of £109,000 and future losses of £356,562.
The Trust argued fundamental dishonesty and sought dismissal of the claim. Mr Murphy Defendant did not attend the hearing. The trial judge ordered the repayment of an interim payment and awarded the Trust its costs on an indemnity basis.
Subsequently, the Trust brought contempt proceedings against Mr murphy.
Judgment
Mould J found the contempt allegations to have been proved to the criminal standard.
In his assessment of the evidence, particular attention was paid to the Defendant’s social media activity (not least the fact that he had posted a video of himself lifting...
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- Spanish Interest: Is an English court obliged to award 'penalty' interest? - Pierre Janusz & Anna Gatrell, 3 Hare Court
- Claimant has 'only himself to blame' for dismissal of multi-million-pound claim on the basis of fundamental dishonesty - Nancy Kelehar, Temple Garden Chambers
- 'What is sauce for the goose is sauce for the gander', but no presumption in favour of indemnity costs for unsuccessfully pursuing fundamental dishonesty - Amy Lanham Coles, Temple Garden Chambers
- Pre-commencement Funding Arrangement vs. Protection under QOCS, plus a cameo for proprietary estoppel - Nancy Kelehar, Temple Garden Chambers
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