Legal Watch: Personal Injury 14th October 2015 Issue: 080
Civil procedure/adjournment of a trial It is rare in the current regime for a case to be adjourned close
to a trial date that has long been set, particularly where one
In this issue:
stage. However, as Welds (a minor) v Yorkshire Ambulance
• Civil procedure/adjournment of a trial
a court will still try to achieve justice for both parties where the
• Jackson/Denton/CFAs
party applies to introduce fresh expert evidence at such a late Service NHS Trust and another [Lawtel 13/10/2015] illustrates circumstances warrant it.
• Provisional damages • Watch this space
The claimant had been born prematurely in 2000. His mother had been taken to hospital after bleeding, although there
was conflicting evidence regarding the time she arrived. A
specialist saw her at 6.16pm, an emergency caesarean was performed and the claimant was delivered at 6.31pm. He was
born with cerebral palsy and significant brain damage, caused
by placental abruption causing acute profound hypoxia and bradycardia.
The claimant’s case was that there had been negligent delay by the first defendant ambulance service and the second defendant hospital, without which he would have been
Events
that the mother’s arrival at hospital and the claimant’s delivery had been within a reasonable time frame.
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:
Following the exchange of expert reports, one of the
The Major Bodily Injury Group (MBIG) | Spring
delivered earlier and unharmed. The defendants’ case was
defendants’ experts produced further evidence, saying that if the court found that the mother had been clinically assessed at an earlier time, then at that stage, although there might have
been other foetal abnormalities present, there would have been no hypoxia or bradycardia, and the time-lapse between
assessing the mother and delivering the claimant would have
been different as there would not have been such urgency. He said that it was the onset of bradycardia that made the decision to deliver the claimant easy.
The claimant submitted that there had been a substantial change in the defendants’ case on causation, which required a
considerable amount of further work to be undertaken by him.
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He argued that he needed to know what foetal abnormalities
should be given an opportunity to fully prepare. Without
obtain expert evidence on that matter. He argued that if
expert said might have been present, it was impossible for
the defendants’ expert was referring to, and would have to the evidence was admitted, then the trial would have to be adjourned until the New Year. He said that he should not be put into position whereby he entered a trial unprepared, through no fault of his own, and that commencing with the
trial as planned would be unfair. The defendants submitted
that the claimant should be in a position to proceed with the trial, as the expert evidence would not be required in its first week.
Allowing the claimant’s application to adjourn and the
defendants’ applications for permission to adduce the additional expert evidence and amend their defence, the
High Court judge held that it was unfortunate that a claim which related to the claimant’s birth 15 years ago was still on-going. However, it was not appropriate to exclude
the defendants’ expert’s evidence. That exclusion would
be artificial in particular if the court found that the mother should have been clinically assessed earlier than she was.
It was particularly unfortunate that the expert had not at the time of the original report taken into account the other expert’s report which had been available for five months. Nevertheless, the amendment to the defendants’ defence was allowed.
‘A court would only adjourn a trial at such a late stage reluctantly. However, it was not appropriate to proceed with the trial as set’ A court would only adjourn a trial at such a late stage reluctantly. However, it was not appropriate to proceed with the trial as set. The new evidence raised a number of issues on causation which might be fundamental, and the parties 02
details of the foetal abnormalities that the defendants’ the claimant to receive helpful expert opinion.
Provisional damages Cases relating to whether or not provisional damages should be awarded are relatively rare these days and so the case of
Butler v Ministry of Justice [Lawtel 13/10/2015] is of interest. The claimant, aged 48, had been employed as a prison
officer and dog handler. He had lived a very sporting, working and family life. Whilst working he slipped on ice causing two fractures to the metatarsals in his right foot. Fusion procedures failed to unite the fractures. The claimant
suffered chronic regional pain syndrome and neurotic pain, in part due to retained metal work within his foot.
His foot was unable to bear weight. He lacked movement
and had to wear a moon boot. Walking on uneven terrain and up stairs was difficult. He suffered chronic depressive
episodes of moderate severity and required cognitive behavioural therapy. He suffered tennis elbow from the use
of crutches. Although he could drive with a special vehicle, he had significant difficulties. He was left unable to deal with
household chores and gardening as he had done before, with his wife taking the burden of the tasks.
The claimant was considering an elective amputation. The expert evidence was that there was a 25% chance
of amputation, which would lead to a 70% chance of an improvement in the claimant’s symptoms, with the potential
of becoming a highly active prosthetic limb user. The risk
of a recurrence of chronic pain following an amputation, rendering the claimant unable to use a prosthetic limb and
wheelchair-bound, was put at 25%. There was an overall 7.5% risk of an adverse outcome post-amputation. The
issue was whether there should be a provisional or final award of damages.
The defendant submitted that the claimant’s condition
had plateaued and it had been his choice not to opt for an amputation; it would be wrong to make an award
under which the claimant would be better off for electing an amputation and a provisional award was inappropriate
The deputy High Court judge held that a final award was
almost always made as it provided finality and certainty.
The court had the discretion to make a provisional award
where the claimant had proven that there was a chance that, because of the defendant’s liability, he would develop
a serious illness or suffer a serious deterioration. Each case
depended on its facts. The risk had to be measurable rather
than merely fanciful, and had to be somewhere between de minimis and a probability.
‘…being wheelchairbound and developing phantom pain was a serious deterioration’ The authorities indicated that if the materialisation of the
risk would result in going back to the previous position, or a slightly worse one, the finality of an award outweighed the need for a provisional award. The fact of an amputation followed by a 70% chance of improvement could not be
described as a serious deterioration, and a final award would be made in that instance to reflect the value of the future loss of the leg and the cost of the prosthesis. If the
amputation occurred and the condition deteriorated, it was not right to say that the claimant would be in the same or
a somewhat worse position; being wheelchair-bound and developing phantom pain was a serious deterioration. In
that event there would be a provisional award to reflect
the 7.5% risk of an adverse outcome, and the claimant
would be able to return to court. The time limit would be until the claimant’s 60th birthday, as by that point he would
have resigned himself to his situation. The court went on to determine the quantum of damages.
where the deterioration would lead the claimant back to the same position, or slightly worse, than he had been before
03
Jackson/Denton/CFAs The case of Mishcon De Reya and another v Caliendo and
another (2015) EWCA Civ 1029 combines two controversial
subjects: giving proper notice of a CFA and relief from
sanctions. The outcome shows a marked change from
the brief period when the strictness of Mitchell was being applied.
required him to consider instead whether the granting of relief would be consistent with that need.
Dismissing the appeal, the Court of Appeal held that the
judge’s analysis under stage one of the Denton test could
not be characterised as wrong such that the court should interfere with his conclusion. He had clearly articulated
The claimant/respondents had retained the defendant/
and taken account of the presumption that failure to give
a professional negligence claim against them. They entered
in the other party proceeding on a false footing as to its
event (ATE) insurance policy. However, they notified the
at trial. However, there was no good reason to think that the
a-half months late, failing to comply with the seven-day
of the claimants’ funding arrangements had been given
- Pre-Action Conduct. The claimants claimed that the
‘…even if there was a serious or significant breach of a relevant rule, with no good reason for the breach, it did not automatically follow that relief would be refused’
appellant solicitors to act on their behalf and had brought
notice of funding arrangements would necessarily result
into a conditional fee agreement (CFA) and an after-the-
exposure in the event of liability against it being established
solicitors about the funding arrangements some three-and-
defendants would have changed their position if notification
period laid down by CPR44.15(1) and the Practice Direction
three-and-a-half months earlier.
default had been inadvertent. The judge applied the three-
stage approach prescribed in Denton (2014) and granted relief from sanctions. He found that whilst the default was
serious, earlier notification would not have altered the solicitors’ position with regard to any potential settlement,
so that the default had not had a serious or significant
adverse effect on the efficient conduct and progress of the litigation.
The defendants appealed and submitted that (1) in relation
to the first stage of the Denton test, the judge had wrongly concluded that they had not suffered prejudice; (2) at the
second stage, the judge had failed to attach any weight to
the fact that no good reason had been given for the default;
The failure to attach weight to the absence of a good reason
concentrate on the serious consequences for them if relief
discretion was flawed. It was obvious that the default had
the claimants’ the tactical advantage of effectively litigating
of the obligation to notify the solicitors of the funding
wrongly held that CPR 3.9(1) required consideration of
attached appropriate significance to the requirement to give
with the need for litigation to be conducted efficiently and
as flawed simply because he took the view that the absence
(3) in applying the third stage, the judge had failed to
for the default did not mean that the exercise of the judge’s
from sanctions were granted, but instead he had afforded
been inadvertent and that the litigator had not been aware
under the pre-April 2013 costs regime; (4) the judge had
arrangements within a specified time. The judge had clearly
whether the default had undermined or been inconsistent
notice. The exercise of his discretion could not be regarded
at proportionate cost because the wide wording of the rule
of any good reason for the breach was not something that
04
had to weigh heavily against the claimants. The weight to be attached to any particular factor was a matter for the judge’s own exercise of his discretion. Moreover, even if there was a
serious or significant breach of a relevant rule, with no good reason for the breach, it did not automatically follow that relief would be refused. In each case, the court had to have regard to all the circumstances.
The old costs regime had been criticised because success
fees and ATE premiums were contingently recoverable under it. However, the introduction of the new costs regime in April 2013, and the fact that the old costs regime had
been criticised, did not predicate that relief from sanctions should be refused in the instant case. The judge had
properly and adequately taken account of the defendant solicitors’ financial exposure if relief were granted and had been aware that the ATE premium could be considerable
and that the solicitors would be exposed to the risk of paying it if their ‘accrued right’ was lost as a consequence of the application being granted. The judge had been right
to hold that the defendants being adversely affected by the grant of relief should be accorded less weight than the breach and its consequences. The judgment in Denton
expressly stated that the court had to give particular effect to the two important factors of the effect of the breach and
the interests of justice in the particular case. The prejudice
which would be suffered if relief was granted was a factor under the ‘all the circumstances’ heading in CPR 3.9, but was only a subsidiary factor.
The distinction which the defendants drew in relation to the interpretation of CPR 3.9(1) was not well-founded. In
considering the third stage of the Denton test, the approach to CPR 3.9(1) required a focus on the effect of the breach,
not the consequence of granting relief. There was no
justification for any interference with the exercise of the judge’s discretion.
05
Watch this space Guide to the Conduct of Cases Involving Serious Injury
economic sense of working in collaboration in this way. In
After years of discussion between claimant and defendant
operate. The guide requires a change of culture that some
the early days that may depend on how effectively each
lobbies A Guide to the Conduct of Cases Involving Serious
Injury has been agreed and came into force on 12 October. It relates primarily to multi-track cases with a potential full liability value of ÂŁ250,000 and above but including an element of future loss.
At the heart of the guide is the intention of promoting
collaboration between the parties and putting the claimant at the centre of the process.
The starting point of the process is the early notification
of the claim by the claimant to the defendant so that a case plan may be devised which covers (among other issues) resolving liability within a target time of six months; considering
rehabilitation;
exchanging
working towards an overall settlement.
evidence;
and
Given that the flow of evidence will often be more from
the claimant to the defendant, the incentive for cooperation comes in the form of interim payments for costs
and disbursements and not just on account of damages.
The defendant will also refrain from making Part 36 or Calderbank offers until it is clear that one or more issues cannot be resolved through discussion/negotiation.
A number of forms of ADR are suggested as an alternative to legal proceedings.
Comment The success or otherwise of this process will depend on the
willingness of the parties to set up and maintain a dialogue and to provide information when it becomes available. If either considers that the other is not ‘playing ball’ there will
be a system for escalating concerns to a nominated higher authority. It is to be hoped that in the current environment, both claimants and defendants will see the benefits and 06
organisation polices the way in which its claims handlers in the past have found it difficult to adapt to. Those Luddites will surely see the necessity of working in this way, if further changes are not to be enforced on them.
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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.