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Corporate Claims Bulletin - November 2018

  • United Kingdom
  • Personal injury claims litigation - Personal Injury Bulletin

14-12-2018

LIABILITY

McAuliffe v City of London Corporation (unreported)

The claimant was injured after catching his arm on a protruding bolt, whilst cycling through a gate in Epping Forest. Subsequently, the claimant brought an action against the defendant, pleading that the defendant was in breach of their common duty of care, as set out in section 2 of the Occupier’s Liability Act 1957:

“The common duty of care is to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there”

Or, to put it more simply, the defendant must show that it took reasonable care to see that the claimant was reasonably safe.

The defendant relied upon the evidence of a highly experienced Head of Operations, who had worked in several woodlands and nature reserves throughout his career. At the trial he spoke with authority of what is, and is not, standard in such an environment.

The defendant was able to point to a vast range of data, which demonstrated clearly that despite that fact that some 32,000 visitors passed through that gate annually, they had not had any reports of similar accidents in the last 5 years. In addition, they had a number of similar gates around the forest, which again had not had any similar accidents reported. They considered the risk of injury from the bolt to be low.

Further, the defendant could show that they had a system of reactive inspections in place, and whilst they could not say that that specific bolt had been considered, it had not struck them as dangerous during their rounds and even after the claim, they had still not considered it dangerous.

The claimant pointed to another gate nearby, which had been guarded with wooden battening. The defendant showed that this gate was ‘just different’, the design was not chosen because it was considered safer. The defendant called upon evidence of cost practicality in changing and maintaining all of the gates in that manner. It would have cost many of thousands of pounds.

The judge held that the risk of injury was low, therefore the expenditure to remove the risk was not justified.

The evidence relied upon and the delivery of it allowed the court to balance the social utility of the forest against the low risk of injury. The court found it useful to have realistic details of the cost involved in altering alleged hazards.


COSTS

Rotam Agrochemical Company Ltd, Rotam Agrochem International Company Limited v Gat Microencapsulation GmbH [2018] EWHC 3006 (Comm)

The claimant was awarded €291,000 (£258,000) in damages for unjust enrichment, having initially claimed the sum of $16.4m (£12.8m), which was later reduced to $11.3m (£8.9m), for the alleged breach of two contracts.

In bringing the claim, the claimant racked up over £1.5m in costs. Mr Justice Butcher was of the view that their costs would not have been anywhere near such a level if the sum they were seeking to win had been the recovery which they ultimately made.

The claimant, considering itself the winner, argued that it should have its costs, subject to a reduction of no more than 25% to take account of its failure on some of the issues.

However, Mr Justice Butcher took the view that it could not be said with any plausibility, that the claimant had won. In his opinion, the defendant had substantially denied the claimant the prize which it sought. The aspect upon which the claimant won, only succeeded because the primary claim failed.

For the purposes of CPR 44.2(2)(a) Mr Justice Butcher considered the defendant to be the successful party. The general rule then follows that the defendant should have their costs. However, as the defendant did not win on all counts, the order should make this clear. Further, he was of the view that the defendant’s conduct had been ‘unsatisfactory’. The resultant effect was a 50% reduction of the defendant’s costs, to be paid by the claimant.

He went on to say that had he been persuaded that the claimant was the successful party, he would nevertheless not have made an order that the claimant was to have their costs, or a substantial proportion of their costs, under CPR 44.2(2)(a), but would have made a different order under CPR 44.4(2)(a), which he doubted would have had an overall result significantly different from the order which he had made.

Waring v McDonnell [2018] 11 WLUK 203

There are now two conflicting judgments on this issue. The first of Ketchion v McEwan which concluded that a counterclaiming defendant does have QOCS protection for the entire claim and now we have the more recent case of Waring v McDonnell, which concludes that he does not.

In Waring, the claimant and defendant were both involved in a cycling accident in June 2016. Both parties sustained injuries and pursued claims for damages. In September 2018, the court gave judgement for the claimant and dismissed the defendant’s counterclaim.

The defendant argued that he was protected by Qualified One-Way Costs Shifting (“QOCS”) and any subsequent order for costs made against him was not enforceable by the claimant.

The sections of the Civil Procedure Rules which apply are:

CPR 20.2(2) – In these Rules –

(a) ‘additional claim’ means any claim other than the claim by the claimant against the defendant; and

(b) unless the context requires otherwise, references to a claimant or defendant include a party bringing or defending and additional claim.

CPR 20.3(1)

An additional claim shall be treated as if it were a claim for the purposes of these Rules, except as provided by this Part.

CPR 44.13

(1) This Section applies to proceedings which include a claim for damages – (a) for personal injuries;

(b) under the Fatal Accidents Act 1976; or

(c) which arises out of death or personal injury and survive for the benefit of an estate by virtue of section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934, but does not apply to applications pursuant to section 33 of the Senior Courts Act 1981 or section 52 of the County Courts Act 1984 (application for pre-action disclosure), or where rule 44.17 applies.

(2) In this Section, ‘claimant’ means a person bringing a claim to which this Section applies or an estate on behalf of which such a claim is brought, and includes a person making a counterclaim or additional claim.

CPR 44.14

(1) Subject to rules 44.15 and 44.16, orders for costs made against a claimant may be enforced without the permission of the court but only to the extent that the aggregate amount of money in terms of such orders does not exceed the aggregate amount in money terms of any orders for damages and interest made in favour of the claimant.

(2) Orders for costs made against a claimant may only be enforced after the proceedings have been concluded and the costs have been assessed or agreed.

(3) An order for costs which is enforced only to the extent permitted by paragraph (1) shall not be treated as an unsatisfied or outstanding judgment for the purposes of any court record.

The thrust of the defendant’s argument was that the purpose of the QOCS regime was to protect a claimant who brings claim, including when they are a counterclaimant, because whilst they are a defendant to the claimant’s claim, they are nevertheless also a claimant. It would be artificial to characterise an order for costs against the defendant as an order against the defendant in his capacity as defendant. The status of a litigant was only important sometimes. The word “proceedings” must not be artificially dissected. As an unsuccessful counterclaimant, he is also protected by the QOCS regime, which prevents the claimant from enforcing orders for both his loss of his claim and his costs of defending the counterclaim.

The defendant argued that a wide meaning must be given to the word ‘proceedings’ in CPR 44.13. He sought to rely upon the case of Ketchion v McEwan, whereby a defendant in an RTA claim was unsuccessful in the defence of the claim and in bringing his counterclaim. The Deputy District Judge refused the claimant permission to enforce an order for costs against the defendant for the claimant’s claim, on the basis that QOCS applied. HHJ Freedman refused permission to appeal the DDJ’s decision. He took the view that the proper interpretation of CPR 44.13 is that the reference to proceedings is to both the claim and the counterclaim; and since it is expressly stated that a claimant includes a person who brings a counterclaim/additional claim, it follows that the defendant/part 20 claimant has the protection of QOCS.

The defendant in Waring also sought to rely upon the cases of Wagenaar v Weekend Travel Ltd; Plevin v Paragon Personal Finance Ltd and another (No.2); Howe v Motor Insurers’ Bureau and Cartwright v Venduct Engineering Ltd.

The claimant responded by arguing that he had succeeded in his claim and therefore he should be entitled to recover the costs of doing so. Whilst, the defendant failed in pursuing his counterclaim and should be given QOCS protection against having to pay the claimant’s costs of defending the counterclaim, nothing in the CPR gives the defendant QOCS protection in defending the claimant’s claim.

Proceedings can have different meanings and can be given a broad or narrow interpretation, depending upon the context in which the word is used and the purpose of the provision.

The judge concluded that the underlying purpose of QOCS was to protect those who suffer injuries from the risk of adverse costs orders by insured, self-insured or well-funded defendants. It was not constructed to protect those liable to pay damages to an injured party from the risk of adverse costs orders. He did not accept that the word “proceedings” in CPR 44.13 must be construed more widely, so as to give the defendant QOCS protection in the claim he is defendant in.

The judge also disagreed with HHJ Freedman’s view that the proper interpretation of CPR 44.13 is that the reference to proceedings is to both the claim and the counterclaim; and that as ‘claimant’ includes a person who brings a counterclaim/additional claim, it follows that the defendant/part 20 claimant has the protection of QOCS. He took the position that proceedings means the claim or the counterclaim; it does not mean the entire action, including the claim, the counterclaim and all the parties. If the argument put forward by the defendant was correct, the consequences would be unjust and inconsistent with the aims of QOCS.

The defendant only has QOCS protection in respect of his claim for damages for personal injury and not in the claimant’s claim for damages.

Yirenki v MOJ (unreported)

Queen’s Bench Master deemed wrong in his approach to costs budgeting because he only approved the constituent parts of the estimated costs and not a final figure.

Master Davison’s usual approach was to approve fee earner hours, individual disbursements and counsel’s fees, but reserve the issue of hourly rates on estimated costs to the detailed assessment.

The claimant appealed against the decision, which unusually the defendant agreed to.

The judge ruled that the Master’s approach was contrary to Practice Direction 3E. It is clear from paragraph 7.3 of the Practice Direction, that the ultimate goal of costs budgeting is to provide a figure for each phase of the proceedings. The constituent elements are part of that goal, but are not an end in and of themselves and are not subject to the court’s approval. This is echoed in paragraph 7.10, supported by the costs and funding supplement to the White Book.

The judge was of the view that it was wrong to leave the subject of hourly rates to the Detailed Assessment as it means that there is no certainty as to what the approved budget is. The vice of the Master is that the parties do not know where they stand. Whilst the rules do provide of course for a possibility of a departure from an approved budget, so there is no absolute certainty, but that departure can only occur for a good reason (CPR 3.18(b)).

The Masters’ approach removed the flexibility of parties deciding how to spend their budgets. PD 7.3 indicates that the ultimate goal is to find a reasonable and proportionate costs for the whole action on a phase by phase basis.

Finnegan v Frank Spiers (t/a Frank Spiers Licensed Conveyancers) [2018] EWHC 3064 (Ch)

The claimant brought an action for damages against the defendant arising from professional negligence. The claimant accepted a Part 36 offer from the defendant and on 30 May 2017 the parties executed a settlement agreement.

At clause 7 of the agreement it stated:

“The defendent shall pay the claimant’s reasonable costs on a standard basis to be assessed if not agreed up to 24 March 2017”

The agreement did not contain any reference to an interim payment on account of costs. However, at clause 3.1.2 the second instalment which the defendant was to pay the claimant was a sum of £45,111.65 which included interest and disbursements (which were in the sum of £30,000). To that extent the payment did include a sum on account of the costs incurred by the claimant.

A few days after the agreement was finalised, the claimant issued an application seeking an interim payment on account of costs in the sum of £19,000.

The District Judge in the first instance found that there was no authority on the matter. She decided therefore, that the court did not have the power to make an order for a payment on account. Her reasoning was that Part 36 is a complete code and that the rules do not make a provision for a payment on account in these circumstances. In addition, they do not provide the court with any discretion within these circumstances.

The claimant was given leave to appeal on the grounds that this was potentially a significant point of practice.

Mr Justice Birrs dismissed the appeal stating:

“I can see compelling reasons why a payment on account in a Part 36 case like this would be different from one considered after a trial, but that alone is not a reason to do it, although it does show that the exercise is different in kind, What it does show, it seems to me, is that the place to find the court’s ability to make a payment on account order after acceptance of a part 36 offer is in the Part 36 offer itself. It is absent from there. There is no reason, in my judgment, to read rule 44.2(8) to make a payment on account applicable when a Part 36 offer is accepted”.


PRACTICE AND PROCEDURE

This month’s PIB sees the courts taking every opportunity to clarify  their position in relation to procedural ‘slip ups’ in the face of the impending increase in cases bought by litigants in person. They can clearly foresee an increase in applications from law firms attempting to strike out cases where said litigants in person fail to serve all of their evidence with particulars of claim, or where they have not allowed adequate time for ascertaining who the correct defendant is.

Stephen Mark v (1) Universal Coating & Services Ltd (first defendant/respondent) (2) Barrier Ltd (second defendant/respondent) [2018] EWHC 3206 (QB)

The  appellant  suffered silicosis and massive pulmonary fibrosis as a result of his employment with the first and second defendants (respondents). The appellant instructed solicitors in February 2013 and a claim form was issued before limitation expired in June 2015. The appellant then obtained an order to extend the time for service of the claim form, the particulars of claim, the medical evidence and schedule of loss, without notice upon the other parties, as he was struggling to obtain medical evidence in time. However, he failed to serve the order upon the respondents within the specified time. His solicitors then went into administration and new solicitors took over.

In February 2016 the claim form and particulars of claim were served, followed by the schedule of loss and the medical report a few weeks later. The respondents subsequently applied to strike out the claim form.

At the application hearing the judge looked at CPR PD 16 paragraph 4.3 where is states that the claimant must serve the medical report and schedule of loss at the same time as the particulars of claim contained an implied sanction and that the principles of relief from sanctions are triggered. The judge considered that there was no good explanation for the breach of paragraph 4.3 and that the initial extension of time had been obtained by misrepresenting the attempts which were made to procure the medical evidence. Relief from sanctions was not granted and the claim was struck out on the basis of abuse of process.

The appellant appealed, stating that the judge was wrong to hold that the principles of relief from sanction applied. CPR PD 16 paragraph 4  covers all personal injury claims, from the most simple to the most complicated but which, in many of the more complicated cases, was given more credence than the breach itself. Parties should sensibly recognise the limitations of what can be achieved at the early stage of service of the particulars of claim.

Failure to serve a  medical report and/or schedule of loss with the particulars of claim is not in the  same category as failure to serve notice of appeal  within time, or failure to serve a respondent’s notice where they wished to resist an appeal. Paragraph 4 was intended to be directed towards simple personal injury litigation, rather than a far more complex clinical or personal injury matter. The ‘one size fits all’ approach leads to documents being served with the particulars of claim  in more complex matters which, in reality, were unhelpful and uninformative.

“Must” is used liberally in the CPR, but to imply the need to apply for relief from sanctions in all cases where “must” is stated in the rule or practice direction, would result in the courts being inundated with unnecessary applications. There were other and more proportionate steps which the court could have taken, such as making an unless order.

Further, the court could not find any indication that it had been misled into granting  extension for service of the claim form. Appeal allowed.

Wrightson v (1) Flor  Projects (2) Rio Tinto Iron Ore Atlantic (3) JMP1  QBD 22/10/2018

The claimant had been involved in a nasty accident in 2012 during his employment on a mining project in the Guinea Republic. Proceedings were issued in  November 2014 against 16 defendants. The claimant faced difficulties in serving some of the defendants, therefore only served on seven of them. The claim was then discontinued  against four of those, leaving three remaining.

The main issue facing the claimant was identifying who or what organisation might have been liable for the accident. The claimant’s solicitors appear to have focused more on investigating quantum, which ultimately delayed matters, restricting the time which remained to investigate the defendants.

At a case management conference in April 2018, the Master ordered the following:

“The claim is stayed generally until one of the following events (costs incurred by such events not being the subject of the stay) either:

1. (a) The claimant by 4pm on 28 May files and serves an application:

(i) to amend the particulars of claim; or

(ii) such other directions as enable the claim to be pleaded and proceed in a comprehensible and efficient manner, and

(iii) any application to discontinue in respect of such defendants who have not been served to date; or

(b) by June 2018, any defendant, if so advised, issues such application to strike out in whole or in part the claim as pleaded, or

(c) in the event of no application being made by the claimant by 25 June, the claim shall stand as struck out.”

The Master was clearly dissatisfied with the way in which the statement of case had been pleaded.

The claimant made an application to amend the particulars of claim, but did not make an application for further directions. The sixth and tenth defendants responded with applications to strike out the claim. The applications were made under CPR 3.4(2)(a), that the statement of case disclosed no reasonable grounds for bringing the claim.

The court agreed that it should deal with those applications to strike out on the basis of the draft amended pleading. If the applications were unsuccessful then the draft amended pleading we be struck out.

In the original pleadings the claimant admitted that he did not know the precise contractual relationship between the defendants and had requested documentation to clarify this, which had been refused. The amended pleadings set out the relationship as the defendant understood it.

In dealing with the applications the court had to consider whether the grounds for bringing the claim were reasonable in the wider circumstances of the case, whilst paying heed to the overriding objective.

The judge accepted that the claimant did require disclosure from the remaining defendants to be able to understand the various contractual relationships and to fully plead his case. However, the claimant had failed to take advantage of the different procedures available to him in order to ascertain that information he required prior to issuing proceedings. For instance, he could have made an application for pre action disclosure. Instead, the claimant chose to rely upon his pleading and the disclosure process which would come at a later date to fill in the blanks in his knowledge.

The judge clarified his view:

“I accept that the claimant has little knowledge of the true position, but even if he only has suspicion or belief on which he wishes to found his claim, the basis of that suspicion or belief has not been set out when it could have been, so that the defendants know where they stand. Pleadings or statements of case are intended to be a “concise statement of facts upon which the claimant relies.” CPR 16.4(1)(a). They are intended to let an opponent know the case which he has to meet. They are also intended that the issues of fact or law can be identified at an early stage before the statements of case and are hopefully narrowed. The pleading in its amended form contains a bare assertion against a backdrop of denials from each defendant, both to occupation and as to employment. It seems to me that the defendants are no better off today in knowing the cases they have to meet in relation to each of those issues than they did when the original particulars of claim were served in 2015.”

The outcome of the applications was inescapable, it was almost six years since the accident, four years since proceedings were commenced and 3 ½ years since the original particulars of claim were served. The claimant had failed to seize upon the opportunity to amend and to seek directions to clarify his case. Waiting six years post-accident before even attempting to find a proper legal basis to bring the claim could not be said to be reasonable.

The amended particulars of claim were struck out.

The ECU Group PLC v (1) HSBC Bank PLC (2) HSBC Private Bank (UK) Limited (3) HSBC Bank USA, N.A [2018] EWHC 3045 (Comm)

By way of pre action disclosure under CPR 31.16, the respondent provided documents to the applicant, pursuant to an order dated 8 December 2017.

The disclosed documents are subject to the very important rule of law that they may be used “only for the purpose of the proceedings in which [they were] disclosed” (CPR 31.22(1)).

A witness statement was prepared in early 2018 by the claimant’s solicitors to support an application for a further order in relation to pre-action disclosure. The statement contained a “detailed description of some of the contents of some of the disclosed documents and conclusions that the claimant may say should be drawn from them”.

A copy of this statement was passed to a journalist from FX Week by a partner of the claimant’s firm.

The claimant subsequently sought retrospective permission for certain collateral uses of the disclosed documents (i.e uses other than for the purpose of the proceedings).

Mr Justice Andrew Baker, upon hearing the application said that the partner’s behaviour was a “very serious breach” of the rules, “neither sensibly excusable nor remotely excusable”. He said that the handing over of a witness statement to a journalist was “perfectly obviously prohibited from collateral use” and there was “no reason at all” to grant retrospective permission.

He went on to say “I do not think a solicitor with a competent, basic knowledge of the rule against collateral use, or who took a cursory glance at the White Book commentary on CPR 31.22, could reasonably have advised otherwise.”

The judge concluded that the claimant should pay “all of the respondents’ costs of the present application assessed on the indemnity basis if not agreed”.  


Other News

Civil Liability Bill heads  for Royal assent amid savings doubts

The Civil Liability Bill overcame its final parliamentary hurdle in late November, as a leading insurer admitted that the anticipated £35 reduction in motor premiums might be swallowed up by other costs caused by the reforms.

The House of Lords approved the amendments to the bill made in the House of Commons without a vote, meaning that it is now ready for Royal Assent.

101st Update to the Civil Procedure Rules

Amendments relate to: the Video Hearing Pilot Scheme which will test a procedure for applications to set aside County Court default judgments entered under Part 12 of the Civil Procedure Rules, and which are heard at the Manchester or Birmingham Civil Justice Centres, via an internet-enabled video link; and the jurisdiction of the County Court that may be exercised by a legal adviser.

For more information contact

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