Legal Watch: Personal Injury 16th July 2015 Issue: 070
Interim payments The case of El-Demellawy v European Bank for Reconstruction
and Development [Lawtel 16/07/2015] is a reminder that
In this issue:
payment in a defended claim is that the court must be satisfied
• Interim payments
judgment for a substantial amount of money’.
• Jackson/Mitchell/Denton
the starting point for a successful application for an interim
that ‘if the claim went to trial, the claimant would obtain
• Part 36
In this case the claimant applied for an interim payment from
the defendant bank, her employer, in advance of the trial of her action for psychiatric injury and loss of earnings.
The claimant had begun working for the defendant in 1995 and
took sick leave in 2002 from which she did not return. Her case
was that the defendant had breached its duty to her during
her illness between 2003 and 2007 in that it failed to follow the recommendations of her doctor and their own medical
advisers in order to facilitate her recovery and return to work. She claimed that the defendant’s treatment of her had caused
her condition to worsen. The defendant had admitted that it
Events
breaches did not cause her to fail to recover. Its medical expert
stated that other factors had caused her condition to continue. The claimant sought an interim payment of £150,000.
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The deputy High Court judge held that for an interim payment
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had breached its duty to the claimant, but argued that those
to be made under CPR 25.7 the high threshold of whether the
claimant would obtain judgment for a substantial amount at trial had to be met. The amount sought was not excessive, but
the issue was whether the statutory requirement was satisfied and how the court should exercise its discretion.
‘It was undesirable for the application to become a mini-trial of factually or legally complicated issues’
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The burden of proof was on the claimant to the balance of
probabilities and the court had to put itself in the position of
the trial judge and decide whether the claim would succeed. A mere likelihood of success would not be enough. It was undesirable for the application to become a mini-trial of
factually or legally complicated issues. The claimant had
presented a good, strong arguable case on its face. Her medical expert’s report presented a clear opinion that the
defendant’s failure to follow medical advice had caused her
illness to continue. The defendant’s expert report was less persuasive and did not present a clear view contradicting the claimant’s expert. On the basis of those reports the claimant
was in a stronger position, but joint and supplemental reports would be available at trial and witnesses would give evidence and be cross-examined. The court was not
persuaded that the claimant would win. It was not possible to be satisfied as to what the outcome of the trial would be
as it would turn on the difficult question of expert evidence. It was not the sort of case for which interim payments were intended.
02
Part 36 As the case of RXDX v Northampton Borough Council
The claimant appealed and argued that the judge did not
grounds for argument.
(d) because the rule was a complete code. The defendant
[Lawtel 13/07/2015] illustrates, Part 36 continues to provide The former rule CPR 36.14(3), (now CPR 36.17(4)), states that where a claimant is successful with his Part 36 offer:
‘…the court must, unless it considers it unjust to do so, order that the claimant is entitled to—
(i) interest on the whole or part of any sum of money (excluding interest) awarded, at a rate not exceeding 10%
above base rate for some or all of the period starting with the date on which the relevant period expired;
(ii) costs (including any recoverable pre-action costs) on the indemnity basis from the date on which the relevant period expired;
(iii) interest on those costs at a rate not exceeding 10% above base rate; and
have the power to make no order under CPR 36.14(3)(a) and argued that it was open to the judge to consider each sub-
paragraph of the rule separately and assess if its application would be unjust in the circumstances.
‘It was open to the court to consider each sub-paragraph of CPR 36.14(3) separately…’ The High Court judge held that Part 36 was a self-contained code which was to be read and understood according to
its terms without importing rules derived from the general
law, save where that was clearly intended. CPR 36.14 was
(iv) provided that the case has been decided and there has
triggered in situations where the claimant had achieved a
additional amount, which shall not exceed £75,000…’
had the Part 36 offer been accepted, such as in the instant
not been a previous order under this sub-paragraph, an The claimant had suffered a severe brain injury as a child
when he nearly drowned in a leisure centre swimming pool. The judge found that the lifeguards had breached their duty
of care to the claimant and that there was a direct causal link between that breach and the severity of the claimant’s
more advantageous result than would have been the case case. Reading the plain language of the rule the court
preferred the defendant’s construction. It was open to the court to consider each sub-paragraph of CPR 36.14(3) separately so as to assess if its application would be unjust in the circumstances of each particular case.
injuries. The claimant made a Part 36 offer to settle. That
The order as previously drawn was only wrong to the
damages in full. The judge ordered indemnity costs to run
claimant’s costs in relation to liability should be restricted
He made no order in relation to additional costs pursuant
36 offer expired and the order would be amended to that
offer was not accepted. In the event the claimant recovered throughout plus interest from the date that the offer expired.
to CPR 36.14(3)(a) or (d) as it then was on the basis that in
extent that the provision that the defendant should pay the
expressly to costs incurred after the date that the Part
extent.
the circumstances, where nothing had been known to either
side as to the value of the claim, it would be unjust to apply those provisions.
03
Jackson/Mitchell/Denton Although it is a commercial claim Cant v Hertz Corp and
service, the claims were time-barred as more than six years
claims.
submitted that it was sufficient if an unsealed amended
others [Lawtel 15/07/2015] is also relevant to personal injury
The second defendant car rental company applied
had elapsed since the expiry of the licence. The claimant claim form had been served.
for a declaration that the claimant’s claim form had
Finding in favour of the claimant the judge held that there
claim. The claimant applied for an order that the claim
properly amended a claim form to serve a resealed version
defendant had submitted to the court’s jurisdiction.
once been sealed and later amended. The difficulty for the
defendant to take photographs to be used in advertising
had to rely for good service was not an amended version
two years. Five years after the expiry of the licence, the
second defendant had received was an unsealed amended
using 29 photographs in which he claimed copyright.
for good service a claim form had to be sealed had not been
not been validly served and an order striking out the
was no rule in the CPR which required a claimant who
form had been validly served, and that the second
of that claim form as opposed to the version that had
The claimant had been commissioned by the second
claimant was that the version of the claim form on which he
under licence by the second defendant within Europe for
of a claim form properly served; the only claim form the
claimant discovered that the second defendant was still
claim form. It was at least arguable that the requirement that
The claimant served a letter before action on the second defendant and two other companies within the defendant
corporate group; it did not respond and the two other companies merely said that they were successors to other
companies within the group. The claimant decided not to pursue those companies, and did not include them in its draft particulars of claim, although they were included in the claim form. The claimant failed to serve the claim form
and particulars of claim on the second defendant within the four-month time limit under CPR 7.5(1). The claimant sent
an amended claim form, which only referred to the second defendant, and the particulars of claim, to the second defendant by first class post and filed them with the court.
The claimant contended that a court clerk had told him
that an unnamed judge had attached a note to his file that
a sealed amended claim form had to be re-served on the second defendant. In fact, an unsealed amended claim form had been served.
The second defendant submitted that for the claim form to be validly served it had to be resealed pursuant to CPR
2.6(1)(a) and the claimant’s claim should be struck out under
CPR 3.4(2). It also submitted that if there had been no good 04
satisfied in the instant case.
‘Applying the three stage test in Denton, the claimant’s failure to effect good service was neither serious nor significant...’ However, even if that were right, the instant case was certainly one in which the court should decline to sanction
the claimant for his failure to make good service of the claim
form within the prescribed four months. Applying the three stage test in Denton, the claimant’s failure to effect good
service was neither serious nor significant and it made no practical difference to the second defendant. Its limitation point was bad as the limitation period ran from the date of
the tort and each infringement was a separate tort; given that the claimant had become aware, for example, of the second defendant’s alleged infringements in 2014, the
limitation period for those allegations would not expire until 2020. The claimant’s solicitors had not believed that they
were breaching the rules when they served an unsealed amended claim form; even if they were wrong, they could
not be criticised for their default. In all of the circumstances of the case, the breach relied on did not make any practical difference to the second defendant.
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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.