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  • Personal injury claims litigation - Personal Injury Bulletin



Bellman v Northampton Recruitment Limited [2018] EWCA Civ 2214

Following a Christmas party at the local golf club, at around midnight the Managing Director of Northampton Recruitment Limited, Mr Major, paid for taxis to take staff who wanted to go to the Hilton Hotel for further drinks.  This was a spontaneous act and the claimant Mr Bellman went along entirely at his own will.

Drinking continued at the hotel and Mr Major, who became annoyed (and was significantly drunk) by the claimant asking him questions about company business responded by attacking him and causing him a very serious brain injury.

The Supreme Court have recently dealt with vicarious liability in the case of Mohamud v WM Morrison Supermarkets [2016].  To summarise, the court has to consider two issues:

  1. What was the nature of the employee’s job – what functions or “field of activities” did his job require him to undertake?
  2. Was there sufficient connection between his job and his wrongful conduct to make it fair for the employer to be held liable for his actions?

At the first instance, the judge decided that the drinking session in the hotel after the Christmas party was not connected with the defendant’s business, and those who attended were effectively just on a night out on their own.  The distinction between the Christmas party itself and the subsequent trip to the hotel was an important factor in reaching its conclusion.

The Court of Appeal took a wider view of the expression “within the field of activities”.  The test is not simply whether the act was done in “furtherance of the employee’s employment”.  Taking this wider test the court concluded that Mr Major was on company business whilst in the hotel.

The next test is then whether there was sufficient connection between Mr Major’s job and the assault so as to make it fair to impose liability on the company.  Here, the court drew a distinction between a group of employees of roughly similar status on a night out and Mr Major’s conduct on the night where he was viewed as exercising his authority over members of staff.  This was an important distinction and the court described such circumstances as “unusual”.

The court decided therefore that it was fair to impose liability.

In this case the court clearly drew a distinction between a social event at which everybody attending behaved as equals and the situation here where the drinking session followed a formal Christmas party at which the staff had attended as employees.

The behaviour of Mr Major prior to the assault and during the conversation about work was also important.  He was described as “laying down the law” and was clearly asserting his authority over them when the conversation became heated. He behaved like this he was acting “within the field of authority” of his employment.

This case and the previous case involving Morrisons demonstrates an ongoing move towards a situation where employers become insurers of their staff.  Although the Court of Appeal sought to distance themselves from this very idea, nevertheless it is becoming more and more difficult to identify circumstances where vicarious liability will clearly not attach to an assault or to negligent conduct on the part of one employee towards another.

Liverpool Victoria Insurance Company v Khan [2018] EWHC 2581

Mr Iqbal suffered a whiplash injury in a road traffic accident.  He instructed TKW Solicitors – founded by the first defendant Mr Khan – to act on his behalf.  Mr Khan instructed Dr Zafar to provide a report.

Dr Zafar originally produced a report on 17 February 2012 which said that Mr Iqbal’s injury had resolved after one week.  Mr Iqbal was happy with the prognosis, however Mr Khan of his own volition sent Dr Zafar correspondence included his own prognosis period of some six to eight months.  On 24 February 2012 Dr Zafar produced a “revised report” which carried the same date as the original report and made no reference to the original nor any reason for any amendments.  It did however include a prognosis period for the injury of six to eight months.

In a subsequent statement the claimant said that he had informed Dr Zafar that his symptoms had resolved within two to three days of the accident and that when he received the report from Mr Khan he had spoken to him telling him that the report overstated his symptoms.  When he raised these issues again immediately prior to the trial he was told just to carry on and give his evidence in line with the medical report.

Unfortunately, a Paralegal at the firm had sent the original report prepared by Dr Zafar to the lawyer’s acting for the defendant’s insurer Liverpool Victoria by mistake.

The judge dealing with the contempt hearing reached the conclusion that Mr Khan had been dishonest in a number of respects and continued to be dishonest to the court in his evidence.  The judge described him as a “thoroughly dishonest man” and sentenced him to 12 months’ imprisonment.

The judge found that Dr Zafar was far too busy to check the amendments suggested by Mr Khan and simply gave instruction to his secretary to carry them out and “gave no thought to whether or not the amendments were justified”.  Although this fell short of dishonesty the judge decided it was reckless and that recklessness could constitute contempt for an expert.  He sentenced him to six months’ imprisonment.

This case demonstrates the need for care when engaging an expert in relation to evidence although the facts in this case are fairly extreme.

It is also notable that Dr Zafar produced reports on a genuinely industrial scale.  He gave evidence that he used a software program that allowed him to examine a claimant and produce a report within a 15-minute period. He charged £70 for each report and produced 5,000 reports a year.

RSA Insurance PLC v Assicurazoni Generali [2018] EWHC1237

The claimant Mr Merit brought a claim against RSA Insurance under the Third Parties (Right Against Insurers Act) 1930.  He had contracted Mesothelioma whilst working for a painting and decorating company between 1975 and 1986 which RSA had insured.  This was despite the fact that RSA had only provided insurance for the final six months of Mr Merit’s 10 year employment with the company (section 3 Compensation Act 2006).

RSA settled Mr Merit’s claim for nearly £175,000 in January 2011.

Sometime later they identified Generali as an insurer who had also provided employer’s liability insurance to the company whilst Mr Merit was employed there.

RSA sought a contribution from Generali in respect of the settlement they had made to Mr Merit.

Generali argued that RSA’s claim was statute barred.  Under section 1 of the Civil Liability (Contribution) Act 1978 “any person becomes entitled to a right to recover a contribution in respect of any damage from any other person, no action to recover a contribution by virtue of that right shall be brought after the expiration of two years from the date on which the right accrued”.

In this case over two years had passed since RSA had agreed settlement of Mr Merit’s claim and on the face of it, their claim for contribution against Generali was outside the time allowed to bring it.

Rather ingeniously RSA argued in return that the claim did not fall within section 1(1) of the 1978 Act, but was in fact a debt so that the appropriate period for bringing the claim was six years rather than two.  It was RSA’s view that section 6(1) of the 1978 Act referred to the liability to the original “victim”. As Generali was not liable to compensate the original victim RSA’s claim did not constitute a statutory contribution claim, but rather was an equitable obligation to contribute towards RSA who had provided indemnity to the victim.

The judge at first instance found that the claim was properly a claim for indemnity for damages and therefore fell within the scope of the 1978 Act.  Accordingly RSA’s claim was outside the two years allowed and statute barred.

The judge endorsed the general practice in Mesothelioma claims where insurers contribute to any settlement according to the time they have spent on risk. 

RSA have appealed the decision to the Court of Appeal and this will be heard in February 2019.

As things stand any proceedings for contribution need to be brought within two years from the original settlement.  It is worth noting that the “settlement date” is the date of judgement or the date upon which the settlement is agreed (whichever is the earlier) and not the date on which damages are paid.


Allen v Brethertons LLP [2018]

The Claimant’s solicitors were instructed on a Road Traffic Accident claim under a Conditional Fee Agreement which provided for a payment of 25% of the damages recovered from the other side.

The Claimant’s solicitors attempted to recover 25% of the damages together with certain disbursements charged in addition.

The bill was challenged by one of the firms making a living out of challenging claimants’ solicitors personal injury bills.

The court confirmed that even in fixed fee cases solicitors had to send a bill of costs to their client before they are entitled to take their fees (Rule 17.2 of the SRA accounts rules).

Welsh v Walsall Healthcare NHS Trust [2018] EWHC 2491 (QB)

The claimant was involved in a complex clinical negligence action following failed bariatric surgery. She claimed damages both for the complications that she suffered and for the loss of benefits that the successful surgery would have given her, including substantial weight loss and significant improvement in her health. The claimant was successful on these issues at trial.

However, there were some issues which were pleaded by the Claimant and were withdrawn at trial. In particular, the issue of consent and the Claimant was unsuccessful on a number of issues relating to quantum.

Losing on some of the quantum issues is not out of the ordinary and the judge held that “it would be wholly inappropriate for the court to be asked to look at the costs referable to each issue on which the Claimant was unsuccessful”.

The defendant however, argued that the position was different in relation to the issue of consent.  This constituted a separate and major part of the case which added significantly to the costs, which they argued it was unreasonable for the claimant to pursue.  The issue remained live in the trial for four days and it was only after all the non‑expert evidence had been given that the claimant conceded the consent point.

The case that was presented on consent was vague and difficult to understand.  The judge commented that “this part of the case was not just weak it was not properly arguable”. He did however, accept that it was reasonable to investigate the matter up until the exchange of witness statements in February 2017.

Rule 44.2 CPR sets out the court’s discretion in relation to the factors it may take into account when making a costs order. These include at 44.2(4)(b) “whether a party has succeeded on part of its case, even if that party has not been wholly successful” and 44.2(5)(b) “whether it was reasonable for a party to raise pursue or contest a particular allegation or issue”.

Rule 44.2(6) gives the court the power to make a costs order that is limited to costs from a certain date, a proportion of another party’s costs or a specific amount.

Rule 44.2(7) requires a court to consider making an order dealing with either a proportion of the other party’s costs or costs from or until a certain date before any other form of partial costs order.

The judge considered:

  1. the claimant was effectively the winner on a full liability basis;
  2. the consent issue even had the claimant succeeded wasn’t going to impact substantially on the value of the claim;
  3. the defendant could have protected itself on costs by an appropriate Part 36 offer.

The defendant argued that the claimant should be responsible for 30% of both sides’ costs.  The claimant said that if there was to be a partial costs order it should represent no more than 10% of the costs relating to trial and trial prep.

Balancing the different factors the judge reached a conclusion that the defendant should pay 85% of the claimant’s costs.

It is interesting that there was no attempt at any form of mathematical analysis nor any real consideration of the time actually incurred on the issue in question.  It was very much a matter of “feel” for the judge.

We should consider seeking partial cost orders in more cases.  It is notable however, that the defendant’s failure to make an appropriate Part 36 offer weighed heavily with the judge when assessing the percentage reduction of the claimant’s costs.

Page v RGC Restaurants Ltd [2018] EWHC 2688

The claimant’s action was for an acute allergic reaction after eating cashew nuts at the defendant’s café.  The claimant has judgement but quantum remained outstanding.  The matter was set down for a Case and Costs Management Conference “CCMC”.

The claimant approached this on the basis that it would be better to have directions only so far as a further CCMC rather than all the way to trial.  Consequently he filed an “interim budget” reflecting this and omitting any figures for trial prep and trial.  The defendant agreed with that approach but included trial prep and trial costs in their budget.  The defendant agreed the claimant’s budget figures.

The claimant had not however obtained the court’s approval for this approach.  The Master dealing with the matter decided that he wished to give direction all the way to trial and as a consequence found that the Claimant had failed to file a cost budget that complied with Practice Direction 3E. As a result the sanction that CPR 3.14 applied although he did indicate that the Claimant could apply for relief from the sanctions. Unsurprisingly, the claimant appealed on various bases including the fact that he had filed a budget (albeit a partial one) and the fact that the costs had been agreed between the parties should have been enough.  In the alternative, the claimant applied (very sensibly) for relief from sanction.

On the appeal the defendant opposed the claimant’s order, possibly somewhat opportunistically, on the basis that the Master’s decision was correct and that if relief were granted it should be only allowed in respect of the agreed phases of the budget and not trial and trial prep.

On appeal the court found that it was not necessary to completely fail to file a budget, to fail to comply with CPR 3.13 and Practice Direction 3E and therefore for the sanction under CPR 3.14 to apply.

The judge also rejected the claimant’s argument that the agreement as to the earlier phases of costs displaced the obligation to file a budget.

He did however accept the claimant’s argument that the Master should have considered the words in CPR 3.14 “unless the court orders otherwise” in relation to granting relief in the absence of a specific application from the claimant to do so.

The judge therefore applied the test in Denton and concluded that the sanction should not apply to the phases of costs that had been agreed, but only to the trial preparation and trial phases for which no budget had been filed.

There are three learning points arising from this case.

Firstly, you should not make unilateral assumptions about matters that are in the court’s power.  You should not even make such assumptions if you and your opponent are in agreement.  It is particularly dangerous to do so where the sanctions for non-compliance are as harsh as they are in relation to cost budgets.

Secondly, the “saving provision” in CPR 3.14 gives the court more discretion and sets a lower hurdle than an application for relief under CPR 3.9.

Such saving provisions are more common than might be thought.  CPR 31.21 (Reliance on a document which has not been disclosed in time), CPR 32.10 (A witness may not give oral evidence if a witness statement has not been served in time) and CPR 35.10 (A party may not rely on an expert report which has not been disclosed in time).

If you find yourself in default of these sanctions then it may be better to rely upon the saving provision within the rule of which you are in breach rather than a formal application for relief under CPR 3.9.

This is not risk free however.  This case suggests strongly that if an application is made under the saving provision contained in the rule in issue then it is unlikely that the court will hear a subsequent application under CPR 3.9 for relief.

Thirdly, it emphasises the need to give proper instructions to counsel attending any hearing where there is any possibility that such an issue might arise so that they are able to deal with it there and then if that seems appropriate.


 Grant v Dawn Meats [2018] EWCA 2212

 The claimant issued proceedings for a personal injury claim against his employer.  The defendant admitted liability. 

 Although proceedings were issued in June 2016 the claimant did not have any current medical evidence and accordingly a stay was ordered until 30 November 2016.

 The claimant served the claim form prior to the expiry of the stay but outside the period of four months after issue.

 The defendant argued that the claim form had been served late because it was not served within the four month period of validity.

 The defendant failed before the district judge but succeeded on appeal.  The claimants then appealed to the court of appeal.

 Perhaps not surprisingly the Court of Appeal ruled that a stay operates to freeze the proceedings and this included the time period for the service of the claim form.

The court found no reason to treat the service of the claim form any differently from any other procedural steps and commented that when a stay is “lifted” the parties (and the court) pick up where they left off at the time of the imposition of the stay.

The Court of Appeal commented that “there had been an element of opportunism” [by the defendant] which [the court] would be reluctant to reward.

It is clear the courts are bracing themselves for the Civil Liability Bill and the increase in the small claims track limit for injury claims, which will inevitably result in a much larger number of litigants in person becoming involved in litigation.  It is reasonable to anticipate that stays of this nature will become much more common as litigants in person issue proceedings without the appropriate evidence and the courts clearly intend to maintain a simple approach to procedure where they can.

Ogiehor v Belinfantie [2018] EWCA Civ 2423

The case concerned a quantum only trial of a personal injury action where the claimant sought around £230,000 in damages and the defendant’s costs had reached around £110,000.

The defendant had surveillance evidence and accused the claimant of fraud.

Three weeks prior to the trial the defendant had made a without prejudice offer for £10,000.

Because of the allegation of fraud the litigant in person revealed the existence of the offer at trial, on the basis that the defendant would not have offered him money if they really believed the claim was fraudulent.

At this point the trial was adjourned and the judge ordered that unless the claimant made an interim payment of £10,000 within four months on account of the defendant’s costs thrown away by the adjourned trial, his case would be struck out.

On appeal the litigant in person said he did not understand the meaning of “without prejudice” but the evidence was that he had been warned by the defendant prior to the trial not to mention the offer. When he started to do so at trial everyone in the court including the judge had tried to stop him but he continued regardless.

The Appeal Court commented on the rise of numbers of litigants in person and the difficulties that this was causing for the courts.  The Court supported the judge’s order commenting that in relation to litigants in person “judges will show common sense and often flexibility, but in the end must enforce the rules and have a proper eye to the legitimate interests of the other parties to litigation including as to costs”.

This case may have gone differently had it not been for the defendant’s pre-trial warning to the claimant not to refer to the without prejudice offer.

As litigation against litigants in person becomes ever more common it may be worth considering whether in every case an offer is made to a litigant in person a warning should be attached to it that this cannot be referred to during the course of the trial.

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