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Corporate Claims Bulletin August 2017

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

08-09-2017

Quantum

Vincent v Ministry of Defence

This case is an out of court settlement. The claimant, a 34 year old man, received a total sum of £34,200 in damages for the treatment he received from his employer, between 2007 and 2014 in relation to his non-freezing cold injuries. Liability was disputed but his condition became worse, he left his work on medical grounds.

The claimant served in the army between 2001 and 2014. In 2007 the claimant underwent mortar training in cold conditions. He was provided personal protective equipment (PPE) in the form of high-quality boots and gloves, but experienced significant pain in both hands and feet. At this stage the claimant was diagnosed as suffering from mild non-freezing cold injuries, but was deemed fit for service. The claimant was provided with specialist boots and gloves to reduce his exposure to cold.

A further medical report in 2009 recommended that the claimant’s activities must all be indoors, he must use specialist PPE and must use a foot spa daily. The advice was not followed. In 2014 the claimant’s condition had accelerated to stage four non-freezing cold injuries.

In terms of the injuries, the claimant experienced lasting numbness whilst exposed to cold, sensitivity to cold and chronic pain. In warm climates the claimant experienced minor or no symptoms. The claimant would always have to avoid cold conditions.

The case was settled on a 75/25 liability split in favour of the claimant. The claimant’s solicitors estimate of the global settlement figure for general damages was £12,890.

George Thorburn v South Warwickshire NHS Foundation Trust (2017) EWHC 1791 (QB)

The claimant was awarded damages for pain, suffering and loss of amenity and consequential losses in a clinical negligence claim, but the court rejected his loss of chance in respect of a business he was developing.

The claim relates to knee replacement surgery which was undertaken in 2009. The claimant’s case was that the femoral component of the knee replacement was malrotated, leading to pain, stiffness and limitation in movement of the joint and the need for revision surgery in 2013.

At trial the defendant conceded the issue of breach of duty.

The Judge was satisfied on the evidence of both experts that the malrotation was the cause of the claimant’s knee pain and restriction in movement. There were a number of possible causes of the pain and restriction in movement alleged by the defendant, but the Judge accepted that that malrotation was capable of being the entire cause of those symptoms.

It was the claimant’s case that, as a result of the injury, he lost the opportunity to develop a successful business. Nevertheless, if that business failed, the claimant would have returned to his consultancy work. The claimant argued that the court can be satisfied that at the very least he would have received earnings from the consultancy. However, the greater amount that he was likely to have made had his business been successful should be awarded as loss of a chance.

The claimant’s back up position was that if the court was unable to value the claim, it should make a lump sum award (pursuant to the principles in the case of Blamire).

The Judge in the case set out the general approach and case law relied upon (Davies v Taylor (1974) AC 207, Allied Maples v Simmons & Simmons (1995) 1WLR and Doyle v Wallace (1998) PIQR 146) in determining the loss of earnings/profits and set out the following points:

- It is for you to prove that the past events happened, but all the court can do is evaluate the chance of a future event occurring.

- In determining the evaluation of the chances, damages would be payable according to the probability “down to the point where the possibility was so fanciful and remote to be de minimis”. So for example, if the probability of the chance was assessed at 50%, 50% of the damages for the loss of chance would be awarded.

- The courts have avoided setting the de minimis limit for loss of chance in terms of percentages (Allied Maples v Simmons & Simmons).

- The Judge accepted the defendant’s submission that it was a question of past fact whether the claimant’s health problems, consequent upon the knee replacement, were the immediate cause of the failure of the business. He reached the conclusion that on the balance of probabilities that the claimant’s health problems were the immediate cause not to start the business.

In evaluating the claimant’s loss of chance in developing his business, the Judge took into account a number of factors:

- The claimant had started a similar business venture earlier which had failed and was previously made bankrupt.

- The sole current proposed investor (who would advance 50% of the funds) in the new business was unaware of the fact that he was the sole investor and the failure of the claimant’s previous similar business venture. Both factors raised a significant chance that the investor would have withdrawn.

- There was a still higher chance that the claimant would have failed to attract further investors. The sole current proposed investor was unusual in that he had a particular interest in the sphere of expertise and his motives were not entirely financial.

- Even with investors on board, it is possible that money introduced would have been insufficient to keep the company afloat, which had been a problem with the previous venture.

- At the time of the failure of the business, field trials of the specialist product had not taken place, so there were doubts as to whether the product would have worked in the applications intended by the claimant.

- The claimant’s back medical problems (not attributable to the defendant’s breach of duty) were significant and may have led the claimant to withdraw from the business in any event.

The Judge found that the claimant could not prove that he had more than a negligible chance of success in this business venture. Any one of the above factors cited individually would have brought the failure of the business. Cumulatively, the chance of at least one bringing down the project was overwhelming.

The Judge in the alternative awarded loss of earnings in respect of consultancy fees.

Practice and Procedure

This month’s PIB has seen four separate applications put before the courts, each demonstrating the different approaches taken by the courts.

The first application was brought in the case of:

Hague Plant Ltd v (1) Martin Hartley Hague (2) Jean Angela Hague (3) MHH Contracting Ltd. (2017) EWHC 2021 (CH)

An application to amend particulars of claim six years after the commencement of proceedings and shortly before an imminent trial was refused.

In an action which commenced in 2011 , the claimant sought to introduce in essence some amendments which had previously been refused in 2014 (a decision upheld by the Court of Appeal). Following a preliminary trial in the matter on certain issues it was accepted by the court that the action could not proceed to trial on the Particulars of Claim as pleaded, and that substantial deletion was required.
The claimant was unwilling to withdraw from the statements of case that were bound to fail unless it was permitted to introduce amendments which put its case another way. The justification was said to be a fundamental change in the defendant’s position which only emerged in the preliminary trial.

The Judge refused to grant permission for the contested amendments on the following grounds.

- First that the same allegations are those which were made in separate proceedings (which had been stayed pending the outcome of the present case), that the claimant had issued as a response to the earlier refusal of permission to amend pleadings, and the Judge wished to avoid duplication.

- Second, the introduction of these allegations will mean that the present proceedings would be derailed six years after their inception. Having reached the point where (as a result of the Issues Judgment) the remaining issues for decision are clear cut, all the advantages of that would be abandoned, and what is in effect a substantially different case is to be commenced and the timetable completely recalibrated. Much work will have been wasted and much work remains to be done.

- Third, there were no circumstances to justify such a late application to amend. The claimant had had several years to consider how to put forward their case and consider the issues.

- Fourth, the Judge did not accept that the amended case was “fundamentally the same claim” and considered that the amended claim had significant limitation hurdles to overcome, which the claimant had not addressed in the manner in which the court expected.

- Fifth, to permit the amendment would disrupt the present case plan and postpone any resolution of this six year case for an unacceptably long time.

The second application was brought in the case of:

Daniel Alfredo Condori Vilca & Others v Xstrata Limited (2017) EWHC 2096 (QB)

An application by the defendant to amend their defence to plead a limitation defence under Peruvian law in a claim brought by the claimants. The Court in striking a balance between the parties granted the application, considering that it raises an important issue which has real prospects of success and that it was satisfied that the amendment could be accommodated in the trial process without adverse effects for the efficiency of this litigation.

The claims arose out of protest that took place at or near the Tintaya mine in Peru in 2012. The factual basis of most of the claims is an allegation that unidentified members of the Peruvian National Police or other public and private security forces mistreated the Claimants. The Defendants were the operators of the mine.

One of the considerations in determining the application was the chronology of the development of the pleaded cases on both sides. The claim forms were issued and served in August 2013. It was not however until April 2015 that the claimant pleaded new causes of action under Peruvian law.

Further amended pleadings were not served until 2017 when the claimant’s wished to amend their particulars of claim again. Up and until this point the defendants had not raised any issue of limitation under Peruvian Law.

The parties had exchanged expert evidence on Peruvian Law. The experts only differed on a narrow issue for determination: does the commencement of these proceedings interrupt the Peruvian law limitation period?

The Judge relied upon the summary of the case law as set out by Carr J in Quah Sy-Ling V Goldman Sachs International (2015) EWHC 759 (Comm), summarised as being:

- Whether to allow an amendment is a matter for the discretion of the court. In exercising that discretion, the overriding objective is of the greatest importance. Applications always involve the court striking a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general, if the amendment is permitted.

- A heavy burden lies on a party seeking a very late amendment to show the strength of the new case and why justice to him, his opponent and other court users requires him to be able to pursue it.

- A very late amendment is one made when the trial date has been fixed and where permitting the amendments would cause the trial date to be lost.

- Lateness is not an absolute, but a relative concept.

- It is not sufficient for the amending party to argue that no prejudice had been suffered, save as to costs.

- A good explanation for the delay in applying for the amendment is required.

- A much stricter view is taken nowadays of non-compliance with the CPR and directions of the Court.

In terms of striking the balance between the parties, the Judge concluded that the application to amend in response to the Peruvian law claims are more generally “late” but not “very late”. The lateness is unexplained. However, the amendment raises an important issue which was conceded (for the purposes of the application) to have real prospects of success. The Judge was satisfied (the burden being on the defendants) that the amendment can be accommodated in the trial process without adverse effects for the efficiency of the litigation or the wider interests of justice. The Judge was also satisfied (the burden again being on the defendants) that the prospects of prejudice to the claimants if the amendment is allowed is outweighed by the prospect of injustice to the defendants if it excluded, even though they would have brought the injustice upon themselves for no given or apparent reason. Allowing the amendment is in the circumstances proportionate and in accordance with the Overriding Objective.

The third application was brought in the case of:

Wilkins v Barking Havering & Redbridge University Hospitals NHS Trust (2017)

An application for a wasted costs order against claimant’s solicitors after a quantum trial had to be adjourned. The claimant had not kept her solicitors up-to-date about when surgery which ultimately delayed the trial would take place. The solicitors had informed the defendant as soon as they realised the surgery’s consequences.

The defendant NHS Trust applied for a wasted costs order against the claimant’s solicitors following the claimant’s application to vacate a trial date.

Judgment had been entered against the defendant in 2013. A quantum trial had been adjourned on several occasions due to a complicated recovery and uncertainty about her prognosis. The claimant also suffered from depression as a result of her injuries which had prevented her from fully engaging with the litigation process. There had been periods of time when the claimant was not responding to e-mails from her solicitors.

The claimant required further surgery, which at the time was anticipated to take a matter of weeks if funded privately. The defendant made an interim payment to fund the surgery. After the surgery in June 2017 it became clear that it would take a further 9 months to assess prognosis. The trial was adjourned accordingly.

The defendant sought its wasted costs order from October 2016 on the basis that the trial date had been fixed despite the solicitors knowing that the claimant was not responding to e-mails and they knew the trial window could not be met.

In determining the application the court had regard three stage test set out in Ridehalgh v Horsefield (1994) CH. 205, which required the court to consider whether:

- The legal representative had acted improperly, unreasonably or negligently;

- Unnecessary costs had been incurred as a result;

- It was just in the circumstances to order the legal representative to compensate the applicant.

The court considered that with hindsight if would have been better if the claimant’s solicitors had alerted the defendant to the prospect of further surgery in October 2016, but even an experienced solicitor who had been told that surgery was scheduled to happen soon would not have necessarily foreseen that it would hold up the trial window.

As soon as the claimant’s solicitors became aware of the true position they did inform the defendant. Even at that stage it was not necessarily foreseen that the surgery would impede the trial’s progress. Their behaviour had not been vexatious nor designed to harass the defendant and so had not been unreasonable in the required sense. The court only had jurisdiction to exercise its discretion in clear cases.

The fourth application was brought in the case of:

(1) Jonathan Mott (2) Helen Mott v (1) Wayne Long (2) Syreeta Long (2017) EWHC 2130 (TCC)

The defendants, whose solicitors had filed their costs budget 10 days late, were entitled to relief from sanctions following the three stage test set out in Denton.

The costs budgets were due to be filed by 11 July 2017, 21 days before the costs-management conference. The defendant’s was not filed until 21 July 2017.

In deciding whether to grant relief from the sanctions the court applied the three stage test set out in Denton v TH White Ltd. (2014) EWCA Civ 906.

1) Was the breach serious or significant?

The Judge concluded that as a matter of pure time, filing a costs budget 10 days late is not of ‘the same relatively modest order of time of a few hours or day or two’. The degree of lateness in every case is always to be construed in the context of the particular circumstances of that case. In those circumstances, the Judge found that the delay was more significant, than serious.

2) Regard should be given to the reason for the default.

The reason given by the defendant was “IT difficulties” but there was no details as to what they were. On the evidence presented the Judge was not satisfied there was good reason for default.

3) The court should consider all the circumstances of the case, including the need for litigation to be conducted efficiently and at proportionate cost and the need to enforce compliance with rules, practice directions and orders.

The defendant had in fact served and filed a costs budget prior to the CMC. The court had made directions which gave rise to the defendant having to file and serve an amended costs budget to reflect directions on expert evidence and estimated length of trial. In any event the court would not have been in a position to deal with the costs budgeting at the CMC, so accordingly the parties were in the same position they would have been had the defendant’s cost budget been filed and served on time.

In the circumstances, the court granted relief from sanctions, notwithstanding that the defendant had failed to pass the first 2 stages of the ‘Denton’ test.

Sheffield City Council v Fairhall (2017) EWHC 2121 (QB)

An injunction was granted to restrain protesters from taking direct action to prevent local authority’s tree-felling programme in performance of its statutory duty under the Highways Act 1980 s.41 to maintain highways. The claimant local authority sought an injunction to restrain the defendant protestors from preventing it from felling trees for highway maintenance purposes. The council appointed an independent tree panel (ITP) contractors to carry out the works.

Summary of the council’s case:

(1) The action of the defendants is not the exercise of a peaceful right to protest but unlawful direct action whose intended and actual effect is unlawfully to prevent the council from carrying out its statutory powers and duties with regard to highway maintenance.

(2) A public law challenge to the lawfulness of the council's decision that trees need to be felled as part of its highway maintenance programme having failed, that decision must be regarded as lawful.

(3) The defendants’ direct action constitutes a trespass.

(4) The direct action also constitutes a number of other torts such as nuisance and unlawful interference with business.

(5) It is also a criminal offence under section 303 of the Highways Act 1980 and section 241 of the Trade Union & Labour Relations (Consolidation) Act 1992.

(6) The injunction claimed does not interfere with the defendants’ rights to freedom of expression and freedom of assembly and association provided for by Articles 10 and 11 of the European Convention on Human Rights.

Summary of the defendants’ position:

(1) The ITP contract is unlawful because (a) it constitutes profiteering at the expense of important environmental obligations, and (b) the ITP company failed to disclose a 2008 conviction for corporate manslaughter to the council before concluding the contract.

(2) The felling of trees is not being undertaken as part of a programme of highway maintenance.

(3) The direct action does not involve the commission of any tort or criminal offence.

(4) Even if the direct action would be unlawful as a matter of English domestic law, it constitutes a lawful exercise of the rights to freedom of expression and freedom of assembly and association protected by Articles 10 and 11 of the ECHR.

The Court decided:

(1) Profiteering and cost saving - It was obvious that the contractor would have entered into the contract with the hope and expectation of making a profit over the lifetime of the contract, as it was a commercial organisation and not a charity. What mattered was that the local authority had decided to perform its statutory duty to maintain the highway by entering into the contract.

(2) Failure to disclose corporate manslaughter conviction - Neither ITP company nor any other company within the same group had ever been charged with or convicted of corporate manslaughter.

(3) Trespass - Once it had been determined that the felling of trees was undertaken in the execution of the local authority's duty to maintain the highway under s.41, it was for the local authority to decide how to carry out its duty. Moreover, the presence of an objector within a safety zone was contrary to orders made by the local authority under the Road Traffic Regulation Act 1984.

(4) ECHR rights - Art.10 and Art.11 rights had been engaged particularly in light of the importance of the location of their protest. However, the restriction which the local authority sought to impose was justified. The decisive factor was that the local authority was the democratically accountable statutory body charged with the responsibility for determining how the highway should be repaired and maintained and how public resources should be allocated. 

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