News Category 3
Calculating the correct 'Price' to pay in a claim for financial dependency - Nancy Kelehar, Temple Garden Chambers
25/06/24. Price v Marston’s PLC [2024] EWHC 1352 (KB)
A number of issues were raised in this appeal before Mr Justice Griffiths. Primary liability had been admitted by the Defendant for the Claimant’s husband’s workplace fall. However, the Defendant appealed the judgment on causation that his death from sepsis was as a result of an infection caused by the workplace fall.
The Claimant also appealed two elements of the judgment on quantum as to the determination of the deceased’s life expectancy and the assessment of financial dependency.
The Defendant’s appeal was dismissed as the trial judge had reached a conclusion on causation which was consistent with the evidence presented and was explained to the requisite standard.
The Claimant’s appeal of the decision on life expectancy was allowed. Based on the trial judge’s own logic and its only rational conclusion, the deceased’s life expectancy was reduced due to obesity by 8 years, rather than 9 years. This resulted in a necessary adjustment to the loss multiplier.
Financial Dependency
Of particular importance for personal injury practitioners to note is the judgment on the third issue as to the calculation of the loss of financial dependency. This element of the appeal is addressed at paragraphs 82-153 of the judgment and can be summarised as follows.
The appeal court expressed sympathy with the trial judge who was in an ‘unenviable position’, having not been able to deliver judgment immediately after trial. The judge therefore had to wrestle with written submissions and accompanying case law, which he had not had time to consider before the further hearing which took place following circulation of a draft judgment.
Nevertheless, the appeal court concluded that the approach he had taken to the calculation of financial dependency was unjustified.
The Judge’s Approach
The trial judge concluded that he could not rely upon the approximate figure given by the Claimant as to the benefits she received at the time of her husband’s death. He therefore used the current figure for the benefits of approximately £340 per week which was the figure he had ‘most confidence in’. The judge deducted that figure from the deceased’s weekly earnings of £350 and therefore arrived at a difference of £10 per week and an annual loss of £520. Using the Claimant’s suggested multipliers and interest figures, the judge arrived at a lump sum of £6,357.79 for the loss of financial dependency for the whole period after death up to age 73.
As such, the judge had departed from the conventional two-thirds / one-third analysis of joint income which had been urged upon the judge by the Claimant on the basis of well-known authorities.
On appeal, the Defendant sought to defend the judge’s approach on the basis that there was a lack of precision about the benefits received and the ‘conventional apportionment’ would only be appropriate where the figures are ascertainable.
The Conventional Approach
However, the appeal court concluded that the departure from the established approach was not justified in this case. The court emphasised that the starting point in fatal accident claims is the Ogden tables and the position of the parties at the time of death. The court held that the approach put forward by the Claimant was ‘conventional and in accordance with high and long-established authority’. The reason for reliance on actuarial and statistical tools is to counterbalance uncertainties by ‘averaging over countless examples from other similar cases’. The tools developed are of such value because the task is difficult and speculative.
In this case, the judge had adopted an approach not suggested by either party and the result was ‘extraordinarily removed’ even from the Defendant’s proposed figures.
The court was clear that departure from the conventional approach can only be justified in exceptional and unusual cases. This was not such a case as the lack of precise evidence of benefit rises was not an exceptional element. If the judge had followed the conventional approach, he would not have had to concern himself with later increases in benefits unless they were outside the ordinary run of circumstances.
The judge was bound to apply the caselaw, and the uncertainty in the evidence was in fact a ‘compelling reason’ to use the established method which accounts for some uncertainty.
Upholding the judgment that there was no loss after age 73, the Claimant’s calculation – starting with two thirds of the joint net annual income – resulted in an award of £67,032.83, over £60,000 more than the first instance judgment sum for this head of loss.
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Claimant injured during arrest entitled to pursue personal injury claim - Amy Lanham Coles, Temple Garden Chambers
21/06/24. Ward v Chief Constable of Greater Manchester Police: [2024] EWHC 1297 (KB)
This case offers some preliminary food for thought in respect of personal injury claims arising from policing and injuries sustained in the context of criminal activity.
The Claimant sought to bring an action against the police for their alleged misuse of a police dog during his arrest. The dog had bitten the Claimant and he alleged this caused serious injury to his lower leg, including long term nerve damage and chronic pain. He had been evading arrest (first in a car chase and then on foot) before the incident and was later convicted and imprisoned for burglary and dangerous driving.
ISSUES
The Defendant invoked s. 329(1) Criminal Justice Act (“CJA”) 2003 which requires Claimants to obtain permission before bringing civil proceedings for trespass to the person arising out of an incident in which the Claimant themself commits an imprisonable offence. The Claimant can obtain permission only if they can show that the Defendant’s act was “grossly disproportionate” (s. 329(1)(3)(b) CJA 2003) or if – in summary – the Defendant’s acts were not justifiable to prevent the commission of offences or the apprehension of the Claimant (as set out at s. 329(1)(3(a) & (5)). There were significant factual disputes in this case – including whether the dog bit the Claimant before the police handler reached him; whether the police handler had issued any warnings to the Claimant or any commands to the dog; and the subjective belief of the police handler at the time.
In respect of the relevant cause of action, notably the Defendant argued (paras 15 &18):
- a trespass to the person must be a deliberate act, negligence does not suffice as per Letang v Cooper [1956] 1 QB 232);
- there would be no real prospect of success on a claim in negligence because there is no duty owed to a fleeing suspect as per Vellino v Chief Constable of Greater Manchester [2001] EWCA Civ 1249.
It was noted that various aspects of s. 329 remained unresolved in the case law (para 24).
JUDGMENT
Master Sullivan granted the Claimant permission to pursue civil proceedings (para 47). He noted his role was circumscribed – he was not to conduct a mini-trial (para 40). He considered there were significant factual disputes that had to be resolved at trial (paras 39-43) but which arguably did amount to grossly disproportionate acts by the police (para 44).
Nor did he fully resolve the legal issues put to him – save to the extent necessary for the permission application as follows:
- he considered the Claimant’s contention that a negligent act can amount to a trespass was likely correct (para 17);
- he did not accept that Vellino established that no duty of care arose where a person is fleeing arrest (para 45).
Watch this space for yet another battle as to the legal bounds of policing. Note also the judge’s comments that whilst s. 329(1) CJA 2003 has only been invoked by the police to date (para 12), this is by no means a statutory constraint.
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Court of Appeal reaffirms importance of responding to a proposal to engage in ADR - Nancy Kelehar, Temple Garden Chambers
17/05/24. Northamber Plc v Genee World Ltd [2024] EWCA Civ 428
Date of Judgment: 01/05/2024
In this appeal, the underlying claim related to an alleged breach of an Exclusivity Agreement between the parties. The appeal was brought by the Claimant on five grounds; the fifth concerned the judge’s costs order.
The concern addressed by the appellate court related to the failure of the Second and Third Defendants to respond to an offer of mediation made on behalf of the Claimant as follows:
“We would ask you to take instructions from your clients and for an indication, by return, as to their willingness to mediate. You will be aware of the consequences if a party refuses to mediate…”
Importantly, the letter containing the proposal to mediate reminded the other parties of the operative case management direction in this case which stated:
“At all stages the parties must consider settling this litigation by means of alternative dispute resolution. Any party not engaging in any such means proposed by another must serve a witness statement giving...
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The LDFRC scheme latest: reforms expected by October 2024 - Amy Lanham Coles, Temple Garden Chambers
15/05/24. April has come and gone and while the Lower Damages Clinical Negligence Claim (“LDFRC”) scheme has not been implemented as originally planned, there have been two recent updates.
Firstly, as per the Civil Procedure Rule Committee minutes from March 2024, the implementation date has been pushed back to October 2024 for the entire scheme. There remain outstanding issues to resolve before draft rules can be published (expect these in the summer).
Secondly, the government has published their consultation outcome for the supplementary consultation on disbursements under the LDFRC scheme. The government intends:
- To allow expert report fees (including expert costs associated with the report) and ‘after the event’ (ATE) insurance premiums covering expert reports for all LDFRC scheme claims – without a cap for now at least;
- To allow recovery of court fees for a Part 8 application for pre-action disclosure in all LDFRC scheme claims, to ensure that parties are able to obtain evidence such as medical records early;
- To allow separate recovery of disbursements in relation to applications for a stay in LDFRC scheme proceedings, where the claim is issued for limitation purposes;
- To allow recovery for counsel’s advice and court fees for Part 8 approval hearings for children and protected parties under the LDFRC scheme;
- To exclude inquests from the rules relating to costs and disbursements in the LDFRC scheme – so that costs and disbursements in inquests will be recoverable to the extent that they would in non-LDFRC clinical negligence claims.
For past reporting on the scheme see here.
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Recent amendments to Practice Directions relating to Fixed Recoverable Costs (FRC) - Nancy Kelehar, Temple Garden Chambers
26/04/24. As practitioners will be aware, the extension of fixed recoverable costs (FRC) came into force on 1 October 2023, applying to most simpler claims valued at £100,000 or less. Given the date of implementation, the courts have not had the chance to address some of the issues that may arise, e.g. as to assignment of the complexity band. In the meantime, the rules have been refined by the 163rd and 165th updates to the Civil Procedure Rules (CPR).
The 163rd update to the CPR will apply from 6 April 2024. It includes increased FRC to reflect inflation, as well as increases to trial advocacy fees, providing a new Table 12 (amount of fixed costs in the fast track) and new Table 14 (amount of fixed costs in the intermediate track).
The 165th update also concerns FRC with amendments to PD28 and PD45 coming into force on the same date. This update contains amendments relating to VAT and addresses the issue of when counsel’s fees are payable when a case is settled or vacated prior to the hearing. The new provisions set out a number of examples in accordance with which advocacy fees should be computed.
The 163rd update also provides for amendments relating to:
- Civil Restraint Orders (CRO) – PD3C
- The Electronic Working Pilot Scheme – PD51O
- Appeals to the Court of Appeal – PD52C
- Statutory Appeals and Appeals Subject to Special Provision – PD52D
- Acknowledgement of Service in Judicial Review Proceedings – PD54A & PD54D
- Trial Witness Statements in the Business and Property Courts – PD57AC
Additionally, it should be noted that the 164th update contains a number of amendments to PD 51R, Online Civil Money Claims (OCMC) and PD 51ZB, Damages Claims Portal (DCP), which came into force on 29 February 2024.
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