Legal Watch: Personal Injury 21st May 2015 Issue: 063
Civil procedure/expert evidence In the last edition of this update we featured the case of Lee v Colchester Hospital University NHS Trust in which,
In this issue:
permitted to substitute one medical expert for another and the
• Civil procedure/expert evidence
heels of that decision we have Elliott v Stobart Group Ltd and
• Costs\Part 36 offers
notwithstanding the proximity of the trial, the defendant was claimant to serve supplemental medical reports. Hot on the
others (2015) EWCA Civ 449 which has the added dimension of involving a litigant in person.
The appellant/defendant had worked for the fifth respondent/
claimant company, which was part of the first respondent/
claimant group. That relationship ended acrimoniously. The
defendant alleged that the fifth claimant was carrying out
unlawful operations and that the second and third claimants had engaged in fraudulent activity. The claimants obtained
an injunction preventing the defendant from publishing certain defamatory statements about them, and they gave
an undertaking in damages. Later they discontinued the injunction proceedings.
The defendant claimed that the injunction caused him to suffer
a psychiatric disorder or exacerbated a pre-existing psychiatric disorder. He was ordered to file and serve an expert psychiatric or psychological report to support that claim. By consent he
was granted a 14-day extension to serve a report. He sought a further 30-day extension. The claimants applied for a case
management conference (CMC), which proceeded despite
the defendant’s request for an adjournment and his statement
that he was not fit to attend court. The judge ordered that the
defendant provide an expert report and authorise the release
of his GP’s notes; he gave the defendant permission to apply to vary or discharge his order within 10 days from receiving it;
and he gave the claimants permission to apply to strike out the defendant’s claim if he did not provide the report or apply
to vary or set aside the order in time. The defendant did not comply or apply to vary or discharge the order. Two months
later he served a psychiatric report. At a further CMC the
• Civil procedure/pre-action conduct
defendant was given two weeks to apply for an extension
ensuring that administration of justice was not undermined.
the claimants were given two weeks to issue and serve any
had given him extra leeway and drafted his order as he did.
of time or to vary the order made at the earlier CMC and
application to strike out the defendant’s claim. Both parties duly made such applications. The defendant claimed that
he had not had funds to obtain a report earlier and that he had been too ill to deal with the litigation. The judge stated that the defendant’s application was akin to an application
for relief from sanctions under CPR 3.9, which he had culpably failed to progress his claim; that his reasons for failing to comply with court orders were not good enough to justify a further extension of time; and therefore his claim for damages would be struck out.
The defendant appealed and submitted that the judge should not have approached the case on the basis that it
was effectively an application for relief from sanctions to which the Mitchell/Denton line of authorities was relevant;
but that in any event he had failed to take proper account of all the circumstances.
Dismissing the appeal, the Court of Appeal held that inability to pay for legal representation could not be regarded as a good reason for delay. Further, being a litigant in person with
no previous experience of legal proceedings was not a good reason for failing to comply with the CPR or court orders. In any case, the defendant was an experienced litigator.
‘The prejudice to the claimants resulting from the defendant’s noncompliance was far from trivial’ It was true that while a litigant who was short of funds could represent himself, the defendant needed to pay for an independent expert’s report without which he could not proceed. However, there was no independent evidence
about his financial position. The defendant’s mental health
problems were a factor to be taken into account when 02
That was precisely the reason that the judge in the CMCs There was no evidence that the defendant had been unfit or unable to attend for psychiatric examination, but if the
stress of so doing in connection with the litigation was too great, he could have applied in writing for a variation of the
order. Instead he simply refused to engage with the litigation process. The judge had been right to treat the case as one
in which the earlier order by implication imposed a sanction for non-compliance, namely the inability to proceed with the claim for compensation under the cross-undertaking.
The prejudice to the claimants resulting from the defendant’s
non-compliance was far from trivial. His failure had brought
the proceedings to a halt; when the enquiry into his alleged psychological harm was ordered, two years before the
instant appeal, the proceedings could reasonably have been expected to have been resolved in about six months. The defendant accepted that his failure was serious and significant. The judge gave very careful consideration to
all of the circumstances. Inability to present for psychiatric examination was not made out and nor was inability to meet the cost of an independent report. The judge gave careful
consideration not only to the manner in which the previous judge had taken into account the mental health issues but also to the extent to which, if at all, they were relevant to
the defendant’s failure to comply with the order. He found
that the defendant had ignored the opportunity to apply in
writing to vary the order and that he had simply ignored the
requirements it imposed on him. He was fully aware that a
report had belatedly been produced and of the draconian nature and effect of an order preventing the defendant from pursuing his claim. The judge had exercised his discretion in
an exemplary manner. He had directed himself impeccably,
subject only to the gloss that the Mitchell principles had since been explained or refined in subsequent decisions.
Civil procedure/pre-action conduct The importance of how parties ‘behave’ during the pre-action
phase of an action is highlighted in the non-personal injury case of Barker and another v Barnett [Lawtel 14/05/2015].
The claimant/respondent had brought a right of way claim
against the defendant/appellants, who were her neighbours.
The claimant had written pre-action letters to the defendants in an attempt to resolve the dispute but did not receive a
response. She issued a claim in 2013. In February 2014, she filed a notice of discontinuance. She successfully applied to set aside a costs order that she should pay the defendants’
costs in relation to the discontinued claim. The subsequent
order required the defendants to pay the claimant’s costs until the date of service of the defence, with there being no order for costs thereafter. The judge accepted the
claimant’s submission that he should depart from the usual rule because the claimants had failed to comply with preaction correspondence.
The defendants appealed and submitted that there had
been no good reason to depart from the general rule in CPR
38.6(1) that a claimant who discontinued was liable for the costs which a defendant had incurred.
‘…the defendants’ solicitors had warned… that a costs order might be made against (the defendants) because they had not replied to preaction correspondence’
Dismissing the appeal, the High Court judge held that the
judge had correctly identified the relevant law. He had been fully aware of the factual background. An experienced judge did not have to mention all the evidence before him; his task
was to summarise. Indeed, the defendants’ solicitors had warned them that a costs order might be made against them
because they had not replied to pre-action correspondence. The case had been brought to court as a consequence of the appellants’ failure to communicate.
The judge had correctly had regard to the reasons for the discontinuance put forward by the claimant and had been entitled to find that the claimant’s case was not necessarily
hopeless. The defendants appeared to want the court to retake the decision. A generous margin was given to a judge
when exercising discretion such as that in CPR 38.6(1). The
court would only interfere with that exercise where the judge
in the lower court had not applied the correct principles, had not taken into account all relevant considerations, had taken
into account an irrelevant consideration, or had reached a perverse decision.
The defendants had failed to demonstrate that the decision was wrong.
03
Costs\Part 36 offers The risk of failing to beat a claimant’s Part 36 offer in costs
is highlighted in the case of Cashman v Mid Essex Hospital Services NHS Trust (2015) EWHC 1312 (QB).
The defendant/respondent had agreed to pay the claimant/
appellant the sum of £90,000 in relation to a clinical negligence claim which he had brought. The defendant also
agreed to pay his costs, to be assessed on the standard basis if not agreed. The claimant put in a bill of costs of
about £262,000. About seven months before the costs assessment hearing, he made a Part 36 offer to settle for
£152,500. At the detailed assessment hearing, the Senior Costs Judge ordered the defendant to pay the claimant’s
costs in the sum of £173,693. As the costs judgment was more advantageous to the appellant than the proposal
contained in the Part 36 offer, CPR 36.14(3) was engaged. It provided that an additional amount of 10% of the costs
awarded would be payable unless the court considered it unjust to award such an amount.
CPR 36.14(4) provided that, in considering whether it would
be unjust to award an additional amount, the court would take into account all the circumstances of the case including the terms of any Part 36 offer; the stage in the proceedings when it was made; the information available to the parties
at the time it was made; and the conduct of the parties with regard to the giving or refusing to give information for the purposes of enabling the offer to be made or evaluated.
The Senior Costs Judge declined to award an additional
Allowing the claimant’s appeal, the High Court judge held that the Senior Costs Judge had erred in relying on the
degree of reduction made on assessment to the costs claimed as rendering it unjust to make an additional award in circumstances where the Part 36 offer was lower than the sum at which the costs were assessed. That approach penalised the claimant for making what turned out to be a reasonable Part 36 offer.
‘The claimant had been penalised for making a reasonable Part 36 offer rather than the defendant for not accepting it’ It was the terms of the Part 36 offer, not the level of the sums claimed in the bill of costs, which were to be considered under CPR 36.14(4). The making of an order of the level
required by CPR 36.14(3)(d) was decided as a matter
of policy as explained in the Jackson report. Under the
previous regime, it was considered that the claimant was insufficiently rewarded and the defendant insufficiently penalised where the former had made an adequate Part 36 offer. The Senior Costs Judge fell into the temptation
referred to by Sir David Eady in Downing (2014) of making
amount, stating as follows: “Had the rule permitted me to
an exception by not making an award under CPR 36.14(3)
to the difference between the sum which the claimant
unjust but because he thought it unjust to make an award
think that may have been a just result, but that is not what
concluded that it would not have been unjust to award an
a significant reduction in the claimant’s bill, it seems to
Part 36 offer and the sum of costs allowed on assessment.
additional amount prescribed by 36.14(3)(d)”.
(d).
allow a figure fixed by applying the prescribed percentage
(d) not because he considered the making of such an award
offered to accept and the sum which was allowed, then I
of the required amount, i.e. 10% of the assessed costs. He
the rule anticipates. In circumstances where there has been
additional amount based on the difference between the
me that it would be unjust to reward the claimant with an
However, that was not the regime specified in CPR 36.14(3)
04
The claimant had been penalised for making a reasonable Part 36 offer rather than the defendant for not accepting it.
That approach was contrary to the intent and effect of CPR
36.14(3)(d). The claimant was entitled to an additional award.
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