The Court of Appeal Clarifies The Meaning of 'Proceedings' In CPR 44.15 - Sebastian Bates, Temple Garden Chambers

23/11/22. Achille v Lawn Tennis Association Ltd [2022] Ewca Civ 1407

Introduction

As Males LJ explained at [4], ‘CPR 44.15 allows a defendant to enforce a costs order made against a claimant [in a personal injury case] to its full extent without needing permission from the court in three categories of case’, namely ‘(1) where the claimant has disclosed no reasonable ground for bringing the proceedings, (2) where the proceedings are an abuse of the court's process and (3) where the claimant is personally responsible for conduct which is likely to obstruct the just disposal of the proceedings’.

The present case had started as a mixed claim—defined at [5] as ‘claims in which [claimants] seek damages for personal injury together with damages for other losses’—because the claimant had sought damages for psychiatric injury as well as injury to feelings: see [7]. The claim for psychiatric injury had been struck out as the statement of case disclosed no reasonable ground for bringing it. A costs order had consequently been made against the claimant in the sum of £4,250.

The question for the Court of Appeal was whether the reference to ‘the proceedings’ in CPR 44.15 is to a claim for personal injury (in which case the costs order could be enforced to its full extent immediately) or to all the claims made in a single action (in which case the costs order could not be enforced immediately as the claim for injury to feelings had survived).

Summary

Males LJ took as his starting point (at [20]–[21]) that ‘proceedings are synonymous with an action, which is not concluded until all matters before the court have been concluded’. He proceeded to acknowledge (at [22]) that ‘[c]ase law has established that the term “proceedings” as used in the QOCS rules does not bear this natural meaning in its full sense’. However, he took the view (at [26]) that there had already been ‘a clear decision that the term “proceedings” in CPR 44.13 refers to all of the claims made by a claimant against a single defendant, when one such claim is a claim for personal injury’.

It followed (at [28]) that the issue was ‘whether “proceedings” in CPR 44.15 should be given a different meaning from that which it bears elsewhere in the QOCS rules’. This possibility—‘not a promising submission’, as Males LJ put it—was considered and rejected at [29]–[38].

Conclusion and Comment

As such, Males LJ accepted that the reference to ‘proceedings’ in CPR 44.15 is to all the claims made in a single action. This is likely to be welcomed by claimants. However, all those practising in the field will wish to note Males LJ’s confidence, in coming to this conclusion, in the court’s ‘power in [a] mixed claim case to make whatever order it considers will meet the justice of the situation’ under CPR 44.16: see [34].

Image ©iStockphoto.com/luckyraccoon

Case Summary: W v L - Steven Barke, Spencers Solicitors Limited

09/11/22. Case Name: W v L

Accident Date: 24/12/2018

Settlement Date: 20/07/2022

TOTAL GROSS SETTLEMENT: £35,000.00

Background and Liability

The Claimant, aged 51, was involved in a road traffic accident on the 24th December 2018 when the vehicle he was travelling in was struck from behind by the Defendant’s vehicle.

Liability for the accident was admitted by the Defendant representatives.

Personal Injuries

The Claimant sustained immediate injuries to his right shoulder, low back and right ear. He subsequently developed problems with his left shoulder whilst having a course of physiotherapy in May 2019 from which he has recovered.

The Claimant has undergone a course of physiotherapy, investigated by MRI scan and has consulted a Consultant Orthopaedic Surgeon specialising in shoulder injuries all with the agreement of the Defendants. The MRI scan revealed a large tear in the Claimant’s right shoulder. The Orthopaedic Surgeon recommended the Claimant have an operation to repair the tear. Without the operation, the Claimant will continue to suffer pain and have limited movement.

The Claimant’s right shoulder pain limited the Claimant in the type of work he could carry out. In addition, the Claimant had tinnitus in his right ear.

It is the Claimant’s case that he was disadvantaged on the open labour market. He no longer worked as an interior shutter door surveyor due to changes in that particular market. He continued to work, helping his son, who was a qualified plumber, to carry out light jobs which did not require work above head height or using his arm in an outstretched position.

The Claimant was willing to have the operation recommended by the Orthopaedic Surgeon and he would require some help after the operation from his partner and would be unable to work for about 3 months.

Following the accident, the Claimant's partner assisted the Claimant with dressing, showering and shaving for the first two weeks following the accident. Care would also be required following surgery for a period of approximately 3 months.

The Claimant received 6 sessions of physiotherapy treatment after the accident. The physiotherapy did not help the Claimant’s right shoulder, but it did help the low back. Gradually, the low back pain improved and by approximately 18 months after the accident, the symptoms had almost resolved.

The Claimant was unable to return to his hobbies of shooting or carp fishing.

Disadvantage on the Open Labour Market/ Smith & Manchester Award - The Claimant, at the time of settlement, was still waiting for his operation and had pain and limited movement in his right shoulder. He was disadvantaged on the open labour market as he could not work with his right arm extended above his head or outstretched in front of him or to the side.

Quantum

The Claimant, aged 55 at the time of settlement, received damages in the sum of £35,000.00.

The Claimant’s claim consisted of:

Physiotherapy Treatment

Medication

General Damages

Future surgery/ care and loss of earnings

Future treatment

Disadvantage on the open labour market

No breakdown was provided. The claim was settled on a global basis.

Solicitors for the Claimant: Steven Barke, Spencers Solicitors Limited

Image ©iStockphoto.com/bagi1998

Gestwin Principles Applied in the Context of a Road Traffic Accident and the Potential for Eyewitness Accounts to Take Precedence Over Expert Evidence Affirmed - Grace Corby, Temple Garden Chambers

20/10/22. Barrow (By His Litigation Friend and Grandfather Mr Hugh Barrow) & Ors v Merret and Anr [2022] EWCA Civ 1241. The Claimant unsuccessfully appealed the dismissal at first instance of his negligence claim. The first-instance judge had dismissed the claim after concluding that the expert evidence was of limited assistance and the case had turned principally on eyewitness evidence. The Court reiterated that they should not interfere with findings of fact or evaluations of facts unless compelled to do so because those findings were wrong. Here, they were no such reasons.

The Facts

The Claimant (and Appellant) was seriously injured on 7 October 2015 when a car driven by the Defendant (and Respondent) collided with him as he crossed a road. He had made a claim for damages for negligence.

The key issue in the trial had been whether the Claimant had darted across the road, such that the Defendant could not have responded in time, or alternatively, whether he had fallen and was in the process of standing up at the time of the collision, such that the Defendant should have had time to avoid the collision had she be paying proper attention.

This was boiled down into two crucial questions agreed by the parties:

“(i) Was the Claimant running or walking across the road immediately prior to the collision?

(ii) What was the Claimant’s likely body position at the time of impact?”

There was significant expert accident reconstruction evidence considering this question, alongside evidence from eyewitnesses. At first instance, the claim was dismissed by Richard Hermer KC, sitting as a Deputy Judge of the High Court (‘the Judge’). The Judge considered the expert evidence but stated he had based his finding “primarily on my assessment of the lay witness evidence…in the context of the road layout”. The Judge said (at paragraph 114) that he had reached his conclusions without the help of the accident reconstruction evidence. His conclusions nevertheless fell ‘within the bounds of what both experts considered possible’.

The Appeal

The Claimant appealed, arguing that the Judge had i) failed to have proper regard to objective evidence in his findings of fact, ii) assessed the expert evidence in an unfair way and iii) was irrational to reject one of the eyewitness accounts which supported the Claimant.

The Decision

Lady Justice Laing, delivering the judgment of the Court, dismissed the appeal. She found that most...

Image ©iStockphoto.com/tumpikuja

Read more (PIBULJ subscribers only)...