Category Archive: Defendant

Insurance litigation team and its ‘exceptional’ department head confirmed as national leaders by Chambers 2019

The specialist insurance litigation team at law firm Sintons has again had its reputation as a national leader in its field confirmed through the ratings of Chambers 2019.

The team, which acts for a number of major UK insurers and has a reputation for its ability to handle the highest value and most complex claims, has again won a rating as one of the UK’s leading specialists in this area.

Jamie McCabe, head of insurance litigation, is ranked as a band one lawyer nationally, which confirms his position as one of the go-to lawyers in this field in the UK. Hailed as “highly respected”, Chambers hails him as being “exceptional” with “outstanding technical knowledge and tactical awareness”.

The findings of Chambers 2019 come only shortly after similar ratings from Legal 500 2018, which named Newcastle-based Sintons’ insurance litigation department as a top-tier provider, with Jamie McCabe as a leading individual.

Mark Quigley, managing partner of Sintons, said: “Our insurance litigation team is rightly regarded as one of the very best of its kind in the UK, in recognition of its outstanding capability in this highly specialist area. Jamie McCabe is regularly, and quite correctly, hailed as being one of the leading insurance litigation lawyers in the UK, and we are delighted with this latest recognition for him and his team.

“Both Chambers and Legal 500 once again point to the outstanding quality and capability of our insurance litigation offering, which confirms our place as being a regional and national leader in this area.”

Insurance Litigation team confirmed as UK Leaders in its field by Legal 500 2018

The specialist insurance litigation team at law firm Sintons has again been confirmed as one of the UK leaders in its field by Legal 500 2018.

The team, which acts for a host of major UK insurers from its Newcastle base, again wins a top-tier ranking from Legal 500, in recognition of its outstanding capability, particularly in regard to defending high-value claims, and ability to consistently “provide a personal and professional service”.

It is singled out for its work in claims with extra-territorial elements, including accidents abroad and settlements for claimants based outside of the UK.

“Extremely knowledgeable” Jamie McCabe, head of insurance litigation, is once again recognised as a leading individual. Senior associate James Fisher is named as a future generation lawyer for a second consecutive year, in recognition of his outstanding work and potential.

Partners Frank Matthewson and Tim Smith are also recommended for their work.

Mark Quigley, managing partner at Sintons, said: “Our insurance litigation department is rightly regarded as being one of the key names nationally in this highly specialised area, with Jamie and his team having unrivalled capability to handle the most complex of claims.

“We are delighted with this latest endorsement from Legal 500, which recognises both our legal capability and outstanding levels of personal service.”

Insurance litigation team, and its ‘superlative’ head Jamie McCabe, hailed by Chambers 2018

The insurance litigation team at law firm Sintons has won further praise for its work through the release of Chambers 2018, with its head of department Jamie McCabe again being hailed as one of the leading lawyers in the UK.

The team, recently hailed by Legal 500 as being “absolutely outstanding”, has now been praised by Chambers as being a leading name nationally in providing litigation services to insurers.

Sintons’ insurance litigation team is well-known as being a leader in its field, and counts a number of major UK insurers as clients.

Jamie McCabe, head of the insurance litigation team, is frequently cited as being one of the best in the business, and he has again been rated by Chambers as a Band One lawyer – one of the very best in the UK – for his “superlative tactical and negotiation skills”.

Mark Quigley, managing partner of Sintons, said: “Our insurance litigation team is widely regarded as being one of the best in the UK, with Jamie McCabe also known as one of the most capable lawyers in his field, so we are very pleased that again their work is being recognised in the highest terms.

“Our vision as a firm is to set the standard for legal excellence, and in doing so, to become the law firm of choice for individuals, businesses and individuals regionally and nationally. We are pleased that the latest Chambers rankings, coming so soon after our exemplary Legal 500 ratings, offer further proof that we are making great strides towards achieving that.”

Sintons’ insurance litigation team hailed as ‘absolutely outstanding’ by Legal 500 2017

The insurance litigation team at law firm Sintons has been hailed as being “absolutely outstanding” by Legal 500 2017, which again ranks the department as one of the best of its kind.

The nationally-acclaimed team, led by Jamie McCabe, won praise from Legal 500 for its unrivalled capability and client-centric approach. The insurance litigation team acts for a host of well-known UK insurers and is known for handling matters of the greatest of complexity.

“Market leader” Jamie McCabe – again named as one of the leading lawyers in the North of England – attracts particular praise as a “superlative negotiator with an analytical brain”.

Client testimonials gathered by Legal 500 point to his “thorough, professional and knowledgeable approach” and his “approachability and attention to detail, which are second to none”.

James Fisher, an associate in the insurance litigation team, was highlighted by Legal 500 as a ‘next-generation lawyer,’ which hails the young legal professionals in the North of England deemed to have the greatest potential.

Legal 500 is widely regarded as the clients’ guide to the best law firms and top lawyers in the UK. Research is based on feedback from clients, submissions from law firms and interviews with leading lawyers and a team of researchers who have unrivalled experience in the market.

Mark Quigley, managing partner of Sintons, said: “The insurance litigation team at Sintons is well known across the UK for its outstanding capability and client service and has an almost unrivalled reputation in this field. We are very pleased this is recognised by Legal 500, alongside Jamie’s work and leadership of the team.

“Our vision as a firm is to set the standard for legal excellence and in doing so to become the law firm of choice for individuals, businesses and organisations regionally and nationally. Our insurance litigation team is one of a number of areas in which we are making great strides in achieving this.”

Ministry of Justice publishes response to soft tissue injury claims consultation

The Ministry of Justice has now published the first part of the government’s response to the recent consultation on Reforming the soft tissue injury (‘whiplash’) claims process.

A copy of the full response is available here.

The response contains a number of important policy decisions which will shape the future of soft tissue injury claims, and which insurers should note.

  • Introduction of fixed PSLA awards for soft tissue injuries lasting up to two years

The government has indicated that new fixed awards will be set in respect of PSLA in soft tissue injuries. The levels of compensation will be as follows:

Duration of injury

Amount of award

0 – 3 months

£225

4 – 6 months

£450

7 – 9 months

£765

10 – 12 months

£1,190

13 – 15 months

£1,820

16 – 18 months

£2,660

19 – 24 months

£3,725

  • Flexibility for judges to increase / decrease awards in exceptional circumstances

Judges will be provided with discretion to increase awards in ‘exceptional circumstances’.

The government response indicates that it is not intended to define ‘exceptional circumstances’ in legislation; this will be left to the discretion of the courts.

It is anticipated that this area of uncertainty may prove to be the source of satellite litigation.

Judges will retain the power to reduce awards to reflect contributory negligence.

  • Prohibition of offers to settle without medical evidence

The government response has indicated an intention to bring forward legislation to ban insurers from making offers to settle cases without medical evidence in road traffic accident cases involving whiplash claims only.

It is proposed that there will be no exemptions from this prohibition, which is planned will be enforced by the relevant regulators.

  • Increase in small claims limit for RTA personal injury claims to £5,000

The response indicates an intention to increase the small claims limit for RTA related claims to £5,000.

  • Increase in small claims limit for non-RTA personal injury claims to £2,000

The government report indicates an intention to increase the small claims limit for non-RTA related personal injury claims to £2,000.It is further stated that the small claims limit will be kept under review in respect of all personal injury claims, and the government will consider whether a future increase in the small claims limit to £5,000 is warranted in respect of all personal injury claims.

The government has given a preliminary indication that the above measures will be implemented as a package on 01 October 2018.

These reforms are likely to result in not only a reduction in damages paid in soft-tissue injury claims, but in a fall in the overall volume of such claims.

To find out how we can assist you, please contact us at any time. One of our team of specialist lawyers will be happy to discuss your requirements or answer any queries.

Court of Appeal refuses permission to appeal High Court decision regarding discount rate announcement

Insurers will be aware that, on 07 December 2016, the Lord Chancellor announced her intention to make an announcement regarding the discount rate for awards of personal injury damages by 31 January 2017.

The Association of British Insurers made an application to the High Court on 20 January 2017, seeking permission for judicial review of the Lord Chancellor’s decision to announce the result of her review of the discount rate by 31 January 2017.

The ABI also sought an interim injunction to prevent the Lord Chancellor from making any such announcement until the judicial review proceedings had concluded.

Judgment was given by Baker J on 20 January 2017, in which the ABI’s application for judicial review was rejected.

The ABI made a subsequent further application to the Court of Appeal for permission to appeal the High Court Judgment.

This application was dealt with by Sales LJ on 26 January 2017; permission to appeal has been refused, on the basis that the grounds of appeal had no prospects of success. A copy of the Order of Sales LJ is available here.

It is therefore expected that the Lord Chancellor will proceed to make her announcement regarding the discount rate on 31 January 2017. Insurers will no doubt be anxiously awaiting the Lord Chancellor’s decision, and will be reviewing existing cases in light of the outcome of her announcement.

To find out how we can assist you, please contact us at any time. One of our team of specialist lawyers will be happy to discuss your requirements or answer any queries.

Court considers definition of racing for purposes of policy interpretation

The recently available judgment in the case of Sian Pinn and another -v- Jia Guo and others (Swansea County Court, 11 April 2014) provides useful guidance for insurers when considering the definition of the term ‘racing’ when considering the scope of cover provided pursuant to a policy of motor insurance.

The case arose out of an accident in January 2011.

The First and Third Defendants (who were insured by the Second and Fourth Defendants, respectively) were the drivers of vehicles which had attended a ‘car cruise’ event in Port Talbot. The event took place on a deserted stretch of road adjacent to a number of factories.

The First and Third Defendants took up position at one end of the road, and an individual acted as a starter. When the starter had signalled, both vehicles accelerated away quickly.

The Claimants were spectators on the pavement at the side of the road who intended to film the event.

The First Defendant lost control of the vehicle, struck the kerb and collided with the Claimants. Both the First and Third Defendants were convicted of driving offences. Subject to defences of volenti non fit injuria, ex turpi causa non oritur actio and arguments of contributory negligence against the Claimants, it was accepted that the First and Third Defendants were likely to be jointly and severally liable to the Claimants.

The Second Defendant successfully obtained a declaration pursuant to section 152(2) of the Road Traffic Act 1988, thus avoiding the policy from inception, and limiting its involvement to that of Article 75 insurer.

The Fourth Defendant contended that its policy contained an exclusion from cover ‘while the automobile is used for commercial travelling, racing, racing, pacemaking, speed testing or the carriage of goods or samples in connection with any trade or business…

It was accordingly argued that, as the vehicle was being used for ‘racing’ at the time of the accident, the Fourth Defendant was under no obligation to meet the claim, either as contractual insurer or pursuant to the terms of the Road Traffic Act 1988, and would thus also be limited to Article 75 status.

In giving judgment, HHJ Vosper QC was obliged to consider the definition of the term ‘racing’ when determining whether the use of the vehicle at the time of the accident fell within the scope of the Fourth Defendant’s policy.

Whilst the judge accepted that ‘racing’ may have different meanings, in interpreting the policy it was necessary to exclude activities which were plainly intended to be covered by the policy.

For example, he considered that ‘“racing home” is not, in my judgment, racing at all. The word is being used in that context as a synonym for rushing or hurrying; there is no competitive element…

He also considered the example of two drivers accelerating away from traffic lights: ‘Pulling away from traffic lights is more difficult. There may be a competitive element but it would depend on the facts of the case. Probably the absence of a clear course or finishing point would lead a court to conclude that this is not racing within the terms of the policy. It is simply the sort of driving in which many drivers engage. The point does not fall for determination in this case and will in any event depend upon the particular circumstances if it does arise’.

When considering the instant case, HHJ Vosper QC commented as follows: ‘The facts of the present case which are relevant are these. This was an arranged meeting. The First and Third defendants came from different parts of Wales. They lined up at the end of a long straight, deserted stretch of road in an industrial area at night. Someone acted as a starter and they then both accelerated away hard. The element of competition in those facts is obvious.

He concluded that, considering the terms of the policy as an ordinary man might do, the parties would reasonably have understood that the policy did not cover the sort of competitive driving that was engaged in on the night of the accident, and accordingly the driving of the Third Defendant fell outside the scope of the insurance cover.

This judgment provides helpful clarification for insurers seeking to rely on exclusion clauses relating to racing. This is often relevant if looking to avoid liability under section 151 of the Road Traffic Act 1988.

Whilst the application to any particular scenario will be fact sensitive, the case does outline that an element of competitive driving is required. Although formal ‘racing’ is perhaps easy to identify, other spontaneously ‘competitive’ driving between road users will be more difficult to classify as ‘racing’.

Though the judge’s comments are, strictly, obiter, HHJ Vosper QC does indicate that ‘the absence of a clear course or finishing point’ is likely to lead to the conclusion that driving does not constitute racing. This is likely to make it more difficult for insurers seeking to rely on a ‘racing’ exclusion where there is simply spontaneously competitive driving between road users.

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Dependants loss of earnings not recoverable in fatal accident claim

The decision of Mr Justice Jay in the case of Rupasinghe -v- West Hertfordshire Hospitals NHS Trust [2016] EWHC 2848 (QB) provides a helpful reminder and illustration of the principle that a dependant’s loss of earnings are not a recoverable head of loss in a fatal accident claim.

The claim arose from the death of the deceased in November 2010, aged 33, as the result of the Defendant’s admitted breaches of duty. A claim was pursued by the wife of the deceased on behalf of the estate.

The couple were of Sri Lankan origin, but moved to the UK in 2006 to pursue their careers. They subsequently had two children who were born in 2007 and 2010.

Following the death of the deceased, his wife took the decision to relocate back to Sri Lanka with her young children, in order that she was closer to her parents and wider family, who would be able to support her.

At trial, most of the heads of loss had been agreed; however, the parties were in dispute as to the alleged loss of earnings of the deceased’s wife.

Prior to moving to the UK, the deceased’s wife had completed the first part of her medical training in Sri Lanka. It was intended that, after the birth of the couple’s second child, she would have returned to speciality training, probably in the field of general medicine, with a view to qualifying as a consultant in 2019.

It was argued on behalf of the Claimants that the deceased’s wife had sustained a loss of income which had necessarily arisen as the result of the need to relocate to Sri Lanka to access family support.

Jay J reiterated that it is well established by case law that a free standing claim in respect of a dependant’s loss of earnings falls outside of the scope of Fatal Accidents Act 1976. The legislation only allows an award of damages in respect of benefits which would have accrued to the dependants had the deceased survived.

The Court deemed that the claim advanced on behalf of the Claimants was properly considered part of the claim for dependency on services (which had already been concluded).

Jay J commented:

Ordinarily, the court approaches the quantification of a services dependency claim by considering the cost of replacing the services formerly provided by the Deceased. In some situations, it is appropriate to approach this exercise by looking to the cost of furnishing commercial care in the form of nannies, au pairs, child-minders or the like. In other situations, the claim is in essence one for gratuitous care, and the authorities make clear that commercial rates fall to be discounted to reflect that…

In [other] appropriate situations, the court values the services formerly provided by the deceased with reference to the earnings foregone by the claimant in order now to furnish these services herself or himself. This is not a claim for loss of earnings in the strict sense; it is a claim for loss of services but using the surviving partner's earnings as a proxy or surrogate measure for the value of the services foregone.

Therefore, whilst the courts may sometimes utilise loss of earnings to evaluate a claim for dependency on services, this is merely a method of quantifying the value of services which have been lost. There is no separate claim for loss of earnings.

In the instant case, because the head of loss relating to dependency on services had already been compromised by prior agreement, accordingly, no further sum was awarded.

This judgment is a useful reminder of these important principles for practitioners.

To find out how we can assist you, please contact us at any time. One of our team of specialist lawyers will be happy to discuss your requirements or answer any queries.

Lord Chancellor announces that decision on discount rates will be published by 31 January 2017

The Ministry of Justice has confirmed that the results of a long-awaited review of the discount rates for calculating personal injury compensation will be published by 31 January 2017.

The consultation into proposed changes closed in 2012, and a decision has been outstanding ever since.

The discount rate, which is currently 2.5%, is set by the Lord Chancellor, and the current rate has been in place since 2010.

The purpose of the discount rate is to ensure that compensation payments reflect the investment return which the recipient can be expected to achieve on a lump sum payment which is received in respect of future losses which are yet to be incurred.

APIL has been campaigning for a number of years that the existing rate of 2.5% does not accurately reflect current returns on risk-free index-linked government investment bonds. It has therefore been arguing that claimants are unfairly penalised, and that the rate should be reduced.

Whilst the result of the announcement is awaited, in the event that there is a reduction in the discount rate, this will have a significant impact upon awards of damages for future losses, as multipliers for future loss will increase.

Taking, for example, the multipliers for future losses from Table 1 of the Ogden tables (7th Edition), for a male aged 20 years at the date of trial, the following effect can be seen:

Discount rate:

Table 1 multiplier for male aged 20 years:

% change:

2.5% (current)

32.10

n/a

2.0%

36.41

+13.4%

1.5%

41.73

+30.0%

1.0%

48.35

+50.6%

0.5%

56.66

+76.5%

The effects of such a change would be likely to impact the appetite of both claimants and insurers to conclude claims with significant future losses on a lump sum basis (compared to settling by way of periodical payment orders).

In the event that there is a change in discount rates, insurers will no doubt need to review reserves held, to take into account the effect on awards in respect of future damages. In addition, the protectiveness of Part 36 offers may need to be reconsidered.

In the short term, the uncertainty about the outcome of the result in January may impact the willingness of claimants to settle claims, as a reduction in discount rates could significantly increase the value of future losses.

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Court provides guidance as to the correct administration of awards of damages where a claimant lacks capacity

In the interesting judgment in the case of Watt -v- ABC [2016] EWHC 2543 (COP), the Court of Protection gave guidance as to the relevant issues to consider when dealing with cases involving claimants who may lack mental capacity to deal with an award of damages.

The decision of Mr Justice Charles arose in the context of a Court of Protection hearing to decide whether funds of circa £1.5 million received in settlement of a claim by an individual who lacked capacity should be dealt with by the appointment of a professional deputy or by the creation of a trust.

Although this case was heard after the settlement of the personal injury claim, the judge provided clarification of the previous Court of Protection decision in SM -v- HM [2011] EWCOP B30, and also guidance as to the issues that should be considered during the course of personal injury claims, where the issue of capacity to manage a damages award needs to be considered.

Charles J confirmed that, in his view, the correct interpretation of the decision in SM -v- HM is not that it is authority for the proposition that there is a strong presumption in favour of the appointment of a deputy over the creation of a trust.

He reiterated that it is important to consider all of the factors, in particular the breakdown risks (ie that the Claimant’s relationship with a deputy could break down) and vulnerability risks (ie the risk that the Claimant would be vulnerable to inappropriate outside influence).

The judge also commented that, in personal injury cases, where there is a difference between the parties as to the most appropriate manner in which any post settlement award should be managed, ‘the parties should provide a reasoned or particularised comparison between the rival options and so they need to be identified with appropriate particularity’.

He provided a helpful summary of the issues that litigating parties should address, as follows:

  • The management regime for a substantial award of damages should be considered as soon as is practicable.
  • This will involve a careful consideration of the what the Claimant (P) has and does not have the capacity to do and of his or her likely capacity and / or vulnerability in the near future. This is relevant to both jurisdictional and best interests issues.
  • It will also involve the identification of all relevant competing factors and should not proceed on the basis that there is a strong presumption that the COP [Court of Protection] would appoint a deputy and would not make an order that a trust be created of the award. Rather, it would balance the factors that favour the use of the statutory scheme relating to deputies (that often found the appointment of a deputy in P’s best interests) against the relevant competing factors in the case.
  • It will also involve the identification of the terms and effects (including taxation) and the costs of those rival possibilities.
  • Care should be taken to ensure that applications that are not straightforward are not decided by case officers in the COP but are put before judges of the COP.
  • The possibility of listing case management hearings or the final hearings of QB proceedings before a judge who is also nominated as a COP judge should be considered. However, the potential for conflict between the respective roles of the judge in the two courts (e.g. one arising from a consideration of without prejudice communication in respect of the QB proceedings concerning its settlement that is not agreed or not approved by the COP judge) and the respective jurisdictions of the two course need to be carefully considered.

This judgment provides useful guidance of the issues that need to be considered in relation to cases where there is a possibility that a claimant may lack capacity to deal with a significant award of damages. In the event that experts are being instructed to advise upon the appropriate mechanism for controlling the damages award (and the costs of the same), it serves as a useful reminder of the issues that they will need to address, alongside input from the medical experts in relation to the issue of the extent of the claimant’s lack of capacity.

To find out how we can assist you, please contact us at any time. One of our team of specialist lawyers will be happy to discuss your requirements or answer any queries.

Qader v Esure Court of Appeal rules that fixed costs regime will not apply to claims allocated to the multi-track

Hot on the heels of the Court of Appeal’s decision in Bird -v- Acorn (also concerning the interpretation of the application of fixed costs rules under CPR Part 45 Section IIIA), the Court of Appeal has now handed down its judgment in the case of Qader and others -v- Esure Services Ltd [2016] EWCA Civ 1109.

The case related to a low value RTA claim which was commenced in the MOJ Portal, pursuant to the Pre-Action Protocol for Low Value Personal Injury Claims (ie for claims with a value of between £1,000 and £25,000).

Pursuant to CPR Part 26.6(4), the fast track is the usual track for claims with a value of between £1,000 and £25,000; as Briggs LJ comments in his judgment, ‘there is [therefore] an initial apparent symmetry between the scope of the Protocols and the fast track, in terms of the amount claimed.

However, there are a number of situations in which claims properly commenced under the Protocol, but which subsequently exit the procedure to be pursued under CPR Part 7, are likely to be allocated to the multi-track, rather than the fast track. Such situations could include:

  • cases which were initially valued at no more than £25,000, but have subsequently been re-valued at a higher level;
  • cases in which there are claims in relation to vehicle related damage (which are excluded from the valuation of a claim for the purposes of the application of the Protocol); and
  • cases which are correctly commenced in the Portal, but the defendant subsequently raises allegations of fraud or dishonesty.

As the Court of Appeal noted, ‘[a] problem arises because there is nothing in Part 45.29 which expressly limits the fixed costs regime applicable to cases started but no longer continuing under the relevant Protocol to fast track cases, or which excludes the fixed costs regime when a case is allocated to the multi-track’.

In this case, the Defendant contended that the language of CPR Part 45.29A and 45.29B unambiguously apply the fixed costs regimes to all cases which start within the relevant Protocols, notwithstanding that the claims may no longer continue under them.

The Court of Appeal accepted that the drafting of the rules by the Civil Procedure Rules Committee represented an ‘apparent failure to implement the continuing intention … to exclude multi-track cases from the fixed costs regime being enacted for cases leaving the RTA and EL / PL Protocols’.

Briggs LJ therefore ruled that: ‘The best way to give effect to that intention seems to me to be to add this phrase to Part 45.29B, after the reference to 45.29J: “… and for so long as the claim is not allocated to the multi-track…”’.

Whilst the decision appears to go against the unambiguous wording of the rules as drafted, the Court of Appeal’s decision does serve to align the apparent incongruity between the scope of the RTA Protocols, the appropriate tracks for personal injury litigation, and the relevant costs regime that is applicable.

Insurers should note that this case effectively removes arguments that fixed costs should apply where claims are allocated to the multi-track. Going forward, it will therefore be necessary to be well prepared for arguments in borderline cases (ie those close to the fast track value limit) about the appropriate track at the allocation stage.

We anticipate that there will be a greater incentive for claimants’ solicitors to contend for allocation to the multi-track in such borderline cases. Ideally, therefore, insurers will be in a position to serve evidence prior to allocation, to support the assertion that claims have a value of less than £25,000, or are otherwise suitable for allocation to the fast track.

It remains to be seen what approach will be taken by the Courts, and the willingness of judges to hear arguments about allocation to track at case management hearings.

To find out how we can assist you, please contact us at any time. One of our team of specialist lawyers will be happy to discuss your requirements or answer any queries.

Bird v Acorn Court of Appeal confirms that disposal hearing is a trial for the purposes of calculating fixed costs entitlement

In the much anticipated judgment in Terrance Bird -v- Acorn Group Limited [2016] EWCA Civ 1096, the Court of Appeal has provided clarification as to the correct interpretation of the tables in CPR 45.29C (RTA claims) and 45.29E (EL / PL claims), when calculating the fixed costs payable.

The case concerned a claim which had been commenced pursuant to the pre-action protocol for low value employer’s liability / public liability claims. In the absence of a response from the defendant, the claim exited the MOJ Portal.

Whilst the parties subsequently agreed liability, the issue of quantum remained in dispute.

Proceedings were issued in the County Court Money Claims Centre, but were subsequently transferred to Birkenhead County Court. The Court then listed the matter for a disposal hearing immediately, without any formal allocation to track. The claim ultimately settled prior to the hearing.

The outstanding issue remained as to what would be the relevant fixed costs payable under Table 6D Part B, in CPR 45.29E.

The Claimant contended that the correct fees payable were those in Column 3 (ie where the case settles ‘on or after the date of listing but prior to the date of trial’). It was argued that the listing of a disposal hearing was the listing of a ‘trial’ for the purposes of the rules. The result was that the fixed costs payable would be the total of £4,280.00 plus 30% of the agreed damages.

The Defendant argued, referring to CPR 45.29E(4)(c), that ‘a reference to ‘trial’ is a reference to the final contested hearing’. It was submitted that it could not be said that the disposal hearing would necessarily be a final hearing – as the Court may utilise the hearing for the purpose of giving directions.

Briggs LJ, giving the lead judgment, accepted that a disposal hearing as a ‘trial’, and therefore that the Claimant would be entitled to the (higher) costs in Column 3 of Table 6D Part B.

It was accepted that, notwithstanding that the disposal hearing may simply be used to give directions, Claimant’s solicitors may have had to commence work to prepare the case for the disposal hearing, which might include finalising evidence or other preparations equivalent to preparing for trial.

This judgment, whilst relating to an employer’s liability claim, will apply equally to public liability and RTA claims.

Insurers will need to be aware of the increased costs payable, particularly in claims from regions in which the practice of local court centres is to list cases for disposal hearings. In such cases, making early protective offers of settlement will be even more important in order to encourage early settlement and limit the total costs exposure.

To find out how we can assist you, please contact us at any time. One of our team of specialist lawyers will be happy to discuss your requirements or answer any queries.

Defendant entitled to rely upon surveillance evidence served three months pre-trial

In the decision in Stewart -v- Kelly (Lawtel 31/10/2016), Blake J has provided further guidance concerning the admissibility of surveillance evidence.

The claim arose from a road traffic accident; liability was admitted by the defendant, but quantum was disputed. The Claimant alleged that he was suffering from continuing neck and back pain. A trial date was fixed for November 2016, and it was ordered that the Claimant serve a final witness statement in May 2016.

The Claimant’s final statement set out particulars regarding pain, and inability to carry out household tasks, bath his young children or wash his car.

The Defendant had obtained surveillance evidence on various dates between 2013 and 2015, however following receipt of the Claimant’s final witness statement, further surveillance footage was obtained in July 2016.

The Defendant served unedited surveillance footage, together with statements from the surveillance operatives, in August 2016. The Claimant objected to the introduction of the footage, and so the Defendant applied to the Court for permission to rely upon the same.

The claimant contended that the objections to the surveillance evidence were valid. It was asserted that the Defendant’s application should have been made sooner, that it was not appropriate for the Defendant to wait until service of the Claimant’s witness statement to disclose the surveillance, and that the surveillance evidence had been served too late to preserve the trial date in November 2016.

In considering the case, Blake J applied the reasoning set out in the judgment of Foskett J in the case of Hayden -v- Maidstone & Tunbridge Wells NHS Trust [2016] EWHC 1121 (QB).

The judge accepted that a defendant ‘is entitled to wait until a claimant has pinned his colours to the mast’. In the instant case, Blake J accepted that this was when the Defendant had been served with the Claimant’s final witness statement, which set out the extent of his purported difficulties.

He further accepted that the Defendant had acted properly and quickly in deciding to obtain further surveillance evidence in July 2016, and by serving the evidence in August 2016. The judge considered that it was reasonable for the Claimant and his medical experts to be able to respond to the evidence in the three month window before trial; there had been no ‘ambush’ or undue delay by the Defendant.

The Claimant could and should have provided the evidence to his experts; it was not appropriate for the Claimant to simply wait for the Court’s determination of the Application before taking steps to respond to the surveillance evidence.

This is a helpful decision for insurers seeking to rely on surveillance evidence when defending personal injury claims. It supports the proposition that a claimant cannot simply ‘sit back’ and await the Court’s determination of the issue of admissibility of surveillance evidence, but must take active steps to ensure that trial dates may be complied with.

However, it also serves as a reminder that a defendant seeking to rely upon surveillance evidence must act promptly to serve footage once a claimant has committed him or herself to a final position (whether by way of witness evidence, or a final Schedule of Loss endorsed with a statement of truth).

To find out how we can assist you, please contact us at any time. One of our team of specialist lawyers will be happy to discuss your requirements or answer any queries.

Jamie McCabe hailed as a leading individual by Chambers 2017

The head of Sintons’ nationally-renowned insurance litigation team has again been confirmed as one of the UK’s leading lawyers in his field, with Chambers 2017 hailing him as an “extraordinary solicitor”.

Jamie McCabe has been named as one of only eight lawyers across the whole UK to be named in Band 1 of Chambers’ Personal Injury listings, in recognition of his capability in defending clients against catastrophic injury claims.

Consistently named as one of the UK’s leading lawyers over the past few years, Jamie has been praised by Chambers 2017 for his “excellent attention to detail and negotiation skills” and his ability to “pick up really little technical points that can make or break a case”.

Earlier in the year, Jamie was named as a leading individual by Legal 500, with the insurance litigation team hailed as being one of the leading departments of its kind in the North of England.

Sintons has a national reputation for its work in insurance litigation, and acts for some of the UK’s leading major insurers.

Alan Dawson, Chairman of Sintons, said: “The new Chambers listings are a further endorsement of the huge and nationally-recognised capability of our insurance litigation team, and of its practice head, Jamie McCabe. Jamie has quite rightly been described as an extraordinary legal talent, who has built an unrivalled team here at Sintons which works with some of the biggest names in the UK insurance world.

“The recent Legal 500 and now Chambers rankings are the latest confirmation that Sintons are truly leading the way nationally, offering legal excellence combined with outstanding levels of service to our clients.”

Court clarifies role of costs budgets upon detailed assessment

In the case of Valerie Merrix -v- Heart of England NHS Foundation Trust, District Judge Lumb, the Regional Costs Judge for Birmingham, has provided helpful guidance on the effect of costs budgets when undertaking detailed assessment of costs.

The case arose out of a clinical negligence claim. The successful claimant (receiving party) sought to argue that, where costs claimed in the Bill of Costs were at or less than the figure provided for in the relevant phase of the Claimant’s approved costs budget, they should be assessed as claimed without further scrutiny.

In contrast, the defendant (paying party) argued that costs budgeting was not intended to replace the detailed assessment process, and that the approved budget was merely one factor that the assessing costs judge could take into account.

Accordingly, a preliminary issue was put to the court, namely the question: ‘To what extent, if at all, does the costs budgeting regime under CPR Part 3 fetter the powers and discretion of the costs judge at a detailed assessment of costs under CPR Part 47’.

In a reasoned judgment, DJ Lumb commented that he accepted the defendant’s submission that costs budgeting was not intended to replace detailed assessment. The introduction of costs budgeting had merely seen a revision to CPR 44.4(3) to include an additional factor for the court to consider upon detailed assessment: ‘the receiving party’s last approved or agreed budget’.

The judge also commented that the wording of CPR PD 3E para 7.3 expressly states that, at a costs management hearing: ‘When reviewing budgets, the court will not undertake a detailed assessment in advance’. DJ Lumb commented that this indicates that the detailed assessment process must be available at the conclusion of the case.

In addition, the judge indicated that he did not accept that, as the claimant argued, where costs claimed were at or less than the budgeted figure, the effect of CPR 3.18(b) (ie that the court will ‘not depart from [a party’s] approved or agreed budget unless satisfied that there is good reason to do so’) was that those costs should be awarded without further assessment.

DJ Lumb has clarified that a party’s budget provides an ‘available fund’ which has been allocated to a particular phase of litigation. Accordingly, if a party has incurred costs below the amount allowed in particular phase, this is not a ‘departure’ from the budget, for the purposes of CPR 3.18. He indicated: ‘In the context of CPR 3.18 where the budget has not been revised by the Court before assessment, a departure in practical terms has to be something outside the original budget, which can only be to a sum in excess of the amount allowed for a phase and therefore must be upwards only.

In summarising, the judge commented that the strict answer to the preliminary issue in the case is that ‘the powers and discretion of a costs judge on detailed assessment are not fettered by the costs budgeting regime, save that the budgeted figures should not be exceeded unless good reason can be shown’.

He continued: ‘If the Claimant’s arguments were correct and that for large sections of a party’s costs the only opportunity to challenge those costs, absent “good reason”, would be at the CCMC those hearings would be at risk of being far lengthier than they already are. That cannot be consistent with the overriding objective of dealing with cases expeditiously at proportionate cost.

The judgment provides a useful reference point for paying parties seeking to argue that there is scope for further costs reductions on assessment, below the sum(s) allowed for in the receiving party’s approved budget. Whilst this is reassuring, the judgment is also a reminder that a party’s approved budget will remain one of the factors that a costs judge will take into account on assessment. It will therefore remain important for parties to take a proactive approach to costs management hearings, as this will remain the most effective method for ensuring control over costs of the litigation, and hence the overall indemnity spend.

To find out how we can assist you, please contact us at any time. One of our team of specialist lawyers will be happy to discuss your requirements or answer any queries.

Sintons’ insurance litigation team rated as one of the best in the North of England by Legal 500 2016

The insurance litigation team at Sintons has been rated as one of the best in the North of England by Legal 500.

The team, which act for a host of major UK insurance clients, was ranked in tier one of Legal 500 2016, with particular praise given to department head Jamie McCabe.

Jamie, regularly hailed as a leader in his field, was named as the leading individual in the North of England, with Legal 500 saying his “analytical mind and meticulous attention to detail makes him one of the best”.  

Frank Matthewson, Partner in the Insurance Litigation team, was also hailed as being “a specialist” in defending motor insurers in catastrophic injury claims.

The Legal 500 is widely regarded as the clients' guide to the best law firms and top lawyers in the UK. Research is based on feedback from clients, submissions from law firms and interviews with leading lawyers and a team of researchers who have unrivalled experience in the market. 

Jamie McCabe said: “For our team to be rated by Legal 500 as being one of the best in the North is another fantastic endorsement of our work and of the levels of capability and experience we have within the department.

“Providing high quality legal advice with exceptional personal service is the cornerstone of Sintons and we are delighted to have been recognised for this.”

High Court refuses permission for claimant to rely on counter surveillance evidence

The decision of the High Court in the case of Hayden -v- Maidstone & Tunbridge Wells NHS Trust [2016] EWHC 1962 (QB) is a helpful decision for insurers facing applications by claimants to rely upon ‘counter-surveillance’ evidence.

The case involved a claim by an employee against her employer in relation to a workplace accident. Shortly before trial, the Defendant served surveillance evidence, and the trial date was vacated.

The Claimant sought permission from the Court to rely upon the report of a ‘video evidence analysis consultant’ in response to the surveillance evidence.

In his judgment, Edis J refers both to the appropriate provisions of the CPR and also relevant legislation.

Pursuant to CPR Part 35.1:

Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.

Under section 3 of the Civil Evidence Act 1972:

3 – Admissibility of expert opinion and certain expressions of non-expert opinion.

1. Subject to any rules of court made in pursuance of this Act, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.

2. It is hereby declared that where a person is called as a witness in any civil proceedings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.

3. In this section “relevant matter” includes an issue in the proceedings in question.

The judge considered the earlier decision of Stadlen J in the case of Samson -v- Ali [2012] EWHC 4146 (QB) in which evidence from the same video evidence analysis consultant was permitted.

Edis J commented, however, that he did not feel that Stadlen J in Samson -v- Ali should be read as authority for the proposition that the video analysis evidence was necessarily admissible. He noted that the judge in that case did ‘not appear to have approached the issue purely as a matter of admissibility in law’.

He further noted that the video analysis consultant ‘principally seeks to give evidence of what he has seen when viewing the video footage and reading the surveillance logs. All he really says in addition to his factual analysis of what they show is that the operatives chose what to film and had the ability to decide when to film and when not to’.

The judge continued: ‘I do not believe that any knowledge or skill is involved in this exercise such as to subject its admissibility to the expert evidence threshold’.

He accepted that whilst factual analysis of the surveillance footage could be placed before the trial judge, expert evidence is only necessary to the extent that it assists the Court. If the judge is able to form his own conclusions without assistance, expert opinion is unnecessary and will therefore be excluded.

Whilst the judge further accepted that properly compiled expert evidence might be necessary if there were issues regarding – for example – the date / time stamping of video footage, he did not consider that the video analysis consultant in question had suitable technical expertise to assist on this issue.

The judgment provides a helpful reminder of the rules regarding admissibility of expert evidence, and is a welcome indication that the Courts are willing to take a firm line regarding evidence from ‘quasi’-experts, which does not provide any real assistance to the judge.

To find out how we can assist you, please contact us at any time. One of our team of specialist lawyers will be happy to discuss your requirements or answer any queries.

Failure to file costs budget limits PI claimant to recovery of court fees only

This judgment of the Court of Appeal in the case of Jamadar -v- Bradford Teaching Hospitals NHS Foundation Trust (Lawtel 21/07/2016) serves as an important reminder that the Courts will take a strict view in relation to cases in which parties fail to file and serve costs budgets.

The Claimant had received negligent medical treatment, resulting in the amputation of one of his legs; he presented a claim with a value of circa £3 million. The Defendant NHS Trust initially denied liability, following which the Court sent Form N149C to the parties, indicating that the case was suitable for allocation to the multi-track. The Defendant subsequently admitted liability, and the Court revoked the N149C, and listed the matter for a CMC.

The Defendant filed and served a costs budget, but despite requests, the Claimant did not do so in advance of the CMC.

At the CMC, directions were given, including for the appointment of experts in five disciplines, and a five day quantum trial. The Defendant’s costs budget was approved. As the Claimant had failed to file and serve a costs budget, it was ordered that, pursuant to CPR Part 3.14, his recoverable costs would be limited to applicable court fees.

The matter was initially appealed to a circuit judge who dismissed it, having considered the previous authorities of Mitchell -v- News Group Newspapers Ltd [2013] EWCA Civ 1537 and Denton -v- TH White Ltd [2014] EWCA Civ 906.

The Claimant’s further appeal to the Court of Appeal was dismissed. The Court accepted that the circuit judge had appropriately considered and applied the test in Denton.

It was firstly held that there had been a serious breach by the Claimant, which would result in there being a further CMC at which costs budgeting would be considered.

Secondly, both the district judge at first instance and the circuit judgment had rejected the explanation of the Claimant of the reasons for his default. The Court of Appeal would not look to interfere with this decision.

Finally, the decision of the lower courts that the third limb of the Denton test was not satisfied (ie considering all the circumstances of the case, it was not necessary to give relief from sanctions in order to deal with the case justly). Though it was accepted that some judges may have taken a less strict view, the decision taken by the circuit judge was within the range of discretion open to him.

This decision provides a reminder that the courts are willing to take a strict line in relation to procedural defaults. The result in this case is that the Claimant’s solicitors would not recover any costs for pursuing this £3 million claim. Whilst parties must be wary of being seen to take an opportunistic approach towards the procedural defaults of opponents, and hence falling foul of the criticism of the Court of Appeal at paragraphs [39] – [45], this is a useful case to cite as an example of a case in which breach of procedural rules has been strongly penalised.

On the opposite side of the coin, the case also serves as a warning that parties must take a proactive approach to the issue of costs budgeting, and be well prepared to file budgets in advance of CMCs, in accordance with CPR requirements.

To find out how we can assist you, please contact us at any time. One of our team of specialist lawyers will be happy to discuss your requirements or answer any queries.

Claimants fail to recover damages after jumping from taxi in attempt to avoid fare

The Court of Appeal has handed down its decision in the case of (1) Beaumont (2) O’Neill -v- Ferrer [2016] EWCA Civ 768, dismissing the Claimants’ appeal.

The case concerned six youths who had booked a taxi to take them into central Manchester, with the agreed intention to ‘jump’ the taxi, to avoid paying the fare.

When the taxi was nearing its destination, the rear nearside passenger door was opened, and three of the youths exited the taxi and fled. The Defendant then drove off with the remaining three occupants in the vehicle. The Claimants were in the rear seats, they had taken off their seatbelts, and the rear sliding passenger door remained open.

As the Defendant was driving away, both Claimants jumped out of the rear door of the taxi, with the intent to evade payment, and to join the others who had already left the vehicle.

It was accepted that the actions of the Defendant taxi driver were negligent. Although he was aggrieved at the prospect of losing his fare, there was no excuse for him driving away when the rear door of the vehicle was open, and the Claimant’s had unfastened their seatbelts. After the first three youths had fled, it was entirely foreseeable that the others would seek to do likewise.

The Court then looked at the issue of ex turpi causa. This is a contentious area of law which is currently subject to some divergence of opinion in the Supreme Court.

Longmore LJ, delivering the lead judgment, provides an analysis of the recent authorities.

He commented that, in this case, the Defendant was not a partner in the criminal joint enterprise of the Claimants (who sought to make off without payment); he should therefore be in a stronger position to contend that the ex turpi causa maxim is applicable than a defendant who was himself party to the criminal activity.

The Court indicated that ‘the crime of making away without payment was far from incidental (but integral) both to the claim itself and any negligence on the part of the driver’. Longmore LJ continued: ‘even if it could be said that the claimant’s injuries would not have happened but for the tortious conduct of [the Defendant], they were in reality caused by the claimants’ own criminal acts of making off without payment and … therefore, there should be no recovery.

The Court of Appeal further commented that this was not a case in which the criminal behaviour of the Claimants could be said to be ‘collateral’ the civil claim, and hence a case where the public policy arguments against allowing recovery could be said to be outweighed by the public policy issues inherent in the relevant civil law. Accordingly it was correct that the Claimants should not be able to recover from the consequences of their criminal conduct.

The issue of the ex turpi causa doctrine remains a contentious and developing area of law. The Court of Appeal’s further comments in this case will assist insurers, particularly in ‘fare jumping’ cases, however we anticipate that there will remain areas of uncertainty until an appropriate case comes before the Supreme Court, and further guidance is given upon the correct application of the principle.

To find out how we can assist you, please contact us at any time. One of our team of specialist lawyers will be happy to discuss your requirements or answer any queries.

Court awards damages for IVF following Claimants miscarriage in RTA

Mrs Justice Whipple’s judgment in the case of XP -v- (1) Compensa Towarzystwo SA (2) Prezeyslaw Bejger [2016] EWHC 1728 (QB) is a helpful decision which illustrates the Court tackling complex quantum issues in a case in which the Claimant was involved in multiple accidents.

The Claimant (referred to as XP in the anonymised judgment) was a Polish national who had been residing in the UK since 2000. She fell pregnant in January 2011, although her relationship with the child’s father subsequently broke down.

In April 2011, the Claimant was involved in a road traffic accident whilst visiting family members in Poland. As the result of the accident, she suffered a traumatic miscarriage, resulting in physical and psychiatric injury.

The Claimant returned to the UK where she resumed the relationship with the father of the lost child. However this relationship became abusive and lasted only a few months. The effect of this on the Claimant’s psychiatric state was disputed.

Whilst still suffering from the consequences of the accident in January 2011, the Claimant was involved in a second road traffic accident in March 2013. This caused an exacerbation of PTSD, orthopaedic injuries and other headaches and generalised pain. These symptoms lasted for approximately two years.

The Defendants in respect of both accidents admitted liability, however the parties disputed quantum, and the relevant contribution to the Claimant’s injuries and losses resulting from each of the respective accidents. To complicate matters further, damages in respect of the first accident fell to be assessed according to Polish law (pursuant to EC Regulation 864/2007 – ‘Rome II’).

Although the case deals with a number of heads of loss, there are three issues which are likely to be of particular interest to practitioners.

Firstly, the Defendants disputed how the Claimant’s past loss of earnings should be apportioned between them. During the two year period during which the Claimant was suffering from the effects of the second accident, the Claimant suffered loss of earnings of almost £43,000.

The Second Defendant argued that the Court should apply a ‘but for’ test, citing the case of Reaney -v- University Hospital of North Staffordshire Trust [2015] EWCA Civ 1119. It was argued that, in the absence of the second accident, the Claimant would have been prevented from working in any event, as the result of the continuing effects of the earlier injuries.

Whipple J differentiated the case from Reaney. It was not possible to separate neatly the effects of each accident, and the approach of the Court of Appeal in Rahman -v- Arearose Ltd and others [2000] EWCA Civ 190 was preferred.

The Court ruled that it could only say that the combined effects of the two accidents resulted in the Claimant being out of work for a period of two years. The judge ruled that it was appropriate to apportion 75% of the loss to the first accident and 25% to the second accident, such a split reflecting the judge’s assessment of the ‘causative potency of each incident’.

Secondly, the Court dealt with the Claimant’s claim against the First Defendant for three cycles of IVF treatment. The Claimant contended that, absent the first accident, she would have had a child.

The Court agreed that the miscarriage was consequent to physical injury sustained in the accident. It was further accepted that the Claimant’s fertility was decreasing over time. By the time of assessment of damages in 2016, she was aged 40 years, and hence her fertility had declined since 2011, and would continue to decrease. The judge agreed that due to the passage of time, the Claimant could no longer afford to wait for a new partner or better circumstances before looking to conceive naturally. IVF treatment was therefore considered necessary to restore the Claimant to her pre-accident position.

Whilst the decision on this head of loss was, strictly speaking, a decision based on the judge’s application of Polish law, it is likely to be cited by future claimants in similar circumstances in cases in England and Wales.

Finally, practitioners will note the Court’s decision in relation to future loss of earnings. Given the uncertainty about future employment aspirations, particularly in view of the Claimant’s desire to have another child, it was difficult to predict if and when the Claimant would rejoin the workforce. Whipple J instead opted to make a broad-brush Blamire-type award of £150,000, calculated on the basis of 3-4 years’ net loss of earnings, together with an additional amount to reflect an ongoing additional shortfall in earnings capacity during the remainder of the Claimant’s working life.

To find out how we can assist you, please contact us at any time. One of our team of specialist lawyers will be happy to discuss your requirements or answer any queries.

Proportionality: a new approach by costs judges?

Two recent judgments in the cases of BNM -v- MGN Ltd [2016] EWHC B13 (Costs) and May and others -v- Wavell Group plc [2016] EWHC B16 (Costs) appear to suggest a marked change in philosophy by the Courts when dealing with the question of proportionality of costs, which are likely to be of significant importance to paying parties going forward.

The case of BNM -v- MGN Ltd involved a primary school teacher, with no public or media profile, who was involved in a relationship with a premiership footballer between 2008-2011.

Information regarding the relationship was obtained by the Sunday People newspaper. The Claimant successfully obtained an anonymity order and subsequently agreed a consent order with the defendant newspaper in which she would be paid damages of £20,000, and the newspaper would undertake not to use or publish the confidential information. The Defendant also agreed to pay the Claimant’s costs.

The Claimant had instructed solicitors and counsel under CFAs (providing for a success fee uplift of 60% in respect of solicitors’ fees and 75% in respect of counsel’s fees); she also obtained an ATE insurance premium (£58,000 plus insurance premium tax). Total costs claimed were in the sum of £241,817.

At the detailed assessment hearing, conducted by Master Gordon-Saker (senior costs judge), the Court found that the total costs reasonably and necessarily incurred came to £167,389.45 following a ‘line by line’ assessment

The costs judge then considered the issue of proportionality. He concluded that the total of £167,389.45 was disproportionate, and reduced the amount of costs allowed to £83,964.80 (ie around 35% of the total costs claimed).

The judge referred to the provisions of CPR 44.3, which contain the relevant paragraphs relating to proportionality:

CPR 44.3(5) Costs incurred are proportionate if they bear a reasonable relationship to –

(a) the sums in issue in the proceedings;

(b) the value of any non-monetary relief in issue in the proceedings;

(c) the complexity of the litigation;

(d) any additional work generated by the conduct of the paying party; and

(e) any wider factors involved in the proceedings, such as reputation or public importance.

Master Gordon-Saker went on to confirm that, not only does the proportionality requirement apply to base costs, but it also applies to additional liabilities (ie CFA success fees and ATE premium costs).

In view of the value of the settlement (including the importance of the non-monetary remedy), the lack of complexity or wider importance, and the early stage at which the claim concluded, the Court felt that a significant reduction in recoverable costs was appropriate.

Master Gordon-Saker acknowledged that there is little guidance on how the new proportionality test would be applied. He accepted that there was no fixed rule that costs could not exceed the sums in issue in the case, and that there would be cases in which costs could be proportional even if they outweighed the damages.

This decision was shortly followed by the judgment in the case of May and others -v- Wavell Group plc and others.

This case involved a claim by Brian May (guitarist with the rock group Queen) for nuisance against the developer and owner of a neighbouring property who was seeking to install a ‘mega-basement’.

The case quickly settled for the sum of £25,000. The Claimants subsequently presented a Bill of Costs in the total sum of £208,236.54.

Master Rowley initially carried out an assessment of the reasonableness of the costs on a line by line basis, resulting in a total figure of £99,655.74. Again, however, he subsequently considered the test required by CPR 4.3(2)(a), which was to consider whether the reasonable sum calculated was also a proportionate sum. The Master also referred to the relevant issues set out in CRP 44.3(5) (see above).

Following a consideration of all the issues, the Master ordered that the proportionate costs order would be limited to £35,000 plus VA (circa 20% of the total Bill of Costs).

Clearly, the courts’ new approach to the issue of proportionality (which has now been endorsed by the senior costs judge) demonstrates that judges are willing to make very significand reductions in cases in which costs claimed are disproportionate. The clarification that the test of proportionality also applies to additional liability should also be welcomed.

It remains to be seen how the courts will apply the proportionality test in personal injury litigation, but it will prove to be a useful tool for paying parties, and will create a significant element of risk for receiving parties should they pursue mattes to detailed assessment.

To find out how we can assist you, please contact us at any time. One of our team of specialist lawyers will be happy to discuss your requirements or answer any queries.

Pedestrian found wholly to blame for running into the path of oncoming motorcycle

The Court of Appeal in Darren Scott -v- Nicholas Joseph Gavigan [2016] EWCA Civ 544 upheld a first instance decision that a drunken pedestrian who had run into the path of a moped had been wholly responsible for the accident.

The claim involved an accident which occurred in July 2008. Though it was dusk, visibility was good. The Claimant was walking along the pavement in the opposite direction to that in which the Defendant was travelling, on a 125cc motorcycle.

The road was a straight road with a speed limit of 30 mph, with a mixture of residential and commercial buildings along each side. There were parked cars on the side of the road to the Defendant’s nearside, but no parked vehicles where the Claimant was walking.

The Defendant was travelling at close to 30 mph. The Claimant attempted to run across the road when the Defendant was approximately 10 metres from him. The Defendant tried to swerve and brake but was unable to avoid the collision. The collision occurred approximately 10 metres from an informal pedestrian crossing (marked with bollards, and featuring a central island and speed bumps).

The Defendant accepted that he had not braked on the approach to the pedestrian crossing. He did, however, brake when the pedestrian attempted to cross. The trial judge accepted that, on the balance of probabilities, the accident would not have occurred.

The trial judge concluded that the Claimant was entirely to blame for the accident. Although he found that the Defendant should have braked earlier on the approach to the pedestrian crossing, and should have been travelling at no more than 20 mph, the Claimant’s actions were not reasonably foreseeable. The trial judge accepted that the Claimant’s own reckless behaviour was the sole and effective cause of the accident, and constituted a novus actus interveniens.

The Court of Appeal upheld the first instance decision, but the reasoning provided will be of interest to practitioners dealing with road traffic accidents, and accidents involving pedestrians in particular.

Clarke LJ, delivering the lead judgment, accepted that the Claimant’s actions were entirely unforeseeable by the Defendant.  The Defendant had seen the Claimant pass the crossing point (which would have been the natural place to cross) and continue walking straight ahead along the pavement. He could not have foreseen that the Claimant would have attempted to run across the road when the Defendant’s motorcycle was only 10 metres away.

Clarke LJ made the helpful comment that: ‘In one sense any sort of foolishness is foreseeable. As is well known, some people do silly or absurd things; or deliberately take risks. The question is, however, whether what happened was the sort of thing that, in the applicable circumstances, this defendant, acting reasonably, ought to have foreseen, such that the claimant ought to have been in his contemplation as someone likely to be affected by any failure of his to brake sooner.

In the circumstances, therefore, ‘it was not incumbent on the defendant to take steps to avert a risk of which he neither was nor should have been aware’.

As the original decision of the trial judge was upheld on this basis, the Court of Appeal did not go on to deal with the remaining issues at length, however a number of other comments of interest were raised.

Firstly, the Court of Appeal disagreed with the comments of the trial judge that the Defendant had been negligent in driving at 30 mph. Neither the narrowness of the road nor the light conditions were such to make the Defendant’s speed inappropriate. The Court of Appeal also indicated that, as there were no vehicles up ahead and it was not likely that anybody was intending to use the pedestrian crossing (the Claimant having passed it), he was not under an obligation to reduce his speed on the approach to the crossing.

The Court of Appeal also cast doubt on the trial judge’s comments that the Claimant’s actions could constitute a novus actus. Clarke LJ commented:

In the present context it would seem to me to require pretty exceptional circumstances to deny a claimant who has surmounted the hurdles of foreseeability, negligence and causation any remedy at all. Claimants who (for whatever reason) run out into the road without thinking are, sadly, not infrequent. Such conduct is usually very careless and may well be properly characterised as reckless. Defendants who collide with such claimants may well not be held to be negligent or, if they are, the claimant may be found to be contributorily negligent to a high degree. Since, however, the reason for imposing any liability on the defendant is because, in the circumstances, he should have foreseen the risk which materialised and, for that reason, owed a duty to take care not to injure even the foolish, I find it difficult to see why he should be absolved of all liability and the claimant denied any relief save in extreme circumstances. These may arise if, for instance, a group of youths were engaging in goading each other to run as close to oncoming traffic as was possible.

The Court of Appeal also referred to a number of cases in which the degree of contributory negligence applied to claimants who were injured when attempting to run across a road, including Belka -v- Prosperini [2011] EWCA Civ 623 (claimant ran across the road into the path of an oncoming taxi: 2/3rd contributory negligence); Stewart -v- Glaze [2009] EWHC 704 (claimant rans out into road without warning – he failed to recover but in the alternative contributory negligence found to be 75%); Parmasivan -v- Wicks [2013] EWCA Civ 262 (a ‘very careless’ 13 year old claimant ran into road on the offside of the claimant's car – contributory negligence awarded at 75%).

This case is a helpful reminder of the importance of the issue of foreseeability in establishing negligence. Whilst drivers are expected to anticipate the mistakes or foolishness of other road users, the Court of Appeal’s comments confirm that drivers must only take steps to avoid risks which are reasonably foreseeable.

Such arguments will be particularly important in pedestrian cases in which, following the trend of case law subsequent to the decision in Eagle -v- Chambers [2003] EWCA Civ 1107, courts have tended to seek to impose a much greater degree of culpability upon drivers of motor vehicles than upon claimant pedestrians. Notwithstanding this, it remains incumbent on claimants to show that risk was foreseeable.

To find out how we can assist you, please contact us at any time. One of our team of specialist lawyers will be happy to discuss your requirements or answer any queries.

Court orders Defendant to pay indemnity costs following late acceptance of Part 36 offer

Sutherland -v- Khan (unreported21 April 2016, Kingston upon Hull County Court), was a simple low value RTA claim, to which fixed costs applied under CPR 45.29A.

The case was settled by way of the Defendant’s acceptance of the Claimant’s Part 36 offer. The offer had been made by the Claimant after the parties had lodged their pre-trial checklists. The Defendant accepted the offer about a month after the relevant period for acceptance, i.e. 21 days had elapsed. The offer had been a valid Part 36 offer and had been made at an appropriate point in the case.

As the parties were unable to agree costs, the Claimant applied for an order for costs under CPR 36. CPR 36 does not deal explicitly with a scenario where the Defendant accepts a Claimant’s offer out of time; however it does deal with the reverse position.

The Claimant contended that the ‘usual’ order should be made, i.e. that they were entitled to indemnity costs from the end of the relevant period for acceptance of the Part 36 offer.

The Defendant relied on the case of Fitzpatrick Contractors Ltd -v- Tyco Fire and Integrated Solutions (UK) Ltd [2009] EWHC 274 (TCC), asserting that in order to award indemnity costs the Court would have to decide that the Defendant’s conduct had been unreasonable.

DJ Besford considered the changes to Part 36 since the case of Fitzpatrick. He found that the rules on Part 36 had been ‘tightened’ since that judgment was given. He considered that there would be no incentive for a Defendant to accept a Part 36 offer early (or within the relevant period) if there was no penalty for late acceptance. This was also in direct conflict with the overriding objective which places a duty on parties to save court time and expense.

The Court therefore found that it did not have to follow Fitzpatrick and it did not have to find that the Defendant had acted unreasonably. Under rule 36.13, the court had to take into account all the circumstances of the case.

For the court to refuse to apply the penalties incurred as a result of accepting a Part 36 offer out of time, the court would have been required to identify a compelling reason as to why it was unjust to make the usual order.  As there was no such reason identified, the usual costs consequences flowed. It was therefore ordered that indemnity costs would be recovered after the end of the relevant period.

From a Defendant’s perspective, it is of concern that the Court did not follow Fitzpatrick. The CPR makes no specific provision for the consequences of a Defendant accepting a Claimant’s offer after the 21 day period for acceptance has expired. There may be an argument that this could in fact discourage a Defendant to accept an expired offer, this could certainly be considered to clash with the Overriding Objective.

Although a County Court decision is not a binding decision, claimants are likely to refer to this case during arguments about costs consequences arising from a defendant’s late acceptance of a Part 36 offer. Insurers should therefore note the importance of giving prompt consideration to any Part 36 offers received, in order that an appropriate response may be given within the relevant period.

To find out how we can assist you, please contact us at any time. One of our team of specialist lawyers will be happy to discuss your requirements or answer any queries.

Appellants in personal injury claims to benefit from QOCS protection

In what is understood to be the first authority on this point, Edis J has ruled that an appeal concerning a claim for damages for personal injury is part of the ‘proceedings’ as defined by CPR 44.13. Accordingly the qualified one-way costs shifting (‘QOCS’) rules will apply, limiting the potential costs liability of a claimant to the amount of damages awarded (unless certain exceptions apply).

The case of Parker -v- Butler [2016] EWHC 1251 (QB) offers the first authority to clarify this point.

The case arose from a road traffic accident which occurred on 10 April 2013, which had been allocated to the fast track. The Claimant’s claim for personal injuries was dismissed at first instance by HHJ Pemberton on 03 March 2015.

Permission to appeal was granted. Edis J head the appeal; though he accepted the Claimant’s arguments that the reasoning of the trial judge could not be sustained, he was able to determine the issue of liability on the material available to him. He accepted that the claim was properly dismissed, but for different reasons to those given by the trial judge.

It was accepted that the QOCS regime applied to the case, and that therefore the costs order against Claimant following the initial trial was not enforceable without permission pursuant to CPR 44.14. The issue for the Court, however, was whether the costs order made on appeal was subject to the same rule.

Edis J ruled:

An appeal by a claimant against the dismissal of his claim for personal injuries is a means of pursuing that claim against the defendant or defendants who succeeded in defeating that claim at trial. There is no difference between the parties or the relief sought… Most importantly, to my mind there is no difference between the nature of the claimant at trial and the appellant on appeal. He is the same person, and the QOCS regime exists for his benefit as the best way to protect his access to justice to pursue a personal injury claim. To construe the word "proceedings" as excluding an appeal which was necessary if he were to succeed in establishing the claim which had earlier attracted costs protection would do nothing to serve the purpose of the QOCS regime.

This decision provides welcome clarification of the application of the QOCS regime to appellate proceedings. Insurers will need to bear this in mind when faced with appeals from claimants who have been unsuccessful at first instance.

It remains to be seen whether this decision will embolden claimants to pursue appellate proceedings, in the knowledge that they will continue to benefit from QOCS protection. However, as Edis J noted, the fact that an appellate in civil proceedings in QOCS cases will always require permission to appeal will provide a ‘filter [which] affords some protection for the civil justice system and the other parties against unmeritorious appeals’.

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Judge entitled to dismiss claim in absence of finding of fraud

The Court of Appeal has confirmed that although the trial judge had been incorrect to find that a road traffic accident had been fraudulent, he did not have to make a positive finding of fraud in order to dismiss the claim.

In the case of (1) Mohamed Rizan (2) Mohammed Rilshad -v- (1) Barry Hayes (2) Allianz Insurance plc [2016] EWCA Civ 481, the Claimants presented a claim that the First Defendant had negligently driven his van out of a side road, into the side of their vehicle. Claims were pursued in relation to soft tissue injuries, vehicle damage, and vehicle hire.

The First Defendant did not take part in the trial, but the claim was defended by the Second Defendant, the insurer of his vehicle.

The Second Defendant alleged that either:

  • the accident had been a staged collision, in which the First Defendant was complicit; or
  • the Claimants had deliberately brought their vehicle to a sudden stop in front of the First Defendant’s van, so as to cause the collision.

Whilst the Claimants initially alleged that they had been travelling at circa 30 – 40 mph at the time of the impact, accident reconstruction experts agreed that the impact damage was not consistent with a collision whilst the Claimants’ vehicle was moving.

The First Claimant subsequently altered his account to suggest that whilst he had been travelling at 30 – 40 mph pre-impact, he had braked on seeing the Defendant’s vehicle, and had come to a standstill at the time of impact.

The Second Claimant maintained that their vehicle was still moving at the time of impact. The trial judge noted, however, that he had little confidence in the Second Claimant’s evidence; the Second Claimant had been involved in ten motor collisions between August 2007 and March 2011 which he had avoided disclosing, when questioned.

The Second Defendant adduced evidence from an enquiry agent who had interviewed the First Defendant, but the judge found that – due to a number of inconsistencies in the First Defendant’s account – he could place little faith in his evidence.

The trial judge found that he could not be satisfied with the Claimants’ alleged account of the accident; accordingly the claim was failed. At the end of his judgment, the trial judge also commented that, if it were necessary for him to do so (which he did not consider to be the case) he would have found that the claim was fraudulent. No reasoning was given for this finding.

The claim was therefore dismissed, and the Claimants were ordered to pay costs on the indemnity basis.

The Claimants appealed the decision, submitting that the finding of fraud could not be supported. In addition, it was averred that in the absence of a finding of fraud, the evidence supported the fact that the collision occurred when the First Defendant pulled out from a minor road into a major road on which the Claimants were travelling. Accordingly, the conclusion that, on the balance of probabilities, the accident occurred as a result of the negligence of the First Defendant was the only conclusion that could properly have been reached.

The Court of Appeal accepted that the trial judge had been unwise in expressing a view on whether the claim was fraudulent. His initial view that the Claimants had failed to establish their case on the balance of probabilities was correct; it was not necessary for him to go further to address the question of fraud.

Tomlinson LJ commented that, in the absence of the enunciation of any reasons for trial judge’s conclusion that the claim had been fraudulent, that finding would be set aside.

However the dismissal of the claim was upheld. The only evidence as to the accident circumstances came from the Claimants themselves. Their account was inconsistent with the agreed conclusions of the accident reconstruction experts, who had accepted that the Claimants’ vehicle had been stationary at the time of impact. Accordingly, the Claimants had failed to establish, on the balance of probabilities, that the accident had occurred as alleged.

The order that the Second Defendant’s costs should be assessed on the indemnity basis was set aside and substituted with an order that those costs would instead be assessed on the standard basis.

This decision serves as helpful confirmation that even in the absence of a finding of fraud (which will require strong and cogent evidence to establish), courts will be willing to dismiss claims if satisfied that a claimant’s account of the accident cannot be accepted on the balance of probabilities.

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High Court suggests judges should exercise greater control to prevent late deployment of surveillance evidence by defendants

The recently published judgment of Foskett J in the case of Hayden -v- Maidstone & Tunbridge Wells NHS Trust [2016] EWHC 1121 (QB) serves as an important warning for defendants seeking to rely upon surveillance evidence at a late stage in proceedings.

The issue of late disclosure of surveillance evidence has proved to be something of a ‘hot topic’ in recent weeks, with this case having been heard on the same date as the similar application before HHJ Yelton in the case of Watson -v- Ministry of Defence (Lawtel 11/04/2016).

The case involved a Claimant who sustained an injury at work in March 2007. The Defendant employer admitted liability in April 2009. Quantum was heavily disputed, with the Claimant’s case pleaded at circa £1.5 million; the case was listed for trial in the Royal Courts of Justice commencing in the week beginning 11 April 2016.

Following a joint settlement meeting in January 2016, at which the parties failed to agree terms of settlement, the Defendant made the decision to obtain surveillance evidence. Surveillance was subsequently carried out in late February and mid March 2016.

The Defendant served the surveillance nine working days prior to the commencement of the trial window. On 30 March 2016, the Defendant subsequently applied for permission to rely upon the surveillance evidence, requesting that the Application be heard on the first day of trial. The Application was initially listed for 08 April 2016, but was adjourned until 29 April 2016 (and the trial vacated) to allow the Claimant further time to consider and respond.

At the time that the Application was relisted, the surveillance footage had been seen by the Defendant’s pain expert who had prepared a supplemental report, but had not yet been viewed by the Defendant’s orthopaedic expert. In addition, the Claimant and her pain expert had been able to review the edited surveillance footage and comment.

The Claimant argued that the late service of surveillance evidence shortly before trial amounted to an ‘ambush’. The judge was sympathetic to the Claimant’s arguments in this regard. Although the Defendant contended that the delay in obtaining surveillance evidence was in party due to NHSLA protocols concerning such evidence, the Court was highly critical of the Defendant’s failure to commission the surveillance at an earlier stage in the claim.

Foskett J commented that the fact that some of the Defendant’s experts had already viewed the footage (ie that ‘the genie was already out of the bottle’) was not enough, in itself, to persuade him to grant permission for the surveillance evidence to be relied on. It was relevant, however, that since the adjournment of the initial Application hearing, the Claimant had been able to view the footage, and the Claimant’s pain expert had produced a supplemental report in response.

The judge stated that ‘with considerable misgivings, I have decided that the overall interests of justice require that the [surveillance] evidence is considered as part of all the evidence in the case. … I do have to make it clear that I have been influenced in the decision to which I have referred by the fact that the Claimant and one of her principal medical experts have been able to answer (as I have said, at least at face value)… in a strong fashion. The playing field has, in my view, remained level.

In view of the fact that the trial had to be vacated due to the Defendant’s late service of surveillance evidence, and that both sides would have to incur significant additional costs, the Court ordered that the Defendant pay the costs of vacating the trial, the two Application hearings, and the Claimant’s additional expert costs of viewing the surveillance footage, on the indemnity basis.

This judgment is an important warning to insurers that the Courts will take a dim view of late attempts to rely on surveillance evidence, particularly if this is likely to prejudice trial dates. Notwithstanding that the Defendant’s Application was successful in this instance, the judgment shows that the Court was highly reluctant to allow the evidence, and was ready to impose punitive costs sanctions to reflect the disruption to the Court timetable.

Insurers should take note and, in cases where obtaining surveillance evidence is considered necessary, should take appropriate steps to ensure that this is obtained and served in good time so as not to jeopardise any trial dates. As the judge commented: ‘Once the claimant’s case, both in relation to the disabilities relied upon and their consequences, is clearly articulated and the defendant is possessed of an opinion from an expert upon whom it relies that the claim is ‘suspect’, it seems to me that the obligation actively to obtain surveillance evidence arises if it is considered a proportionate approach to adopt in the particular case. The longer it is left and the nearer the time gets to trial, the more likely it is that the court will regard the delay as culpable.

Of further interest are the general comments made by Foskett J at paragraphs 43 – 47 of his judgment. He suggests that it may be appropriate for Courts to raise the issue of surveillance at the case management stage, and specify a date by which any application to rely on such evidence must be made. A defendant who failed to comply with such a deadline but subsequently sought to rely upon surveillance evidence would have to jump through the relevant hoops of seeking relief from sanctions.

Whilst these comments are strictly obiter, it seems likely that claimants will cite this case in support of future requests for court directions to include provisions relating to surveillance. Although some claimants’ solicitors will routinely request such directions, the practice is likely to become more commonplace in light of this decision, and such requests may prove difficult to resist.

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Illegality prevents recovery of Court of Protection costs by claimant

The recent judgment of Mr Justice Irwin in the case of AB (by his Litigation Friend CD) -v- Royal Devon & Exeter NHS Foundation Trust [2016] EWHC 1024 (QB) provides an example of the Court utilising the doctrine of ex turpi causa to prevent recovery of particular heads of loss by a claimant.

The case also includes a helpful analysis of the literature relating to calculating life expectancy in persons who have sustained spinal cord injuries.

The Claimant had pursued a clinical negligence claim against the Defendant NHS Trust. Due to the Trust’s failure to identify that the Claimant was developing a spinal abscess, he sustained a neurological damage to the spinal cord which left him paraplegic. The issue of liability had been compromised, it being agreed that the Claimant would recover 60% of the value of the claim.

Prior to the spinal cord damage, the Claimant had a troubled background, with history of extensive drug abuse, criminal behaviour and several custodial sentences; he was under the care of mental health services. There was also a previous mild head injury (unrelated to the spinal cord damage). At the time of trial, the Claimant had been to a drug rehabilitation centre and had been abstinent from drugs for about 2 ½ months.

The judge accepted that the Claimant lacked capacity at least until the commencement of his drug rehabilitation. It was further accepted that he maintained capacity for the purposes of the trial.

In terms of future capacity, the judge ruled that – even if the Claimant remained abstinent from ‘hard’ drugs – he was likely to lack capacity during the 12 months following trial to deal with the large sum of damages that he would be awarded. During this time, the Claimant would not be capable of dealing with the purchase and adaptation of a property, and purchase of large items of equipment and an adapted vehicle.

In the longer term, the judge found that the Claimant would retain capacity to deal with ongoing financial matters, provided that he remained abstinent of drug use. On the balance of probability, therefore, any lack of capacity after the 12 month period post-trial was likely to result from reversion to illegal drug use.

The Court accepted the Defendant’s argument that, during periods in which the Claimant’s incapacity was caused solely as a result of illegal drug use, the doctrine of ex turpi causa should prevent the Claimant from recovering damages in respect of Court of Protection expenses. Save for costs arising in the initial 12 month period post-trial, the Court made no award of damages in respect of either past costs or ongoing future costs related to the Claimant’s lack of capacity.

This case does not alter the wider principle that a tortfeasor must take his victim as he finds him. Irwin J commented that had the Claimant’s lack of capacity resulted from factors other than his substance misuse, the Defendant would have had no proper argument for seeking to exclude the consequential costs. However, the judgment does indicate that the Court is reluctant to award damages for losses arising from an individual’s own criminal acts. Insurers should be alive to the opportunity to raise this argument in appropriate cases.

The judgment also includes a helpful illustration of the Court’s treatment of scientific literature in relation to the issue of life expectancy in individuals who have sustained spinal cord injuries. Whilst such analysis is inherently heavily fact specific, Irwin J was referred to and considered a range of academic studies considering persons with spinal injuries in the UK, USA and Australia. Taking into account the available literature, the judge accepted that a reduction in life expectancy of 20% was appropriate in this case to reflect the spinal cord injury.

The Court then went on to consider the effect of the Claimant’s other health issues (including history of smoking and diabetes) and the risk that the Claimant may revert to future drug abuse. Taking all factors into account, the Court was prepared to make a finding that there was a significant reduction in the Claimant’s projected life expectancy of 58%.

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Court of Appeal rules that allegations of fraud are no excuse for delay in seeking to set aside default judgment

The Court of Appeal’s judgment in the case of Gentry -v- Miller and another [2016] EWCA Civ 141 serves as a warning to insurers of the need for compliance with procedural rules, notwithstanding that there may be suspicions of fraud.

The claim arose from an RTA on 17 March 2013. The Claimant alleged that the accident was caused by the First Defendant (Lee Miller), resulting in personal injury, the writing off of his Range Rover, and various recovery, storage and credit hire charges.

A claim was commenced through the MOJ Portal, pursuant to the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents. The Second Defendant (the First Defendant’s insurer) admitted liability, paid Stage 1 costs, but did not make any settlement offer, despite a number of requests and reminders that hire charges were continuing to accrue.

The Claimant issued proceedings on 03 July 2013, and these were served on the First Defendant. Judgment in default was entered on 08 August 2013. During this period, the Second Defendant did not instruct solicitors and did not take any steps to protect its position, but further interim payments were made.

At a disposal hearing on 17 October 2013, the district judge awarded damages in the sum of £75,089 (mostly hire and other charges), with costs summarily assessed at £12,945. Notice of the hearing had been given to the First Defendant, but neither the First Defendant nor his insurers were in attendance.

On 25 November 2013, the First Defendant’s solicitors applied to cease acting for the First Defendant, to add the First Defendant’s insurer as Second Defendant, and to set aside the judgment.

It was alleged by the Second Defendant that the claim was fraudulent, and that the Claimant and First Defendant were known to each other. The application was allowed at first instance, which was upheld on appeal. The Claimant subsequently appealed to the Court of Appeal.

The Court of Appeal unanimously allowed the appeal, and dismissed the Defendants’ application for relief from sanctions. It considered that, by failing to apply to set aside judgment until November 2013, the insurer had not acted promptly, as required by CPR 13.3. The delay was not excusable; the insurer admitted liability in April 2013, but failed to take steps to settle or defend the claim. Solicitors were not instructed to consider whether fraud should be alleged either before the admission of liability or for 7 months afterwards.

Vos LJ commented that it is well established that the test in Denton -v- TH White Ltd is applicable to applications to set aside default judgments. He also considered that the same test should apply to consideration of CPR 39.3(5).

The Court of Appeal considered that the insurers had failed to apply promptly either under CPR 13.3 or CPR 39.3. Even if a good reason could be shown for failing to attend Court, and it could be established that there was reasonable prospect of success, the application would fail as it was not made promptly. The Court of Appeal further indicated that, had the Court been required to consider the third limb of the test in Denton, the application would have been refused. Dealing justly with the case included a need to enforce compliance with rules, and to ensure litigation is conducted at proportionate cost.

Vos LJ commented that:

The court cannot ignore that insurers are professional litigants, who can properly be held responsible for any blatant disregard of their own commercial interests. This insurer had known since April 2013 that it was at risk of proceedings being commenced and being served on its insured, yet it did nothing to ensure its position was protected.

… Mitchell and Denton represented a turning point in the need for litigation to be undertaken efficiently and at proportionate cost, and for the rules and orders of the court to be obeyed. Professional litigants are particularly qualified to respect this change and must do so. Allegations of fraud may in some cases excuse an insurer from taking steps to protect itself, but here this insurer missed every opportunity to do so. It admitted liability before satisfying itself that the claim was genuine, perhaps because it mistakenly thought the claim was a small one. That does not excuse the months of delay that then followed. The insurer must in these circumstances face the consequences of its own actions.

This judgment will serve as a warning to insurers. The Court of Appeal has signalled that it considers that ‘professional litigants’ such as insurers should be particularly aware of the importance of complying with the CPR, and the need to conduct litigation in accordance with the rules and at proportionate costs.

The decision underlines the importance of dealing proactively with claims where there are suspicions of fraud; such concerns must be investigated promptly and insurers must take active steps to protect their position. The courts will not accept concerns regarding the veracity of a claim as an excuse for failing to comply with procedural rules.

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Court of Appeal rules that credit hire claim should remain within the RTA Protocol

The Court of appeal has handed down its judgment in the case of Sean Phillips -v- Carol Willis [2016] EWCA Civ 401.

The case involves a low value RTA claim, including claims for personal injury, credit hire charges (covering a period of 32 days) and other losses.

A claim was submitted to the Defendant’s insurers through the MOJ Portal on 01 July 2013, in accordance with Stage 1 of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (‘RTA Protocol’).

Liability was admitted through the Portal by the insurers on 15 July 2013. On 10 September 2013, the Claimant submitted a Stage 2 settlement pack detailing all heads of claim. The Defendant’s insurers agreed the Claimant’s claims in respect of PSLA and physiotherapy charges; however, settlement could not be reached in relation to the credit hire charges.

The Claimant subsequently issued a Part 8 Claim Form in accordance with Stage 3 of the RTA Protocol, and the matter was listed for a hearing on 09 April 2014 for the assessment of damages.

At the hearing, the only issue in dispute between the parties was the rate of hire; the Claimant had not alleged impecuniosity, and there was agreement as to need and the period of hire.

The district judge indicated that, as the only outstanding issue in dispute related to credit hire charges, the claim should be transferred to CPR Part 7, and would proceed on the small claims track. He also gave directions requiring the parties to exchange evidence relating to the credit hire claim.

The Claimant’s initial appeal was refused by a circuit judge; the matter then proceeded to the Court of Appeal.

Lord Justice Jackson, delivering the leading judgment, observed that ‘Once a case is within the RTA protocol, it does not automatically exit when the personal injury claim is settled. On the contrary, the RTA process is carefully designed to whittle down the disputes between the parties as the case passes through the various stages. It is to be expected that the sum in issue between the parties will be much smaller when the case reaches Stage 3 than it was back in Stage 1. The mere fact that the personal injury claim has been resolved is not specified as being a reason to exit from the RTA process.

The Court of Appeal noted that the dispute concerning hire rates led to a difference in the parties’ respective positions of only £462. Neither party sought an adjournment to adduce further evidence, which the Court in any event considered ‘would be a grossly disproportionate step to take’.

The costs which would have been incurred by the parties in complying with the directions of the District Judge, together with the costs of the additional hearing, were not proportionate to the amount in dispute. There was therefore no justification for the claim to exit the RTA Protocol under CPR PD 8B para 7.2. The Court did concede that there may be cases involving very high car hire charges which might involve complex issues of law or fact which are not suitable for resolution at a Stage 3 hearing, however this was not such a case.

The Court accepted that CPR 8.1(3) provides a wider discretion for the Courts to transfer claims to Part 7, Jackson LJ commented that this ‘cannot be used to subvert the protocol process’.

This case illustrates the importance for insurers, when dealing with ‘modest’ credit hire claims, of raising all issues regarding the hire claim at Stage 2, and being prepared to deal with the same at the Stage 3 hearing. Only in claims where there is a substantial dispute – for example a dispute regarding need or impecuniosity which requires oral evidence to be given – will the Court be minded to transfer the claim to Part 7. Such a decision will still remain subject to the question of proportionality, a key element in Jackson LJ’s judgment.

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Court considers meaning of significant development for the purposes of amending costs budgets

In the case of Churchill -v- Boot (Lawtel 22/04/2016), Mr Justice Picken was asked to consider whether events in a case were sufficient to constitute ‘significant developments’ within the meaning of CPR Practice Direction 3E para 7.6.

The claim arose from a road traffic accident in 2009; it was alleged that the Claimant had suffered a head injury.

In 2014, the master made an order containing directions permitting the Claimant to rely upon the evidence of various experts. The order also approved costs budgets for the parties.

During the course of the claim, the Claimant was required to provide further disclosure (including educational and employment records); as a result the trial was delayed by 6 – 9 months. The master further ordered, in 2015, that the parties exchange updated medical reports.

Since the original pleadings were served, the Claimant’s pleaded case had doubled in value. Accordingly, the Claimant applied to the Court to amend his costs budget pursuant to CPR PD 3E para 7.6 (ie on the basis that ‘significant developments in the litigation warrant[ed] such revisions’); the Claimant submitted that the doubling of the pleaded value of the claim, the adjournment of the trial date, and the requirement for further disclosure were ‘significant developments’.

The master refused the Claimant’s application, on the basis that the events did not constitute a significant development; they were predictable developments which could have been foreseen at the time of the original budget.

On appeal, Picken J upheld the master’s original decision as he was not satisfied that there had been ‘significant developments’ in the case. The alleged developments were within the contemplation of the parties at the time that the original costs budgets were prepared. Disclosure of educational and employment records was routine in such cases. Further, the disciplines of experts required had been identified in 2014 and it had always been anticipated that the experts would be required to review documents obtained through disclosure; the additional updated reports were not a ‘significant development’.

The judge did comment that adjournment could potentially be a significant development, however in the instant case he was satisfied that it was not. There was no justification for interference with the master’s appropriate exercise of his discretion when considering the Claimant’s application.

This judgment will provide insurers with a useful authority when attempting to resist attempts to increase costs budgets. Only where developments in a case were truly outside the contemplation of the parties when initial budgets were prepared, will the Court permit budgets to be revised upwards.

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High Court considers issues of liability and contributory negligence for car park accident

Mrs Justice Lang DBE has handed down her judgment in the recent case of Craig Sparrow -v- Arnaud Andre [2016] EWHC 739 (QB).

The collision occurred as both the Claimant and Defendant were manoeuvring in a crowded car park. The rear of the Claimant’s car collided with the rear of the Defendant’s car. The Claimant got out of his vehicle in order to inspect the damage. The Defendant moved his car away, but the Claimant’s vehicle started to roll backwards down a slope. The Claimant’s vehicle was able to roll backwards because the brake had not been applied, and the ignition had been left on.

The Claimant was concerned for the safety of his children who were still inside the car; he ran to the rear of the vehicle to attempt to stop it rolling away, but was unable to do so. His leg was crushed between the car and a metal gate post.

As a result of the collision, the Claimant suffered extensive injuries to his leg, resulting in amputation of the limb.

The Court considered the issue of liability and contributory negligence.

Mrs Justice Lang found that the Defendant was reversing in the car park at a low speed of 6-10 mph. She did not consider that reversing at this speed in a car park was, of itself, negligent, however she accepted that the Defendant had not kept a proper look-out, and this had resulted in the Defendant reversing into the Claimant’s vehicle.

The Court accepted that the Claimant had satisfied the ‘but for’ test of causation; in the absence of the initial collision between the Defendant’s car and the Claimant’s car:

  • the Claimant’s vehicle would not have been left stationary at a dangerous position at the edge of a slope;
  • the Claimant would not have exited the vehicle to check the damage;
  • the Claimant’s vehicle would not have rolled backwards down the slope, colliding with the gatepost;
  • the Claimant would not have attempted to stop the vehicle rolling away; and
  • the Claimant’s leg would not have been injured in the collision with the gate post.

The Court further accepted, however, that the Claimant had been negligent in exiting the vehicle without first applying the brake and / or turning off the ignition. Mrs Justice Lang did not consider the Claimant’s actions in attempting to stop the vehicle rolling away were negligent; in the circumstances, the Claimant was concerned for his children still in the vehicle, and so this action was understandable.

The Court did not agree with the Defendant’s submissions that the Claimant’s actions were a novus actus interveniens sufficient to break the chain of causation, however they were sufficient to warrant a significant reduction for contributory negligence of 60%.

Although relating to unusual facts, this decision provides an interesting example of the Court examining the issue of whether an intervening act will break the causative chain. Where the negligent actions on the part of a claimant arise secondary to, and in the context of, a defendant’s primary breach of duty, the Court will not find that the chain of causation has been broken.

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Court of Appeal provides guidance on cost management orders and approval of incurred and estimated costs

In considering an appeal relating to security for costs the Court of Appeal in SARPD Oil International Ltd v Addax Energy SA and another [2016] EWCA Civ 120, has made important observations regarding the treatment of both incurred and estimated costs as set out in parties’ cost budgets. This decision is likely to have significant consequences for practitioners dealing with costs issues in cases subject to costs management orders.

Pursuant to CPR Part 3.18:

In an case where a costs management order has been made, when assessing costs on the standard basis, the court will –

  • have regard to the receiving party’s last approved or agreed budget for each phase of the proceedings; and
  • not depart from such approved or agreed budget unless satisfied that there is good reason to do so.

The scope of costs management is further clarified in CPR Practice Direction 3E paragraph 7.4, which states:

As part of the costs management process the court may not approve costs incurred before the date of any budget. The court may, however, record its comments on those costs and will take those costs into account when considering the reasonableness and proportionality of all subsequent costs.

The Court of Appeal has given clarification, in its first judgment on the issue, of how it will treat incurred costs recorded in a party’s budget. In this case, the parties had agreed costs budgets, and asked the Court to make an order recording the agreement of the parties’ budgets in their respective sums (with the budgets attached to the order).

The Court of Appeal commented that strictly speaking, by reason of CPR PD3E para 7.4, the Court could not approve the incurred costs element of a party’s budget, such as to engage CPR 3.18. However, where an order is made recording agreement or approval of the whole of a party’s budget, this is to be interpreted as the Court commenting on the incurred costs element in the budget (as it is entitled to do so), with the effect that it is agreed that the costs were reasonable and proportionate costs in the litigation.

The effect of such an interpretation resulted in the incurred costs element of the budget (along with the estimated costs element) being included in any standard assessment of costs at the conclusion of the claim pursuant to CPR 3.18, unless good reason could be shown why those costs should not be included.

There was, the Court held, no restriction on the parties agreeing costs budgets. Where parties agreed a costs budget and that was recorded in a costs management order, CPR 3.18(b) would apply both to the agreed incurred costs and to the agreed estimated costs.

The Court further noted that the paying party had chosen not to dispute the reasonableness and proportionality of the sums set out in the others party’s cost budget when it had the chance to do so at the CMC. It would be contrary to the overriding objective to allow a party to re-open costs issues which it had already had a fair opportunity to contest. The Court of Appeal commented that to allow such a course of action would add additional unnecessary costs to the case.

This decision will come as a surprise to many practitioners, who will have assumed that the incurred costs element of parties’ budgets remains outside of the scope of costs management.

In light of this judgment, insurers should note the importance of preparing thorough and robust responses to opponents’ costs budgets, addressing both the incurred and estimated elements of the budget.

If agreeing budgets and / or costs management orders, parties must be careful to ensure that agreement is reached in respect of both incurred and estimated costs. Where the matter proceed to a contested costs management hearing, parties will need to ensure that they are in a position to make appropriate representations in relation to both incurred and estimated costs, and to seek that the Court records, in any costs management order, its comments in relation to the incurred costs.

Going forward, parties who neglect to raise objections to incurred costs at the time of a costs management conference are likely to find themselves in difficulty if seeking to dispute these costs at a later date.

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Procedure for applications to disapply QOCS due to fundamental dishonesty a matter for Court’s discretion

HHJ Gosnell, sitting in Rouse v Aviva Insurance Ltd (unreported), 15 January 2016, (Bradford County Court), has clarified that the procedure to be adopted when dealing with applications under CPR Rule 44.16 (to disapply QOCS on the basis of fundamental dishonesty) is a matter for the court’s discretion.

The Claimant brought his claim for personal injury following an alleged car accident. The Defendant insurer had been suspicious of the accident circumstances, and carried out a thorough investighation. Shortly before the trial, the Claimant discontinued his claim.

The Defendant sought a finding of fundamental dishonesty under CPR 44.16, disapplying QOCS and allowing the Defendant to recover its costs.

The district judge initially held that the Claimant was not required to explain the discontinuance, nor was the court required to draw any adverse conclusion his lack of explanation; any allegation of specific fundamental dishonesty had to be decided in light of the papers, that the costs of a trial would be entirely disproportionate.

The Defendant appealed.

On appeal the judge considered that the Court had a wide discretion to order that an application under CPR Rule 44.16 could be determined by either:

  • paper determination;
  • limited enquiry; or
  • a full trial of the facts.

Further, the judge acknowledged that a claimant could not be forced to give an explanation for any decision to discontinue, in cases where a prima facie case of dishonesty it is proper that a claimant be afforded the opportunity to explain why a claim was commenced but subsequently discontinued. If a claimant fails to give evidence or to explain the discontinuance, a defendant could be justified in inviting the Court to draw an adverse inference.

A Court’s procedural approach is likely to heavily depend at what point in proceedings a claimant discontinues; a full hearing is more likely to be deemed proportionate if the proceedings had reached a stage where the parties were all but ready for trial, and evidence had been exchanged.

In contrast, if a claim had been discontinued just after service of a defence, this may be a persuasive factor against incurring substantial additional costs of taking the matter to a full hearing.

Whilst this is only a County Court decision, it provides some guidance to insurers as to the procedural approach that the Courts will take towards applications to disapply QOCS on the grounds of fundamental dishonesty. This remains a developing area of law, and further guidance from higher Courts is awaited.

The current impression, however, is that judges will reserve a great deal of discretion when determining the appropriate procedural approach to such applications. Each case will be dealt with individually, and the approach taken is likely to depend upon the procedural stage that the claim has reached, and the level of additional work required to take the matter to a full formal hearing.

To find out how we can assist you, please contact us at any time. One of our team of specialist lawyers will be happy to discuss your requirements or answer any queries.

High Court gives guidance on filing evidence in response to interim payment applications

In the recent decision of Clair Sellar-Elliott v Sarah Howling [2016] EWHC 443 (QB) the High Court has provided guidance to defendants seeking to oppose interim payment applications.

Mr Justice Sweeney refused a Defendant’s appeal against an order that an interim payment be made to the Claimant, in the context of clinical negligence proceedings.

Liability had been admitted, but causation remained in dispute. Both parties had obtained permission to rely on expert medical evidence; the deadline for exchange being some six weeks after the date of the hearing of the interim payment application. The Claimant, however, had served her expert evidence in advance of the application.

The Defendant resisted the interim payment application, but did not serve any expert evidence in advance of the hearing. Instead, the Defendant sought to rely on two witness statements produced by her solicitor which stated that her instructed experts’ preliminary view supported her pleaded case.

The Defendant was ordered make an interim payment based partly on the strength of the Claimant’s evidence and the Defendant was refused permission to appeal.   

CPR 25.6 details the general procedure in relation to applications for interim payments.

Whilst CPR 25.6(3)(b) requires that an application must be supported by evidence, CPR 25.6(4)-(5) make it clear that there is no obligation on either the respondent or the applicant to file evidence.

The test that a claimant must meet to satisfy the Court that an interim payment can be ordered is that, on the balance of probabilities, the claimant will obtain judgment for a substantial sum of money from the defendant at trial.

The Claimant had served medical evidence in support of the application; the Defendant had responded with only limited evidence in the form of witness statements.

In the absence of any contrary evidence presented by the Defendant, it was held the master had been entitled to find that the Claimant's evidence was sufficiently convincing so that to conclude that the conditions in CPR 25.7(1)(c) were met, and therefore that an interim payment should be made.

Whilst this case relates to a clinical negligence claim, it provides a warning to insurers seeking to resist interim payment applications that sufficient evidence will need to be adduced in response to the claimant’s case. This highlights one of the potential benefits of instructing experts at an early stage of the claim, particularly if an interim payment application has been intimated.

To find out how we can assist you, please contact us at any time. One of our team of specialist lawyers will be happy to discuss your requirements or answer any queries.

HIGH COURT OFFERS INTERPRETATION OF VNUK CASE IN INTERPRETING ‘USE’ OF A VEHICLE FOR THE PURPOSES OF INSURANCE POLICY

HHJ Waksman QC has recently handed down his judgment in the case of UK Insurance Limited -v- (1) Thomas Holden (2) R & S Pilling (trading as Phoenix Engineering) [2016] EWHC 264 (QB).

The First Defendant was a mechanical fitter employed by the Second Defendant. On the day before the incident, his car failed its MOT test due to corrosion on the underside of the vehicle.

On 12 June 2010, the Second Defendant agreed to allow him to carry out some repairs to the vehicle in the loading bay of its premises. The First Defendant planned to weld metal plates to the bottom of the vehicle to repair areas of corrosion.

He positioned the car in the loading bay, and used a forklift truck to lift the car onto its side to expose the underside of the car.

During the welding, flammable material inside the car had ignited. The ensuing fire spread, causing extensive damage to the Second Defendant’s premises and the adjoining property.

The insurer of the Second Defendant’s property (AXA) paid for property repairs costing over £2 million; it planned to bring a subrogated claim to recover these costs from the First Defendant.

The First Defendant’s motor insurer (UK Insurance Limited – the Claimant) sought a declaration that its policy would not cover the claim.

Whilst the judgment relates primarily to interpretation of the particular wording of the policy in question, it does include useful comment on issues of wider application.

HHJ Waksman QC ruled that, in his view, it was implicit in the decision of the ECJ in the case of Damijan Vnuk -v- Zacarovalnica Triglav d.d. (C-162/13) that the requirements of the Sixth Directive (2009/103 EC) for compulsory motor insurance cover extend beyond use of a vehicle on a road.

The judge therefore considered that section 145(3)(a) of the Road Traffic Act 1988 (which provides that a policy is only required to cover use of a vehicle ‘on a road or other public place’) is not compatible with the Directive, as interpreted by the ECJ in Vnuk.

The second important issue considered by the High Court was whether the accident arose out of the ‘use’ of the vehicle – i.e., whether repair of the vehicle could be considered ‘use’.

The judge considered that the Vnuk definition of ‘use’ suggests activity performed by the vehicle as a vehicle. He cited examples of carrying passengers or goods, transporting the driver to a destination, manoeuvring a trailer, or parking the vehicle.

He indicated that he considered other activities, such as sleeping in an ordinary saloon car, would not constitute use, because this is outside of the normal function of such a vehicle.

The judge found that repairing a vehicle did not constitute ‘use’, as it was not a part of the vehicle’s ‘normal function’. It was not being operated in any way, and was immobile.

This case provides a helpful example of the treatment of the ECJ decision in Vnuk by the courts in England and Wales. The decision is likely to provide some additional guidance to insurers in relation to arguments about whether an accident has arisen from ‘use’ of a vehicle.

To find out how we can assist you, please contact us at any time. One of our team of specialist lawyers will be happy to discuss your requirements or answer any queries.

COSTS MANAGEMENT RULES TO CHANGE FROM 06 APRIL 2016

The Civil Procedure Rules Committee has announced changes to the CPR to come into force on 06 April 2016.

These changes include significant modifications to the current rules relating to costs budgeting.

In particular, the following changes are of note:

  • Costs budgeting rules will no longer apply where a claim has been made by or on behalf of a child (defined in CPR Part 21.1(2)(b) as a person under the age of 18 years). Upon the child reaching the age of majority the exemption will continue to apply unless the court orders otherwise.
  • Costs budgeting rules will no longer apply in cases where a claimant has a life expectancy of 5 years or less.
  • The deadline for filing costs budgets is to change. Following the change to CPR 3.13, budgets must be filed and served as follows:

    • where the stated value of the claim on the claim form is less than £50,000 – with the parties’ directions questionnaires; or
    • in any other case, not later than 21 days before the first case management conference.
  • Parties will be obliged to file and serve a ‘budget discussion report’ (the form of which will be set out in a new form Precedent R) no later than 7 days before the first case management conference. This report will set out a party’s proposed budgeted figures in respect of each phase of the litigation, the opponent’s counter-offer, and brief details of areas of dispute.
  • The category of cases for which the short form Precedent H (i.e. the front page only) is to be used will to expand to include all cases where the value of the claim as stated on the claim form is less than £50,000. This appears to be in accordance with plans to bring cases with a value of up to £50,000 within the fixed costs regime.
  • CPR Practice Direction 3E is to be amended to provide specifically that it is not the role of the court in a cost management hearing to fix or approve hourly rates claimed in a party’s budget. The underlying details will be used for reference purposes only, to assist the court in fixing a party’s budget.
  • The Precedent H guidance document is to be updated to provide further indication to parties of what items are to be included in relation to each phase of the costs budget.

It is hoped that by requiring parties to exchange budgets earlier in advance of the first case management conference, there will be increased time for preparation and negotiations in advance of any costs management hearing. The requirement to file a new ‘budget discussion report’ will assist in focussing parties on the areas in dispute, and in identifying the areas which will require judicial determination at the costs management hearing.

Despite the removal of some categories of cases from the costs management regime (most notably those involving children), costs budgeting will remain an important tool for insurers in limiting total spend on cases, and in exercising some control over the direction that the litigation will take. Accordingly, a robust and well prepared response will continue to be important in ensuring favourable outcomes at costs management hearings.

To find out how we can assist you, please contact us at any time. One of our team of specialist lawyers will be happy to discuss your requirements or answer any queries.

RECOVERABLE NHS CHARGES TO RISE FROM 01 APRIL 2016

The Personal Injuries (NHS Charges) (Amounts) Amendment Regulations 2016 will come into force on 01 April 2016.

These regulations deal with the charges payable by compensators in personal injury cases, pursuant to the scheme for recovery of NHS charges where an injured person has received treatment from an NHS hospital or ambulance services.

For persons injured on or after 01 April 2016, the following charges will apply:

  • £201 in respect of NHS ambulance services;
  • £665 in relation to NHS outpatient treatment; and
  • £817 per day in respect of NHS inpatient treatment.

The total maximum charge recoverable from a compensator in relation to any individual case will also increase from £47,569 to £48,849.

To find out how we can assist you, please contact us at any time. One of our team of specialist lawyers will be happy to discuss your requirements or answer any queries.

Supreme Court reverses judgment under Fatal Accidents Act 1976

Supreme Court reverses previous House of Lords judgments regarding calculation of multipliers in claims under Fatal Accidents Act 1976.

The Supreme Court has recently published its eagerly anticipated judgment in the case of Knauer (Widower and Administrator of the Estate of Sally Ann Knauer) -v- Ministry of Justice [2016] UKSC 9.

The deceased, Mrs Knauer, was an employee of the Ministry of Justice at HMP Guy’s Marsh. During her employment, she developed mesothelioma as the result of exposure to asbestos; she died in August 2009 at the age of 46.

A claim was made by the deceased’s widower, Mr Knauer, in respect of, inter alia, future loss of dependency pursuant to the Fatal Accidents Act 1976.

At trial before Bean J in the High Court in July 2014, the parties had agreed a figure in respect of the annual value of the income and services that Mrs Knauer would have provided but for her death (the ‘multiplicand’).

The parties were in dispute as to whether the number of years by which that figure should be multiplied (the ‘multiplier’) should be calculated from the date of death or the date of trial. The differing approaches to this calculation would result in a difference of over £50,000 in the value of the total damages award.

The trial judge felt bound to follow longstanding House of Lords Authority in the cases of Cookson -v- Knowles [1979] AC 556 and Graham -v- Dodds [1983] 1 WLR 808, which decided that multipliers should be calculated from the date of death.

Such an approach has long been criticised as involving an unfair discount for early receipt of damages, when in fact those damages would not be paid until after trial – in particular by the Law Commission in their report on Claims for Wrongful Death (1999 Law Com No 263).

Bean J indicated at trial that, had he not been bound by the House of Lords judgments, he would have accepted that the proper calculation of the multiplier be by reference to the date of trial. Accordingly, he granted permission to Mr Knauer to appeal direct to the Supreme Court.

Supreme Court decision

The Supreme Court unanimously allowed Mr Knauer’s appeal, recognising that the previous approach ‘results in under-compensation in most cases’.

It has now confirmed that the correct date from which to assess the multiplier when fixing damages for future loss claims under the Fatal Accidents Act 1976 should be the date of trial and not the date of death.

The Court recognised that calculation of future financial losses is now based upon actuarial tables produced by the Ogden Working Party. The previous approach to calculating multipliers in fatal accident cases was said ‘to mix up a calculation based upon properly considered actuarial principles with an arbitrary arithmetical deduction’, and was arrived at at a time when the calculation of damages for personal injury and death ‘was nothing like as sophisticated as it now is’.

The Court had no hesitation in reversing the previous House of Lords decisions which were ‘illogical’ and resulted ‘in unfair outcomes’.

Comment

This decision gives certainty to practitioners dealing with claims under the Fatal Accidents Act 1976 on an issue which has long been considered by commentators to be liable to reform (either legislative or by judicial activism).

Insurers will note that this results in a change to rules which many have felt result in undercompensation of dependants of victims of fatal accidents.

Sintons secure landmark ruling

Davies v Forrett, Partington & SRICL

Jamie McCabe was instructed by Eldon Insurance Company Limited (claims handlers for Southern Rock Insurance Company Limited – “SRICL”) to defend a multi-million pound brain injury case. Sintons successfully defended the case passing the responsibility onto another insurance company and recovering their costs and a new authority on non-party costs orders was created.

The Claimant was the front seat passenger of the car driven by Mr Partington and insured by SRICL under a Social, Domestic and Pleasure policy (SDP) which excluded commuting. On the day of the accident the Claimant and Mr Partington were commuting to work which was a use not covered under the policy.

Mr Partington attempted a ‘double-overtake’ manoeuvre whenever the car in front, driven by Mr Forrett, pulled out into his path. Mr Partington avoided collision with Mr Forrett’s car but hit a tree. The Claimant sustained a traumatic brain injury and Mr Partington also suffered significant injuries. Both have advanced personal injury claims which were consolidated into the same action.

Mr Forrett was convicted in the criminal courts for his bad driving on the day of the collision however supported by his insurers he denied any liability for the accident in civil proceedings arguing that Mr Partington was 100% to blame for the accident.

As SRICL’s policy did not cover commuting they sought a declaration that they were entitled to ‘stand in the shoes of the MIB’ thereby only compensating the Claimant if there were no other insurance companies in the picture with any liability. Sintons argued that Mr Forrett was at least partly to blame for the accident and that therefore his insurers, Admiral, should pay the Claimant’s compensation. The position was strongly contested by Mr Forrett and his insurers; although they were not a party to the declaration proceedings they sought to assist Mr Partington in defending the same.

The Claimant requested summary judgment against Mr Forrett based on his criminal conviction. Days before the hearing Mr Forrett/his insurers conceded negligence but the case proceeded to a hearing to resolve the issue of who should pay the significant costs incurred.

Mr Justice Edis handed down a comprehensive judgment ordering Mr Forrett’s insurers to pay the Claimant’s costs along with SRICL’s costs of the main action. It was also ordered that Mr Forrett’s insurers should pay SRICL’s costs of the declaration proceedings despite the fact that they were not a party to that action. Mr Justice Edis considered that Admiral should rightly pay those costs as (i) their conduct had forced SRICL into bringing the declaration proceedings and (ii) Admiral had partially funded the defence and had been acting in their own interest not that of Mr Partington.

The case was a great success for SRICL who have now dropped out of the action (without any liability in a multi-million pound claim and with their costs paid) and the authority has clarified the position upon when cost orders can be made against non-parties.

– See more at: https://www.sintons.co.uk/news/sintons-successfully-defends-southern-rock-against-multi-million-pound-pay-out#sthash.7DPayzyl.dpuf

Sintons successfully defends Southern Rock against multi-million pound pay-out in Davies v Forrett, Partington & SRICL.

Jamie McCabe was instructed by Eldon Insurance Company Limited (claims handlers for Southern Rock Insurance Company Limited – “SRICL”) to defend a multi-million pound brain injury case. Sintons successfully defended the case passing the responsibility onto another insurance company and recovering their costs and a new authority on non-party costs orders was created.

The Claimant was the front seat passenger of the car driven by Mr Partington and insured by SRICL under a Social, Domestic and Pleasure policy (SDP) which excluded commuting. On the day of the accident the Claimant and Mr Partington were commuting to work which was a use not covered under the policy.

Mr Partington attempted a ‘double-overtake’ manoeuvre whenever the car in front, driven by Mr Forrett, pulled out into his path. Mr Partington avoided collision with Mr Forrett’s car but hit a tree. The Claimant sustained a traumatic brain injury and Mr Partington also suffered significant injuries. Both have advanced personal injury claims which were consolidated into the same action.

Mr Forrett was convicted in the criminal courts for his bad driving on the day of the collision however supported by his insurers he denied any liability for the accident in civil proceedings arguing that Mr Partington was 100% to blame for the accident.

As SRICL’s policy did not cover commuting they sought a declaration that they were entitled to ‘stand in the shoes of the MIB’ thereby only compensating the Claimant if there were no other insurance companies in the picture with any liability. Sintons argued that Mr Forrett was at least partly to blame for the accident and that therefore his insurers, Admiral, should pay the Claimant’s compensation. The position was strongly contested by Mr Forrett and his insurers; although they were not a party to the declaration proceedings they sought to assist Mr Partington in defending the same.

The Claimant requested summary judgment against Mr Forrett based on his criminal conviction. Days before the hearing Mr Forrett/his insurers conceded negligence but the case proceeded to a hearing to resolve the issue of who should pay the significant costs incurred.

Mr Justice Edis handed down a comprehensive judgment ordering Mr Forrett’s insurers to pay the Claimant’s costs along with SRICL’s costs of the main action. It was also ordered that Mr Forrett’s insurers should pay SRICL’s costs of the declaration proceedings despite the fact that they were not a party to that action. Mr Justice Edis considered that Admiral should rightly pay those costs as (i) their conduct had forced SRICL into bringing the declaration proceedings and (ii) Admiral had partially funded the defence and had been acting in their own interest not that of Mr Partington.

The case was a great success for SRICL who have now dropped out of the action (without any liability in a multi-million pound claim and with their costs paid) and the authority has clarified the position upon when cost orders can be made against non-parties.