Legal Watch: Personal Injury 8th October 2015 Issue: 079
Specific disclosure/litigant in person Following the revolution that took place in the funding of personal injury litigation, the number of litigants in person
In this issue:
to treat such individuals fairly and not to take advantage of
• Specific disclosure/litigant in person
(LiPs) has increased. The legal profession has been directed the fact that they are not represented. Two cases look at the
• From Plexus Law Scotland
courts’ attitude to LiPs. The first case of of El-Demellawy v
European Bank for Reconstruction & Development [Lawtel 6/10/2015] also deals with what it is reasonable for a party to do when ordered to provide specific disclosure.
The claimant had worked as a manager for the defendant. In 2002, she was diagnosed with depression and did not return to work. The claimant accepted that the defendant was not
responsible for her initial illness, but asserted that if it had
responded appropriately to medical advice given to it at the time, she would have made a full recovery and could have
returned to work within three months, and that its treatment of her had caused her condition to worsen.
The defendant admitted that it had breached its duty to the
Events
or to suffer any loss. The main issues at trial were to be the extent of the breach of duty, causation and damages.
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In September 2015, the claimant’s application for specific
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claimant, but denied that that had caused her to fail to recover
disclosure of documents relating to quantum was granted. In particular, the defendant was required to disclose the salary
and benefit ranges that it had set for certain employees. The
defendant disclosed the figures for each job title, expressed as a percentage of the market reference point (MRP). The
claimant argued that that was not sufficient, as she wanted the actual salary ranges. The defendant had also been required
to disclose the appraisal documents of certain employees from 2002 onwards; the claimant argued that the information
was deficient as it did not include the 2015 figures, nor all the objectives.
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The claimant made the present application and submitted
The previous case suggests that the courts will adopt a
two parts of the disclosure order, and that the trial should
might have been the fear. This view is reinforced by the
that the defendant should be ordered to comply with those be adjourned for two weeks on the basis of the defendant’s
alleged failure to comply and because, as a litigant in person, fairness dictated that she should have further time to consider the material.
Refusing the application, the High Court judge held that the
defendant had been required to disclose the salary benefits that it had set. They had been set by reference to the MRP,
with a minimum and maximum calculated by reference to a
percentage of that MRP. The salary ranges could accordingly be calculated from the information given. Any issues arising from that should be dealt with at trial.
‘The order had made clear that disclosure did not extend beyond making a reasonable search’ As for the appraisal documents, the defendant had explained that once the 2015 information became available,
it would be provided to the claimant. With regard to the objectives not disclosed, despite a reasonable search some
documents could not be located. The order had made clear that disclosure did not extend beyond making a reasonable
search. There was no force in the submissions that a further order requiring better specific disclosure should be made.
As for adjournment, the trial date had been long-fixed. The judge had had the trial date well in mind when he had made
the disclosure order. The defendant had incurred substantial costs with regard to experts and leading counsel. Further, although the claimant had indicated that she only needed a
fortnight longer, the trial would likely have to be adjourned for several months in order to find a time when everyone
was available. It was an old claim with a lengthy procedural history, and it was in the claimant’s interests that it was determined as soon as possible. 02
sensible approach to LiPs and not be over indulgent, as commercial case of Sargeant v UK Insurance Ltd and another [Lawtel 6/10/2015].
The claimant applied to have a trial vacated and replaced with a meeting of experts. The first defendant insurance company applied for an unless order with regard to the claimant’s non-payment of costs.
The claimant had claimed for the cost of flood and water
damage in his home. The defendant did not dispute that the claimant was entitled to indemnity under the insurance
policy, but there was a dispute as to the amount that should be paid. Permission was granted to present expert evidence
regarding building and quantity surveying, and the experts
were to meet in June 2015, before signing a joint statement. The claimant’s expert was a company that covered both building and quantity surveying. Prior to the experts’ meeting, the claimant and his expert had a disagreement,
where the claimant told his expert that if the court awarded him a lesser sum than he sought, the expert should have to make up any shortfall. The claimant subsequently went
on holiday until three days before the experts were due to meet.
During that period, the expert wrote to the claimant informing him that it was providing an opinion and not a warranty, and that the claimant had to accept that or it could not act
as his expert. It also stated that he had not paid for initial work it had done. The claimant said that after his holiday he became depressed and could not remember receiving
the letter. The expert subsequently asked the court for
permission to withdraw from the matter. In the meantime, time for serving the expert evidence was extended and a cost order of £943 was made against the claimant.
The claimant submitted that the fact that the meeting of experts did not take place was not his fault. He argued
that his expert had been instructed and knew to attend the meeting. He said that he had since approached 67
alternative experts, none of whom were able to take on the work. The defendant submitted that the trial was only a
few weeks away, and that the meeting had not taken place because the claimant had disagreed with his expert, and not paid the expert’s fees.
Refusing the application, the High Court judge held that it
was not appropriate to accede to the claimant’s application:
the problems were of his own doing. He had turned against his own expert. He had allowed fees to go unpaid and had
engaged in a highly critical manner. While the claimant was entitled to point out areas of disagreement, it was not
appropriate to indicate that in the event that the court were to award him a lesser sum than he sought, his expert should
have to make up the shortfall. That, combined with the failure to pay the expert and to respond, made it clear that the claimant only had himself to blame.
‘…it was in the public interest to stick to courtapproved directions...’ The fact that the claimant had failed to find a replacement
expert made little difference, where the claimant himself was
responsible for his expert ceasing to act. It was not right that he should be allowed to derail the trial set for the following
month. The litigation had been on-going for some time,
and it was in the public interest to stick to court-approved directions. The court also had regard to Denton (2014):
although it was not an application for relief from sanctions, where a party was a litigant in person, it was appropriate
to keep those principles in mind. There had clearly been a
serious and significant failure to comply with a court order,
as an experts’ meeting was integral to the proceedings. The claimant’s expert had been put in a very difficult position
and could not have been expected to have just gone ahead with the meeting where the claimant had not paid fees and
had made clear his dissatisfaction. Following Denton it was also not fair, just and reasonable to vacate the trial.
At the court’s discretion, it was not appropriate to make
the unless order so close to trial. The amount unpaid was modest, and the claimant was resident in the jurisdiction.
03
From Plexus Law Scotland Secondary victim and loss of society At a time when claimant lawyers in England and Wales are agitating for an increase in the award of damages for bereavement, the Scottish case of Young v MacVean is of wider interest. It also relates to a claim for damages for psychiatric injury by a secondary victim.
In this fatal damages claim, the pursuer (claimant) passed the accident site but only later realised her 26 year old son had been involved. At proof (first instance) the pursuer
was awarded total damages of £249,600. The defenders reclaimed (appealed) arguing:
• The judge was wrong in holding the pursuer was a
secondary victim entitled to damages for psychiatric injury
• The £80,000 awarded for loss of society was excessive. This is the equivalent to bereavement in England and Wales.
• The scope of the exception to the general rule cannot be identified by logic or by the application of some
principle. Rather, its parameters are determined by what the courts have been prepared to allow in previous
cases. The exception is productive of anomalies and artificial distinctions.
The issue for the appeal on the right of the pursuer to claim as a secondary victim
• The issue was whether the judge at first instance was
correct to conclude that the pursuer was a secondary victim by virtue of her having been exposed to the
immediate aftermath of the event which led to the death of her son
The defender argued • That the pursuer’s shock was caused by being told
about the death, not by witnessing the events or even the aftermath. Although the pursuer did witness the
aftermath in the sense of seeing the defender’s wrecked
Background
motorcar, she did not realise at the time that the wreck
The general rule at common law is that someone cannot
any of her close relatives
recover damages arising from the death of another, but
there is an exception at common law for a secondary victim • To recover damages for psychiatric injury as a
secondary victim there must be reasonable forseeability of the wrong causing the loss and also there must be proximity of relationship
• The exception applies to cases, such as the present
case, where the affected person has suffered psychiatric injury (conventionally referred to as ‘nervous shock’) by reason of the contemplation of the death of or physical injury to the primary victim. In addition, it is necessary for the secondary victim to suffer the shock by being
immediately and directly confronted, through sight or sound, with the primary victim’s death or injury
was the consequence of an event which had involved • As a matter of fact, the pursuer had not been
traumatised by what she had seen at the scene but by what she had been told later
Decision on the secondary victim issue • If nervous shock on exposure to the aftermath of
an event is to give rise to a claim for damages, the
conditions for recovery which apply to nervous shock on exposure to an event must also apply to nervous
shock on exposure to the aftermath of the event. These include the requirement that the relevant injury to the
secondary victim was caused by shock as a result of what she perceived with her own senses
• The present case was of the same nature as Lord
Oliver’s characterisation of Alcock (1991). The pursuer
saw the wrecked car but did not immediately associate 04
it with any of her relatives. Only thereafter did that visual image provide “the matrix for imagined consequences giving rise to grave concern and worry, followed by a dawning consciousness over an extended period
that the imagined consequence had occurred, finally confirmed by news of the death”
• On the evidence when the pursuer viewed the wrecked
vehicle she had no reason to connect what she saw with her son. Indeed, as the judge at first instance found, her initial reaction was one of relief that her own children
could not be involved as her son did not drive and her daughter was at home
• The pursuer was not a secondary victim and
accordingly was not entitled to damages in respect of her psychiatric illness
3. There was substantial evidence on her reaction to her son’s death (i.e. through the psychiatric evidence)
4. You cannot always assume there is a hierarchy of
relationships between family members, especially where there is evidence led on the actual relationship
5. The court had regard to the ‘continuing upward pull’ of jury awards
Comment Awards for loss of society at this level are bound to be
picked up by claimant lawyers (and the press) who are regularly highlighting the perceived injustice that the ‘value
of a life’ in England and Wales is currently fixed by legislation at £12,908.
Decision on loss of society
For further information please contact Stuart Mackie
• The large discrepancy between the loss of society
E: stuart.mackie@plexuslaw.co.uk
award in this case (£80,000) and that in Currie (2014) (£42,000) gave the court long pause for thought
• Whilst in Currie the Inner House (appeal court) did not
specifically endorse Lady Wise’s award in that case, it
confirmed that she had been correct in understanding that the Lord President in Hamilton (2012) had
expressed the opinion that the jury’s award of £90,000
to the father of the deceased Thomson (2011) had fallen foul of the 100% rule of thumb (in other words that a reasonable award would have been £45,000 or less)
• But the award in this case was not plainly and clearly
excessive despite that discrepancy between the figures,
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JSC Guidelines for the Assessment of Damages for PSLA Readers should note that with effect from 17 September
the 13th edition of the JSC Guidelines has come into force.
Inevitably this has produced an across the board increase
in the figures set out in the previous edition. However, the increases are not uniform, with significant variations between types of injury.
so the court declined to reverse it, for the following reasons:
1. The assessment of damages is primarily for the judge at first instance and is discretionary. Loss of society is likely
to depend on impression and imponderable considerations. The purpose of the award is just compensation, not to fit it into a tariff
2. It was open to the judge to find there was evidence of a special relationship
05
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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.