Legal Watch - Personal Injury - Issue 3

Legal Watch Personal Injury Issue Number: 003 23 January 2014

Civil Procedure If anyone had any lingering doubts about how the courts will be enforcing compliance with CPR, the case of Thevarajah v

In This Issue:

Riordan and others (2014) EWCA Civ 15 will surely remove them.

The appellant/claimant appealed against a decision relieving the respondent/defendants from sanction where they had breached an unless order by failing to provide adequate disclosure.

• Civil Procedure • Part 36 • Watch this space

The claimant commenced substantive proceedings in relation to the purchase of a public house, and following several applications for injunctive relief, the grant of a worldwide freezing order against the defendants and their failure to comply with disclosure obligations, a further disclosure order was obtained in the form of an unless order. The defendants failed to comply and were debarred from defending the claim and their defence and counterclaim was struck out. They applied for relief from sanction which was initially refused but the deputy judge below had allowed a second application for relief from sanction.

Allowing the claimant’s appeal, the Court of Appeal held that the district judge had been wrong to rely on the decision in Woodhouse v Consignia (2002) as clear authority that a second application for relief was permissible. Woodhouse was not to be read as displacing the normal operation of CPR 3.1(7) in a case involving CPR 3.1(9). The defendants’ "second bite" application was in substance an application under CPR 3.1(7) for the setting aside of the provisions of the earlier order refusing relief under CPR 3.9, and had first to satisfy the criteria in Tibbles v SIG (2012) which it manifestly did not.

The deputy judge had been wrong to hold that the defendants’ subsequent compliance with the unless order amounted to "a material change of circumstances” since the date of the order and there was no other basis for an application under CPR 3.1(7) to vary or revoke the order.

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(Obiter) Even if the deputy judge had been entitled to give fresh consideration to the question of relief from sanction, his general approach to the application of CPR 3.9 in its current form was wrong in principle. It lacked the robustness called

Comment This judgment reveals all of the elements of the post Jackson approach, including a concern for the knock-on effect of delay

for by the guidance subsequently given in Mitchell v News

in one case on the availability of court time for others.

Group (2013), and gave insufficient consideration to the need

Thevarajah v Riordan and others (2014) EWCA Civ 15

(a) for litigation to be conducted efficiently and at proportionate cost, and (b) to enforce compliance with rules, practice directions and orders, considerations which “should now be regarded as of paramount importance and be given great weight”.

(The decision at first instance)“…lacked the robustness called for by the guidance subsequently given in Mitchell v News Group” Further, the deputy judge had paid insufficient attention to the defendants’ lack of promptness in bringing the second application, which had come almost two months after relief had been refused and just two days before the trial date followed. In addition, by allocating more than four of the five days allotted to the trial to be spent on the relief application, the deputy judge had allowed the application for relief from sanction hearing to take up a disproportionate amount of court time. The deputy judge had also questionably observed that even if the defendants remained debarred from defending the claim, they would be entitled at trial to require the claimant "to prove his claim, to cross-examine and make submissions" but the authorities to which he had referred did not support so sweeping a proposition.

03

Part 36 The case of Rehill v Rider Holdings Ltd [Lawtel 16/01/2014] is

claimant to refuse the April 2007 and November 2007 offers;

further evidence of the value of effective Part 36 offers, made

(2) erred in not imposing a costs penalty for the claimant's

at an early stage.

dishonest conduct.

The claimant had crossed the road when the pedestrian crossing light was red and was hit by one of the defendant's buses. The bus driver had not applied the brakes quickly enough. The claimant sustained injuries that impaired his mobility. Liability was apportioned equally between both parties. In April 2007, the defendant offered to settle the matter for £75,000 but the claimant refused. In November 2007, the defendant made a Part 36 offer. The claimant again refused and the offer was withdrawn in January 2008. By the time of that offer the claimant had reached the end of his recovery

“...the court had to have regard to the information available when an offer (under Part 36) was made”

period. His schedule of loss claimed over £71,000 to adapt his home as a result of his impaired mobility. In June 2009, the defendant made a further Part 36 offer of just under £40,000 which remained opened for 21 days; the claimant refused. Just before the quantum trial in April 2013, the claimant accepted the defendant's offer of £17,500. The parties could not agree costs, and the recorder held that the June 2009 offer had not been beaten and ordered the defendant to pay the claimant's costs up until July 2009 and for the claimant to pay the defendant's costs from July 2009 on the standard basis. The recorder also noted that the claimant had dishonestly inflated his case, that he had exaggerated his injuries and lied about where he had stepped into the road so as to minimise his culpability, that he had disputed the expert evidence concerning his recovery, had embellished his claim for building work to his home and that he should have accepted the November 2007 offer. The recorder did not order the claimant to pay the defendant's costs before July 2009 as when the April 2007 offer was made there was uncertainty as to the claimant's prognosis which continued until July 2008, and stated that although the claimant's conduct had been reprehensible, it was not so egregious as to warrant a penal costs order.

Allowing the appeal, the Court of Appeal held that the question for the recorder was whether the claimant had been reasonable in not accepting the offers. By virtue of CPR 36.14(4)(c) the court had to have regard to the information available when an offer was made. The recorder had considered the medical evidence available at the time of the offers and noted that in retrospect it had been prudent and reasonable to await the claimant's medical progress and that there had been issues of contributory negligence that had yet to be raised. If the claimant had indeed misled the lawyers, what was reasonable had to be based on what the claimant knew, and not on what the lawyers knew. He had reached the end of his recovery period when the November 2007 offer was made; he was discharged from hospital in December 2007, and he knew in 2007 that he did not have a genuine claim for adapting his home. The reality was that there was no significant uncertainty concerning the claimant's orthopaedic injuries when the November 2007 offer was made, and those injuries formed the bulk of his financial claim. The only uncertainty surrounding the injuries at that time were his abdominal injuries, which formed a minimal part of his financial claim. It was clear that the recorder had overlooked the

The defendant appealed submitting that the recorder had (1)

medical evidence and his findings about the claimant's

been wrong to conclude that it had been reasonable for the

mobility. The recorder had failed to evaluate the consequences 04

of those findings in financial terms which in turn vitiated his conclusions. It had been unreasonable for the claimant not to accept the November 2007 offer; however the same could not be said of the April 2007 offer as there was still uncertainty surrounding his orthopaedic injuries at that time. Accordingly, the claimant was ordered to pay the defendant's costs from 21 days after the date of the November 2007 offer.

If the overall effect of the recorder's decision had been that the claimant received his costs for being dishonest then that would have been wrong; however that was not its effect. The recorder held that the costs incurred in promoting a dishonest case could not be reasonably incurred. Further, the recorder's observations on the claimant's conduct did not bind the costs judge. Very little remained given that the claimant had been ordered to pay the defendant's costs from November 2007 and that the litigation had commenced in July 2008. Although the recorder had been generous in not imposing a penalty for dishonesty and other judges might have taken a stricter stance, that decision was within the ambit of the recorder's discretion.

Rehill v Rider Holdings Ltd [Lawtel 16/01/2014]

05

Watch this space Medical panels for whiplash claims It appears that the government is pressing on with its proposal to establish panels to provide medical evidence in whiplash claims with a value of up to £5,000. The success of this reform must lie in ensuring that the accredited examiners are drawn from practitioners who are truly objective. The form of report is likely to be standardised but steps must be taken to ensure that this does not encourage a tick-box approach which allows for abuse.

It may be wishful thinking but the suggestion is that the new panels will be up and running by the autumn.

Mesothelioma Bill The Mesothelioma Bill is expected to gain Royal Assent by April.

It will establish a lump-sum payments scheme for sufferers of

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mesothelioma funded by insurers and establish guidance for the resolution of insurance disputes over this asbestos-related disease.

The scheme will pay victims diagnosed with the disease on or after 25 July 2012 up to 75% of the average civil compensation payout.

Contact Us For more information please contact:

Once enacted, the proposals will make it compulsory for all active employers’ liability insurers to fund a scheme to pay eligible victims who contracted the disease at work, but who cannot trace a party to sue.

www.greenwoods-solicitors.co.uk

Geoff Owen Learning & Development Consultant T: 01908 298 216 E: gro@greenwoods-solicitors.com

www.plexuslaw.co.uk

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: 8 Bedford Park, Croydon, Surrey CR0 2AP. Parabis Law LLP is authorised and regulated by the SRA.