PI News
www.guildhallchambers.co.uk
Team News
A new edition
of Peter Barrie’s
book on PI
claims will
be published
by OUP in
Peter Barrie
the New Year
with a new title Personal Injury
Law: Liability, compensation
and procedure.
Left to right: John Snell;
Selena Plowden; Brian Watson
The forthcoming loose-leaf
publication by Jordans entitled
Personal Injury: Law, Practice
and Precedents will contain
contributions from a number
of members of the PI team:
Building on his experience
in horse cases, John Snell is to
draft the chapter on animals
whilst Selena Plowden (editor
of the Inns of Court School of
Law Advanced Civil Litigation
manual) and Brian Watson
(author of Litigation Liabilities)
will focus on Occupiers’ Liability.
Finally, we
are pleased
to congratulate
James Hassall
on his appointment as a
Deputy District
James Hassall
Judge. James
began sitting on the Western
Circuit on 1st September 2004.
November 2004
It has long been said that the world of litigation is
uncertain. These words were undoubtedly aimed at
conventional litigation risks (and were viewed by
lawyers as a concern for the lay client?). Over recent
years, however, personal injury lawyers have been
forced to saddle an uncertainty themselves – will I
be paid? Not only may one’s client not fare well in evidence but
(worse still) many encountered victory in court followed by defeat
at the hands of the costs officer!
Thankfully the Court of Appeal have shown a determination to
discourage litigation over the enforceability of CFA agreements.
That has been followed by predictable fees in road traffic cases. The
latest advance is likely to be in agreed levels of success fees in
employers’ liability cases (see further inside). Accordingly we may
now be entering the final stage of the transition to the world of “no
win, no fee”. The key question remains: will you be a winner?
As usual I have included in this edition of the newsletter
summaries of decisions (largely emanating from the Court of
Appeal) relevant to personal injury practitioners. In addition there
are a number of articles: Adam Chippindall heralds the predicted
arrival of legislation providing for periodical payments in personal
injury damages cases. Tim Walsh discusses the issue of
applications for disclosure of experts’ reports following Jackson v
Marley and John Snell provides analysis of his recent experience of
defending a case where the Claimant’s case rested partly upon self
inflicted harm caused in turn by Munchausen’s Syndrome.
Yours comments and suggestions are, as usual, welcome and should
be addressed to me at [email protected]
Gabriel Farmer (Editor)
Liability
Occupier’s Liability
Bottomley v Secretary and Members of
Todmorden Cricket Club and Others
Court of Appeal 7 November 2003
The cricket club allowed a fireworks display on its land. The display
was provided by friends of the club who did not charge a fee. The
Claimant was injured as a result of the display. Whilst criticising the
club for failing to take reasonable care (there was no proper safety
plan) the Court of Appeal added that in addition, as occupiers, the
cricket club should have ensured that the contractor had adequate
public liability insurance cover.
This case follows a similar decision in Gwilliam v West Hertfordshire
Hospitals NHS Trust, Court of Appeal 7 August 2002 and reported in
the last newsletter.
Claimant alleged breach of section 41 of the Highways Act (failure to
maintain the highway) and negligence. The House of Lords held that
the Court of Appeal correctly rejected breach of section 41 holding
that such a duty related to keeping the highway in repair which did
not include the provision of road signs. Negligence was advanced by
the Claimant on the basis that a common law duty ran parallel with
the highway authority’s power under section 39 of the Road Traffic Act
1988 (each local authority must prepare and carry out a programme
of measures designed to promote road safety and it must take such
measures as appear to the authority to be appropriate to prevent
accidents including the dissemination of information and advice
relating to the use of roads). Having considered Stovin v Wise [1996]
AC 923, Larner v Solihull Metropolitan Borough Council [2001] RTR 469
and Tomlinson v Congleton Borough Council [2004] 1 AC 46 the House
of Lords rejected the submission. The Defendant had not done
anything to give rise to a duty of care. The complaint was that it had
omitted to erect a road sign or road marking but section 39 did not
create a common law duty to act.
Scope of duty of care owed to
participants during horseplay
Stress at work
Blake v Galloway
Barber v Somerset County Council
Court of Appeal 24 June 2004
House of Lords 5 April 2004
The Claimant had participated in good-natured horseplay with some
friends who threw pieces of bark chipping at each other. The Defendant
threw a piece of bark which struck the Claimant in the eye causing a
significant injury. The Claimant sued in battery and negligence. The
Defendant defended alleging volenti and on the basis that the
Claimant had consented to the risk of being hit by the bark even if it
was thrown without reasonable care. Lord Justice Dyson held that in
the absence of authority on the subject of horseplay there was a
sufficiently close analogy between organised and regulated sport and
horseplay for guidance given by the authorities in sporting cases to be
relevant. The Court considered Wooldridge v Sumner [1963] 2 QB 43,
Condon v Basi [1985] 1 WLR 866 and Caldwell and Fitzgerald [2001]
EWCA civ 1054. Applying the guidance given in Wooldridge Dyson L J
held that in the present case it was a breach of a duty of care owed by
the Defendant to the Claimant only where the Defendant’s conduct
amounted to recklessness or a very high degree of carelessness. Further,
the claim in battery was overturned because the Claimant must be
taken to have impliedly consented to the risk of a blow on any part of
his body provided that the offending missile was thrown more or less
in accordance with the tacit understandings or conventions of the
game. The Defendant’s appeal on liability succeeded.
The Claimant was a school teacher who following restructuring took
on further duties causing him to work between 61 and 70 hours a
week. In early 1996 he began to complain of work overload. In the
summer term of 1996 he was off work for 3 weeks with sick notes
showing stress and depression. He subsequently arranged a meeting
with the Headmistress who treated him unsympathetically telling him
“all the staff were under stress.” He then met with the two Deputy
Heads, one of whom was unsympathetic, the other merely urged Mr
Barber to prioritise his work. In the autumn his workload increased
and in November 1996 he stopped work. The agreed medical evidence
was that he was suffering from moderate or severe depression. At first
instance the Trial Judge allowed the claim but this was subsequently
rejected by the Court of Appeal who stated:
“Unless he knows of some particular problem or vulnerability an
employer is usually entitled to assume that his employee is up to the
normal pressures of the job. It is only if there is something specific
about the job or the employee or the combination of the two that he has
to think harder. But thinking harder does not necessarily mean that he
has to make searching or intrusive enquiries. Generally he is entitled to
take what he is told by or on behalf of the employee at face value.”
Highway maintenance does not
include provision of road signs
Gorringe v Calderdale Metropolitan Council
House of Lords 1 April 2004
The Claimant drove her car over the crest of a brow in the road at
50mph. The crest had masked the presence of a bus. The Claimant
skidded into the path of the bus and was severely injured. The
2
The House of Lords described that paragraph as “practical guidance”
but added that every case depended on its own facts and that the best
statement of general principle remained that of Mr Justice Swanwick J
in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Limited [1968] 1
WLR 1776:
“The overall test is still the conduct of the reasonable and prudent
employer, taking positive thought for the safety of his workers in the
light of what he knows or ought to know … where he has in fact
greater than average knowledge of the risks he may be thereby obliged
to take more than the average or standard precautions … He must
weigh up the risk in terms of the likelihood of injury occurring and the
potential consequence if it does; and he must balance against this the
probable effectiveness of the precautions that he can take to meet it
and the expense and inconvenience they involve …”
No duty to ensure independent
contractor insured
The House of Lords considered that there was sufficient evidence for
the Judge to find a breach of duty and that the Court of Appeal were
wrong to set his Judgment aside. At the very least the school Senior
Management Team should have taken the initiative in making
sympathetic enquiries about the Claimant when he returned to work
in June 1996 and made some reduction in his workload to ease his
return. In any event his condition should have been monitored and if
it had improved more drastic action taken. Lord Scott provided a
dissenting Judgment emphasising that it was a legitimate function of
the Court of Appeal to review the standard of care set by decisions of
the lower Courts and that the Trial Judge in the present case had set
the standard too high.
Payling v Naylor
Foreseeable risk of wife’s exposure
to asbestos
Maguire v Harland and Wolff Plc and Another
Queen’s Bench Division 26 March 2004
The Claimant was the wife of a boiler maker. She became exposed to
asbestos when cleaning her husband’s work clothes. Consequently she
developed mesothelioma. Mr Justice Morland held that the Defendant
had not needed prophetic vision to foresee the risk posed to their
employee’s wives as a result of cleaning their clothes. The risk of
serious injury to the Claimant’s health was reasonably foreseeable if
not obvious. Reasonably prudent employers should have kept abreast
of developing knowledge. Accordingly the Defendants owed a duty to
the wife of their employee.
Stress causing physical injury
Donachie v Chief Constable of Greater
Manchester Police
Court of Appeal 7 May 2004
The Claimant was injured when ejected from the Defendant’s nightclub by a bouncer employed by a firm engaged to provide security. In
the first instance the Judge held that the Defendant owed a duty to
ensure that the firm’s owner held public liability insurance and as he
failed to do so he was in breach of his duty of care to the Claimant as
a visitor to his club.
At first glance one would be forgiven for concluding that there was
very little difference in principle between this case and the cases of
Gwilliam v West Hertfordshire Hospitals NHS Trust [2003] QB 443 and
Bottomley v Secretary and Members of Todmorden Cricket Club reported in
this newsletter. However, in contrast to the decisions in those two
cases the Court of Appeal held that this case was not a case in which
the Defendant owed a non-delegable duty to the Claimant. The basic
principle was that his obligation was limited to ensuring that the
independent contractor was competent. As to whether the night-club
owner should have checked the contractor’s insurance position
Gwilliam and Bottomley were distinguished on the basis that the
contractor in this case had provided employees who were licensed and
approved by a scheme operated by the local council and police
authority and the Defendant had had a significant period in which to
assess their competence. Lord Justice Nueberger held that there should
not, save in special circumstances, be a free-standing duty on an
employer to check that his independent contractor had liability
insurance or would otherwise be able to satisfy a judgment. Special
circumstances included cases where the employer was himself under a
duty to insure himself or where the employer accepted that he should
insure himself for the protection of the public (as in Gwilliam). The
Court should be slow to conclude that where a licensed scheme is in
operation regulating the performance of a certain type of task it was
not enough for a businessman to check that an independent
contractor was so licensed before employing him for such a task.
Court of Appeal 7 April 2004
A police officer suffered significant stress as a result of repeatedly
having to replace faulty batteries in a car tagging device. He feared that
whilst changing the batteries he would be discovered and exposed to
serious injury or death at the hands of villains. As a result of the stress
he suffered a stroke. In the first instance the Judge concluded there was
a failure to operate a safe system of work and a breach of statutory
duty which had caused the Claimant’s stroke. However, as the
Claimant had suffered no physical injury of the sort he feared and as
the psychiatric injury which gave rise to the stroke was not reasonably
foreseeable (because the Chief Constable was not aware that he was
vulnerable to stress) the Claimant had suffered no reasonably
foreseeable injury.
The Court of Appeal held that the Judge had wrongly relied upon the
test of foreseeability in Sutherland v Hatton [2002] PIQRP 221 and that
he should have considered whether the Claimant was a primary or
secondary victim. The Court held that if A placed B in such a position
that A could reasonably foresee that B would fear physical injury and
that as a result B sustained psychiatric or physical injury he was a
primary victim. As the Judge was satisfied that there was a reasonable
foreseeability of physical injury the claim should succeed.
Work equipment
Hammond v Commissioner of Police of the
Metropolis and Another
Court of Appeal 11 June 2004
A police mechanic was injured whilst carrying out maintenance on a
police dog van. The Claimant maintained that the van was “work
equipment” pursuant to the Provision and Use of Work Equipment
Regulations 1992. The Judge at first instance held that the wheel nut
was “work equipment” pursuant to regulation 2 and that accordingly
strict liability attached under regulation 6(1) (work equipment must
be maintained in an efficient state, in efficient working order and in
good repair). The Judge relied upon Kelly v First Engineering Limited
[1999] SCLR 1025 which was almost identical on the facts.
The Court of Appeal held that the regulations were concerned with
what might loosely be described as tools of the trade provided by an
employer to an employee to enable the employee to carry out his
work. The requirements of the regulations were imposed in relation to
work equipment provided by an employer for use by employees at
work. The regulations did not apply to an object which the employee
is working on and was provided by others. Therefore, the police van
3
which was taken to the garage for repair was not work equipment in
the context of the garage and its employees. Whereas the van might
well be work equipment for a policeman driving it, it was not of the
police mechanic repairing it.
Damages for gratuitous care
Giambrone and Others v JMC Holidays
Limited (formerly Sun World Holidays Ltd)
Court of Appeal 18 February 2004
Negligence – no duty to fit window
locks on council house
Stephens v Blaenau Gwent County Borough
Council
15 June 2004
The Claimant’s family moved to a council house in 1996. Soon
thereafter the Claimant’s elder sister aged 4 was found dangling her
legs out of the first floor window. The Claimant’s mother asked the
council to fit locks to the windows but the request was refused due to
the possibility of locks hindering access or escape in the event of fire.
In 1999 the Claimant, aged 2 years, climbed over furniture to the
windowsill, opened the window, fell and was seriously injured. After
the accident the council fitted a safety catch to the top of the window
in order to prevent it opening more than 2 or 3 inches. The Judge
found that such a catch would have prevented the accident. The claim
succeeded in front of HHJ Masterman on the basis of common law
negligence for the council’s failure to fit catches or to permit parents
to fit them. The Court of Appeal in allowing the Defendant’s appeal
on liability stated that the starting point was that the council’s no
locks policy did not involve any breach of their duties as a local
authority landlord under the tenancy agreement or any legislation.
Further, the window did not present any hidden special or
exceptional danger which should have alerted the council to make an
exception to its no locks policy. There was also no evidence that the
council’s policy presented an exceptional risk to the Claimant’s
family’s safety. In refusing to allow locks to be fitted the council were
entitled to assume that the Claimant’s parents would provide
appropriate vigilance and apply good sense in moving furniture a
safe distance from the window sill.
Personal protective equipment: defect
irrelevant to purpose of protection
Fytche v Wincanton Logistics Plc
House of Lords 1 July 2004
The Claimant was a milk tanker driver who was supplied with steel toe
capped boots in order to protect his toes against heavy objects (such
as milk churns) falling on them but the boots were not meant to be
waterproof or to be used in extreme weather conditions. In December
1999 the Claimant was working in heavy snow on the South Downs.
One of his boots leaked and the Claimant sustained frostbite in his
little toe. He alleged negligence in failing to supply him with boots
which were adequate to protect him from freezing conditions and
breach of the Personal Protective Equipment Work Regulations 1992
for failing to maintain his boots “in an efficient state, in efficient
working order and in good repair.” The House held that “efficient
state, in efficient working order and in good repair” was not an
absolute concept but had to be construed in relation to what made the
equipment protective equipment. It was for the purpose of protecting
against the relevant risk. The employer did not have a duty to do
repairs and maintenance which had nothing to do with the
equipment’s protective function.
4
The Court of Appeal finally laid to rest the case of Mills v British Rail
Engineering Limited [1992] 1 PIQRQ 130. Mills established that
damages for care should only be awarded (i) in a very serious case and
(ii) where the relative had to provide care “well beyond the ordinary
call of duty” for the special needs of the sufferer. Mills has frequently
been used by Defendants in order to defeat care claims.
In Giambrone a number of holidaymakers suffered food poisoning and
gastroenteritis. There were a number of claims in relation to care given
to children who suffered these symptoms. The Defendant appealed
against the Judge’s award of care claims ranging from £120 to £275
based upon Mills.
Overruling Mills the Court of Appeal held that the two principles did
not apply and added that where a child suffered from gastroenteritis
and received care from his family awards in excess of £50 a week
should be reserved for the more serious cases.
Damages for mental distress
Hamilton Jones v David & Snape (a firm)
Chancery Division 19 December 2003
The Claimant instructed Solicitors in 1994 to protect her and her
children from the prospect of the children’s father removing them to
Tunisia. The Claimant’s Solicitors obtained the relevant Orders from
the County Court and an assurance from the United Kingdom Passport
Agency that for a period of 12 months “every effort will be made to
ensure that standard passport facilities are not granted.” In June 1996
the children’s father removed them to Tunisia. In 2002 the Claimant
commenced proceedings against her Solicitors seeking damages on the
ground that they were negligent for failing to renew the notice to the
Passport Agency following expiry of the 12 month period. She claimed
general damages for mental distress (although she was time barred in
respect of a personal injury claim for psychiatric damage). Mr Justice
Neuberger considering Verderane v Commercial Union Assurance [1993]
BCLC 793 held that the approach to damages in tort in a case where
the relationship was primarily governed by the contact should be
approached using contractual principles. Although ordinarily a claim
founded in contract could not result in damages for injured feelings
(Addis v Gramophone Co Limited [1909] AC 488) this case fell into one
of the exceptions in Addis, namely that the object of the contract was to
provide amongst other things peace of mind. See also Watts v Morrow
[1991] 1 WLR 1421. Accordingly, it was held that the Claimant could
recover and £20,000 was awarded for mental distress.
Snow and ice on the Highway
Section 41 Highways Act 1980 has been amended following the
decision in Goodes v East Sussex County Council [2000] 1 WLR 1356
to read:
S.41(1a)
In particular a highway authority are under a duty to ensure so far as
is reasonably practicable that safe passage along a highway is not
endangered by snow or ice.
Quantum
Claimant not barred from recovering
common law damages following award
of compensation by industrial tribunal
Insurance monies to be deducted
Eastwood and Another v Magnox Electric Plc
McCabe v Cornwall Council County Council
and Another
The Claimant sustained serious injuries at work and thereafter
received an ill-health gratuity payment of £10,000 from the Defendant
and further payments totalling £122,787 out of a group insurance
policy covering temporary total disablement and permanent total
disability. The Defendant admitted liability but contended that the
insurance monies should be deducted from any award of damages. At
first instance the Recorder relying upon McCamley v Cammell Laird
Shipbuilders Limited [1990] 1 WLR 963 did not deduct the insurance
money. Reversing the first instance decision the Court of Appeal held
that McCamley should no longer be followed because it was wrongly
decided. The Court further held that insurance monies must be
deducted from damages unless it was shown that the Claimant had
paid or contributed to the insurance premium directly or indirectly.
On the facts the insurance exception to the deduction of benefits did
not therefore apply. Further, the benevolent exception could not apply
because (i) the payment was made by the tortfeasor and (ii) the
payment of benefit under the insurance policy was not equivalent or
analogous to a payment made by a third party out of sympathy for the
plight of a victim of an accident.
House of Lords 15 July 2004
Mr Eastwood sued his employers in negligence and breach of contract
alleging that he had suffered a psychiatric illness as a result of the
deliberate conduct of certain individuals using the machinery of the
workplace disciplinary process. Mr McCabe claimed damages for
breach of contract and in negligence by reason of his employer’s
failure to investigate allegations against him and conduct disciplinary
hearings properly (prior to his dismissal) which thereby caused him a
psychiatric illness. Both Claimants sued in the industrial tribunal for
unfair dismissal prior to instituting Court proceedings. The
Defendants maintained that following Johnson v Unisis Limited [2003]
1 AC 518 the claim should be struck out because all of the matters
complained of in Court proceedings had been within the statutory
jurisdiction of the employment tribunal. The question at the heart of
the cases was one of determining where on the facts of any particular
case the line should be drawn between dismissal (caught by unfair
dismissal legislation) and conduct prior to that causing injury (which
was compensatable in damages at common law). If before dismissal
an employee had acquired a cause of action at law for breach of
contract or otherwise that cause of action remained unimpaired by his
subsequent unfair dismissal. If, however, he brought proceedings both
in Court and before a tribunal he could not recover any overlapping
heads of loss twice over. Whereas identifying the boundary between
the common law and the statutory rights and remedies was
comparatively straightforward the same could not be said of the
practical consequences (and the assessment of damages) which were
awkward and unfortunate. The House of Lords urged urgent attention
to the situation by the legislature.
Credit hire
Lagden v O’Connor
House of Lords 5 December 2003
This case follows the decision in Dimond v Lovell [2002] 1 AC 384. In
Dimond the majority of the House of Lords expressed the view that a
car owner could not recover from a “credit hire” company fees with
charges additional to the spot rate quoted by non-credit hire
companies. In Lagden, however, the Claimant was impecunious. He
therefore had no choice other than to incur the extra charges levied by
a credit hire company. The House (Lords Scott and Walker dissenting)
held that it would be appropriate in the cause of an impecunious
Claimant to allow the recovery of such charges. There remained the
difficulty of defining “impecunious.” Lord Nicholls stated that it
signified the inability to pay car hire charges without making sacrifices
the Claimant could not reasonably be expected to make. He invited
motor insurers and credit hire companies to agree on standard
enquiries or some other means which in practice could most readily
give effect to this test of impecuniosity.
Gaca v Pirelli General Plc
Court of Appeal 26 March 2004
Legal advice privilege
Three Rivers District Council and Others
v Governor and Company of the Bank of
England (No. 6)
Court of Appeal 1 March 2004
The Court of Appeal considered in detail the scope of legal advice
privilege. The Claimant sought disclosure from the Bank of England of
communications passing between the bank and its Solicitors. At first
instance the Judge had found that the function of the bank’s Solicitors
was “to prepare submissions and/or to advise on the nature,
presentation, timing and/or contents of the bank’s submission to,
evidence for and response to requests from the enquiry.” However, the
Court of Appeal held that the legal advice privilege did not cover such
activity. The precise scope of legal advice privilege was not clearly
defined by the Court. However, it held that “legal advice” did not
mean “advice given by a Lawyer” but rather “advice in relation to law”
or “advice concerning the bank’s rights and obligations.” It added that
although legal advice privilege attached to matters such as the
conveyance of real property or the drawing up of a Will, it was not
clear why it should. The Court recommended a review of legal advice
privilege by the Law Reform Committee.
Judicial Studies Board
The Board have now published the 7th Edition to the Guidelines.
Practitioners should note that in addition to the inevitable increases
in the bracket figure to reflect inflation the Guidelines also include a
number of new categories, particularly relating to chronic pain. A
somatoform disorder is now apparently worth “in the region of
£25,000”!
5
Limitation
Date of knowledge – VWF
Constructive Knowledge
Doherty and Others v Rugby Joinery
(UK) Limited
Adams v Bracknell Forest Borough Council
Court of Appeal 3 March 2004
The Claimant issued proceedings against the council claiming
damages for negligence in failing to provide him with suitable
education. He alleged a failure by the council properly to assess his
educational difficulties (which would have revealed dyslexia) and to
provide him with appropriate treatment. The House considered and
accepted the claim as a personal injury claim. As to constructive
knowledge, the Court overruled Smith v Central Asbestos Co Limited
[1973] AC 518 wherein Lord Reed stated, obiter, that the Claimant’s
constructive knowledge needed to be judged from a subjective point
of view. Section 14(3) of the Limitation Act 1980 required one to
assume that a person who was aware that he had suffered a personal
injury would be sufficiently curious about the causes of the injury to
seek whatever expert advice was appropriate. The House held that in
the absence of some special inhibiting factor the Claimant could
reasonably have been expected to seek expert advice years ago.
Accordingly his constructive knowledge was well before 3 years prior
to the issue of proceedings. The Claimant’s application under section
33 of the Act (for dis-application of the 3 year limitation period) was
rejected. Lord Walker and Lady Hale added that in applying the test for
knowledge under section 14(3) some personal characteristics might
be relevant to what knowledge could be imputed to the Claimant.
The Court of Appeal considered the relevant date of knowledge for
limitation purposes in respect of a claim for vibration white finger
caused by the exposure to vibration from an orbital sander. The Court
of Appeal held that since the knowledge of the danger of orbital
sanders took time to disseminate it was a matter of fact in each case
whether an employer was fixed with constructive knowledge so as to
trigger its duty of care towards employees. The evidence was that in
1990 Professor Griffin of Southampton University published the
Handbook of Human Vibration which stated that no employee
should use a sander for more than 31 minutes a day. Accordingly, it
was open to the Judge at first instance to conclude that none of the
employees duties had been triggered before 1991 and upheld for other
appeals for injuries sustained after 1991.
Court of Appeal 17 June 2004
Procedure
Application to reduce payment
into Court
Service of Claim Form
Flynn v Scougall
Court of Appeal 25th May 2004
Court of Appeal 13 July 2004
The Claimant was injured in a road traffic accident on 21 January
2000. A Claim Form was issued on 13 January 2001 (approximately 1
week prior to the expiry of limitation). One clear working day before
the expiry of the validity of the Claim Form the Claimant made an
application without notice for a 3 week extension of time for the
service of the Claim Form. Master Tennant granted the application. A
subsequent application by the Defendant to set aside the without
notice extension of time and to have the claim struck out was refused.
On appeal direct to the Court of Appeal the Court analysed the facts
which caused the application for an extension of time to be required
and concluded that the Claimant’s Solicitors had simply been
negligent in allowing so much time to expire prior to taking action.
Accordingly they concluded that under CPR 7.5 there was no reason
for the failure to serve other than incompetence and this did not
amount to a “good reason.” The time for serving the Claim Form
should not have been extended.
The Defendant made a payment into Court under Part 36 of the Civil
Procedure Rules. Within the 21 day period for acceptance she made an
application to reduce the payment into Court. However, before the
Hearing of that application (and still within the 21 day period) the
Claimant gave notice to accept the original payment. At first instance
the Judge allowed the Defendant’s application to reduce the sum in
Court. The Claimant appealed. Mr Justice May held that there was no
automatic stay where a Defendant issues an application to reduce a
payment into Court within the period for acceptance and before
acceptance. Relying on Manku v Seehra (1985) 7 com LR 90 the Court
held that it had a discretion and the Claimant’s acceptance did not
prevent the Court from allowing a Defendant to withdraw. However,
it was an important consideration to be taken into account in deciding
whether he should be permitted to do so. On the facts the Court of
Appeal held that the Judge should not have permitted the reduction of
the payment in and that the Claimant was entitled to accept the
original payment.
6
Hashtroodi v Hancock
Defendant can renege on settlement
Drinkall v Whitwood
Court of Appeal 6 November 2003
The Claimant was a minor injured in a serious road traffic accident.
The Defendant made an offer to settle the issue of liability in the
Claimant’s favour subject to 20% contributory negligence. The offer
was accepted by the Claimant. Prior to the commencement of
proceedings or obtaining any approval of the Court of the liability
settlement the Defendant attempted to withdraw its offer. In the first
instance the Judge held that the Defendant was bound by the
agreement. The Court of Appeal, however, relying upon Dietz v Lennig
Chemicals Limited [1969] 1 AC 170 (a decision relating to materially
identical rules in the RSC) and in construing CPR 21.10(1) held that
21.10 applied to partial settlements as well as settlements of all issues.
Accordingly the Defendant was entitled to renege on the agreement.
The Court of Appeal added that minors could be protected by issuing
Part 8 proceedings in order to obtain the Court’s approval of any
partial settlement of a claim. The question of the applicability of the
doctrine of estoppel was not explored in argument.
Expert report not disclosable
Jackson v Marley Davenport Ltd
Court of Appeal 9th September 2004
The Claimant issued proceedings following a fall from a ladder whilst
at work. He instructed an expert who had prepared a report for the
purposes of a conference with lawyers. Subsequently a report was
served on the Defendant that referred to letters of instruction and to
other documents and gave the impression that the expert might have
changed his view in the report that was subsequently exchanged. On
the Defendant’s application an order had been made for disclosure of
the first report. The Claimant’s appeal against that decision had been
allowed. The Defendant contended that the first report should have
been disclosed under CPR 35 rule 15. If an expert’s views developed
after fresh evidence, his earlier views in the first report were
disclosable.
The Court of Appeal held that 35.15 did not provide courts with the
power to order disclosure of earlier reports made by experts in
preparation of a final report. There was no doubt where an expert
made a report for legal advisors or for the purposes of a conference
that such a report was subject to litigation privilege at the time it was
made. It was not intended that the CPR abrogated privilege and
references to the disclosure of expert’s reports in 35.10(2) had to be
references to the actual expert’s evidence and not earlier draft reports.
Please see Tim Walsh’s article later in this newsletter for further
discussion on this topic.
Disease Protocol
A pre-action protocol is now in force in relation to disease and illness
claims. The protocol can be found at www.dca.gov.uk/civil/
procrulesfin/contents/protocols/erotdis.htm.
Statements of Truth
On 8 December 2003 the Practice Direction to CPR Part 22 was
amended to require a statement of truth to be made for “a Schedule or
Counter-Schedule of expenses and losses in a personal injury claim
and any amendments to such a Schedule or Counter-Schedule
whether or not they are contained in a Statement of Case.”
Appeals Procedure
On 30 June 2004 the Court of Appeal handed down a practice note covering
substantial changes in Civil Appeal procedure and Practice Direction to CPR
part 52. The revised Practice Direction can be found at www.dca.gov.uk
and the Judgement at www.courtservice.gov.uk/judgments.
Costs
Success fee recoverable in union
funded case
Thornley v Lang
Court of Appeal 29 October 2003
Yet another case where the Court of Appeal demonstrated a clear
reluctance to accede to technical costs arguments advanced by a
paying party. The Claimant, a trade union member, sought damages
following a road traffic accident. The claim was compromised.
However, the Defendant’s insurers maintained that (whilst base costs
were enforceable) the Claimant should not be able to recover the 20%
success fee because the Claimant had incurred no liability to pay his
Solicitors. The trade union had instructed Solicitors to act on behalf of
the Claimant and therefore it was not easy to justify a finding that the
Claimant came under an independent obligation to pay those
Solicitors. Accordingly, the Defendant argued that no enforceable
obligation to pay the 20% uplift was taken by the Claimant because
no conditional fee agreement had been executed. The Court of Appeal
upheld the Claimant finding that the union had agreed with their
Solicitors to act under a collective conditional fee agreement or,
alternatively, that the Claimant had ratified the agreement reached by
the union on his behalf by availing himself of the Solicitors services.
Therefore the contract was a collective conditional fee agreement and
not subject to the onerous conditions of the Conditional Fee
Agreement Regulations.
Fixed success fees in employers’
liability cases
The Civil Justice Council has procured a settlement relating to employers’
liability cases whereby a 25% success fee will be payable if the case settles
pre or post issue and 100% in all cases that go to trial. A further 2.5%
uplift will be recoverable by solicitors for pre-trial settlements if the claim
is funded by a membership organisation (in order to cover disbursement
risks). Different rules apply to barristers and the success fees are
retrospective – in other words will apply to all the work done on the case.
7
The agreement does not apply to disease cases. For a full text of the
agreement (which is expected to be incorporated into the CPR in due
course) see www.costsdebate.civiljusticecouncil.gov.uk
Conditional fee agreement
unenforceable
Spencer v Wood and Another
Party not to be punished for
inadequate costs estimate
Leigh v Michelin Tyres PLC
Court of Appeal 8 December 2003
Paragraph 6.6 of the practice direction to Part 43 confers on the Court
the power to take into account the parties’ costs estimate when
assessing costs. The Claimant’s estimate at the time of the allocation
questionnaire was £6,000 plus VAT but the final bill amounted to
£21,741.28. The Court held that it would not be a correct use of the
power conferred by paragraph 6.6 to hold a party to his cost estimate
simply in order to penalise him for providing an inadequate estimate.
However, the following further guidelines were set out:
1 Estimates made by Solicitors of the overall likely costs of litigation
should usually provide a useful yardstick by which the
reasonableness of the costs finally claimed could be measured.
2 If there was a substantial difference between the estimate and the
costs claimed that difference called for an explanation.
3 In the absence of a satisfactory explanation the Court might
conclude that the difference itself was evidence that the costs
claimed were unreasonable.
4 The Court could take the estimated costs into account if the other
party showed that it relied on the estimate in a certain way.
5 Where a party showed that it had relied on the other party’s
relatively low estimate not to offer a settlement but carried on with
the litigation expecting his potential liability for costs to be of the
order indicated in the other party’s estimate it would be a proper
use of paragraph 6.6 to take such a factor into account in the costs
assessment.
The Court could take the estimates into account where it would
probably have given different case management directions if a realistic
estimate had been given by trimming down the number of experts
called or slimming down the complexity of the litigation to control
costs in a reasonable and proportionate manner.
Court of Appeal 15 March 2004
An example of the Court of Appeal finding a conditional fee agreement
unenforceable following its decision in Hollins v Russell [2003] 1 WLR
2487. The conditional fee agreement (which cannot have been in
accordance with current Law Society model) failed to specify how
much of the percentage increase related to the legal representative’s
costs of the postponement of his fees and expenses. This was in direct
contravention of regulation 3(1)(b) of the Conditional Fee Agreements
Regulations. The Court declined to accept the Claimant’s argument that
there should be a graduated response to such breaches. If the breach
“had a materially adverse effect either upon the protection afforded to
the Client or upon the proper administration of justice” (per Hollins)
the agreement was unenforceable.
Failure to submit to ADR: costs
consequences
Halsey v Milton Keynes General NHS Trust
Court of Appeal 11 May 2004
The Court of Appeal refused to order costs sanctions against litigants
who had failed to take part in mediation. The Court emphasised that
the general rule was that costs follow the event. There was a burden
upon the unsuccessful party to demonstrate why there should be a
departure from the general rule. Factors which bore upon this
question included but were not limited to the nature of the dispute,
the merits of the case, the extent to which other settlement methods
had been attempted, whether the costs of the alternative dispute
resolution would have been disproportionately high, whether any
delay in setting up and attending the alternative dispute resolution
would have been prejudicial and whether the alternative dispute
resolution should result in a costs penalty. The High Court in the Royal
Bank of Canada v Secretary of State for Defence [2003] EWHC 1841 was
wrong to attach significant weight to the Lord Chancellor’s
announcement in March 2001 that ADR should be considered and
used in all suitable cases. It was difficult to see in what circumstances
it would be right to give great weight to the alternative dispute
resolution pledged.
Entitlement to set-off against
Costs Order in favour of legally
aided Claimant
Solicitors Wasted Costs Order
Hill v Bailey
Chancery Division 26 November 2003
Chancery Division 25 November 2003
Radford & Co appealed against the making of a wasted Costs Order
under section 51(6) of the Supreme Court Act 1981, as substituted by
section 4 of the Courts and Legal Services Act 1990. Mr Justice
Neuberger held that although Radfords were guilty of a negligent act
(their failure to act within a time limit) there was no question of that
negligence amounting to a breach of duty of the Court. It was
necessary for the making of a wasted Costs Order that the conduct was
either improper, unreasonable or negligent and also that it was in
some way a breach of duty to the Court.
Prior to 1999 and the repeal of section 17 of the Legal Aid Act 1988 it
was permissible for a Defendant to set-off the Claimant’s liability to
him (in costs) against his liability to the Claimant (in costs or
damages). See Lockley v National Blood Transfusion Service [1992] 1 WLR
492. Mr Justice Lightman held that the same position pertained
following the inception of section 11 of the Access to Justice Act 1999.
While a funded party remained protected against the making of
enforceability Orders for the payment of costs that protection was not
available in respect of Orders for costs used as a set-off. See also Hicks
v Russell Jones & Walker Court of Appeal 27 October 2000.
8
Radford & Co v Charles and Another
Gabriel Farmer
Periodical Payments
Most of us are used to viewing comp-
impose a periodical payments order, and will be able to provide
ensation for personal injury as a single
for the variation of that order, in certain circumstances.
lump sum award. We will soon have to
alter our way of thinking.
We do not know exactly when this new law will come into force.
The necessary Statutory Instrument has not yet been approved
Historically, we have been familiar with
by Parliament. Some suggest that it may come into force in
one method of “periodical payment”,
November, but others suggest that is now unlikely.
namely the Structured Settlement. It
has been around for a great many years,
This article is not the place to go into the intricacies of the new
and was given impetus when in about
provisions, which will require careful scrutiny. Already, however,
1987/88 the Inland Revenue accepted
commentators are posing questions of the new legislation: for
that annuity payments under a settlement would be exempt from
example, the problem of whether all proposed periodical
income tax (which was later incorporated in a Finance Act).
payments will be able to satisfy the requirement that “reasonable
However, there was no statutory basis by which the court could
security” is in force; the implications of pegging such orders to
impose an order for a Structured Settlement. It had to come from
the RPI, particularly where they relate to lost earnings and/or care
the parties and be by consent.
provision, where it is well recognised that annual increases
outstrip retail price inflation. On a practical level, consideration
Then the Damages Act 1996 provided the court with power to
will need to be given to the structure of such awards – how much
make a “periodical payment” order, by S.2. Again, however, this
of a contingency lump sum should be retained? In those cases
was only where the parties consented. As far as I am aware very
where there may be a chance of a significant deterioration or
little, if any, use was made of this power.
improvement in the future, will the new provisions as to variation
of an order come into play?
Whilst the benefits of structured settlements have been
acknowledged widely, they have been largely confined to cases
My purpose here is simply to warn practitioners of the imminent
where the compensation payment would have been in the millions.
advent of these new provisions so that we can all start to consider
the practical implications.
To encourage more use of structured settlements, the Civil
Procedure Rules were changed in October 2003. By reason of the
changes to the Practice Directions of CPR Parts 21, 29 and 40 the
Ogden Tables
parties to a claim for personal injuries were required to raise with
the court “the question of a structured settlement” in all cases
I understand that the Government Actuary is likely to publish new
where the future loss was likely to equal or exceed £500,000. An
Life Tables soon. If the recent trend of increasing life expectancy
unfortunate coincidence with the withdrawal from the market
continues (which seems very likely) then we can also expect the
place of 2 major annuity providers meant that this requirement
multipliers in the Ogden Tables to increase. Practitioners will
has become somewhat hollow.
need to bear this in mind over the next few months, when they
give consideration to settling cases with a substantial element of
Now the Courts Act 2003 has been given Royal Assent. Section
future loss.
100 introduces a new S.2 of the Damages Act 1996. When it
comes into force the court will, for the first time, be able to
Adam C Chippindall
9
Expert Reports,
Litigation Privilege
and Disclosure
“I found out early in life that you never
The defendant argued that the cards on the table approach of
have to explain something you haven’t
the CPR and the strict terms of r. 35.13 gave the court power to
said” Calvin Coolidge (U.S. President
order disclosure of earlier drafts of reports which may
1923-1929).
previously or otherwise have attracted litigation privilege.
It is not unusual for an expert to
It will be recalled that r. 35.13 provides that a party who fails to
advise a client in conference or in
disclose an expert’s report may not use the report at the trial or
writing at an early stage in litigation
call the expert to give evidence orally unless the court gives
before preparing a subsequent report
permission. Inevitably, therefore, the success of the defendant’s
that is later disclosed. This poses the question of whether earlier
bold submission depended on the construction of the term
reports continue to enjoy litigation privilege and are thereby
“expert’s report” as it appears in r. 35.10 and 35.13.
immune from disclosure.
There can be no doubt that, historically at least, if an expert has
made a report for the purpose of a party’s legal advisers being
able to give legal advice to their client such a report has always
been the subject of litigation privilege at the time it was made.
Such a report comes into existence for the purposes of litigation
and that is an end to the matter.
Unsurprisingly, the Court of Appeal rejected so broad a
construction on the basis that reference to the “expert’s report”
in the body of these rules can only have been intended to refer
to the expert’s intended evidence for the purpose of trial and not
to earlier and privileged drafts of what may or may not in due
course become the expert’s evidence.
Jackson v. Marley Davenport Ltd. should probably come as little
surprise given that had the CPR intend to abrogate privilege further
r. 35.10 of the CPR modifies the common law position, however,
the limited erosion evident in 35.10(4) could have been extended.
by providing that the expert’s report must state the substance of
all material instructions, whether written or oral, on the basis of
Furthermore, the Court of Appeal had already made it clear in
which the report was written. Those instructions no longer enjoy
Carlson v. Townsend ([2001] 1 WLR 2415) that it was not the
privilege against disclosure.
intention of the pre-action protocols at least to override the
privilege attaching to the report of an expert whom a party has
How far, though, does this abrogation of privilege extend? In
instructed but decided not to call.
Jackson v. Marley Davenport Ltd. ([2004] EWCA Civ 1225) the
claimant had suffered serious injury when he apparently fell
Ultimately, a draft report may express one view, as was probably
from a ladder whilst on a construction site in Leipzig. An order
the case in Jackson v. Marley Davenport Ltd., but views may
was made giving each party leave to rely on expert pathology
legitimately evolve. This most recent decision will at least avoid
evidence and reports were later exchanged. Unfortunately, the
the spectre of detailed questions to experts calling for an
claimant’s expert concluded his report in a manner which
explanation of views which are no longer held and are not
indicated that he had expressed an earlier opinion which had
expressed in the final report. Fortunately, it remains the case
since changed. The Defendant correctly surmised that there was
that you never have to explain something you haven’t said.
an earlier report and sought its disclosure.
10
Tim Walsh
Causation in cases of
Munchausen’s Syndrome
Munchausen’s
syndrome,
properly
described
Disorder
(DSM-IV
as
more
It is submitted that, once the judge had found that the claimant
Factitious
was not malingering, it was not satisfactory to dispose of the
a
case on the facts alone. Since the judge had found that the
behavioural disorder which results in
claimant was not malingering, he must have accepted that the
the individual intentionally producing
symptoms were the consequence of her underlying condition.
signs or symptoms of illness with the
That being the case, it was necessary to grapple with the
motive of assuming the sick role.
underlying legal question of whether or not the tortfeasor had
Where a claimant suffering from
to take its victim as it found her, namely a vulnerable person
Factitious Disorder is injured by a
with a pre-existing condition which rendered her prone to self-
tortfeasor,
harm when provided with a suitable opportunity.
300.19),
difficult
is
questions
of
causation arise. Is the tortfeasor responsible only for the
original injury or is the tortfeasor also liable for the subsequent
acts of self-harm by the claimant which perpetuate the original
injury?
In fact, the judge did go on to express the views he would have
come to if it had been necessary to decide the case on the law.
He was much influenced by the observation of Lord Hoffman in
Commissioners of Police for the Metropolis v. Reeves ([2000] 1 AC
In Thomas v. Tesco Stores Ltd (Unreported, Swindon County
360) that it is “sound intuition that there is a difference between
Court 31.3.04, Recorder Lamb QC) the claimant was employed
protecting people against harm caused to them by third parties
in the defendant’s Honiton supermarket and sustained a soft
and protecting them against harm which they inflict upon
tissue injury to her wrist at work in May 1999. The orthopaedic
themselves. It reflects the individualist philosophy of the
evidence was that in the ordinary course of events the claimant’s
common law. People of full age and sound understanding must
soft tissue injury would have been expected to recover within 3
look after themselves and take responsibility for their actions.”
to 6 months with no residual symptoms. At trial in February
The judge went on to comment that the defendants owed the
2004, the claimant complained of continuing symptoms in her
claimant no duty to protect her from self-harm and that,
wrist and claimed damages on the basis that she had been
although the accident may have given rise to the opportunity to
unable to work since the accident as a consequence of her
self-harm, the consequences were too remote in the sense that
injury. It was the agreed evidence of the experts that she had
they were not within the general range of the risk created by the
perpetuated the symptoms by harming herself as a result of her
defendant’s negligence.
Factitious Disorder. The claimant denied that she had harmed
herself but such denial is typical of the disorder.
It is submitted that the claimant’s case is to be distinguished
from an “eggshell skull” case. In the latter type of case an injury
The evidence of the Consultant Psychologist called by the
to a particularly vulnerable individual results in injuries which
claimant was that there was an element of choice in her actions
are far more extensive than could have been expected; the
in that she was consciously aware of what she was doing but he
defendant is held liable for the full extent of the injuries. In this
pointed out that the motivation for such actions was
case the symptoms after the commencement of self harm could
unconscious. He told the court that the urge to self-harm could
not properly be categorised as part of the “full extent of the
be overwhelming but at other times could be resistible. The
injuries” because they arose from a wholly different mechanism:
evidence was that the claimant had suffered from Factitious
deliberate self-infliction by the claimant as a result of
Disorder for decades but that her work record in the years
motivation which was unconscious but which, historically, she
leading up to May 1999 had been relatively good.
had been able to resist.
The judge held that, during the years of the claimant’s relatively
The Court of Appeal has not yet been called upon to consider
good work record, she had found the desire to self-harm to be
causation in a case of Factitious Disorder and, until such time as
resistible at times. He found that the symptoms after August
it does, it is likely that different judges will come to different
1999 were not caused by any act or omission of the defendants
but were caused by a resistible desire on the claimant’s part to
self-harm. Damages were awarded on the basis of the limited
period between May and August 1999. The judge expressly
found that the claimant was not malingering but explained that
views on the extent to which a tortfeasor is held responsible for
ensuing self-harm in such cases. Practitioners will be glad to
know, in the meantime, that cases of true Factitious Disorder are
extremely rare.
John Snell
he had not been satisfied, on the balance of probabilities, that
the claimant was acting unconsciously when she perpetuated
(who was instructed by Glynns Solicitors and acted for Tesco
the symptoms after August 1999.
Stores Ltd).
11
The Personal Injuries Team
Adrian Palmer QC
Adam Chippindall
Peter Barrie
[email protected]
[email protected]
[email protected]
Brian Watson
James Townsend
Anthony Reddiford
Julian Benson
[email protected]
[email protected]
[email protected]
[email protected]
Selena Plowden
John Snell
Euan Ambrose
Gabriel Farmer
[email protected]
[email protected]
[email protected]
[email protected]
James Hassall
Matthew Porter-Bryant
Tim Walsh
Elizabeth McCallum
[email protected]
[email protected]
[email protected]
[email protected]
George Monck Chambers Director
Julie Arrowsmith Team Clerk
Heather Mings Team Clerk
[email protected]
[email protected]
[email protected]
Guildhall Chambers, 5–8 Broad Street, Bristol BS1 2HW
DX 7823 Bristol
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Fax. 0117 930 3898
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This newsletter is for information purposes only and is not intended to
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should not be relied upon without checking those sources. Any views
expressed are those of the editor or named author.
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