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Personal injury bulletin - costs and procedure

    • Personal injury claims litigation - Personal Injury Bulletin

    06-03-2014

    Haynes v Department for Business, Innovation and Skills [2013]

    Proceedings were issued against 10 Defendants in relation to an asbestos claim. A Part 36 offer was made by the Claimant to the eighth Defendant which was accepted. As result the claims against the other Defendant's were abandoned and the Claimant lodged his bill of costs.

    The Defendants argued that that it should only be paying the Claimant's costs in pursuing the claim against the eighth Defendant, and that any common costs should be apportioned between the Defendants. Further asbestos claims are divisible so that liability amongst multiple Defendants is several. As a result liability for costs should be several.

    The Claimant argued that Part 36.10 applied with the effect that that Claimant was entitled to all his costs reasonably incurred in proceedings.

    It was held that asbestos claims are divisible and the eighth Defendant was only ever liable for a divisible proportion of the claim.  Therefore, it must follow that the eighth Defendant was only liable for a divisible proportion of the costs.

    MacLennan v Morgan Sindall (Infrastructure) PLC [2013] EWHC 4044 (QB)

    The Claimant had been employed by the Defendant.  He suffered a severe brain injury during the course of his employment.  Liability was admitted subject to 25% contributory negligence, with quantum to be decided.  The Claimant was proposing to call evidence from 43 witnesses in relation to his loss of earnings claim.  Their statements covered four broad issues:

    1. but for the accident the Claimant would have worked abroad and earned more money, 
    2. whether he would have retired at 65 or 70, 
    3. his promotion prospects, and
    4. what earnings he could have reasonably expected.

    An application was made by the Defendant to limit the Claimant to 8 witnesses, on the basis the issues were common to personal injury claims.

    The statements were brief, and did not attach any additional evidence.  There was material duplication.  It could be said that the possible sum of the evidence may outweigh the probative weight of its parts.

    Under CPR 32.2(3) which came into effect as a result of the Jackson Reforms the Court has the power to deploy a number of measures to reduce the cost and ensure trial is conducted effectively and fairly.  The Court would only consider limiting witnesses if other less intrusive measures had been considered.  A Court would generally wish to limit witnesses at an early stage, if possible before preparation of the statements.  In doing so the Court is entitled to expect a level of cooperation by the parties.

    The Claimant was permitted to call 14 witnesses in relation to comparative earnings, and 14 witnesses for other matters, as well as relying upon the Claimant's evidence and that of his wife.  Any fewer risked causing an injustice.

    Humphrey v Aegis Defence Services Ltd & Another [2014] QBD

    The Claimant had been a member of the Royal Marines.  He injured his shoulder during a stretcher carrying training session when a team member dropped the stretcher.  The Claimant's case was that the Defendant should not have allowed the other team member to take part as he was unfit to do so.  The Defendant denied liability.

    The Claimant had the benefit of insurance payments in the UK amounting to £31,000.00.  he also had the benefit of insurance payments under US law amounting to $1,200.00 a week.  He was in the process of negotiating a lump sum to replace the weekly payments.  The Claimant had made it clear he would give credit for any insurance payments in any settlement.

    The Claimant applied for a split Trial on the basis the Judge would be placed in an impossible situation at Trial in determining quantum whilst the lump sum had not been decided.  The Judge would have to offset the weekly payments which would leave the Claimant with significantly less than he would have received had a lump sum been decided upon.

    The Defendant submitted it was not proportionate to order a split trial.

    The Claimant's submission was a strong one.  It was likely that if the Claimant succeeded in liability a settlement would be agreed without the need for a quantum trial.  If the Defendant were to succeed at the liability Trial, the quantum trial would not be required.  The difficulty of quantifying damages in the absence of the lump sum meant the application should succeed.

    Rehill v Rider Holdings Ltd [2014] CA Civ Div

    The Claimant had crossed the road when the pedestrian crossing light was red, and been hit by the Defendant's bus. The bus driver had not applied the brake quickly enough.  Liability was apportioned equally between the parties.

    In April 2007 the Defendant made an offer to settle in the sum of £75,000.00, which was refused . In November 2007 the Defendant made a Part 36 offer which was again refused by the Claimant and withdrawn in January 2008.  By the time of this offer the Claimant had reached the end of his recovery period.  His schedule of loss included a claim of £71,000.00 for adaptations to his home.

    In June 2009 the Defendant made an offer of £40,000.00 which the Claimant refused.  Just before quantum trial in April 2013 the Claimant accepted an offer of £17,500.00.  The parties could not agree on costs.

    At first instance the Defendant was ordered to pay the Claimant's costs to July 2009, and the Claimant ordered to pay the Defendant's costs on a standard basis from July 2009.  It was noted the Claimant had dishonestly inflected his case, exaggerated his injuries, and should have accepted the November 2007 offer, prior to this time the Claimant's prognosis was unclear.

    The Defendant appealed the decision.

    It was found that at the time of the November 2007 offer there was no significant uncertainty concerning the Claimant's orthopaedic injuries.  The judge in the first instance had overlooked the medical evidence. It had been unreasonable for the Claimant not to accept the November 2007 offer.  As a result the Claimant was ordered to pay the Defendant's costs from 21 days from the November 2007 offer.  It was noted that it would have been wrong for the Claimant to have received his costs for being dishonest.

    Long v Value Properties and another (unreported)

    The Claimant inadvertently failed to file a copy of his CFA or details of his success fee with the Notice of Commencement and Bill of Costs. The Defendant's raised this in their Points of Dispute.

    The Defendants were well aware of the existence of the CFA, the Claimant had served the form N251 on commencing the claim. The prejudice to the Defendants was minimal, and could have been rectified by the Defendant's asking for the documents.

    The Master reluctantly held that a strict application of the Mitchell guidelines meant that he had no excuse but to refuse to grant the relief as the non compliance could not be considered 'trivial'.

    The Owners or Bailees of the Cargo of the Ship Panamax Star v The Owners of the Ship Aux [2013] EWHC 4076

    Proceedings were issued in 2000 following a collision in 1999.  The claim form was served in 2001.  No further steps were taken until collision statements were served in 2005.  In 2013 the Claimant applied to have the matter listed for a CMC.

    It was found that primary liability for progressing proceedings lay with the Claimant. Failure to fix a CMC breached PD 58.10.2 and the overriding objective, which requires parties to assist the court in dealing with cases expeditiously. This amounted to a persistent and serious breach of the rules. Oral evidence was important to the Claimant's case and it would be very difficult to adduce such evidence effectively 15 years after the event. This would lead to serious prejudice and a fair trial would not be possible.

    The claim and counter claim were struck out under CPR 3.4 for extraordinary and culpable delay.

    Scriven v Scriven & Others [2013] EWHC 4223 (Ch)

    The Defendants were represented at their application to vacate the trial date, although for much of the case they had been litigants in person. The Defendants needed additional time to address the Claimants amendments to their Particulars of Claim (which had been allowed 6 weeks before trial) and to prepare an experts report, and for disclosure.

    The Judge refused to exercise his power under CPR 3.1(2)(b) to delay the trial having regard to the overriding objective. He concluded that 'some slack' was required with litigants in person, however, the reasons for seeking an adjournment were not sufficiently strong. Although the Defendants may suffer prejudice by not having their own expert at trial, they were the authors of their own misfortune.

    Walker Construction (UK) Ltd v Quayside Homes Ltd and another : Court of Appeal

    The Claimant is a civil engineering contractor, which carries out, amongst other things, drainage and highway works. The Defendant is a developer of residential homes. On 3 November 2003 the Claimant successfully lodged a tender return with the Defendant for drainage and highways works.

    At the conclusion of the works, a dispute arose between the Claimant and the Defendant in respect of the final payment sought by the Claimant. The Claimant issued Court proceedings, and in August 2008 the Claimant issued a notice of adjudication.

    The adjudicator rejected the Defendant’s claim that the Claimant was not entitled to be paid for the remedial works because the damage exhibited by the drainage was due to failings in the construction of the drainage by the Claimant. He also rejected the Defendant’s claim for set off and/or abatement in respect of damage allegedly suffered as a result of The Claimant's allegedly defective drainage works and awarded the Claimant the sum of £23,440.72 plus interest.

    In September 2012 the Judge awarded damages to the Defendant in respect of its counterclaim in the sum of £10,885.00 but rejected its claim for £8,941.16 (the sum) which was not certified by the project manager for the Defendant’s Consulting Engineer. The Judge then awarded the Defendant the majority of its cost in the action in part on an indemnity basis.

    The Claimant appealed against the costs order and the Defendant appealed against the rejection of part of its counterclaim. 

    The appeal was allowed.

    The Court of Appeal held that it was for the Defendant to plead, adduce evidence in support of, and prove its set off and counterclaim. It had not done so. The Judge was therefore entitled to conclude that the Defendant had not established its entitlement to set off the sum, or to be paid a sum by way of damages for breach of contract, or to be repaid that sum on the basis that the Adjudicators decision had been wrong.

    The Judge had been wrong to make the costs order, making the Claimant liable for costs of the entire action of approximately £350,000.00 in respect of the Defendant’s Claim that had largely failed. 

    The Counterclaim had been exaggerated and the Judge should have appreciated the commercial reality of the situation; that the Claimant was left in a position where it could not effectively make a Part 36 offer. It would have been disproportionate and unfair had the Claimant been liable under CPR 36.10 for all costs of the proceedings if the offer was acceptable.

    It was found that the Claimant would pay 50% of the Defendant’s costs from December 2008 to January 2011. The costs were limited to January 2011 on the basis that this was when the Claimant had made reasonable and proportionate Calderbank offer.

    Smith v Secretary Of State for Energy and Climate Change: Court of Appeal

    The Claimant was aged 65 and had been employed from 1964 to 1994  by the National Coal Board (latterly the British Coal Corporation). Until 1979 he worked underground, for one year at Markham colliery and thereafter at Rossington. From 1979 to 1984 he had a job which involved him going underground regularly.

    The Claimant alleged that he had suffered hearing loss because the National Coal Board had failed to take adequate steps to protect him from the damaging effects of noise and, in particular, that he had never been provided with hearing protection.

    The Defendant, the Secretary of State, was the National Coal Board’s statutory successor. The Claimant obtained disclosure of his work medical and personnel records.  He requested further disclosure of documents which might help to establish the levels of noise in various pits where he had worked, and the National Coal Board’s knowledge of those levels and the consequent risks.

    The Secretary of State refused and the Claimant made an application under CPR 31.16 for pre action disclosure. The District Judge ordered disclosure of several, though not all, of the categories of documents sought in the letter of claim.

    Those documents were to cover only the period during which the Appellant worked at Markham and Rossington, from 1964 to 1979.

    The Secretary of State appealed on the ground that the Claimant had failed to provide evidence that was more than merely speculative, the bare minimum evidence the Claimant should have provided would have been a screening audiogram or a medical opinion. The appeal was allowed and the  application dismissed.

    The Claimant appealed to the Court of Appeal. The Court of Appeal allowed the Claimant’s application for pre-action disclosure.

    It was found the Judge had been wrong to find that CPR r31.16 (3)a and 31.16.(3)b prescribed any kind of jurisdictional threshold of arguability. The question should rather be whether the Claimant had shown some reason to believe that he might have suffered a compensatable injury and, if so, with what degree of likelihood.   Although it was advisable that potential Claimants provided more evidence than the Claimant had done in this case where, although the Claimant had provided very little, the District Judge had correctly exercised his discretion by allowing the application without the need for an audiogram or a medical opinion.

    M (a child) v London Borough of Lambeth and another : QBD 

    In May 2004, when aged 4, the Claimant fell from the window of the flat where he was living with his mother and sister. He sustained serious orthopaedic injuries from which he had recovered.

    The Court had previously approved an apportionment of liability between the parties.

    There was no dispute that the Claimant had demonstrated some evidence of impaired school progress and was hyperactive. The Claimant’s medical experts considered the Claimant had probably suffered a brain injury and there was significant brain impairment caused by the accident. The Defendant’s experts considered his impairments were consistent with pre-injury functioning and not attributable to the accident.

    The Claimant’s litigation friend, his father was no longer prepared to co-operate with the medical experts and had instructed the solicitor to settle the claim as quickly as possible. By this time the Claimant was 14.

    The Claimant’s solicitors sought guidance from the Court as to the whether the appointment of the litigation friend should be terminated.

    The Court held that any settlement would need to be improved by the Court in any event, even if a new litigation friend was appointment, the Claimant’s parents would still remain uncooperative and it would not assist the Claimant’s best interests. The Litigation Friend should remain and the settlement should be negotiated.

    Neile v University Hospitals NHS Trust : QBD

    The Claimant was left partially blind, partially deaf and with balance problems and facial paralysis following an illness. She was seen by her GP, whom she alleges should have been alerted to the strong possibility she was suffering from meningitis and should immediately have been treated with penicillin and taken to hospital.

    In order to succeed in her claim, the Claimant was required to establish that the doctor should have diagnosed meningitis, treated it, and that the treatment would have made a difference to the Claimant’s outcome.

    One of the Defendant’s medical experts, produced a medical report that stated the Claimant’s injuries may not have been caused by meningitis.

    The Claimant submitted that she should be allowed to rely upon an additional report from her expert directly answering the questions raised by the Defendant’s report and that as she had instructed an ophthalmologist, rather than a neuro-ophthalmologist, the experts were not matched and she should be able to instruct someone else.

    The Defendant argued the Claimant was expert shopping.

    The Court held that the decision to permit additional evidence was a case management decision but there had to be a good reason for doing so. The overriding objective was to deal with cases justly and expeditiously, the later a request, the less willing a Court should be to grant it. 

    In this case the Court was hearing the application at the beginning of February 2014, when the trial was listed to take place at the end of the following month.  There was force in the Claimant’s argument that the Defendant had, for the first time through their expert evidence, raised the argument that the Claimant’s injuries had not been caused by meningitis. Such argument had not been raised in the Defendant’s Defence. Therefore allowing additional evidence from the Claimant’s expert was proportionate in the circumstances. 

    There was no good reason however for instructing a further expert when the one already instructed was perfectly qualified to deal with the issues.

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