The failure to pay costs is not a contempt enforceable by committal to prison - Nancy Kelehar, Temple Garden Chambers

25/07/24. Smith v Kirkegaard [2024] EWCA Civ 698

Date of Judgment: 21/06/2024

The history between the parties to this appeal dated back to January 2018 when Mr Smith published a tweet that referred to Mr Kirkegaard. Mr Kirkegaard brought a claim for libel against Mr Smith in respect of four publications, including the tweet, which described Mr Kirkegaard as a supporter of child rape or paedophilia. Ultimately, Mr Kirkegaard discontinued his claim in May 2020 meaning that Mr Smith was entitled to his costs of the action. The costs orders made against Mr Kirkegaard totalled £50,490.20.

In June 2023, Mr Smith made a contempt application, which included the alleged contempt of failure to pay the costs orders. Subsequently, Mr Smith did not (or could not) comply with the directions made and the contempt application was dismissed in October 2023.

Mr Smith applied for relief from sanctions on the basis that he could not comply with the directions as it was impossible to effect personal service on Mr Kirkegaard, That application was refused without a hearing for the reason that the contempt application was bound to fail as Mr Smith had no reliable method of communicating with Mr Kirkegaard and so the court could not be sure that the proceedings had come to his attention. It was also stated that the Defendant’s failure to pay costs cannot be enforced by contempt proceedings.

When permission to appeal was granted by Warby LJ in March 2024, he referred to some Australian cases about contempt proceedings relating to non-payment of costs orders. One of the issues for the Court of Appeal to determine was whether the failure to pay costs can be enforced in contempt proceedings.

Mr Smith relied upon the Australian authorities to submit that the court may treat a deliberate failure to pay a judgment debt as contempt where the debtor had the means to pay. However, the appeal court stated that those authorities did not assist him as they relate to a different procedural and statutory regime.

The Court of Appeal stated that, in this jurisdiction, committals to prison for non-payment of judgment debts were, in effect, abolished by the Debtors Act 1869. The court referred to Halsbury’s Laws of England on s.4 of 1869 Act: ‘though default in payment of a sum ordered to be paid cannot be punished by committal, the default remains a contempt and the court has a discretion whether or not to allow the party in default to take any further proceedings in the action in which payment was ordered.’ Such discretion did not assist here and the court was of the view that s.4 and s.5 of the 1869 Act were inapplicable to non-payment of a costs order.

On this particular issue, the Court of Appeal held that whilst a failure to pay the costs may be a contempt of court, it cannot be enforced by imprisonment for contempt and the judge was right to conclude that the failure to pay costs could not be enforced by committal proceedings. The court referred to other remedies which have been developed to assist judgment creditors to enforce judgments, such as freezing orders.

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Damages awarded against Gary Glitter for historic sexual abuse: BRS v Paul Francis Gadd [2024] EWHC 1403 KB - Amy Lanham Coles, Temple Garden Chambers

24/07/24. This case deals with the valuation of damages under the latest Judicial Colleges Guidelines (JCGs) for complex post-traumatic stress disorder (C-PTSD) arising from historic sexual abuse. Notably the Defendant did not engage with proceedings, and this should be borne in mind in respect of the quantification of damages – they were unchallenged.

FACTS

This deeply distressing case involved the repeated sexual assault and rape of a minor aged 12 years old by a singer. The child had been introduced to the Defendant on several occasions, during which the abuse occurred, after her mother attended backstage at one of his concerts. Having performed well at school before the abuse, the Claimant dropped out at age 13 with no qualifications. She struggled to retain jobs in the coming years and struggled with interpersonal relationships. It was her unchallenged evidence that she had managed to function to some degree until her mother died, when she became overwhelmed by her undisclosed abuse, leading to her reporting to the police. Over the years she had struggled with sleeping, suffered nightmares, dissociation, intrusive flashbacks, panic attacks and depression – having felt suicidal and taken overdoses. She engaged with criminal proceedings against the Defendant, finding this itself traumatic. The Defendant was convicted of sexual offences arising from the abuse in 2015, upon which the Claimant relied in these civil proceedings pursuant to section 11 of the Civil Evidence Act 1968.

The Claimant’s medical evidence established that she met the criteria for C-PTSD and recurrent depressive disorder and that both were caused by the abuse. This manifested in part as avoidance, such as through manic cleaning episodes as well as avoidance of school and work. The expert evidence accordingly considered her dropout from school as a response to trauma and therefore determined: “The abuse suffered and resultant C-PTSD is, on the balance of probabilities, causal in her under achievement educationally and lack of employment.” She was recommended to undertake psychotherapy and the expert was cautiously optimistic about her prognosis.

ISSUES

The judge was invited to quantify damages for pain, suffering and loss of amenity (PSLA), aggravated damages, past loss of earnings and future psychotherapy. The Claimant’s counsel submitted that the case fell within the “severe” bracket under the JCGs and should therefore attract a sum in the region of £130,000. The judge was invited to update the JCGs guidelines for inflation from August 2023 (para 29). The Claimant’s claim for lost earnings was based on the approximate average annual earning for female full time employees in the UK between 1999 and 2023, equivalent to approximately £20,000 net (para 38), whilst conceding she would have taken time away from work to raise her children. She therefore sought an award of 40% of 40 years at £20,000 per annum.

JUDGMENT

In reliance on the JCGs Chapter 4 Part (C), Tipples J held that this case did not fall within the “severe bracket” for PSLA because although the Claimant suffered serious abuse, she did not suffer abuse over a “prolonged period” (para 34). She considered an appropriate award as being at the top of the “moderately severe bracket” in the sum of £100,000 (para 34). She made no determination in respect of inflation per se.

Tipples J accepted that an additional sum for injury to feelings was appropriate, noting (a) that the Defendant had exploited his fame (b) the nature of the sexual abuse and (c) that the Claimant had been required to give evidence in both the criminal and civil proceedings – a relevant factor explicitly referenced in the introduction to Chapter 4 of the JCGs (para 36). These were assessed in the sum of £20,000 (para 36).

In respect of past loss of earnings, Tipples J accepted that the Claimant was “unable to obtain any meaningful employment throughout her life” because of the abuse (para 41). Broadly, she adopted the “rough and ready” approach advanced by the Claimant but reduced the earnings to £15,000 per annum for the period she was in work before 1999 (the date from which the Claimant’s figures were taken and the period in which the Claimant had raised her children) (para 41). This produced a total of £381,000. Finally, the cost of recommended Eye Movement Desensitisation and Reprocessing (EMDR) psychological treatment as awarded in full (para 44).

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Defendant requests for medical testing demand a careful balancing exercise - Amy Lanham Coles, Temple Garden Chambers

23/07/24. Clarke v Poole [2024] EWHC 1509 (KB). 

This case provides an important re-examination of the law governing a thorny case management issue. Can and should a Claimant be compelled to undergo medical tests in order to pursue her claim?

FACTS

The Claimant suffered life changing injuries in a road traffic accident in 2018 at age 31, including weakness in her limbs, diminished mobility, and impairments with her memory, mental flexibility and processing speed. Separately, her mother had been diagnosed with asymptomatic myotonic dystrophy (“MD”) which could be passed on genetically. MD causes progressive muscle loss and weakness. There was a 50:50 chance of the Claimant having the relevant gene and the Claimant had declined to undergo genetic testing both before and after her accident. Both parties’ neurologists agreed that the Claimant exhibited symptoms which could in theory be attributed to MD, although they disagreed as to likelihood.

ISSUES

The Defendants contended that that the Claimant’s life would have been significantly limited by her MD in any event, significantly diminishing the Claimant’s losses attributable to the accident. The Defendants accordingly applied for an order that the claim, or at least all claims for any future loss, be stayed unless the Claimant submitted to neurophysiological testing to determine whether she was suffering from active/symptomatic MD. The Claimant’s case was that she did not have the MD gene or, even if she did, that she was asymptomatic or had such low-level symptoms that MD would have had no material effect on her health. She objected to testing on the basis that the test itself was invasive, would impact her mental health and the results could have lifelong impacts on her health, travel and life assurance.

It was agreed that the starting point was the two stage test set out in Laycock v Lagoe [1997] PIQR 518, as follows:

1. Do the interests of justice require the test which the defendants propose? and, if the answer that question is yes,
2. Has the claimant put forward a substantial reason for that test not being undertaken: a substantial reason being one that is not imaginary or illusory.

The parties also agreed that the Defendants had established that the interests of justice indicated the neurophysiological testing and that the Claimant had put forward a substantial reason to resist. However, the Defendants contended (in reliance on Starr v National Coal Board [1977] 1 WLR and an interpretation of Laycock v Lagoe) that there was a third stage to the test which required an evaluative balancing exercise of the parties’ competing positions in order to determine a just and proportionate outcome.

JUDGMENT

HHJ Gargan agreed with the Defendant that there was a...

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