Legal Watch Personal Injury Issue Number: 001
Welcome! Welcome to the first edition of Legal Watch: Personal Injury. Many of the cases reported this week have a common theme:
In This Issue:
the courts are applying the Civil Procedure Rules strictly. While, in many respects, that approach must be correct, there
- RTA/Liability
is concern that judges are ignoring the realities of the litigation process and justice is becoming secondary to process.
- Civil Procedure - Costs/CFA - Damages - Fraud - Limitation - Periodical Payments
Events Plexus and Greenwoods hold a series of event which are open to interested clients. See below for those being held in the next months: An Audience With ... | 21.01.14 | Central London
RTA/Liability The case of Wheeler v Chief Constable of Gloucestershire
Rejecting the appeal, the Court of Appeal held that it was
Constabulary [Lawtel 19/12/2013] illustrates the Court of
reluctant to interfere with the apportionment of liability decided
Appeal’s reluctance to interfere with the findings of a judge
by a judge. The claimant's submissions underplayed his own
who has heard the evidence. The claimant/appellant had been driving a car with a passenger when his car collided with a police van driven by a police officer which was turning right across oncoming traffic. Both the claimant and his passenger suffered injuries and they brought a claim against the defendant/respondent for his officer's negligent driving. The judge found that the officer had been negligent in failing to stop before he turned right or to check for oncoming traffic. He further found that the claimant
negligence in failing to comply with the speed limit and driving 25mph faster. The speed of the car in question in Grealis was in the 30s. The officer's negligence was two-fold, not four-fold: he had failed to stop before turning or to keep a proper look out. The judgment was short but it was impossible to think that the judge had failed to have regard to the duties on both parties in assessing their blameworthiness. His apportionment of 50:50 was open to him having heard the witnesses and the Court of Appeal would not interfere with his decision.
had been driving at 55mph in a 30mph speed limit. He held
The defendant was awarded his costs of the appeal but both
that both parties had been negligent and apportioned liability
parties had failed to produce a statement of costs as was
at 50:50.
required under CPR PD 44 so that the court could not
The claimant appealed. submitting that the judge had reached an apportionment of liability which was not open to him on the facts and he had failed to give adequate reasons for his decision. He argued that the officer had failed to stop; keep a
summarily assess the costs. In light of the stricter approach to be adopted to the failure to comply with rules following Mitchell, the defendant was ordered to pay the costs of a detailed assessment.
proper look out; wait for a safe gap; or have regard to the painted lines on the road. He relied on Grealis v Opuni (2003) for the proposition that exceeding the speed limit did not make him more negligent.
Comment The way in which costs were dealt with in this case serves yet again to illustrate just how rigorously the courts are enforcing compliance with CPR.
“...it was impossible to think that the judge had failed to have regard to the duties on both parties in assessing their blameworthiness’’
A second case under this heading is Horner v Norman [Lawtel 20/12/2013]. The defendant, whilst driving her car on a dual carriageway, had struck the claimant, a pedestrian, when he ran out onto the road. The defendant's evidence, supported by a witness, was that she had braked lightly upon seeing the claimant approach the dual carriageway, but ceased braking once he had retreated slightly. She further stated that she was forced to perform an emergency stop once he then sprinted into the road, but she clipped him. Experts for both parties agreed that the collision had occurred at a speed of 30 miles
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per hour. The claimant's expert stated that the likely friction
could or should have done more, the instant case was not that
coefficient of the road had been 0.65, consistent with a damp
case.
road, so that the calculations meant that the defendant could have stopped in time for the claimant to reach the central reservation. The defendant's expert preferred a lower
If that was wrong, the claimant's contributory negligence was to be assessed at 75 per cent.
coefficient, consistent with patches of ice on the road as identified by police reports, so that the defendant had done all that she could to stop in time. The issues were whether (i) the coefficient of the road had been 0.65 and, if so, whether that was determinative of the defendant's negligence; (ii) the accident itself proved the defendant to have been negligent; (iii) the claimant had been contributorily negligent. The deputy High Court judge held that he did not share the claimant's view that a finding that the coefficient of the road had been 0.65 would be determinative of the case. The photographs from the scene and police reports all indicated patches of ice on the road. The temperature had been below zero and no skid testing had occurred because conditions
“The defendant had been driving at a modest speed, had kept a proper look out and had twice reacted to the claimant's presence�
were icy. There had been patches of ice on the road and a
Comment
coefficient of 0.65 was not reliable. The defendant's expert
Although it is a first instance decision on its facts, this case
evidence was preferred as the claimant's expert evidence had included inappropriate content, including advocacy on his behalf.
will give heart to defendants. It shows that where a driver and a pedestrian see each other but there is still a collision, the courts will not always find that the motorist’s duty was a higher
The circumstances had been highly unusual. Pedestrians
one and that she must bear some liability
crossing dual carriageways were relatively less common
Wheeler v Chief Constable of Gloucestershire Constabulary
occurrences. The claimant had stepped out and then retreated, so that the traffic had been visible to him. He had given the impression that he had seen the traffic approaching.
[Lawtel 19/12/2013] Horner v Norman [Lawtel 20/12/13]
It was more likely that he had decided to beat the traffic, rather than having forgotten the side of the road on which cars drove. There was no evidence that he was drunk and he had not checked to his right before attempting to cross. The defendant had been driving at a modest speed, had kept a proper look out and had twice reacted to the claimant's presence. She had braked as hard as she could and the court did not accept that she had applied the brakes too late. There was nothing more that she could have done and her actions were those of a reasonably competent and prudent driver. Although there were often situations where the mathematics meant that the driver
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Civil Procedure “We are already seeing the fall-out from the Mitchell case’’
story he could get a number of other people into trouble in connection with money laundering. Refusing the application and striking out the defence, the High Court judge held that the defendant’s supplementary witness statement had been proffered over seven months late and, even more importantly, on the second day of the trial. Where
In Karbhari and another v Ahmed (2013) EWHC 4042 (QB) the defendant applied for permission to serve a supplementary witness statement out of time.
the court had ordered witness statements to be served by a certain date and they had not been served by that date, then, to obtain the court's permission under the CPR.32.10, the party in default had to persuade the court to grant relief under
The claimants’ case was that, in the context of more than 20
CPR 3.9(1). Applying the approach in Mitchell it would not be
transactions, they had handed over to the defendant millions
appropriate to grant the defendant the permission sought. His
of pounds in cash and cheques pursuant to an agreement that
breach was far from trivial. The delay of over seven months
he would repay the monies after a fixed period together with
and the timing of the application on the second day of the trial
a guaranteed return. Some of those transactions involved
amounted to a serious departure from the terms of the court
monies allegedly provided directly by the claimants; others
order relating to the service of witness statements. The
involved third parties who, it was said, provided the first
supplementary witness statement was no mere formality but
claimant with monies upon the promise of a return lower than
sought to introduce wholly new (and inconsistent) material to
that which had been offered by the defendant to the first
the case as originally presented. Further, there was no "good
claimant, thus leading him to expect to earn a substantial
reason" for the defendant's default. Money laundering was a
commission. The investors, it was said, understood that the
serious criminal offence. Omitting until the very last moment
returns were being generated by profits in the Dubai property
large volumes of evidence to protect those guilty of the offence
market through a company. In the vast majority of, if not all,
on the unwarranted assumption that the case might not come
cases neither the original investments nor any return was
to trial was a thoroughly bad reason. In the particular
recovered. In his defence, the defendant denied receiving any
circumstances of the case, the proportionate response to the
of the sums in question. On the morning of the second day of
breaches was to strike out the defence and give judgment for
the period over which the matter had been listed for trial, he
the claimants.
produced an amended defence. It purported to strike out the original defence almost in its entirety, and it was admitted that he had received four cheques from four different investors which he passed on to a representative of the company. He also filed a supplementary witness statement. In it he admitted receiving cheques for onward transmission and investment. He explained that the reason his earlier statement, which had been filed over seven months previously, was so short of facts and detail was that he was concerned that if he told the full
Where there was a realistic possibility of evidential developments between the date on which witness statements were to be served and the trial date, the wisest course would be to seek to persuade the court to make two orders relating to the service of witness statements. The first would provide for a date which would give a realistic opportunity for all sides to prepare statements covering existing events. A later backstop date could be ordered for the service of
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supplementary statements limited in content to matters which occurred, or were reasonably discoverable, only after the first date. That would have the advantage of obviating the need for further applications to the court and of giving the court the opportunity to exercise proportionate case-management discipline in advance. In that way, the unanticipated lastminute service of witness statements should become a thing of the past. The same would be expected to apply to expert reports.
Comment The outcome of this application was unsurprising, even without the impact of the tougher approach to compliance with CPR. However, the judge’s more general comments illustrate just how far parties must now plan well ahead when suggesting directions and setting their costs’ budgets. Karbhari and another v Ahmed (2013) EWHC 4042 (QB)
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Costs/CFA Another case showing the impact of the tightening of the rules
Office. The letter to the defendant had been prepared by a
is Harrison and another v Black Horse Ltd [Lawtel 07/01/2014].
paralegal employed by the claimants’ solicitors. She recalled
The claimants claimed that they had been mis-sold payment protection insurance. They brought proceedings in the County Court for recovery of the premiums they had paid. When their claim was dismissed, they appealed, first to the High Court and then to the Court of Appeal. Although they were unsuccessful, they obtained permission to appeal to the
typing it, but could not recall putting it in the post tray. Her evidence was that she had not put it in the Document Exchange. That was not sufficient to prove service. Because there was no evidence as to what happened to the letter after it left the paralegal's hand, service could not be deemed under CPR .6.26.
Supreme Court. At that point the matter was settled by consent, with the defendant agreeing to refund the premiums and to pay the claimants’ costs throughout, though not any sums in respect of after-the-event insurance premiums. The claimants had entered into four conditional fee agreements (CFAs) with their solicitors, one covering the proceedings in the County Court, the remainder covering the two appeals and the Supreme Court application. It was common ground that they had given the defendant notice of the first and fourth
“..the new version of CPR 3.9 introduced a tougher approach to relief applications”
CFAs. They accepted that they had not given notice of the second, which related to the High Court appeal, and the dispute centred on whether they had given notice of the third,
The sanction in CPR 44.3B(1) was automatic and, since the
which related to Court of Appeal. The claimants’ solicitors
requisite notice had not been given, the claimants could not
maintained that they had sent the notice via the Document
recover success fees in relation to the second appeal unless
Exchange. In points of dispute served in February 2013, the
the court granted relief from sanctions. In that respect, the
defendant claimed that it had never received the notice and
relevant version of CPR 3.9 was that in force after 1 April 2013.
that, by virtue of CPR 44.3B(1), the claimants were not entitled
It was clear that the claimants solicitor had intended to give
to recover any success fees or counsel's fees incurred under
the defendant notice of the CFA, and there was no reason to
that CFA. In July 2013, the claimants applied for relief from
doubt that they believed that they had done so. However, the
sanctions. The issues were (i) whether they had served notice
purpose of the notice was to alert the other party to the
of the third CFA on the defendant; (ii) if not, whether relief from
possibility of its having to pay success fees or insurance
sanctions ought to be granted. Refusing the application, the master held that it was not disputed that the claimants’ solicitor’s file contained a copy of a letter to the defendant's solicitor purporting to enclose an "updated notice of funding". Nor was it disputed that the solicitors had faxed a copy of the notice to the Civil Appeals
premiums if it was ordered to pay costs. The defendant's unchallenged evidence was that it had had no reason to assume that the appeals were funded by CFAs and that, had it known, its approach to settlement might have been different. That evidence, which had to be taken at face value, was sufficient to show that the defendant had been prejudiced by the failure to give notice. Under the pre-April 2013 version of
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CPR 3.9, the case for relief would have been borderline:The defendants had given notice of the first CFA, and their failure to give notice of the third was inadvertent; on the other hand, they had failed to give notice of the second CFA and had not applied for relief promptly. However, the new version of CPR 3.9 introduced a tougher approach to relief applications. If the failure to give notice could properly be regarded as trivial, relief would usually be granted provided that the application had been made promptly. If the failure could not be characterised as trivial, the defaulting party bore the burden of persuading the court to grant relief. The court had then to consider whether there was a good reason for the default. The claimants’ failure could not be said to be trivial: no notice had been given at all. Nor had they shown good reason for the default. While that might seem harsh, the solicitors should have known that CPR 3.9 was to be amended so as to introduce a tougher approach, and an application for relief could have been made before 1 April. Harrison and another v Black Horse Ltd [Lawtel 07/01/2014].
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Damages Although it is not a personal injury case, many readers will be
the repairs was not itself the loss suffered. The defendants had
interested in the decision in Coles and others v Hetherton and
argued that the claimants could not recover the full cost of
others (2013) EWCA Civ 1704.
repair to the insurer because they had to mitigate their loss by
The claimants’ vehicles had been damaged by the defendants’ negligence. Insurance policies provided by the claimants’ insurer provided for policyholders to choose its system for repairing cars, entitling the policyholder to a courtesy car, or to choose another repairer. The claimants all chose the insurer's system, which involved the repairs being undertaken by a company within the insurer’s group of companies. The
having the repairs done at a lower cost. That was wrong: mitigation was not relevant in respect of that direct loss. Accordingly, the claimants’ loss was taken as the reasonable cost of repair: that was taken, as a rule of thumb, as representing the diminution in value, although it might not always represent the full amount of the diminution. There was no difference between the cases of uninsured and
repair company sub-contracted the work to repairers. The
insured chattels. Even where the insurer's rights became
defendants alleged that the insurer's system inflated claims
subrogated to those of the insured, the cause of action against
and challenged the sums claimed. The preliminary issues were
the tortfeasor remained the claimants’, unless it was assigned.
whether (i) where a vehicle was negligently damaged and
Further, the benefits obtained under the insurance were
reasonably repaired, rather than written off, the measure of the
irrelevant in assessing damages. The defendants had argued
claimant's loss was the reasonable cost of repair; (ii) if the
that the instant case was outside those general rules because
insurer arranged repair, the reasonableness of the repair
the insurer had acted as the claimants’ agent when arranging
charge was to be judged by reference to what the claimants
repairs so that the contract between the repair company and
could obtain on the open market or to what the insurer could
the repair sub-contractor was relevant for ascertaining repair
obtain; (iii) if the insurer arranged repair, and where the amount
costs. That argument was unsupported by the facts. The
claimed was no more than the reasonable cost of repair, that
policies did not provide that the insurer would be the insureds’
amount was recoverable.
agent and the claimants had not given the insurer authority to
Upholding the decision at first instance, the Court of Appeal held that where a chattel was damaged by negligence, direct loss was suffered as soon as the chattel was damaged. The measure of that loss was the chattel's diminution in value. Events occurring after the damage were irrelevant to calculating diminution in value. Subsequent destruction, a decision to delay repairs, or an ability to have the repairs done at less than cost would not prevent recovery of the diminution. Generally, the courts calculated that diminution by considering the reasonable cost of repair so as to put the chattel back in the state it had been. In general, that was a convenient practice which courts should continue to follow. A claim for
enter repair contracts on their behalf. Thus the repairer could not recover repair costs from the insured. Further, the defendants could not rely on Copley v Lawn (2009): that case recognised that where a claimant received an offer to make amends, in deciding whether the claimant acted reasonably, the advice he could reasonably have been expected to obtain from other professionals was to be taken into account, but it went no further than that, and did not undermine the general rules. If the claimants’ insurer arranged repair, the reasonableness of the repair cost was to be judged by reference to what the claimant could obtain on the open market.
diminution in value was one for general damages. The cost of
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If the insurer paid for repairs and the claimant sued for the diminution in value, the court only had to consider whether the sum claimed was equal to or less than the notional sum the claimant would have paid, as a reasonable cost of repair, on the open market. The court would examine the components of the notional overall figure and would then compare that figure with the total actual sum. Accordingly, the court would not have to examine the administrative charges included in the total repair cost paid by the insurer to the repair company. The question was not whether each item was reasonable, but whether the overall cost was reasonable. Courtesy car costs could not be part of the repair costs. However, the right to a replacement car was set out in the policy and was therefore a contractual benefit; provided that the benefit was at a reasonable rate and was reasonably incurred, it was recoverable. There was no question of mitigation. The claimant exercised rights contracted for before the tort had occurred; that was not mitigating the loss of use of the vehicle.
“The question was not whether each item was reasonable, but whether the overall cost was reasonable’’ Comment Notwithstanding the favourable outcome of this decision from the claimants’ point of view, the Competition Committee has expressed concern about the way in which non-fault drivers’ insurers are able to seize control of the repair and claims processes with neither the at fault insurer or the claimant having any means of exercising any control. We may well see controls being introduced to prevent these practices. Coles and others v Hetherton and others (2013) EWCA Civ 1704.
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Fraud Despite some success in prosecuting claimants for contempt of court, as the result of fraudulent claims, defendants still face an uphill struggle. In AXA Insurance Plc v Rossiter (2013) EWHC 3805 (QB) the applicant insurer applied to commit the respondent to prison for contempt of court. The applicant had been the insurer of the tortfeasor who had injured the respondent in a road traffic accident. Liability was admitted and, in February 2011, the claimant issued a claim. Judgment was entered in her favour and she served medical
“Discrepancies between witness statements and video evidence would not automatically amount to a contempt of court’’
reports, a witness statement and an updated schedule of loss asserting that she was suffering from permanent, severe, continuous disability such that she rarely left her house or bed.
Rejecting the application, the High Court judge held that for
The applicant disclosed to video surveillance evidence to the
the applicant to establish the contempt alleged it had to prove
respondent of 13 days of filming between November 2011 and
beyond reasonable doubt (a) the falsity of the respondent's
January 2012 showing her leaving home unaccompanied,
statements; (b) that those statements had or would have
shopping, driving, walking her dogs, collecting her son from
materially interfered with the course of justice; (c) that she had
school, and walking up and down steps carrying heavy and
no honest belief in the statements and had known of their
bulky objects. There was also filming from two days in April
likelihood to interfere with the course of justice. On the
2012 in which she was not seen to have left her house. The
evidence, the respondent had not been dishonest. Her
claim was formally compromised in September 2012.
statements were false in that they did not deal with what she
The applicant argued that the respondent was in contempt of court by having fraudulently exaggerated her claim for gain in her statements in the medical reports, witness statement and schedule of loss. It submitted that the surveillance evidence demolished her claim by showing a starkly different picture of her injury from that which she suggested. The respondent asserted that the symptoms described and the picture presented in the reports and her statement were accurate, save that there were periods when she had not suffered quite as much, and where the restrictions on her lifestyle were not as great. She denied any dishonesty but accepted that she should have pointed out the variability in her symptoms. The applicant alleged that the respondent had tailored her evidence after seeing the surveillance evidence, and that it was inconceivable that 13 days of random filming should by chance have occurred on her "relatively good days".
could do, as shown on the surveillance evidence, on good days, but the applicant had not satisfied the court beyond reasonable doubt that she could do more than was shown on the surveillance evidence. She had not generally made false statements to her doctors or in her schedule of loss. The surveillance evidence of April 2012 supported her case that there were days when she was unfit to leave the house. There was
a
line
between
exaggeration
and
dishonesty.
Discrepancies between witness statements and video evidence would not automatically amount to a contempt of court: ultimately, that was a matter of fact and degree, and some exaggeration might be natural, even understandable.. The respondent's evidence raised considerable doubt as to whether she was lying, and the applicant had fallen short of proving dishonesty. Accordingly, whilst the respondent had made a number of false or inaccurate statements, in the absence of dishonesty there was no contempt. AXA Insurance Plc v Rossiter (2013) EWHC 3805 (QB) 11
Limitation The case of Hall v Ministry of Defence (2013) EWHC 4092 (QB)
Further, the question of whether a claimant failed to act
looks at the factors to be taken into account by the court when
promptly and fairly towards the defendant was significantly
considering the discretion under S33 Limitation Act 1980 to
different from the question of whether the claimant was guilty
disapply the three year limitation period for bringing a personal
of inordinate and inexcusable delay. Accordingly, the matter
injury action.
would be considered afresh on the basis of whether the
The claimant had issued a claim alleging negligence in the medical treatment he had received in respect of injuries
claimant had been guilty of inordinate and inexcusable conduct so as to have abused the process of the court.
suffered in the army. The claim form had been issued in August 2010 but had not been served by April 2011, which was when the defendant had agreed to extend time for service to. The claimant had applied for an extension of time on that date, but did not inform the defendant of the application until April 2012. Due to oversights on the court's part, the application was not heard until July 2012. The application was refused and the claim struck out. The claimant was ordered to pay £3,000 on account of the defendant's costs. In December 2012 he issued a second claim. He accepted that the second claim had been brought outside the three-year limitation period, so that he would have to apply under S33 to disapply the limitation period. A deputy master struck out the second claim, stating that the claimant's failure to make payment on account and failure to conduct himself promptly and fairly towards the defendant rendered his action an abuse of process. Allowing the claimant’s appeal, the High Court judge held that a long delay for which the claimant could be held responsible was not in itself sufficient to amount to an inordinate and inexcusable delay justifying a strike-out for abuse of process: there had to be something transforming the delay into an abuse such as evidence that the claimant had lost interest in the proceedings. It was difficult to ascertain that the deputy master's conclusions had addressed the right question. Regarding the failure to make the payment on account, he had not considered whether the breach was such that it could be described as intentional and contumelious, or otherwise a wholesale disregard of the rules. It could not amount to either.
“..a long delay for which the claimant could be held responsible was not in itself sufficient to amount to an inordinate and inexcusable delay justifying a strike-out for abuse of process’’ Looked at in isolation, the second claim was not open to serious criticism. It had plainly been brought outside the limitation period, but the reasons for that delay could be subject to consideration in a S33 application. Given that there was nothing abusive about the claim itself, the question had to be whether the conduct of the first claim had been so wrongfully delayed that the issue of the second claim was in itself an abuse. The defendant's primary complaint as to delay related to the 15-month period from the issue of the extension of time application to its determination. However, the application would have taken months to determine even if progressed promptly, and the delay in listing the hearing had
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been due to court administration in any event. The defendant also relied on the four-and-a-half months between the strikingout of the first claim and the issue of the second, but that period could not be said to be an abuse in relation to the conduct of the first claim, and could not be regarded as abusive delay going beyond what would be considered in a S33 application in relation to the second claim. Accordingly, the delays could not be said to be inordinate and inexcusable such that the second claim should be struck out. The claimant's failure to make payment on account was not, either by itself or in combination with the delays, sufficient to make the second claim an abuse of process. The defendant had a remedy in relation to the claimant's failure, being entitled to apply for a stay of the second claim pending payment or to take steps to enforce the order. Even had the court considered that the second claim was an abuse of process, the question would still have arisen of whether it was appropriate to strike out the claim as a matter of discretion. Had the court arrived at that point, it would have directed that the issue be determined in the context of an overall consideration of S33, the question of abuse of process being one factor in all the circumstances. Hall v Ministry of Defence (2013) EWHC 4092 (QB)
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Periodical Payments The Greenwoods’ case of AA (Protected Party) v BB and
orders starting and ending on a date which was uncertain. The
another (2013) EWHC 3679 (QB) is an illustration of how
court was also sceptical of a suggestion by the claimant's
periodical payment orders made by agreement between the
counsel that under CPR 41.8
there could be a total
parties may be used to settle claims, even where the court
suspension of an order, as opposed to a reduction or an
could not impose an order in the same terms.
increase, as referred to in CPR 41.8(3). For all of those reasons,
The claimant was aged 28 and lacked capacity. A deputy was due to be appointed by the Court of Protection to manage his
the court was not satisfied that it had the power to order periodical payments in the form suggested.
affairs. The court had approved settlement of his claim which comprised payment of a substantial lump sum together with periodical payments. One aspect of the settlement remained outstanding, namely a proposal that the second defendant pay periodical payments of £11,500 per annum in respect of the future deputyship costs, including those relating to the Court of Protection. The parties had agreed that if the claimant regained capacity to control his own finances those payments would cease, but the payments would re-start if he subsequently lost capacity at a future date. In seeking the court’s approval of the terms of a consent order, the claimant’s counsel submitted that when construing the
“The parties could agree a Tomlin order with a schedule embodying their agreement in relation to the periodical payments’’.
requirement in CPR 41.8(a) to specify the annual amount of a periodical payment and at what intervals it would be paid, the
The 2005 order gave the court power to provide, in an order,
word "intervals" did not merely mean the frequency of
for periodical payments to be varied where there was a chance
payments but could be construed as meaning an interval
that at some definite or indefinite time in the future the claimant
during which a claimant lacked capacity; the proposed order
would, as a result of the act/omission giving rise to the cause
was within the Damages (Variation of Periodical Payments)
of action, suffer some serious deterioration or enjoy some
Order 2005
significant improvement in his condition. The circumstance for
The High Court judge held that read within the context of CPR
which it was intended to cater was a case where there was to
41.8(1)(a) the word "intervals" was plainly referring to the intervals of time within the period of a year at which each periodical payment would be made. The reference in that subparagraph was to the annual amount awarded, how each payment was to be made and at what intervals. The drafter was not there referring to intervals of years or intervals between changes in the amount of the payments to be made. The provisions of CPR 41 did not enable the court to make
be a reduction of or increase in the amount of periodical payments rather than a "stop/start" change. It was intended for the sort of case where it was necessary for there to be reassessment of damages in the future. Article 7 of the order presented a further problem since it provided that a party could make only one application to vary in respect of each specified disease or type of deterioration or improvement. It was therefore not appropriate to make such an order.
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The parties could agree a Tomlin order with a schedule embodying their agreement in relation to the periodical payments. If it was in the claimant's interests, as it plainly was, and if it satisfied the requirements for his protection, the court was not precluded from approving that order, notwithstanding that it was one which court could not itself order. Further, since the proposed periodical payments formed part of an agreement approved by the court, the periodical payments made under it would be exempt from taxation. AA (Protected Party) v BB and another (2013) EWHC 3679 (QB)
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