News Category 3
BJB, In the Matter of [2024] EWCOP 59 (T2) - Philip Matthews, Temple Garden Chambers
19/11/24. Date of judgment: 24 October 2024
In BJB, In the Matter of [2024] EWCOP 59 (T2) the Court of Protection considered a seriously injured party’s application to be released from a ‘Peters undertaking’. As Hilder J noted, this is one of a growing number of applications for release from such undertakings, perhaps reflective of the “natural evolution of the circumstance of persons bound by them” (§50).
Background
The underlying case arises from a hypoxic brain injury sustained by BJB at birth in 1994, causing cerebral palsy. Now in her thirties, BJB uses a powered wheelchair, relies on communication aids and needs help with all activities of daily living.
The damages claim was brought in 2003, with BJB’s father acting as her Litigation Friend. The claim succeeded on liability, but was then appealed. In 2009, an agreed settlement was approved on a 98% liability basis (the 2% deduction was apparently agreed to avoid the risks and costs attendant on the appeal).
The approved award was constructed in two parts: i) a lump sum payment of approximately 1.4 million; and ii) index-linked periodical payments (currently in the region of £132,000 per year).
The Peters Undertaking
Attached to the approval of the above settlement was a further Order – following the blue-print set out in...
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Williams-Henry v Associated British Ports & Anor (Re Wasted Costs Order) [2024] EWHC 2415 (KB) - Philip Matthews, Temple Garden Chambers
16/10/24. What are the duties of claimants’ lawyers once a defendant serves evidence of fundamental dishonesty? By continuing to act on a CFA to trial, do those lawyers expose themselves to a wasted costs order? These issues were considered by Ritchie J in Williams-Henry v Associated British Ports & Anor (Re Wasted Costs Order) [2024] EWHC 2415 (KB).
The Claimant fell off Aberavon pier and sustained a moderately severe brain injury. She brought proceedings against the Defendant, who owned/occupied the pier. Liability was conceded at 2/3rds in the Claimant’s favour, but the Defendant contested quantum and asserted fundamental dishonesty. In the substantive judgment ([2024] EWHC 2415 (KB)), Ritchie J held that the Claimant had indeed been fundamentally dishonest, e.g., in relation to her level of mobility, her degree of light/noise sensitivity and her care requirements. The claim was, therefore dismissed, with costs ordered against the Claimant. However, per s. 57(5) of the Criminal Justice and Courts Act 2015, these costs were unenforceable up to the level of the assessed ‘honest’ damage, circa £600,000.
Perhaps disappointed with the above outcome, the Defendant sought to recover costs from the other side via an alternative route, namely a wasted costs application, against the Claimant’s representatives, Hugh James. Williams-Henry v Associated British Ports & Anor (Re Wasted Costs Order) [2024] EWHC 2415 (KB) considered that application.
As those reading will no doubt be aware, it is appropriate for the Court to make a wasted costs order against a legal representative, only if:
- The legal representative has acted improperly, unreasonably or negligently;
- The legal representative’s conduct has caused a party to incur unnecessary costs; and
- It is just in all circumstances to order the legal representative to compensate that party for the whole or party of those costs.
In this case, the Defendant submitted, in outline, that the Claimant’s representatives had pursued a ‘speculative case,’ failed to be cross-check what the Claimant had told them against source documents (including social media posts) and failed to properly advise her of the risk that she would be found fundamentally dishonest. The Claimant’s representatives rejected the assertion that it should have ‘dumped’ the Claimant before trial on the basis of information that had later come to light.
Ultimately, Ritchie J held that it was not unreasonable for Hugh James to continue to represent the Claimant, and dismissed the application for wasted costs: -
“In my judgment, the Respondent is not to be held to have acted improperly, unreasonably or negligently simply because it acted for a party who pursued a claim which failed and was probably doomed to fail […] The fact that the Respondent was brave enough not to ‘dump’ the Claimant speak of the firm’s humanity and bravery, not of their negligence or unreasonableness” (§51).
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Difficult claimant evidence and partisan experts: Steven Wilson v Ministry of Justice [2024] EWHC 2389 (KB) - Andrew Ratomski, Temple Garden Chambers
14/10/24. Date of judgment: 20 September 2024.
On 2 July 2018 Mr Wilson suffered life-threatening and life-changing injuries after being repeatedly and viciously stabbed by a fellow prisoner in the HMP Chelmsford prison kitchen. The assailant was himself serving a life sentence for murder and had killed his victim by stabbing. On 20 September 2024 and following a five-day quantum trial HHJ Melissa Clarke sitting as a Deputy High Court Judge awarded Mr Wilson damages in the sum of £5,400,000. Mr Wilson’s injuries included a spinal cord injury with ongoing disability, bladder dysfunction, less severe bowel and sexual dysfunction, significant psychiatric symptoms and PTSD. PSLA was assessed at £153,000 in the judgment.
There are a number of points for personal injury practitioners to note from this quantum judgment but I will focus in this update on how the judge handled difficult evidence from the Claimant and issues with partisan experts.
The claimant’s evidence
The Claimant gave evidence for over a day at trial and was plainly at times agitated, struggled with focus and emotional regulation (arising from his condition) but was nonetheless held by the judge to have given honest evidence to the best of his ability. The judge noted a number of caveats but gave cogent reasons for finding why inconsistencies in his account, on for example his...
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MoJ Quarterly Civil Justice Statics Published - Philip Matthews, Temple Garden Chambers
18/09/24. The Ministry of Justice (‘MoJ’) has published its latest quarterly civil justice statics for April – June 2024.
These include a number of interesting points for personal injury practitioners: -
- Despite a slight dip in the overall number of county court claims being lodged during this quarter, there has been an increase in personal injury cases (up 18% compared to the same quarter in 2023). On this point, the statisticians wrote: “Personal injury claims showed general decreases between Q4 2020 and Q1 2022 but have remained relatively stable since Q4 2022. The decreasing trend is likely to have been due to a combination of factors including the introduction of whiplash reforms (with some cases being processed via the online portal rather than going to court)”.
- The ‘intermediate track’ was introduced in October 2023 for (most) claims valued between £25,000 - £100,000. However, as of June 2024, only 135 claims had been allocated to it.
- As to timeframes, during this quarter it took an average of 50.6 weeks between a small claim being issued and the claim going to trial (two weeks less than the same period in 2023 and five weeks less than the all-time high in the second half of 2023). For multi/fast track claims, it took an average of 79.3 weeks to reach a trial (1.2 weeks longer than in April to June 2023, but 6.4 weeks less than the all-time high from the last quarter of 2023).
See more: Civil Justice Statistics Quarterly: April to June 2024
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Novel points about group representative actions - Andrew Ratomski, Temple Garden Chambers
13/09/24. Case: Claire Smyth v British Airways plc and Easyjet Airline Company Limited [2024] EWHC 2173 (KB)
Date of judgment: 2 September 2024
Smyth v British Airways is a notable recent example of a group representative action being struck out and raises novel points about such claims. There is much in this judgment to consider for practitioners bringing or defending representative actions on both the application of the “same interest” principle and the judge’s discretionary finding that the dominant motive for the action was a financial one.
Facts
The lead claimant, Ms Smyth, had her flight from London Gatwick to Nice cancelled less than seven days before it was due to depart and was therefore entitled to seek to claim compensation under Article 7(1) of EU Regulation 261/2004 in the value presently of £250. Ms Smyth elected not to use the airline’s online portal to claim compensation and instead instructed direct access counsel to write a letter before action on behalf of a very large class of individuals who had booked flights with the defendant airlines between 1 December 2016 and 31 August 2022. A Part 8 Claim Form was later served with a Schedule listing approximately 116,000 flights. The claim was funded by an Australian citizen resident in Monaco who was also Ms Smyth’s employer.
Relevant principles
The defendants opposed the constitution of the claim as a representative action and sought an order striking it out or an order under rule 19.8(2) that Ms Smyth “may not act as a representative”. The judge directed himself to the guidance on...
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