Legal Watch: Personal Injury 1st October 2015 Issue: 078
Civil procedure/interim payments Although it is a first instance decision by a master Glasgow (Protected Party) v Hillingdon Hospitals NHS Foundation
In this issue:
topic for some time. The master considered an application
• Civil procedure/interim payments
test in Eeles.
• From Plexus Law Scotland
Trust [Lawtel 29/09/2015] is the first case report on this for a further interim payment in the light of the two-stage
• Costs
The claimant, who was 76, had sustained brain damage
as a result of a procedure carried at a hospital run by the defendant. He was left with significant physical and cognitive impairment and had had to move into a nursing home because his own home, which he shared with his wife, did not meet his needs and could not be adapted.
Judgment on liability had been entered in his favour and interim payments totalling £875,000 had been made.
The claimant had bought a new house at a cost of £650,000,
but needed £317,160 to pay for necessary adaptations. Since
he had £119,224 left from the previous interim payments,
Events
and to fund continuing therapies and case management.
Plexus and Greenwoods hold a series of events which are open to interested clients. See below for those being held in the next few months:
he sought £220,000 to cover the cost of the adaptations The defendant opposed the application and submitted that it would be unreasonable to order an interim payment of more than £70,000.
The master held that the court’s task was to estimate conservatively the amount that would be awarded on a final
hearing and then, if an interim award was appropriate, order
the payment of a sum which represented no more than a reasonable proportion of that amount.
Looking at the first stage of the test under Eeles the judge
held that the total sum likely to be awarded for general damages and past financial losses was at least £288,916.
The parties agreed that damages for pain, suffering and loss of amenity should be assessed at £130,000 with interest of £4,673. The claim for past care exceeded £100,000 and
included a sum to reflect the fact that the claimant’s wife had given up her job as a senior midwife to care for him.
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The defendant challenged the quantification of the past care
distressed at having to be separated from his wife. It could
an award of at least £46,380 was likely. For the purposes
payment significantly in excess of the £808,916 assessed
claim but the judge found that on a conservative estimate, of the instant application, travelling expenses, holiday expenses, past case management and therapy costs, and
the cost of past deputyship were conceded at £17,610, £7,000, £22,659 and £20,594 respectively. Miscellaneous expenditure of £40,000 was also likely to be allowed.
The master then considered what other heads of loss a trial
judge might capitalise under the second stage of Eeles. As
far as accommodation was concerned, the claimant argued
for £560,000 and the defendant £465,000. There would be a 15% reduction from average life expectancy. Applying the formula in Roberts v Johnstone at least £520,000 was likely to be awarded for accommodation.
‘…the defendant had cited no authority for its contention that the claimant had to give credit for both his and his wife’s beneficial share in (their existing) property...’ The outstanding mortgage on the claimant’s former home
was to be deducted when calculating his equity in that property for the purpose of the Roberts calculation. The
defendant’s suggestion that it was not to be deducted was wrong in principle. Moreover, the defendant had cited no
authority for its contention that the claimant had to give credit for both his and his wife’s beneficial share in that
property. The claimant only had to give credit for his own equity.
The court had already accepted that the claimant’s former home was unsuitable and could not be adapted. The claimant was living in a nursing home and was extremely 02
confidently be said that the trial judge would order a capital
above. Unless such an award was made, the claimant’s
needs could not adequately be met. Taking a conservative approach, future losses were likely to be assessed at, at
least £385,000, comprising deputyship costs assessed at
£115,000; therapy costs at £55,000; aids and equipment at
£55,000; transport at £70,000 and miscellaneous expenses at £90,000.
A total award of at least £1,193,916 was likely, and it was reasonable to award 90% of that figure on an interim basis.
Given the interim awards that had already been made, there would be a further interim payment of £200,000.
Costs Although it is a clinical negligence claim at county court
level, the case of Hahn v NHS England [Lawtel 25/09/2015] is of wider interest in relation to the issue of proportionality of costs.
The claimant/appellant had brought a low-value clinical negligence claim against the defendant/respondent. The
claim was settled after proceedings were issued. The
claimant submitted a bill of costs claiming just over £54,000. The after-the-event insurance premium sought was £14,628.
The district judge dealing with the assessment of the costs commented as follows in relation to the premium: “The premium ... is pretty substantial for the post-issue level that
is sought. Having determined that the costs generally are disproportionate in this claim in any event, it seems to me that it was not reasonable to take out a policy with a premium
at such a level for what was, on any view, a low-value fast track claim”. He noted that the comparator premium from
LawAssist, relied on by the defendant, was a post-litigation premium of £3,975 plus insurance premium tax. The district judge added to the comparator premium a pre-issue figure
of £3,500 plus insurance premium tax. The resulting figure was just over £7,900.
The claimant appealed and argued that the district judge had erred in his approach: he should have engaged in a
deconstruction exercise based on the estimated maximum loss which the legal expenses insurer would have faced had
the claim failed, also taking into account the risk of such exposure and other elements, including brokerage and profit mark-up.
‘…the district judge had been entitled to take the broad-brush approach that he had when ruling on the after-the-event insurance premium...’ Dismissing the appeal, the county court judge held that the district judge had been entitled to take the broad-
brush approach that he had when ruling on the after-the-
event insurance premium, rather than engaging in the deconstruction exercise argued for by the appellant. While he had been given information about the potential exposure
to costs with the suggested estimated maximum loss of £30,000, there was no information about the risk to that
exposure which would have enabled him to undertake the
kind of exercise suggested by the claimant. His approach in determining that the policy premium was excessive, while
allowing an additional element for the post-issue period, was not unreasonable. Further, the defendant had supplied material which satisfied the low evidential threshold for establishing a comparator policy. The district judge had
ample evidence that the claimant’s policy was significantly
outside the norm for this type of case, and there was
a distinct lack of evidence to justify what he saw as an excessive premium. His decision could not therefore be impugned.
03
From Plexus Law Scotland Scottish Courts: Biggest reforms for 100 years come into force
A contentious issue is likely to be the use of counsel in
On 22 September 2015 significant changes to Scotland’s
approval, the sheriff courts must approve a case as suitable
civil courts came into effect, marking the start of a period of reform that is set to continue well into 2016, as many of the
provisions in the Courts Reform (Scotland) Act 2014 come into force.
A new lower limit for the Court of Session The lower limit for claims in the Court of Session (the equivalent of the High Court in Scotland) has risen dramatically from £5,000 to £100,000. Whilst catastrophic
injury and fatal claims will continue to litigate in the Court of
Session, the majority of injury claims will now litigate in the sheriff courts (Scotland’s county courts).
In all new Court of Session actions the party bringing the claim will have to set out in the pleadings why the claim is
worth more than £100,000. There will doubtless be hearings on whether that valuation is achievable. If not then the cases will be transferred to the lower, sheriff courts.
An all Scotland sheriff personal injury court A new sheriff court is now dealing solely with personal
the new regime. Whereas counsel could be instructed by
claimants’ solicitors in the Court of Session without court for counsel before a party can recover counsel’s fees. Early
indications are that approval will be granted for counsel in
more complex and higher value cases in the new personal injury court but we anticipate frequent hearings on the point until a settled picture emerges about when claimants will be able to recover counsel’s fees. There is a clear opportunity
for insurers to challenge the involvement of counsel by claimants and as a result reduce claimant costs. A new sheriff appeals court A Scotland wide sheriff appeals court has been created to
deal with appeals from sheriffs around the country. This
replaces the previous system under which sheriff court appeals were heard by the sheriff principal (circuit judge)
in each area, binding only those sheriffs in that area. On
occasion this resulted in different approaches affecting claimants who lived a matter of miles apart, and could result in uncertainty where there was no sheriff principal authority in a particular area.
injury litigation. It will deal with personal injury and clinical
The sheriff appeals court will bind all sheriffs across Scotland
arising from workplace accidents worth more than £1,000.
appeal sheriffs which should also result in greater quality
negligence cases worth more than £5,000, and also claims
leading to greater consistency. It will consist of specialist
The court will sit in Edinburgh.
appeal decisions. It is anticipated that the court will start
Claimants will have the option to litigate personal injury and clinical negligence cases in either their local sheriff courts
around the country, or the new personal injury court. The advantages of the new court are:
• six specialist personal injury sheriffs • the option of a jury trial instead of trial by judge, with the likelihood of higher damages awards
• electronic interlocutory applications which will be processed at greater speed
• active case management for more complex cases 04
hearing appeals in 2016.
Other upcoming changes There are further changes ahead, expected to take effect in 2016:
• Simple procedure for claims worth less than £5,000 –
This will be “flexible” and “interventionist”, and easy for litigants in person to use. The Scottish government can increase the limit to £10,000 in future in line with the small claims limit in England and Wales
• Summary sheriffs – This new type of judge will preside over simple procedure
• New rules for vexatious litigants – If a defendant secures a vexatious litigant order then the litigant will require the consent of a judge to raise an action
• Rewrite of all of Scotland’s civil procedure rules
including review of the Voluntary Pre-action Protocol for Personal Injury claims – This will be undertaken by the
Scottish Civil Justice Council and it is to be hoped that they will make the Protocol compulsory Impact of the changes on insurers The court reforms should bring benefits to claimants and insurers, with greater certainty and quality of decisions as
a result of specialist personal injury judges. There is an
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opportunity for insurers to seek to reduce claimant costs
in modest value claims if the sheriff courts are persuaded to allow counsel’s fees in only the higher value and more
complex claims, and sheriffs embrace their new case
management and “interventionist” powers to bring about
earlier resolutions to litigation. The new interlocutory regime in the all Scotland injury court should on its own speed up cases. However, with reform on-going well into 2016 it may
Contact Us
will be clear.
Geoff Owen, Consultant
For further information please contact Julie Fisher:
T: 01908 298216
E: julie.fisher@plexuslaw.co.uk
E: gro@greenwoods-solicitors.com
be many months yet before the real impact of the changes
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The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 12 Dingwall Road, Croydon, CR0 2NA. Parabis Law LLP is authorised and regulated by the SRA.