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Corporate Claims bulletin - June 2018

  • United Kingdom
  • Personal injury claims litigation - Claims e-briefing

18-07-2018

LIABILITY

Marrett-Gregory v Metroline Ltd & Anor [2018] QBD

The claimant brought a claim on behalf of a passenger fatally injured on the defendant’s bus.  The passenger was 90 at the time of the accident and died as a result of a head injury caused by a fall on the bus.  The claimant pursued the claim against the bus company and a driver of another vehicle.

The circumstances of the incident were that the bus was in the left-hand lane and the other defendant was in her car in the right hand lane.  The passenger intended to get off the bus just after a box junction ahead and so he rose from his seat to get ready to alight.  The bus suddenly braked and the passenger was thrown forwards and he struck his head.  The bus company contended that the reason for braking was the driving of the other car.

CCTV footage from the bus showed the car moving to the left but as there were no road marking at this point it was not clear if she went into the path of the bus.  The car had entered the hatched box junction when there was no way to exit the other side.  The evidence was that the car got close to the bus and it was at this point the bus driver anticipated the car was going to pull in front of the bus and braked heavily. 

It was held that the car had breached the Highway Code in entering a box junction before her exit was clear and by failing to check her mirror and indicating before changing lanes.  It was held that the bus driver had also been negligent in driving too fast considering how busy the road was, the junction ahead and the need to brake after the junction for the bus stop. 

Both defendants alleged that the passenger was contributory negligent for being on his feet.  The court did not consider the deceased passenger to be liable at all.

The court apportioned liability 75% to the car driver and 25% to the bus. 

COSTS

Ansell & Evans v AT & T (GB) Holdings Ltd [2018] CC (Oxford) Unreported

This case related to a minor road traffic collision that occurred on 10 July 2015.  The claims were made under the RTA protocol and the CNF were filed on 20 July 2015.  The defendant admitted liability within the required time period.  However, the defendant insurer advised that there were potential LVI concerns and pending inspection of the claimant’s vehicle they may wish to raise LVI as per Casey v Cartwright.

The claimants’ solicitors responded on 28 August 2015 to advise that due to the LVI concerns the claims had been removed from the portal as it was unsuitable due to the complex issues of fact and law. 

The defendant’s solicitor advised the claimant on 23 October 2015 that LVI was no longer an issue and the defendant paid the vehicle damage claim in full.  The claimants issued Part 7 proceedings and the defendant made Part 36 offers in response which were both accepted by the claimants.

The claimants sought fixed costs as set out in CPR 36.20.  CPR 30.20 applies where a claim no longer continues under the protocol pursuant to rule 45.29A.  CPR 36.20 (2) states “Where a Part 36 offer is accepted within the relevant period, the claimant is entitled to the fixed costs in Table 6B, Table 6C or Table 6D……”.

The defendant argued that the claimant acted unreasonably in dropping the claim out of the portal and, if the court agreed on this point, the court has discretion to award the costs that would have been paid had the claim not exited the portal as per CPR 45.24.

At first instance the court ruled that the claim was removed unreasonably and the court agreed that despite the wording of CPR 36.20 (2) there was discretion to award the costs that would have been recovered under CPR 45.24.  The claimants appealed on both of these findings in addition to an appeal on the grounds that the judge had not fully explained the reason for her decision at first instance.

HHJ Clarke considered the appeal, and whilst admitting that the CPR 36.20, 45.24 and 45.29A have not been drafted perfectly and it is difficult to make a literal interpretation of the provisions, the judge agreed with the findings of the first instance judge.  HHJ Clarke found that CPR 36.20 comes into effect by way of CPR 45.29A(1) and (3).  CPR 45.29A(3) states that nothing in this section shall prevent the court making an order under rule 45.24.  Therefore, although CPR 36.20 does not say it, it had been open for the judge to revert to CPR 45.24 if the judge considered the matter had been dropped out of the portal unreasonably.

Holmes v West London Mental Health Trust [2018] QBD Unreported

The claimant pursued a claim for clinical negligence.  She had been mentally fragile and had been prescribed lithium from 1994 to 2014. In 2012 lithium levels in her body were at severe toxicity, the claimant was in intensive care for 14 days and remained in hospital for two months. She issued a claim in February 2015 against the defendant.

The claimant made a CPR Part 36 offer to receive 95% of her claim from the defendant.  The defendant rejected the offer.  In the subsequent period the defendant failed to respond to the claimant’s suggestion of alternative dispute resolution, and was late complying with various directions.  The defendant eventually accepted the Part 36 offer, albeit over 13 months after it had expired.  The claimant claimed costs on an indemnity basis from the date the Part 36 offer expired.  The defendant considered that standard costs should apply.

The starting point for the court was that costs would be on a standard basis and it was for the claimant to persuade the court that costs should be awarded on an indemnity basis.  In order to come to a decision the court took into account the conduct of the defendant.  In failing to comply with directions they had made the litigation process very slow.  In addition they had not responded to the claimant’s suggestion that they used alternative dispute resolution.  The court also looked at whether the claim had changed since the making of the original Part 36 offer that could explain why the offer was not taken earlier. 

The court concluded that nothing of significance had changed.  In all of the circumstances the conduct of the defendant was relevant and so the court ordered that the defendant pays the claimant’s costs on an indemnity basis from the expiry of the Part 36 offer.

Tuson v Murphy [2018] EWCA Civ 1461

The claimant developed obsessive compulsive disorder (OCD) following an accident and liability had been agreed at 85/15 in the claimant’s favour. 

The claimant gave up her teaching job and upon issue, her claim was initially valued at £1.5 million on the basis that she would be unable to work again. However, the claimant obtained a franchise in a playgroup organisation and ran workshops for a year, starting in January 2014.

In April 2014, she served a witness statement describing the impact of her OCD, obtained a psychiatric report and served a schedule of loss, including future loss of earnings based on an expert's report, none of which referred to the playgroup.

The defendant became aware of the playgroup in 2015 and notified the claimant’s solicitor.  The claimant’s response was that she had never intended to run the playgroup as a business, but had engaged in it as a means of dealing with her OCD and had in fact made a loss. 

The defendant's solicitors made a Part 36 offer in the sum of £352,060. The claimant did not accept the offer within the 21-day period, which expired on 8 October 2015. However, she accepted the offer on 1 December 2015. The defendant was ordered to pay the claimant's costs only up to 1 April 2014, which the court found was the date when she started to mislead, being the date she served a statement indicating that she was not able to work and failing to mention the playgroup franchise.  The claimant was to pay the defendant's costs thereafter.

The claimant appealed the cost decision arguing that the conventional CPR Part 36 rules should apply, being that the defendant pays the claimant’s costs until 8 October 2015 and the claimant pays the defendant’s costs from 8 October until 1 December 2015. 

The Court of Appeal referred to CPR Part 36.13(5) where is says if the offer is accepted out of time and the parties cannot agree the liability for costs, the court must, unless it is unjust to do so, order that a) the claimant be awarded costs up to the date on which the relevant period expired; and b) the offeree do pay the offeror’s costs for the period from the date of expiry of the relevant period to the date of acceptance.  This is the order that the claimant was seeking.  The defendant argued that it be unjust to make such an award due to the dishonesty of the claimant.  CPR 36.13(6) states when considering if it would be unjust to make the orders specified in paragraph (5), the court must take into account all the circumstances of the case including the matters listed in CPR 36.17(5).  One of the matters listed is “the information available to the parties at the time when the Part 36 offer was made”. 

The Court of Appeal found that the costs judge in the first instance decision had been entitled to describe the claimant’s conduct as dishonest and misleading.  However, the Part 36 offer was unconditional and at the time of being made the defendant had full knowledge of the claimant’s non-disclosure and knowing that acceptance within the 21 day period would entitle her to her costs to date.  The court followed the decision in Tiuta v Rawlinson & Hunter (A Firm) (2016) EWHC where it said it was highly unlikely to be unjust to apply the default rule where the claimant had accepted a Part 36 offer out of time, provided that nothing emerged from the facts to show that the defendant’s assessment of the risks and benefits involved in making the offer had been significantly upset, contradicted or misinformed. 

The defendant had knowledge of the non-disclosure at the time of making the Part 36 offer and therefore, in this case the ruling was that even though the claimant’s material non-disclosure was dishonest and misleading, it was not unjust to make the default cost order and so the defendant was ordered to pay the claimant’s costs up to 8 October 2015 and the claimant ordered to pay the defendant’s costs from 8 October 2015 until 1 December 2015.    

PROCEDURE

Hogg v Newton [2018] CC (Middlesbrough) Unreported

The claim related to a road traffic collision where damages were pursued for a minor soft tissue injury in addition to a claim for credit hire.  Both claims were submitted within the portal in May 2012.

In February 2013 the claimant’s solicitors made a Part 36 offer of “£1,600 in full and final settlement of this claim”. Later within the letter it expressed that the offer was for “the whole of our client's claim”.

The personal injury element of the claim was agreed and settled in March 2014 in the sum of £650 and payment was made for this. 

Proceedings were issued in 2016 by a different firm of solicitors with full details of the credit hire claim which amounted to £122,000.  In July 2016, the defendant’s solicitor noted that the previous Part 36 offer had not been withdrawn and therefore sent acceptance of the offer and paid the balance of £950.  The defendant then applied for a declaration that the claim had been compromised.  At first instance DDJ Read ruled that the Part 36 offer was valid and therefore the claim was compromised once accepted and included the claim for credit hire.  The claimant appealed the decision and it was heard by HHJ Gargan. 

The claimant argued that the part settlement of the personal injury aspect of the claim for £650 effectively revoked the Part 36 offer.  HHJ Gargan disagreed and ruled the offer had not been withdrawn in writing as required by rule 36.9(2), and that the overriding objective would be consistent with the offer remaining open.

The claimant further argued that the Part 36 offer was purely for the personal injury aspect of the claim and was not intended to include all aspects of the claim.  The court found that the natural meaning of “the whole of our client’s claim” is that it encompasses all aspects in the absence of some special factor to indicate otherwise.  Therefore, the offer encompassed the credit hire charges. 

HHJ Gargan upheld the decision of DDJ Read and found that the claim had been compromised on acceptance of the Part 36 offer.  This is clearly a reminder to both parties to ensure that any redundant offers are withdrawn in accordance with the rules in Part 36.   

OTHER NEWS

Government pledges to ensure insurers pass on savings from whiplash reforms

The government has confirmed that it will check whether insurance companies pass on to consumers the savings they make as a result of personal injury reforms. 

In a statement to the House of Lords, Justice Minister Lord Keen of Elie said insurers should be ‘accountable’ for their commitments to pass on savings.

This commitment is a change in position, with the MoJ now promising to bring forward an amendment to the Civil Liability Bill as soon as possible in the House of Commons that holds insurers to greater scrutiny. 

The government’s impact assessment for the bill shows insurance firms can expect overall total benefits of around £1.3bn a year through reduced claims numbers and smaller payouts.  Insurance premium cuts have been a key selling point for the reforms, but also a point of contention for opponents. Potential savings on annual car insurance are estimated at between £35 and £50.

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