This site uses cookies.


Qualified One Way Costs Shifting - Mark Carlisle, Director of Deep Blue Costs and Consultant Law Costs Draftsman at Berlad Graham LLP

16/10/15. The transitional provisions and Casseldine –v- the Diocese of Llandaff Board for Social Responsibility [2015]

On the face of it QOCS is straight forward. It provides Claimants in personal injury cases with full protection against liability for costs save where (a) there is an adverse order for part of the costs and its amount does not exceed the aggregate of damages and interest ordered (so interim orders in favour of the Defendant can be set off against damages), (b) the proceedings are struck out on specified grounds, or (c) where the claim is found to be fundamentally dishonest.

It is fully retrospective in respect of those proceedings that it covers, applying to claims issued both before and after 1st April 2013, and is disapplied only where the transitional provisions say so.

The transitional provision at 44.17 is short and to the point -

44.17 This Section [which comprises the totality of the QOCS rules] does not apply to proceedings where the claimant has entered into a pre-commencement funding arrangement (as defined in rule 48.2).

Previous thinking on the transitional provisions had therefore concluded in light of the above that if a client had at any point entered into pre Jackson Conditional Fee Agreement, QOCS was disapplied for ever more. This was what emerged from the decision of Master Haworth in the case of Landau –v- the Big Bus Company, in which the Claimant was funded at first instance by a pre Jackson CFA, and on appeal by a post Jackson CFA. Master Haworth concluded that “whilst it may be unreasonable, unfair and inconvenient to deny the claimant the benefit of QOCS in this case, for the reasons given on a true construction of the relevant provisions of CPR in this case, QOCS does not apply” however his reasoning was based quite narrowly on the definition of “proceedings” within the provisions that we will come to shortly, concluding that the appeal did not constitute separate proceedings from the original claim.

But…. dig just a little deeper into the changes both to the costs rules generally and the transitional provisions and a whole world of uncertainty emerges, largely caused it seems by poor drafting.

I apologise if this gets long winded, but I am going to have to start at the beginning (well….the legislative beginning…I’ll get to the very beginning a little later on!)

Firstly, as we know, recoverability of additional liabilities was abolished by s.44 Legal Aid Sentencing and Punishment of Offenders Act 2012, as follows –

(4) For subsection (6) of that section [s58A Courts and Legal Services Act 1990] substitute—

(6) A costs order made in proceedings may not include provision requiring the payment by one party of all or part of a success fee payable by another party under a conditional fee agreement.”

(5) In section 120(4) of that Act (regulations and orders subject to parliamentary approval) after “58(4),” insert “(4A) or (4B),”.

(6) The amendment made by subsection (4) does not prevent a costs order including provision in relation to a success fee payable by a person (“P”) under a conditional fee agreement entered into before the day on which that subsection comes into force (“the commencement day”) if—

(a) the agreement was entered into specifically for the purposes of the provision to P of advocacy or litigation services in connection with the matter that is the subject of the proceedings in which the costs order is made, or

(b) advocacy or litigation services were provided to P under the agreement in connection with that matter before the commencement day.

Similarly in relation to the abolition of recoverability of ATE premiums, s46 LASPO Act provides as follows –

(1) A costs order made in favour of a party to proceedings who has taken out a costs insurance policy may not include provision requiring the payment of an amount in respect of all or part of the premium of the policy, unless such provision is permitted by regulations under subsection (2).; and

(3) The amendments made by this section do not apply in relation to a costs order made in favour of a party to proceedings who took out a costs insurance policy in relation to the proceedings before the day on which this section comes into force.[that date being 1st April 2013]

The full rules in relation to QOCS are set out at CPR 44.13 to 44.16 and there is no need to go into them here, because they either apply or they do not and, once they apply their operation is relatively straightforward. In order for QOCS to be disapplied, CPR 44.17 says that the funding arrangement must be one “as defined in rule 48.2”. It is worth noting that the sole purpose of CPR 48 is to codify rules under the primary legislation enabling the recovery of additional liabilities under pre Jackson funding arrangements, in a new landscape that forbids them.

That purpose is affirmed by s1.2 and 1.30 of the Practice Direction to Part 48, which refer back to the saving provisions and say as follows –

1.2 Sections 44(6) and 46(3) of the 2012 Act make saving provisions to the effect, respectively, that these changes do not apply so as to prevent a costs order including such provision where the conditional fee agreement in relation to the proceedings was entered into (or, in relation to a collective conditional fee agreement, services were provided to the party under the agreement), or the costs insurance policy in relation to the proceedings taken out, before the date on which the changes come into force.

1.3 The provisions in the CPR relating to funding arrangements have accordingly been revoked (either in whole or in part as they relate to funding arrangements) with effect from 1 April 2013; but they will remain relevant, and will continue to have effect notwithstanding the revocations, after that date for those cases covered by the saving provisions.

So, how does 48.2 define a “pre-commencement funding arrangement”?


(1) The provisions of CPR Parts 43 to 48 relating to funding arrangements, and the attendant provisions of the Costs Practice Direction, will apply in relation to a pre-commencement funding arrangement as they were in force immediately before 1 April 2013, with such modifications (if any) as may be made by a practice direction on or after that date.

(2) A reference in rule 48.2 to a rule is to that rule as it was in force immediately before 1 April 2013.


(1) A pre-commencement funding arrangement is—

  1. in relation to proceedings other than insolvency-related proceedings, publication and privacy proceedings or a mesothelioma claim –

  1. a funding arrangement as defined by rule 43.2(1)(k)(i) [emphasis added] where –

(aa) the agreement was entered into before 1 April 2013 specifically for the purposes of the provision to the person by whom the success fee is payable of advocacy or litigation services in relation to the matter that is the subject of the proceedings in which the costs order is to be made; or

(bb) the agreement was entered into before 1 April 2013 and advocacy or litigation services were provided to that person under the agreement in connection with that matter before 1 April 2013;

  1. a funding arrangement as defined by rule 43.2(1)(k)(ii) where the party seeking to recover the insurance premium took out the insurance policy in relation to the proceedings before 1 April 2013;

(iii) a funding arrangement as defined by rule 43.2(1)(k)(iii) where the agreement with the membership organisation to meet the costs was made before 1 April 2013 specifically in respect of the costs of other parties to proceedings relating to the matter which is the subject of the proceedings in which the costs order is to be made;

In a level of multiple “Russian doll” definitions it can be seen that to disapply QOCS the pre commencement funding arrangement must be within both the current CPR 48.2 and within CPR 43.2(1)(k)(i) to (iii) as they were before Jackson.

CPR 43.21(1)(k) as it was before Jackson read as follows –

(k) ‘funding arrangement’ means an arrangement where a person has –

(i) entered into a conditional fee agreement or a collective conditional fee agreement which

provides for a success fee within the meaning of section 58(2) of the Courts and Legal

Services Act 19901;

(ii) taken out an insurance policy to which section 29 of the Access to Justice Act 1999

(recovery of insurance premiums by way of costs) applies; or

(iii) made an agreement with a membership organisation to meet that person’s legal costs;

Those definitions seem at first glance to support the status quo, i.e. the idea that if a claimant had at any point entered into pre Jackson Conditional Fee Agreement, QOCS was disapplied for ever more. But look a little closer and the definitions contain additional wording that is surprising if, as 44.17 indicates, it is the overall definition at 48.2 that determines what kind of funding arrangement will disapply QOCS.

48.2(1)(a)(i)(aa) deals with Conditional Fee Agreements and requires there to be, as part of the definition, a “person by whom the success fee is payable”.

Similarly 48.2(1)(a)(ii) requires that there is a “party seeking to recover the insurance premium”

So, if the success fee is not payable by anyone, and no one is seeking to recover the insurance premium…..what then? If we take a step back and review : QOCS applies unless 44.17 is engaged, and 44.17 is engaged only where the claimant has entered into a pre Jackson funding arrangement as defined by 48.2. If no success fee is payable, then on the face of it the funding arrangement is outside CPR48.2. Likewise if no party is seeking to recover the premium.

But that produces an absurdity, because those circumstances only arise where the Claimant has lost. For a success fee to be payable (as opposed to being potentially payable) the Claimant must have won his or her case because, until that point, under the contractual provisions of the CFA absolutely no success fee is payable at all. Likewise in respect of an ATE premium, the Claimant does not “seek payment” of it unless and until the case is won. It can be argued therefore that, on a strict literal interpretation, the transitional provisions do not engage in respect of any funding arrangements other than those where the Claimant has succeeded.

Did the rules committee really mean to draft the legislation in such a way that QOCS applies to all cases except those where it is not needed? That would of course be surprising, but it must be assumed that the unqualified use of the definition at CPR 48.2 within the transitional provisions was deliberate, particularly as there was already a perfectly good definition at the former CPR 43.2.1(k) which would have achieved precisely the position that has previously been considered to be the status quo.

So, where a literal interpretation produces absurdity or uncertainty, the rules should be interpreted purposively, and it is at this point that we go back to the very beginning.

In the case of QOCS the rule changes were made, effective from 1st April 2013, following acceptance by Parliament (without qualification insofar as they relate to this issue) of the recommendations made by Lord Justice Jackson in his Review of Civil Litigation Costs : Final Report, published in January 2010. We therefore have a very clear indication of the purpose of the changes in the form of several thousand pages of reports.

Of particular relevance are the extracts from Chapter 9 of the report in relation to the recoverability of ATE premiums –

5.1 The question. If the recoverability regime is abolished, the question arises as to how the law should protect those claimants who, as a matter of social policy should be protected, against the risk of adverse costs.

5.2 The answer. In my view, there is only one sensible way to give effect to that social policy, namely by introducing one way costs shifting. The advantage of this solution is that costs protection can be targeted upon those who need it, rather than offered as a gift to the world at large;

And Chapter 10 in relation to the recoverability of success fees –

4.1 Scope of this section. In this section I shall discuss whether success fees and ATE insurance premiums should be recoverable under costs orders from losing parties. The issues of policy and principle in respect of (a) success fees and (b) ATE insurance premiums are very similar. The relevant facts and arguments in respect of ATE insurance premiums are set out in chapter 9 above. The relevant facts and arguments in respect of success fees are set out in sections 1 to 3 of this chapter.

4.20 In my view the proper course is to abolish recoverability and to revert to style 1 CFAs, as they existed before April 2000. Those arrangements were satisfactory and opened up access to justice for many individuals who formerly had no such access: see PR paragraph 16.3.2. During 1996 APIL confirmed that those arrangements provided access to justice for personal injury claimants and that those arrangements were satisfactory: see paragraph 25 of chapter 2 of Lord Woolf’s Final Report on Access to Justice.

These followed on from the discussion within Lord Justice Jackson’s preliminary report, published May 2009, at chapter 47, paragraph 4.4

If success fees and ATE premiums cease to be recoverable, then the question arises as to how the interests of individual claimants (most of whom could not sensibly afford the costs of litigation) might be protected. In the field of personal injury litigation, possible measures might include:


    1. Introducing one way cost shifting.


    1. Capping the proportion of damages which the claimant’s lawyers might take in respect of success fees. Prior to April 2000 the cap was in practice 25% of damages. I am told by Michael Napier QC and Senior Costs Judge Peter Hurst (both assessors to the Costs Review) that this arrangement worked satisfactorily and did not give rise to complaint.


    1. Providing that no element of damages referable to future care costs could be subject to any deduction.


    1. Raising the level of damages. This might be perfectly feasible if some of the huge transaction costs could be reduced, as discussed in chapter 26. (v) Introducing a CLAF or a SLAS for personal injury claims, as discussed in chapters 18 and 19.


What emerges clearly is that recommendation to abolish recoverability against Defendants whilst giving qualified costs protection to Claimants was to effect a quid pro quo. The introduction of QOCS was to protect those who, as a matter of social policy, should be protected against adverse costs orders in circumstances where they could not insure themselves against such outcome.

Looking at the rules afresh in that light allows an interpretation that, with very little difficulty, achieves the stated purpose of a quid pro quo.

The starting point is that CPR 48.2 is concerned with recoverable success fees. That is its primary purpose and the transitional provision at CPR 44.17 must be read in that context.

That is to say that, under the interpretation that I advance, QOCS does not apply where the Court, on or after 1st April 2013, is faced with a hearing at the conclusion of which it may be required to consider making an Order under s58A and / or 58C Courts and Legal Services Act 1990, as amended by s.44 / 46 LASPO Act, namely an Order that, owing to the transitional arrangements, makes provision for recovery of a success fee or insurance premium by way of costs.

Those circumstances arise only where –


      1. The Claimant has entered into a pre-commencement funding arrangement,


      1. The proceedings have been funded by such funding arrangement


    1. Additional liabilities that arise as a result of the funding arrangement are therefore potentially recoverable in principle from the Defendant in the event of success.

In all other circumstances under this interpretation, where the Court is considering making an Order for costs in a claim for personal injuries, QOCS applies.

To my mind this is the only logical interpretation that can be given to the transitional provisions that is consistent with the intention of Parliament in adopting the suggestions of Lord Justice Jackson.

And so on to Casseldine –v- the Diocese of Llandaff Board for Social Responsibility, in which this interpretation was put to the test.

The chronology of the substantive case is important to set out :


CFA between C and Thompsons Solicitors


Letter of Claim sent to D incorporating notification of funding by CFA and ATE insurance


ATE Insurance policy with UIA (Insurance) Ltd


Liability denied by Ecclesiastical Insurance on behalf of D on the basis of unsigned witness statements


Thompsons terminate CFA, resulting in no entitlement to base costs or success fee, and the UIA ATE cover therefore ends pursuant to contractual provisions


C instructs Stone Rowe Brewer LLP


CFA between C and SRB LLP


SRB revive claim


D maintains denial of liability


SRB request signed witness statements


D refuses disclosure of signed witness statements, asserting “we are under no obligation to disclose witness statements pre litigation”


Proceedings issued


Proceedings served with Notice of Funding referring to the 06/08/13 CFA only


Case heard before DDJ North at Pontypridd County Court

  • Claim dismissed

  • Permission to Appeal refused

  • Entitlement of the Defendant to costs referred to the Regional Costs Judge in Cardiff to determine the preliminary issue on QOCS

So the Conditional Fee Agreement with Thompsons was terminated, prior to the issue of proceedings, by the solicitors on 30th January 2013.

As a result of termination there was no contractual entitlement on the part of Thompsons to a success fee, indeed no contractual entitlement to any costs at all.

A new Conditional Fee Agreement was entered into with Stone Rowe Brewer LLP on 6th August 2013, prior to the issue of proceedings

Proceedings were served on 10th April 2014, including a Notice of Funding that referred only to the new CFA.

The proceedings were conducted, in their entirety, in accordance with the new Conditional Fee Agreement.

The Court could not therefore have considered making an Order under s58A and / or 58C Courts and Legal Services Act 1990 (i.e. an order for costs that would have included a right to recover additional liabilities) had the Claimant been successful, because there were no additional liabilities of which payment might have been ordered.

In the circumstances the Defendants were never at risk of being required to pay any additional liabilities if the Claimant succeeded at trial, indeed they were not at risk of being required to pay any at all under the first Conditional Fee Agreement.

Mrs.Casseldine was not in a position to insure herself against the risk of an adverse costs order, because (even if any such insurance had been available, which it was not) the very transitional provisions upon which the Defendant sought to rely in disapplying costs would have precluded her from recovering the cost of such insurance.

The disapplication of QOCS would have been wholly unjust and contrary to the intention of Parliament in that the Claimant would have been liable for costs under the very same rules that precluded her from adequately protecting herself against such liability. That too would be an absurdity, and directly contrary to the policy decision of protecting against adverse costs orders those who could not sensibly afford the costs of litigation.

Regional Costs Judge Phillips sitting in Cardiff County Court decided as follows in a reserved judgment dated 3rd July 2015 –

  1. No proceedings were commenced under the first (pre Jackson) CFA

  2. The proceedings were conducted under the second (post Jackson) CFA

  3. The first CFA had been terminated by the first solicitors, thus no success fee or indeed any costs were payable under the first CFA

  4. Had C won at trial, the Court would not have been in a position to Order D to pay any additional liabilities

  5. The transitional provisions at CPR 44.17 and 48.2 must be read in context – CPR 48.2 is directed squarely at recoverability

  6. The purpose of the rules was to achieve a quid pro quo, so that post 1st April 2013 QOCS protection applied where D was not faced with any additional liability

  7. Mrs.Casseldine was therefore entitled to the full protection of QOCS.

Permission to appeal was granted in view of the novelty of the point and the absence of binding authority, however no appeal was ultimately pursued.

The point has been raised that this interpretation would encourage Claimants to chop and change funding arrangements at the drop of a hat, especially in advance of the trial of a claim that was looking decidedly precarious, purely in order to secure QOCS protection, but I do not think that is right. Firstly, a major part of the reasoning in Casseldine was that no part of the proceedings had been conducted under a pre Jackson funding arrangement. Secondly, from a practical point of view, termination of both CFA and ATE by the client (they would both have to go in order to be outside CPR 48.2) secures no advantage for him or her, because it results in a contractual entitlement on the part of the solicitors to recover base costs and the inability to recover any disbursements under the policy. QOCS protection might be secured, but at the expense of a large liability for the client elsewhere. Termination by the solicitors results in them, as in the Casseldine case, having no entitlement to anything at all and potentially a large disbursements bill to fund without the benefit of insurance, effectively shifting the Claimant’s costs of the litigation directly on to their office account.

Mark Carlisle
Director of Deep Blue Costs and
Consultant Law Costs Draftsman at Berlad Graham LLP

Image ©

Sports Risks: Duty of Care: Back to Basics - Dr Julian Morris, Parabis Law LLP

14/10/15. It is quite usual to reach for a guide book when heading off to foreign climes or setting out for a country walk but to what extent can a reader hold a guide’s producers legally responsible if something goes wrong while following their directions or advice? This point was tested recently following a sad death of an experienced canoeist.

Mr Wall, a canoe club member and grade 1 coach, was paddling with his daughter on a January day in 2012 on the River Teme. Weather and water conditions at the start of the trip were calm. Part of the journey required navigating Bridgewood weir – a horseshoe weir with its apex upstream and the ends abutting a bridge. Sadly, Mr Wall died while negotiating this section of the river.

As part of his membership of the British Canoe Union (BCU), Mr Wall had access to documents, magazines etc they published. In 2003 the BCU had published a book entitled “English white water – the BCU guidebook” (“the Guide”). It specifically referred to the stretch of water being navigated that morning by Mr Wall and his daughter. Mr Wall’s Estate sought to rely on the Guide as a copy was found in the car which stated “…horseshoe weir which is taken river right”. The Estate also drew attention to two further publications (1995) – the West Midland’s River Guide and Places to Paddle – both of which stated the weir should not be shot under any circumstances because it had a large mushroom stopper which had caused fatalities in the past. In essence, the earlier guides advised portering canoes to avoid the obstacle altogether.

The Defendant’s response drew attention to the general warnings in the Guide, and to Mr Wall’s experience and the necessity for him to have inspected, assessed and judged the relative risks himself. It stated that the Guide was reasonably current with no demonstration that it was untrue, inaccurate or misleading. Given those conclusions they considered there was no breach of duty of care; the Defendant therefore sought a strike out.

The BCU summarised its case in three main points:

  • It did not owe Mr Wall a duty of care and in particular not that pleaded in respect of the paddle;

  • But, if it did, such duty was discharged by the contents of the guide;

  • There was no causative loss.

In relation to the former, the BCU maintained the Estate failed as it was not fair, just and reasonable to impose such a duty, none existed and there was no foreseeability. Further, as its duty was in fact to everyone as the publisher of the Guide, Mr Wall’s indirect membership of the BCU was irrelevant to the claim. It had no control or responsibility over Mr Wall’s actions on the day or on the river involved. If a duty of care were found to exist it would mean that every publisher of every guidebook in the world, on whatever topic, would assume an unlimited legal responsibility for the actions and omissions of anyone who read their guidebook at any time after publication. That responsibility would be unlimited, both in terms of its determinate class of those who might read the book and in terms of time.

The inevitable consequence would be that no author would wish to be exposed to liability for writing on a topic which might result in physical injury and certainly not in those activities and sports which involved any element of uncertainty or risk.

In its conclusion, the Court confirmed that there was no relationship or proximity – Mr Wall was not engaged in a BCU paddle or under its control, supervision or instruction – and neither had it assumed responsibility, in respect of the Guide, for Mr Wall’s safety. As such there would be no duty of care and it would not be fair, just or reasonable to find that such a duty be imposed.

Undertaking sport, particularly those with added risk can be dangerous and often involves an element of uncertainty and risk-taking. Presumably, it is those elements which make that sport and recreation appealing to the individuals who partake in it. To cast liability for any event would clearly be wrong. As Lord Justice May stated in the Trustees of the Portsmouth Youth Activities Committee v Poppleton “adults who choose to engage in physical activities which obviously give rise to a degree of unavoidable risk may find that they have no means of recompense if the risk materialises so that they are injured.”

Dr Julian Morris
Parabis Law LLP

Image cc

Is it Time for Medical Ethics Experts in Lack of Consent Cases? - Daniel Sokol, 12 King's Bench Walk

12/10/15. Following the landmark case of Montgomery v Lanarkshire Health Board [2015] UKSC 11, I have been instructed on several cases of alleged failure to obtain valid consent.

At present, consultants in the relevant specialty are asked to produce expert reports on the quality of the consent process. The reports are, generally, of dubious value.

Medical expertise is not ethical expertise

The doctors' expertise in matters of diagnosis, treatment, or causation - such as whether a GP should have referred a patient to a specialist sooner or the likelihood of a patient developing multiple sclerosis - does not necessarily translate to issues of medical ethics. Many experts, now senior consultants, were trained at a time when there was less fuss about consent. Their own practice on consent may fall short of the new legal standard.

In several cases, the medical experts appeared confused by the new test of materiality set out in Montgomery (i.e., a doctor must take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments) and still resorted to the obsolete Bolam standard (i.e., conduct supported by a responsible body of medical opinion). They commented on what happens 'in practice' and concluded, wrongly, that since it happens commonly there is no breach of duty.

Some of the experts are unfamiliar or dismissive of the stringent standards of the General Medical Council. For example, the GMC guidance on consent (2008) - which was endorsed by the Supreme Court in Montgomery - states that doctors must tell patients of their right to seek a second opinion. They must also tell patients whether the benefits or risks of a procedure are affected by which organisation or doctor is chosen to provide care. The expert may think this is nonsense, but that is what the professional body requires.

The non-clinical nature of consent cases

Consent, unlike most areas of clinical negligence, contains a significant non-medical dimension. The Supreme Court in Montgomery noted this at paragraph 85:

85. Deciding whether a person is so disinclined [to be told of a risk of injury] may

involve the doctor making a judgment; but it is not a judgment which is dependent on medical expertise. […] the need for that kind of skill and judgment [to explain the risks of a procedure] does not entail that the question whether to explain the risks at all is normally a matter for the judgment of the doctor.

And also in paragraphs 114 and 115:

114. […] Dr McLellan referred to explaining to a mother who requested a caesarean section "why it may not be in the mother's best interest" and later expressed the view that "it's not in the maternal interests for women to have caesarean sections". Whatever Dr McLellan may have had in mind, this does not look like a purely medical judgment. It looks like a judgment that vaginal delivery is in some way morally preferable to a caesarean section. […]

115. In any event, once the argument departs from purely medical considerations and involves value judgments of this sort, it becomes clear […] that the Bolam test […] becomes quite inapposite.

Issues of consent usually involve non-medical judgments on the significance of a particular piece of information to a patient’s decision. For example, should a doctor tell parents of a 1/15,000 risk of death from tonsillectomy? Should a transplant team tell an adult daughter who is about to donate her kidney to her critically ill father that tests have shown he is not her biological father (although the transplant can still take place)? Would withholding that information invalidate the daughter’s consent?

The expert medical ethicist

For the first time, I have wondered whether a report from the right medical ethicist would be more effective.

This ethicist would be medically literate (there are medical notes and articles to be read), familiar with the historical, philosophical, medical, legal and regulatory literature on consent, and able to write and speak clearly and authoritatively. He or she would also need the credentials to persuade the Court - and the other side - of his or her expertise. This would almost certainly include a senior academic post, teaching experience, and relevant publications in leading specialty journals.

An ethics expert may be helpful in respect of breach of duty but may be less useful than a medical expert on the issue of causation (i.e., on whether the patient would still have had the procedure even if properly 'consented'). An ethicist would not be in a position to say, for example, that in decades of practice he or she had never seen a patient decline an operation once appraised of the minute risk of complex regional pain syndrome or that, in his experience, diabetic patients often choose a caesarian section when offered the option.

Yet, even with that limitation, ethicists - unpolluted by the grim realities of practice, the years of habit, and automatic reliance on the Bolam test - may offer parties and the courts a more accurate assessment on the validity or otherwise of a patient’s consent.

Daniel Sokol is a barrister and medical ethicist at 12 King’s Bench Walk, Temple, London

Image ©

The Scope of Negligence Liability of Those Suffering From Mental Illness - Richard Spearman QC, 39 Essex Chambers & Stuart Nicol

09/10/15. Dunnage v Randall and another [2015] EWCA Civ 673, [2015] All ER (D) 49 (Jul)

In a judgment handed down on 2 July 2015, the Court of Appeal stated how, in accordance with English law, the tort of negligence strikes a balance between individuals who by reason of mental illness have no rational control over their actions and persons who are injured by such actions.

The facts of the case were striking and horrific. In October 2007, the claimant (C) was visited in his home by his uncle (V) with whom he had been on good terms, but who was diagnosed post-mortem as having suffered florid paranoid schizophrenia. C, a rescuer to whom both the judge and the Court of Appeal paid tribute, was extremely seriously burned as a result of V pouring petrol over himself. C struggled unsuccessfully to prevent V igniting the petrol with a lighter that V was holding, and both men were engulfed in flames. V died at the scene. C survived by jumping to safety from a balcony.

Following a trial on liability in February 2014, the judge dismissed the claim on the basis that due to his mental illness, V's acts were involuntary and that V therefore had no legal liability to C. His Honour Judge Saggerson held at [34]-[35] that “[V’s] physical, mechanical actions on this occasion were driven by an overwhelming, irresistible impulse brought about by his florid psychotic state at the time he set the fire which state also deprived him of any ability to consider the nature and consequences of what was happening. In other words, his capacity to think and act rationally and independently was wholly eliminated from the time he took the petrol can out of his car” and that, although V was subject to a duty of care to C which exposed V to potential liabilities for his voluntary acts, “By reason of the extreme nature of the manifestation of his mental illness, [V] was not acting voluntarily and accordingly is not within the scope of the duty neither is he in breach of that duty. Furthermore, voluntary or voluntarily informed acts were not the cause of the events that lead to the damage.”

There was no previous decision of the Court of Appeal which considered the tortious liability of those suffering from mental illness. C argued that this topic raised difficult issues of legal policy, which involve striking a balance between, on the one hand, fair and just criteria of legal responsibility, and, on the other hand, the protection of the legitimate interests and expectations of people in general and the victims of injury caused by mentally disabled persons in particular. C contended that (1) V owed him a duty of care and that V's mental illness was no bar to recovery of damages, (2) the applicable standard of care was that of the ordinary reasonable person, and not a modified standard that took account of V's individual characteristics, (3) V did not intend the claimant harm, rather the harm was a consequence of V's unsound mind and was accidental, and (4) the claim therefore came within section 3 of the policy of household insurance obtained by V’s widow, which provided: “We will indemnify...your family against all sums which you become legally liable to pay as damages for...accidental bodily any the circumstances described in the contingencies.”

C formulated the principal questions raised by the appeal as “What is the liability of a person suffering from mental illness for an act which is on the face of it negligent and a tort?” or, more narrowly, as “Is a person suffering mental illness to the extent that his actions are entirely directed by his deluded and deranged mind liable in damages to a person injured?”

In substance, the Court of Appeal accepted C’s arguments. In summary, the Court held (1) there is no justification for treating mental and physical illnesses differently, (2) what matters is the effect of the illness (specifically whether it entirely eliminates fault or responsibility for the injury caused because it means that the defendant did nothing to cause it), (3) an adult who suffers from mental illness is required to meet the objective standard of the ordinary reasonable person, not a modified standard which takes account of that mental illness, and (4) on the facts, unwell though he was, V was not divested of responsibility for his acts which occasioned injury to C and did not meet that standard.

The Court of Appeal held that, as is also true in the case of physical illness, mental illness can act as a bar to the recovery of damages where it entirely eliminates fault or responsibility for the injury caused because it means that the defendant did nothing to cause it. In the words of Vos LJ at [131]-[133]: “only defendants whose attack or medical incapacity has the effect of entirely eliminating any fault or responsibility for the injury can be excused. It is only defendants in that category that have not actually broken their undoubted duty of care. The actions of a defendant, who is merely impaired by medical problems, whether physical or mental, cannot escape liability if he causes injury by failing to exercise reasonable care....What then does it mean to say that a medical condition entirely eliminates any fault or responsibility for the injury? It simply means that the defendant himself did nothing to cause the injury...In my judgment, however, at all intermediate stages where the defendant does something himself he risks being liable for failing to meet the standards of the reasonable man.”

So far as concerns the facts of the case, the Court of Appeal held that the Judge had come to a conclusion that was not open to him. Rafferty LJ said at [106]: “Did Vince do an act, when he doused himself in petrol? Of course he did. He used his hands and at least one arm to raise direct and upend the opened can. He elected to take it from the table, to move it through an arc and to position it so that liquid would come from its neck. Those were choices he made.” Referring to the judgment below at [34], Vos LJ said at [135]: “It is the use of the word “rationally” that concerns me. A person can still be acting if he acts irrationally; indeed, it is a matter of regret that even the most intelligent in our society sometimes do act irrationally. Nobody would suggest that they should be excused from liability for their negligence whilst so acting.” Arden LJ said at [145]: “when the experts say that [V] did not have control over his acts, they meant that he did not have rational control over his actions. They are not saying that he had no physical control over his actions. In my judgment the judge should have treated paragraph 84 [of the joint report] as resolving any doubt about the nature of [V’s] control over his actions. His mind, albeit deluded, directed his actions. References in their reports to his conduct being involuntary had to be read in that sense.”

So far as concerns recovery under the insurance, Arden LJ held at [156] and [157]: “The critical matter is whether the injury suffered by [C] was accidental bodily injury. In my judgment, the injury was accidental because on the evidence [V] had clearly lost control of his ability to make choices and therefore he could not be said to have intended to cause injury to [C]” and “For the same reason, [V] cannot be said to have been wilful or malicious within the exclusion for wilful or malicious conduct.”

So far as concerns the question of the policy of the law, Arden LJ explained at [153]: “The objective standard of care reflects the policy of the law. It is not a question of the law discriminating unfairly against people with physical or mental illness. The law takes the view as a matter of policy that everyone should owe the same duty of care for the protection of innocent victims. It would after all, in many cases, be open to a person who knows he has reduced abilities to take account of those abilities in what he does … There will be hard cases, as this case may be one, where a person does not know what action to take to avoid injury to others. However, his liability is no doubt treated in law as the price for being able to move freely within society despite his schizophrenia.”

Richard Spearman QC and Stuart Nicol, instructed by Kitsons, acted for the claimant.

Richard Spearman QC is a barrister at 39 Essex Chambers. He has a wide ranging practice and has appeared in many high profile and reported cases, including five cases in the House of Lords, and numerous cases in the Court of Appeal and all divisions of the High Court, as well as advising on and appearing in litigation overseas and in commercial, media and sport arbitrations. He has argued cases in the Court of Appeal concerning freezing injunctions, civil fraud, tracing, disclosure, arbitration, police powers, negligence, contracts, insurance, defamation, copyright, confidence, data protection, and personal injuries.

Stuart Nicol is a barrister who is a sole practitioner (formerly a tenant at 13 King's Bench Walk). He has been practising for almost 20 years and specialises in commercial and civil law, including insurance law where there are indemnity issues and catastrophic injury claims where there are psychiatric issues.

Image cc Ian Britton

Ms Veena Kamari Sharma v Cropz of London Limited - Gavin Redman, Express Solicitors

08/10/15. Ms Sharma attended a London Beauty Salon to have a procedure known as threading. This involves a technique to remove unwanted hair. As a result of this treatment, she sustained an adverse reaction. Sarah Mawdsley, Partner of Express Solicitors acted on her behalf.

The Defendant was identified as Cropz of London Limited and a letter of claim was sent on 7th May 2014. No response was received, further letters were subsequently sent requesting a response to the letter of claim. These included warnings that if a response was not received within the 3 month time frame set out for such a response in the Pre-Action Protocol for Personal Injury Claim that an application would be made to court for pre action disclosure.

As no response was received and on the 12th September 2014 an application was made to Manchester CC for Pre-Action Disclosure and a hearing was listed for 18th November 2014.

Helen Murdoch, Trainee Solicitor, attended the Hearing at Manchester County Court before DJ Iyer, the Respondent did not attend. DJ Iyer made an order requiring that the Respondent disclose the relevant documentation or a disclosure statement within 14 days.

On the basis that the application was successful, the Claimant sought the costs of the application pursuant to 46.1(3) CPR 1998. DJ Iyer did not feel that a breach of the Pre-Action Protocol for Personal Injury on its own was sufficient to justify him ordering the Respondent to pay the Claimants costs of the application and went on to make no order as to costs but ordered that the Claimant pay the Respondents costs of complying with the order within 14 days of receiving a written request for the same. He suggested that the Claimants costs of this application could be recovered as disbursements in any subsequent claim.

The decision was appealed on the basis DJ Iyer placed too much emphasis on CPR 46.1(2) and gave insufficient consideration and weight to CPR 46.1(3), gave insufficient weight to the Pre-Action Protocols, failed to attach any adequate weight to the unreasonable conduct of the Respondent and wrongly understood that the costs of the application and the costs of the Respondent complying with the order would be recoverable as a disbursement by the Claimant in any subsequent claim. The Claimant sought to rely on the case of Sherred v Western Challenge Housing Association (unreported 13/10/2009), a case which was on all fours with this matter and had previously been heard in Manchester by HHJ Holman and dealt with the same issues.

His HHJ Armitage QC heard the appeal on 25th June 2015.

Counsel for the Claimant, Lee Nowland of Cobden House attended the hearing along with Miss Murdoch and the appeal was allowed. The Judge submitted that there was no other course of action the Claimant could have taken when faced with an uncooperative Defendant and that the only correct order was that the Respondent pay the Claimants costs of the application. The original order of DJ Iyer was varied and the Respondent was ordered to bear the costs of the order and the appeal which were summarily assessed.

The Judgement emphasises the important of the Pre-Action Protocols especially where a faced with an uncooperative Defendant. HHJ Holman’s reasoning in Sherrard was adopted in the current case and HHJ Armitage stated that unless the Claimant is going to take a chance on issuing there is no option but to make an application and costs should follow the event.

Gavin Redman
Associate Partner (non-lawyer)
Business Development
Express Solicitors

Image ©

All information on this site was believed to be correct by the relevant authors at the time of writing. All content is for information purposes only and is not intended as legal advice. No liability is accepted by either the publisher or the author(s) for any errors or omissions (whether negligent or not) that it may contain. 

The opinions expressed in the articles are the authors' own, not those of Law Brief Publishing Ltd, and are not necessarily commensurate with general legal or medico-legal expert consensus of opinion and/or literature. Any medical content is not exhaustive but at a level for the non-medical reader to understand. 

Professional advice should always be obtained before applying any information to particular circumstances.

Excerpts from judgments and statutes are Crown copyright. Any Crown Copyright material is reproduced with the permission of the Controller of OPSI and the Queen’s Printer for Scotland under the Open Government Licence.