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Legal Watch Personal Injury Issue Number: 002 16 January 2014

Civil Procedure Under the revised CPR 32.2(3) the court has the power to restrict factual witness evidence. The case of Maclennan v

In This Issue:

Sindall (Infrastructure) Ltd (2013) EWHC 4044 (QB) is an early example of the court exercising this power. The claimant, who had been employed by the defendant, had suffered a severe brain injury in an accident at work. Liability was admitted subject to 25% contributory negligence. Quantum remained to be determined; the trial was estimated

• Civil Procedure • Damages • Civil Procedure

to last five days, and the trial window started at the end of March 2014. In respect of loss of earnings, the claimant proposed to tender the evidence of 43 witnesses. Their statements concerned four broad issues: whether, but for the


accident, the claimant could have worked abroad and earned more than he would have in the United Kingdom; whether he would have retired at 65 or 70; what his promotion prospects might have been; and what earnings he could reasonably have

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expected. The defendant argued that those issues were common in personal injury cases, and it sought an order limiting the claimant to calling no more than eight witnesses as earnings comparators. The High Court judge held that overall the statements were extremely brief; they did not attach corroborative or supporting documentation; and they included assertions about the availability of work in the UK and abroad, rates of pay, typical retirement ages, and the claimant's qualities and employment prospects generally. There was material duplication, though the repetition of a proposition by a variety of witnesses could be said to add to its weight, and it was possible that the sum of the evidence might exceed the probative weight of its parts. Under CPR 32.2(3), which came into effect as a result of the Jackson reforms, the court had the power to deploy a range of possible solutions in order to reduce costs and ensure that the trial was conducted effectively.

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The following considerations were relevant to the exercise of

which required the claimant to identify the specific facts and

that power: (a) Rule 32 had to be read as a whole. The court

propositions relied upon from the witness statements; the

had to use all the powers at its disposal to ensure the efficient

defendant to identify which were agreed and disagreed; and

and fair conduct of the trial, and it would only consider

the claimant to indicate which witnesses he intended to call.

prohibiting the calling of witnesses after less intrusive

However, that was not appropriate in the instant case: time

measures had been considered and rejected; (b) a court

was short, the parties had not exhibited any great ability to

seeking to regulate the nature and extent of witness evidence

cooperate, and there was a real risk that a process involving

would generally wish to do so at an early stage, before the

multiple stages could delay the preparation for trial.

preparation of witness statements. At that stage it might also be possible for the parties to identify matters which might be admitted; (c) while the power to exclude or control witness evidence was best exercised before the preparation of witness statements, the court was not precluded from exercising it after statements had been drafted; (d) before exercising its power to prohibit the adducing of witness statement evidence, the court had to have the fullest possible information, adequate preparation time, and guidance from the parties as to which parts of which statements were said to be otiose, prolix, or otherwise inadmissible; (e) where the court did

The preferable course was as follows. The claimant would be permitted to call 14 witnesses to address the issue of comparative earnings. That was the minimum number he considered necessary, and the defendant did not demur. He was to write to each forthwith requesting certain specified details of their earnings, with supporting documentation. If a witness declined to co-operate, the claimant was to write to the defendant's solicitor, setting out the steps he had taken and the response he received. The claimant could call 14 additional witnesses to cover

exercise its power, it might be necessary to give the parties

matters other than comparative earnings. That was the critical

liberty to vary the order by consent or to apply to the court for

mass he considered necessary, and it was likely that their

a variation. In that regard, the court would be entitled to expect

evidence could be heard swiftly. Any fewer risked causing

a considerable degree of co-operation and good sense.

injustice. The evidence of the claimant and his wife could also be tendered. The claimant was to identify the witnesses and

“...the court had the power to deploy a range of possible solutions in order to reduce costs and ensure that the trial was conducted effectively.�

serve any documents as directed; he could not rely on statements from witnesses who had not been identified, though there was nothing to stop him from seeking to rely upon evidence following service of a valid hearsay notice if it was proper to do so. Where any expert evidence relied on the statements of individuals who were not on the list of identified witnesses, there was no need for the experts to exclude reliance on those witnesses. Finally, both parties had liberty to vary the scheme by agreement or to apply to the court for a variation.

Maclennan v Sindall (Infrastructure) Ltd (2013) EWHC 4044 (QB)

A lack of co-operation could not be justified by an assertion that the relationship between the parties' legal advisers was not good. In the instant case, some form of case management was required. One possibility would be to impose a process 03

Damages The case of Brown (deceased) v Hamid (2013) EWHC 4067 (QB) will be of interest to those dealing with fatal accident cases. The deceased had died in 2012. He had been ill for many years but it was admitted that his death had been accelerated as a result of the defendant’s clinical negligence. On the evidence the judge found that the defendant’s failure properly to diagnose the deceased’s condition had accelerated the onset of more severe symptoms associated with his pre-existing condition by a period of about 12 months. Although damages for loss of expectation of life were not recoverable, in assessing damages for pain and suffering the court was entitled to take into account any suffering likely to have been caused to the deceased by his awareness that his expectation of life had been reduced. He had suffered

“Although the principle of loss of special consortium had been recognised in a husband and wife relationship…it was not appropriate to found a separate head of damages on that basis in the instant case.”

significant distress and anxiety as a result of the impact of the delayed diagnosis on his health. The appropriate award of

A second case under this heading is Humphrey v Aegis

general damages was £8,500.

Defence Services Ltd [Lawtel 15/01/2014]. It is very much a

An award of £11,800 was made for bereavement under the

case on its own facts but shows how insurance payments from

Fatal Accidents Act 1976. Although funeral expenses were

third parties may complicate the assessment of damages in a

usually recoverable under S3(5) of the 1976 Act, it was not

personal injury case.

appropriate to make such an award in the instant case

The claimant had been a member of the Royal Marines and

because of the acceleration of symptoms associated with a

undertook close protection work in Iraq. He sustained

pre-existing condition by a relatively short period.

permanent shoulder injuries during a stretcher-carrying training

An award for loss of earnings based on a period of five years

exercise after a team member dropped the stretcher. He

and four months was made in the sum of £2,000 and loss of

contended that the defendant should not have allowed the

DIY skills led to an award of £2,500. No award was made in

team member to take part as he was unfit. The defendant

respect of care, medical fees, accommodation or travel as

denied liability. The claimant had the benefit of UK insurance

there was no evidence that these had been increased as a

payments which amounted to £31,000 and was also entitled

result of the defendant's negligence.

to insurance payments under US law, receiving $1,200 a week.

Although the principle of loss of special consortium had been recognised in a husband and wife relationship, there was a distinct overlap with the award of damages for bereavement. Moreover, the case law demonstrated substantially longer

The claimant and the US insurer were negotiating a lump sum to replace the weekly payments. He had made it clear that he would give credit for any insurance payments made if he succeeded at trial.

periods over which such a loss had taken place. In the

In this application for a split trial of the issue of liability the

circumstances, it was not appropriate to found a separate

claimant submitted that if he succeeded at the forthcoming

head of damages on that basis in the instant case.

trial then the judge would be placed in the impossible situation 04

of determining quantum before a lump sum was agreed in

also argued that there was a risk that under US law the insurer

respect of the $1,200 a week. The judge would then have to

would seek reimbursement of damages recovered in the

offset the weekly payments against any damages awarded,

action. However, as the claim was against the employer rather

and would be forced to make an order that would leave the

than a third party, there was only a very small possibility of a

claimant significantly short of the amount that he would have

"double deduction". If that had been the claimant's only

recovered if a lump sum had been agreed instead. The

submission then it would not have been sufficient to justify a

defendant submitted that it would not be proportionate to

split trial. However, the difficulty of quantifying damages in the

order a split trial as it was not known when the lump sum might

absence of a lump sum meant that the application should

be agreed and the issue of quantum might be pushed off to


an unknown date in the future.

“...the claimant’s submission that his damages would be significantly and unfairly reduced if the court had to quantify them without knowing what lump sum he would receive from the insurer was a strong one”

Brown (deceased) v Hamid (2013) EWHC 4067 (QB) Humphrey v Aegis Defence Services Ltd [Lawtel 15/01/2014]

Allowing the application the deputy High Court judge held that the claimant’s submission that his damages would be significantly and unfairly reduced if the court had to quantify them without knowing what lump sum he would receive from the insurer was a strong one. Further, it was possible and likely that if he was successful at a trial of liability, that quantum could be agreed and a further trial would be avoided, along with the associated costs. It might also force the parties to come to an agreement on the lump sum prior to the trial of quantum. If the defendant were to succeed at the liability trial, then there would be no need for the quantum trial. On balance, any duplication of work with regard to a second trial was small compared to the advantages of a split trial. The claimant had 05

Civil Procedure Two of the considerations that the recent reforms in CPR have

case would have no priority over any others: it would be dealt

brought into focus are court resources and the impact of case

with as if proceedings had been freshly issued. That would

management decisions in one case on the parties in other

mean that if there was any difficulty in effecting the settlement,

disputes. The significance of these is illustrated in the planning

it would be several months before the case could come back

case of London & Henley (Middle Brook Street) Ltd and others

into the list. Parties had to understand that there were

v Secretary of State for Communities & Local Government and

consequences if the court was given no sensible choice but

others (2013) EWHC 4207 (Admin).

to adjourn at the last minute.

The parties to the dispute applied for an adjournment of the hearing of the matter to allow time to reach a settlement. They submitted that negotiation of the settlement had been unusually complicated and time-consuming but was close to completion, and if the court allowed the matter to reach finality

London & Henley (Middle Brook Street) Ltd and others v Secretary of State for Communities & Local Government and others (2013) EWHC 4207 (Admin)

its time would not be used needlessly and subsequent proceedings could be avoided.

‘…the effect of the adjournment… would be damaging to some degree to the interests of parties in other proceedings’ The High Court judge allowed the application finding that it was realistic and just to adjourn the hearing in the exceptional circumstances of the case. However, two points had to be made. First, the effect of the adjournment would be that the court's time could not be used to enable any other planning case to be heard, at what would be extremely short notice. Thus it would be damaging to some degree to the interests of parties in other proceedings having access to the court, and on the effective use of the court's resources. Second, the court had to regard the case as effectively settled: that was the only proper basis on which the adjournment could be granted. The 06

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