Trial fairness generally dictates the challenge of evidence by cross-examination of witnesses, including expert witnesses - Nancy Kelehar, Temple Garden Chambers

15/12/23. Griffiths v TUI UK Ltd [2023] UKSC 48

Date of Judgment: 29/11/2023

Background

The Supreme Court has handed down an important judgment in the context of personal injury litigation. The underlying claim related to food poisoning (infective gastroenteritis) that the Claimant had suffered whilst on an all-inclusive holiday in Turkey in August 2014. Liability and causation remained in dispute, but due to late service of the Defendant’s expert evidence, the only expert report considered by the court on the issue of causation was the Claimant’s evidence of Professor Pennington, a microbiologist. He answered Part 35 questions from the Defendant but was not called to give evidence at trial.

The Claimant needed to prove that the food provided by the all-inclusive hotel caused their illness. At trial, various criticisms were made of Professor Pennington’s report by Defendant counsel in a skeleton argument and during closing submissions [16]. The trial judge observed that the expert’s explanations – in both his original report and in answer to Part 35 questions – were inadequate and he had failed to exclude other causes of the illness [17]. At first instance, the Claimant did not satisfy the burden of proof and his claim was dismissed [19].

Journey to the Supreme Court

In the High Court, Spencer J held that, in the absence of a competing report or challenge by way of cross-examination, the report was uncontroverted so could not be subjected to the same kind of analysis and critique as if the court were evaluating a contested report [22]. Further, the report was not a bare ipse dixit (or mere assertion); whilst there were deficiencies in the report, Professor Pennington’s opinion had been substantiated [25].

Asplin LJ in the Court of Appeal disagreed. She held that there is no rule that an expert’s report which is compliant and uncontroverted cannot be impugned in submissions [27]. Whilst it may be a risky strategy, Asplin LJ observed that there was nothing inherently unfair in seeking to...

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The Prospect of State Funded Care and Double Recovery: WNA v NDP [2023] EWHC 2970 (KB) - Amy Lanham Coles, Temple Garden Chambers

13/12/23. The Claimant had become tetraplegic as the result of a road traffic accident and liability had already been determined her favour. Quantum had been largely agreed – with the Claimant to receive a provisional lump sum of £6.25m and a Periodical Payments Order (PPO) providing for annual Periodical Payments (PPs) of £325,000 per annum in respect of care and case management (adjusted to account for inflation).

THE ISSUE

There remained an outstanding issue as to double recovery in respect of damages for the cost of future care. The Claimant had agreed that in any given year she would only apply for State funded care as a “top up” once the annual PP had been used up. However, she proposed that if she retained any surplus from the PP in any given year – this was for her to use as she pleased. She argued she should not be expected to retain any surplus to make up for any potential future shortfall. The Defendant disagreed, maintaining she should use any surplus from previous PPs before applying for any top up funding from the State in later years.

JUDGMENT

HHJ Robinson concluded that he could not rule out the possibility that the Claimant might, at some point in future, apply for State funded care (paragraph 8). He noted that were the Claimant to rely on State funding this would either come from the local authority or the NHS but in either case the payments would be reviewed annually and both statutory schemes made provision for repayment in instances of overpayment (paragraphs 19-23).

Considering the case law and acknowledging the courts’ role to “actively intervene” to prevent double recovery (paragraph 38), HHJ Robinson noted there were three common mechanisms available to the court (at paragraph 31):

(1) Reducing the once and for all lump sum.

(2) Providing a mechanism for repayment to the provider of State funding.

(3) Providing a mechanism designed to inhibit a claim for statutory funding, at least without some court oversight. 

He noted the usual practice for PPs for future care would be to calculate these on an annual basis and pay them annually, in advance (paragraph 37). He rejected the Defendant’s position that the Claimant should ring fence any surplus from the PPs for future shortfall, noting this approach was fraught with practical problems, including the lifelong administrative burden upon the Claimant of recording any surplus and outstanding questions such as including how to factor in interest and whether there needed to be a minimum amount to qualify as a surplus (paragraph 44). Whilst precision was “impossible” (paragraph 46), he concluded that greater accuracy would be achieved by treating PPs on a yearly basis (paragraph 47) and this was also “in keeping with the ethos of a PPO” (paragraph 49).

He therefore determined that the annual payment of money under a PPO should be treated as a payment only for the year in which it was paid with no obligation on the Claimant to retain any surplus for future use (paragraphs 47-49). He did, however, query whether any surplus ought to be paid retrospectively to the State (paragraph 45) – a matter which was left unresolved (paragraph 51).

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Interim interim payments on account of costs - Amy Lanham Coles, Temple Garden Chambers

20/11/23. Shaun Trotman v Master Brickwork London Essex Limited [2023] EWHC 2791 (KB). This case dealt with the question of whether a successful Claimant is limited to securing a singular interim payment on account of costs before commencing detailed assessment under CPR rule 44.2(8).

Facts

In this case, the Claimant, a protected party, had obtained a settlement for serious injuries he had sustained falling through a skylight. The settlement approval consent order had included an order for an interim payment on account of costs in the sum of £65,000 – although this had not been sought by way of formal application. It appears this had been dealt with briefly at the end of the approval hearing, and the order noted that the Claimant reserved the right to seek more. The order had also directed that costs were to be assessed if not agreed. Later, the Claimant applied for a further interim payment on account of costs in the sum of £215,000 and later again a detailed bill of costs in the sum of around £400,000.

The further interim payment on account of costs was resisted by the Defendant on the grounds that the court had no jurisdiction to order a further interim payment.

Law

CPR rule 44.2(8) reads as follows:

Where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs, unless there is good reason not todo so.

The Defendant argued that that above rule limited the court’s jurisdiction to the making of a single order for a single payment before detailed assessment proceedings were commenced. The Defendant submitted that the phrase “where the court orders” should be read as meaning “when”, and therefore referred to the point at which the court ordered a detailed assessment, necessarily precluding further orders (para 17).

Judgment

Master Victoria McCloud held in favour of the Claimant, that further interim payments on account of costs were permitted under r 44.2(8).

She disagreed with the Defendant’s reading of r 44.2(8), concluding that “the use of where […] connotes a state of affairs rather than an event” (para 23). In the same vein she rejected the notion that the reference to “a reasonable sum” indicated that if any further sum (or sums) were ordered, this would, by definition, be unreasonable (para 24).

Considering the case law, she reflected that the point had not been determined, although considered it persuasive that the point had failed on merits rather than grounds of jurisdiction in the case of Blackmore v Cummings (Practice Note) [2009] EWCA Civ 1276 (para 21).

The judge considered that wording of the rule and the case law only took her so far. In her judgment, the policy considerations relied upon by the Claimant in support of a flexible approach to interim payments on account of costs were essential to her reasoning.

These policy considerations were commended at paragraph 22:

• to reduce the need for protracted later detailed assessments;
• to allow parties to access money which was inevitably due to them without delay
• to reduce later applications for Interim Costs Certificates.

The judgment is a determination of a yet unresolved issue, namely the ability of the court to order additional interim payments on account, which may be of use to those facing the protracted post-judgment litigation which this decision seeks to curb.

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