Loss of Earnings: Serious Injury and the "Lost Years": High Court Case Considered - Gordon Exall, Zenith Chambers

23/05/15. The question of whether a child claimant can receive earnings for the “lost years” when their life expectancy is reduced is a difficult one. It was considered by Mrs Justice Elizabeth Laing DBE in Totham -v- King’s College NHS Foundation Trust [2015] EWHC 97 (QB). At the moment the law on this issue is highly unsatisfactory, with the Court of Appeal agreeing that its own decisions are inconsistent with the House of Lords.

THE CASE

The claimant suffered serious brain injuries during her delivery in 2007. Liability was admitted. Some heads of damages were agreed. There was a three day hearing to consider the issues in dispute. One of the issues in dispute was earnings and, in particular, whether earnings could be paid for the “lost years”. That is the years the claimant would have worked, but because of reduced life expectancy, will not live through...

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Catastrophic Injury Schedules, Technology: The Key to Success? - Amanda Yip QC & Will Waldron QC, Exchange Chambers

20/05/15. For too long, schedules were viewed as an afterthought not an essential to success in catastrophic injury cases. Happily, this misconception seems largely to have been consigned to history. However, whether specialist practitioners have fully appreciated the fact that the schedule can be a powerful weapon in the litigation armoury is a matter of debate. The modern requirement is for a document that is attractively and accurately presented with the ultimate aim of persuading the reader that its conclusions are sensible and compelling. It must be flexible and useful. The route to all this is a combination of traditional advocacy skills and modern technology. The respective and relative significance of each of those matters may depend upon your perspective, although a good starting point may be to remember that whilst technology can ease the burden of calculation, it is yet to master the art of persuasion and probably never will. The experience and skill of the drafter is what makes the ultimate difference.

Striking the balance

The introduction of the Ogden Tables has produced a far more mathematical approach to the formulation of a claim. The use of programmes such as Excel and specialist software may be the natural progression in the constantly changing landscape of post-Jackson practice. Useful and flexible they most certainly are, provided that you invest the time necessary to master them and appreciate the need to adapt them to your specific purpose. If you do, they make complex calculations simple and will consign your calculator to the bin. However, the purpose remains to persuade and a schedule is much more than just a spreadsheet - it is probably the most important document in any case. It must set out the story clearly and will be an essential part of the advocacy in any catastrophic injury claim. We believe that drafting a schedule remains an art not a precise science and that technology is an aid not an answer.

What will it do?

The schedule is the compass which guides the claim. It evolves with the case and is a constant point of reference. It is a multi-purpose document informing everything and everyone. The client/family ought to be able to take a copy away and understand how the claim is made up. It should also assist when discussing litigation risks and any offers. The advantage here of using a software package is the ability to demonstrate instantly the impact of differing factual findings on the damages likely to be awarded. For example, by simply adjusting a multiplier in one line, the programme will recalculate all the figures to produce a new bottom line. Compare that with pen and calculator - rather like opting for the abacus instead of the computer!

The schedule also provides the framework for any negotiations with the defendant. Touch of the button technology is instant and impressive; but beware the pitfalls. First, good negotiation requires judgment and, as we have pointed out, clever computers are a poor substitute for experience and skill. It is much more than a number-crunching exercise. Secondly, the technological schedule may give away more than it gains. Give it to your opponent without locking down or protecting calculations at your peril.

The schedule presents the first opportunity to present the claim to the trial judge. Simple as it may sound, unless it looks good and reads easily, it won’t begin to persuade. There is little worse than a schedule that appears cluttered and complicated. Inevitably, many things can alter between the opening of your case and closing submissions. The presentational and, potentially, tactical advantages of immediate amendment are obvious.

A flexible, working document

It will often be impracticable to prepare a full schedule before proceedings are issued. Serving a Provisional Schedule is appropriate. It makes sense to provide a skeleton by using the same heads as are likely to appear in the final schedule. This can then be seen as a working document to be updated and completed as required. Seeing a schedule as a flexible, working document maximises its effectiveness. For example, it may be appropriate to reflect on points emerging from a joint settlement meeting to present a more realistic case to the trial judge. Time-saving technology can only be a plus in these circumstances. However, even with such technology, drafting a proper schedule in a high value claim does generally take many hours, even for those who have amassed years of experience in doing it. Some “enthusiastic” costs setting tribunals may need reminding of that fact when setting realistic budgets for items such as a Schedule. The importance of that document cannot be overstated.

Foundation

A good schedule does not appear out of thin air. Rather it will be the result of careful investigation and detailed evidence. In the larger claims, much of the evidence underlying the schedule will be expert reports. Good experts will be familiar with the way in which such claims are presented and hopefully will tailor their reports so that they can be extensively quoted and relied upon in preparation of the schedule. However, it is important to ensure that even experienced experts are properly instructed so that they can provide realistic views specific to the individual claimant. When instructing experts to deal with quantum issues, it is helpful to have in mind the way in which the various heads of damage will ideally be set out in the schedule. This, of course, is not to suggest that the claim is effectively drafted first and then an expert is hired to confirm it. However, it would be unfortunate if the claimant’s best case in relation to a particular head of the claim did not emerge from the expert evidence merely because the expert had not considered a particular angle. Equally, an expert opinion that appears to set out a favourable view in an unrealistic way is going to be virtually worthless.

Do be cautious about simply adopting figures set out in expert evidence without considering how the claim is to be presented and justified to the court. Of course, it is tempting to adopt calculations that have already been done (particularly if sent to you in electronic form) but it is necessary to scrutinise those figures with a legal mind.

The changing landscape

There have been major developments in personal injury practice within a relatively short period. As awards of damages increased significantly with the recognition of just how much is required to restore quality of life following catastrophic injury, the role of a carefully drafted full schedule became more and more significant Periodical payments brought a further change in culture and a need to be able to present alternatives based upon lump sum calculations and periodical payments in order to make submissions as to the exercise of the court’s discretion. Cobham v Eeles raised the bar as far as interim payments were concerned. Being able to recalculate the Schedule to show a “conservative assessment” is essential for success. Finally, the changes brought in by the Jackson reforms and costs budgeting call for an ever more efficient and cost effective approach. Better technology may improve efficiency but will not eliminate the need to pay close attention to the presentation of the claim and budgets must reflect this.

Those who have moved with the times have recognised all this. In our view, the most compelling and useful Schedules adopt modern methods alongside skilful advocacy

Conclusion

In the final analysis, what is the true impact of technology in the modern age of schedule drafting? In part, that might depend upon your view of technology. The technophobes may argue that it adds little or nothing to what has gone before. Others may see technology as a solution that far outstrips anything the traditional approach has to offer and a shortcut to success. The truth probably lies somewhere in between. Used badly, or if over reliance on it creeps in, technology can create as many problems as it appears to solve. However, used well, it is a powerful aid to skilled and specialised P.I. practitioners.

Amanda Yip QC & Will Waldron QC
Exchange Chambers, Liverpool, Manchester and Leeds

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Court of Appeal Confirms How BHR Should Be Calculated in Credit Hire Claims - Shirley Denyer, Shirley Denyer LLP

19/05/15. In the case of Stevens v Equity [2015] EWCA Civ 93 the Court of Appeal has rejected the argument that in a case of replacement vehicle hire by a pecunious claimant the court should find a credit hire charge reasonable if the claimant can show a local Basic Hire Rate (BHR) at the same or a higher rate. The court also held that it was not appropriate to take an average of BHRs available in the locality but that judges should instead identify the lowest reasonable ratequoted by a mainstream provider or, if there is no mainstream provider, by a local reputable supplier.

Lord Justice Kitchin set out the legal background in his judgment, referring to the House of Lords case of Dimond v Lovell [2002] which sets out the approach to be adopted in assessing quantum in cases of credit hire for pecunious claimants (people who could have afforded to pay for a replacement vehicle up front without using credit). Lord Hoffman, in Dimond, found that credit hire charges are inclusive of additional benefits for the claimant, such as removing the need to pay in advance and to deal personally with the claim, the costs of which are not recoverable. It is necessary, therefore, when faced with a pecunious claimant, to strip out the costs of the additional benefits to find...

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