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Summary of Recent Cases, November 2020

15/11/20. Here is a summary of the recent notable court cases over the past month. 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.

Summary of Recent Cases - Substantive Law

Hamilton v NG Bailey Ltd [2020] EWHC 2910 (QB)

Introduction

This case concerned the correct assessment of provisional damages in a liability-admitted asbestosis claim.

The Claimant, aged 74, was employed as an electrician by the Defendant from 1968 to 1981, during which time he was exposed to asbestos. The Claimant suffered from chesty coughs from February 2012 and was diagnosed with asbestosis in December 2018. Medical evidence was not disputed. The disease was clinically significant, notwithstanding the fact that it was "mild" asbestosis.

The Claimant suffered a decreased ability to engage in his principal pastime, gardening, and was said to be 10% disabled by the expert evidence. He was projected to acquire an additional 5% respiratory disability in the course of his lifetime, which could rise to an additional 10%. There was a 5% risk of rapidly progressive asbestosis sufficient to cause respiratory failure, a 3% risk of mesothelioma (which would most certainly limit life), and a 3% risk of lung cancer (which would be two-thirds asbestos-related).

General Damages

Aside from a submission by the Defendant that the Claimant was 6% rather than 10% disabled, which was rejected on the basis of the medical evidence, this case was principally concerned with the correct method to be applied when assessing provisional damages.

First, a submission by the Defendant was accepted that the Court ought first to reach a nominal figure for full and final general damages and then reduce that figure by an assessment of expected future damages.

The second issue is more noteworthy for personal injury practitioners. The question facing the Court was whether the Judicial College Guidelines on PSLA awards in asbestosis cases should be interpreted as giving figures for provisional damages or for full and final damages.

The Claimant submitted that the brackets included both. In support he pointed to words in the bracket for 1% to 10% disability which stated that the award should be influenced by whether it is provisional or final, suggesting, it was submitted, that the bracket was appropriate for provisional awards but that the higher bracket (in excess of 10% disability) was appropriate for final awards.

The Defendant submitted that the top of the lower bracket is for the most serious cases on a final basis, and the bottom of the lower bracket is for the least serious cases on a provisional basis. This logic was also applied to the higher bracket being considered in this case.

The Judge found difficulty with both submissions. The JCGs were meant to reflect a continuum of awards mirroring a continuum of seriousness. If the Claimant's analysis were correct, then the approximate figure of £36,000 - found at the top of the lower bracket and the bottom of the higher bracket - could not easily be said to reflect a provisional award ora final award. Similarly, if the Defendant's analysis were correct, there too would be discontinuity between the brackets, as £36,000 at the top end of the lower bracket would purportedly reflect a final award but the same figure at the bottom end of the higher bracket would reflect a provisional award. This would mean the absurdity of awarding a higher final sum in respect of a lesser injury.

The Judge said 'I was not pointed to anything in the Guidelines or any authority that would resolve these issues'. The Guidelines, he said, should reflect provisional or final awards but not both in an undifferentiated way.

Outcome

Following submissions from each party on the facts of the injury, the Judge was minded to award a sum towards the top end of the lower bracket. However, the Judge was unable to resolve the question whether the Guidelines were for provisional or final awards, and if for both, how they should be interpreted. The Judge had reached a figure of £35,000 for a nominal final award and subtracted £5,000 to reflect likely future awards. Yet instead of awarding £30,000 as the provisional award, the Judge awarded £32,000, in part on account of the uncertainty as to what the Guidelines meant (though also partly on the basis that £30,000 appeared low compared to similar cases).

Summary of Recent Cases - Costs

Comberg v VivoPower International Services Ltd & Anor [2020] EWHC 2787 (QB)

Introduction

This is an illustrative case on why it may not be advisable for parties to make offers inclusive of costs, or offers on some issues but which keep the trial open on other issues, where there is a suitable alternative. The take-away from this case is that an offer which was made inclusive of costs may not provide a party with the same costs protection as if it were made exclusive of costs.

The facts

The main point of this case relates to costs, however I will give a brief summary of the facts. Dr Comberg was hired to be the CEO of VivoPower, a company responsible for acquiring renewable energy projects, starting in January 2016. Part of his role was to successfully list VivoPower as a PLC in December 2016. Unfortunately the listing fell far short of what was hoped, raising only a little over a quarter of the planned $80 million of funds. In September 2017 Dr Comberg stepped down as CEO in the face of pressure from his fellow directors. Mr Chin, founder of VivoPower, blamed Dr Comberg for "abject performance". Dr Comberg claimed unfair dismissal because the low funds raised simply reflected the challenging times for renewable energy after the Brexit referendum result in the UK and the election of President Trump in the US.
Dr Comberg won on unfair dismissal, but several other of his claims did not succeed, and he obtained £700,000, which was about 20% of the damages that he claimed. The Court concluded that while the Claimant won overall, a 20% deduction should be made in respect of the Claimant's costs. One question which the Court decided was whether offers by the Claimant and Defendant, both of which were inclusive of costs, gave them any costs protection.

The offers and what the Freedman J said about them

On 10 February 2020 the Claimant made a Calderbank offer of £1.2 million in relation to certain parts of the claim and 70% of the costs. However, this left certain heads of loss still on the table which were going to trial. The Court concluded that this offer provided the claimant with no costs protection:

"63...Whilst it might be said that with hindsight the offer had attractions, it is not possible to test it because the offer was inclusive of costs. Further, the offer left the trial still to be fought including the misconduct/incompetence allegations which were relevant at least to the share claim, and possibly to the oral fee agreements. In the exercise of the Court's discretion, the Calderbank offer did not offer a costs protection because the offer was inclusive of costs. Further, the offer was a partial offer which involved the continuation of the litigation. It does not seem unreasonable to refuse such an offer which would still keep the trial open."
It is therefore an open question whether an offer comprising the whole claim, or an offer exclusive of costs, would in the event have provided the Claimant with costs protection.
A similar conclusion was drawn in relation to an offer made by the Defendant. This was an offer of £1.5 million inclusive of costs. In the event, the Court concluded that the Claimant had likely done better than this because the total of damages and costs would probably be more than 1.5 million. However, the Court's finding was not solely made on this logical basis. Freedman J additionally stated that "the fact that the offer was rolled up with costs means that it does not provide cost protection" [65].

For these reasons the Court did not adjust the costs order to take into account the offers of settlement.

Take-away point

We do not know whether the result would have been different if the offers had been exclusive of costs rather than inclusive. However, a party makes it easy for a court not to award costs protection with costs protection if it makes an offer inclusive of costs.

Needless to say, making offers to settle is not just about attempting to settle the matter, but also putting pressure on the other side. An offer can provide the threat that if the court award beats the offer, the court can adjust the costs order to benefit the side making the offer. Where there is no need to make an offer inclusive of costs, it would be wise for practitioners to consider whether the offer could be made exclusive of costs. In so doing, the court would not be given an easy way out of making an advantageous costs award.

Summary of Recent Cases - Civil Procedure

Diriye v Bojaj & Anor [2020] EWCA Civ 1400

Introduction

The Court of Appeal provided yet another reminder to Claimants asserting impecuniosity to plead and prove it properly. The point covered by the appeal was very narrow, relating to whether "Signed For 1st Class" is covered by "First class post" for the purposes of the deemed service provisions of CPR 6.26. However, Coulson LJ made helpful statements in relation to pleading improving impecuniosity, and it is these on which this article focuses.

The facts

The Claimant was hit in a road traffic accident, causing injury to him and damage to his car. He required a replacement vehicle. It is trite law in these cases that if the Claimant could not afford to pay ordinary hire rates upfront, then the credit hire rate will be awarded. If not, then the court will award the lower "basic hire" rate, which represents how much the Claimant would have paid on the open market for a hire car. Whether or not a Claimant can afford to pay up front for the hire vehicle is usually termed "impecuniosity".

The Particulars of Claim asserted that the claimant was impecunious. However, no further pleading or information in support of this assertion had been given. Accordingly, Deputy District Judge Walder, allocating the claim to fast track, provided a standard direction in relation to impecuniosity, mandating the Claimant to file and serve a Reply to the Defence setting out all the facts in support of any assertion of impecuniosity, and to serve copies of wage slips, bank and credit card statements for three months pre-accident and covering the period of hire. This was made in the form of an Unless Order, whereby if the claimant did not do so, he would be debarred from asserting impecuniosity at trial.
The Reply was not served on time. Even if it had been served on time, the Court concluded that it did not comply with the Unless Order. The Claimant was required to state his income, his expenditure and how those figures meant that he could not afford to hire a replacement car. The Reply simply stated "As he earned cash as a minicab driver, he expended the same on bills and daily living allowances for his family". Furthermore, his witness statement only stated

"I had no money to repair or buy another car and all my accounts were close(d) to their overdraft limits and my credit cards had reached the maximum credit card limit. I have a bad credit rating as I have outstanding credit card bills so I could not get a loan."

The Court's statement with regard to impecuniosity

Counsel for the Claimant argued that the Claimant was entitled to assert impecuniosity by way of a bald statement, and then seek to adduce evidence later on to prove it. Lord Justice Coulson had little truck with this submission. His demolition of it is instructive and I quote it in full:

"52. I consider that there are a number of fundamental errors in that submission. The first is that it seeks to get around the clear wording of the Unless Order, which required the pleading of "all facts in support of any assertion" of impecuniosity. On this issue, therefore, there was no room for any gap between the pleading and the statement. Secondly, the submission seemed to be based on the incorrect notion that a claimant was entitled to advance a rubbishy case in stages, from pleading to witness statement to trial, presumably in the hope that, by the time the trial came on, there was a commercial imperative on the part of the respondents to settle the case.

53. Thirdly, Mr Peter's approach ignored the respondents' position. They are entitled to know the case they have to meet. They should not be expected to have to prepare for a trial where the critical item of claim depends on a one line assertion, and hoping that, as a result of the cross-examination of the appellant, the judge will reject the claim. That is not how civil litigation is supposed to work post-CPR. And fourthly, the argument was unsupported on the facts. I have already set out the one line assertion in the Reply (paragraph 48 above) and the equally unrevealing evidence in the witness statement (paragraph 49 above). So the Reply did not in fact herald a witness statement with more detailed support for the impecuniosity claim.

54. Accordingly, I consider that, even if the Reply had been served on time, the document itself failed to comply with the substance of the Unless Order. Even if it is taken together with the witness statement, the Reply created precisely the situation that the Unless Order was designed to avoid: a simple assertion of impecuniosity, with no facts set out to support it. The breach of the Unless Order was therefore serious and significant."
Therefore the Claimant was unable to obtain relief from sanction and was debarred from asserting impecuniosity at trial.

Conclusion: plead and prove impecuniosity properly, particularly when an Unless Order is involved

As if it were needed yet again, the Court of Appeal here has added another helpful judgment for defendants resisting assertions of impecuniosity. This case will be particularly helpful where an Unless Order from allocation is in the background and yet a claimant still does not properly comply with it. This judgment will at the very least be persuasive authority that the claimant in such a position will not obtain relief from sanction.
For claimant practitioners, the clear conclusion from this case is to make sure that impecuniosity is properly pleaded and proven at the first opportunity. Given the impact which impecuniosity can have on a case, it would be wise right at the start of the client relationship to ensure that the relevant documents are in order so that it is an easy process to successfully demonstrate impecuniosity.

Paul Erdunast & Harry Peto
Temple Garden Chambers

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