Legal Watch - Personal Injury - Issue 65

Legal Watch: Personal Injury 11th June 2015 Issue: 065

RTA/liability Vann (Protected Party) and another v Ocidental-Companhia de Seguros SA (2015) EWCA Civ 572 is a relatively rare example of an appeal court interfering with the findings of a trial judge.

The claimants were a married couple and the accident took place when they were on a family holiday in Portugal. They had been out for dinner with their adult children and their partners.

After leaving the restaurant, it was necessary for them to cross the road to reach their car. The car driver saw them in the road as he approached. He applied his brakes, but his car struck both claimants. The first claimant survived but was left with disabilities and cognitive impairment. The second claimant died.

The first claimant claimed damages for her personal injuries.

Her two children claimed damages for the psychological injuries which they had suffered as a result of witnessing the accident.

They also claimed as executors on behalf of the deceased’s estate.

Under Article 4(1) of Rome II the action had to be determined in accordance with Portuguese law. Where both parties were at fault, the applicable principles were essentially the same as the English law of contributory negligence. The judge found that the driver was driving too fast for the conditions and that although the car headlights were on, none of the family had seen them. He held that it had been safe for the family to cross the road when they did, and that they had not failed to keep a proper lookout.

The defendant accepted that the driver had been negligent, but submitted that having found that the driver’s car headlights were on, the judge should have concluded that the claimants ought to have seen the car in time to avoid an accident.

In this issue: • RTA/liability • Costs • Jackson/Mitchell/Denton

‘…the car would have been clearly in view if (the claimants) had looked in that direction...’

Allowing the defendant’s appeal, the Court of Appeal held that it had to proceed on the basis of the findings of primary fact made by the judge below, namely that the car was travelling substantially too fast and had its headlights on. However, the finding that the claimants were keeping a proper lookout was not a finding of primary fact. It was an inference from primary facts and it had not been a permissible inference.

On the basis of the experts’ assessment of speed, the claimants could only just have stepped into the road when the car came into view. As they walked across the first half of the road, the car would have been clearly in view if they had looked in that direction. Even if they had not looked in that direction, the sound of the approaching car should have alerted them to the danger. In those circumstances, they ought to have noticed its approach before they crossed the centre of the road.

If they had been keeping a proper lookout, they would have become aware of the approaching car whilst they were still on the first half of the road. In fact, they remained oblivious to the risk and simply kept walking across the road. An obvious explanation was their daughter’s evidence that they were engaged in conversation as they walked over the road.

That probably distracted them from looking out for traffic.

Their negligence was a contributory cause of the accident.

However, the driver was principally at fault. Liability would be apportioned 80% to the driver and 20% to the claimants.

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Costs There have been a number of attempts by claimants to recover a 100% uplift from a defendant under an ‘old style’ CFA on the basis that by the time the claim settled the trial had started. The latest of these is James v Ireland (2015) EWHC 1259 (QB).

The claim, arising out of a road traffic accident, had been listed for a three-day hearing that began on 8 June 2011.

On the first day, the claimant successfully applied for an adjournment of the issue of quantum. It was intended that the now separate issue of liability would proceed. However, the defendant’s counsel disclosed late evidence that identified an independent witness to the accident. The claimant’s counsel was keen to obtain a statement from the witness and the case was adjourned until the following day. The

‘...the commencement of the final contested hearing…was not triggered by the commencement of any hearing of whatever nature related to the contested liability hearing...’

judge invited both counsel to advise him on what material to

Allowing the defendant’s appeal, the High Court judge

read overnight. The court convened on 9 June but attempts

held that the transcript of the proceedings of 8 June and

to contact the witness had been unsuccessful. The court

9 June did not support the master’s judgment. The 100%

adjourned until the afternoon but the witness could not be

increase in a legal representative’s fees was payable when

reached. His evidence was considered significant, and as

a settlement was reached after the commencement of the

the time allocated for the hearing was running out, the judge

final contested hearing or, in the instant case, the contested

stood the case down and reserved it to himself for another

hearing of the liability issue. It was not triggered by the

hearing at a later date. The claim was settled before that

commencement of any hearing of whatever nature related

hearing occurred.

to the contested liability hearing. There might be hearings

A master decided that the liability trial had begun on 8 June because counsel had come into court, the judge had listened to submissions on whether he should rise until the next morning and counsel had advised him on what to read for the case overnight.

The defendant appealed and argued that the master had failed to realise that nothing in the proceedings had constituted a “core” event to indicate that the liability trial had commenced.

He further submitted that the judge would not have needed to reserve the case to himself if it had already begun. The claimant argued that the liability trial effectively began in the morning of 8 June when he opened his submissions on the quantum issue, as a further opening on liability had not been deemed necessary.

before the start of the contested liability hearing to deal with evidence and other case management matters. The hearing in the afternoon of 8 June and on 9 June was related to the liability issue but it was not the contested liability hearing within the meaning of CPR 45.15(6)(b).

Although the case had been called on, counsel had come into the court and the judge had listened to submissions on whether to put back the case, those steps did not support a conclusion that the liability trial had started in the afternoon of 8 June. Nor was such a conclusion supported by the fact that the judge had asked what papers he should read overnight.

He had simply wanted to make the best use of time in the hope that the trial would start the next day. Further, there was considerable force in the defendant’s submission that the 03

judge’s reservation of the liability trial to himself was a strong indication that it had not commenced. If it had commenced, it would have been adjourned, not stood out of the list, and there would have been no need to reserve the case.

The transcript did not support a conclusion that the liability trial started in the morning on 8 June. The claimant’s counsel had not opened the case on the liability issue when applying for the quantum issue to be adjourned. Discussions which might have been relevant to liability took place after the quantum issue was adjourned. Further, it was clear from the exchanges between the defendant’s counsel and the judge when the case was stood out on 9 June that the judge did not know the scope of the main issue in the liability trial.

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Jackson/Mitchell/Denton The care that must be taken post-Denton by a party seeking to

the date on which service was finally effected, whether

take advantage of another’s default is graphically illustrated

that was on 15 or 19 January: what mattered was that the

by the commercial case of Viridor Waste Management Ltd v

particulars of claim had been in the defendant’s solicitors’

Veolia ES [Lawtel 27/05/2015].

hands by lunchtime on 15 January, which had only been

Towards the end of the six year limitation period the claimant commenced proceedings against the defendant seeking the return of £27m. The defendant commenced similar proceedings in the Chancery Division seeking the payment of £32m. The claimant served its claim form four days prior to the expiry of the four month period for the validity of the claim form. In without prejudice discussions, the parties agreed to a 28-day extension for the service of the particulars of claim, and agreed to stay the proceedings,

a few hours after the time permitted for service. Although there were formal rules to be complied with, ultimately the purpose was to bring the relevant document to the attention of the other party where it knew that procedural steps had been taken. In assessing the seriousness and significance of default, it was important to focus on the rule’s purpose. The default was not one which had any real impact on the course of litigation, other litigation or court users; the litigation would not be disrupted save for the instant application.

to allow an opportunity to settle. The deadline for service

The substantive proceedings had been stayed for six

then became 14 January 2015.

weeks to allow for settlement, and could be further stayed.

Although the claimant filed its particulars of claim in accordance with the court order, due to an administrative error the particulars were sent one day late by second class post, contrary to that firm’s procedure, and arrived at the defendant’s solicitors’ offices on 15 January. The defendant complained that service was not effective as the particulars had been sent second class which was an unrecognised method. The claimant re-effected service by hand, email and first class post on 19 January.

It was clear that no delay or inefficiency had been caused.

The breach was immaterial. Although it was right that the particulars of claim was generally an important document, a submission that any delay was always serious and significant was unrealistic and not in accordance with the clear guidance in Denton. In circumstances where the defendant had agreed to an extension until 14 January, the delay was neither significant nor serious. The defendant’s arguments in relation to the limitation period did not make any delay significant or serious. It was the claim form’s issue that started time running:

The defendant refused to consent to the claimant’s

that did not depend on the validity of the particulars of claim.

application for an extension of time for service of particulars,

Those conclusions were sufficient to decide the application

and applied to strike-out its application. The issues were (i)

for an extension of time in the claimant’s favour.

whether the claimant’s default was serious and significant such that it should be refused relief from sanctions; (ii) costs.

The High Court judge held that in deciding whether to grant relief from sanctions, there were potentially three stages to consider: the identification and assessment of the seriousness and significance of the breach; consideration of why the default occurred, and an evaluation of all of the circumstances of the case in particular the two factors in CPR 3.9(1). In the instant case, it was not necessary to resolve 05

‘As the (defendant’s application) had been opportunistic and unreasonable, it was appropriate to award the claimant costs on the indemnity basis.’

‘The defendants would be entitled to argue that whatever costs order was made should take into account the claimant’s default.’

The defendant had decided to take unreasonable advantage

claimant relief from sanctions, it had to apply Denton and

of the claimant’s default in the hope of obtaining a windfall strike-out when it was obvious that relief from sanctions was appropriate and had caused further delay by refusing to consent, which had impacted other court users. As the proceedings had been opportunistic and unreasonable, it was appropriate to award the claimant costs on the indemnity basis.

Allowing the claimant’s application, the deputy High Court judge held that in order for the court to grant the consider all the circumstances of the case so as to enable it to deal justly with the application. One of the factors was whether the defendants would be prejudiced if relief was granted. If the defendants were to make a Part 36 offer after receiving the late report, then, in the absence of agreement, the question of costs would be a matter for the court. The defendants would be entitled to argue that

As the previous case illustrates one of the consequences of

whatever costs order was made should take into account

Denton is that costs arguments are arising when relief from

the claimant’s default. If, on the other hand, the offer was

sanctions is allowed. The commercial case of Art & Antiques

not accepted and the claimant subsequently failed to

v Magwells [Lawtel 8/06/2015] is another example of this.

obtain judgment more advantageous than the defendant’s

The claimant applied to serve an expert’s report late. It accepted that it was out of time for serving the evidence, and that the default was serious and without good reason. The issue was whether it was appropriate to grant the claimant relief from sanctions.

The defendants submitted that they would be prejudiced if relief was granted as the date for making a Part 36 offer giving rise to costs consequences had passed.

Part 36 offer, then CPR 36.17(3) provided that the defendants were entitled to their costs. That rule said nothing about costs before the expiry of the Part 36 offer, and it was open for the defendants to contend that there should be a further costs penalty imposed on the claimant. Additionally, the defendants had the draft expert report for some time.

Taking into account that there would be no real prejudice to the defendants, that the trial date could still go ahead, and the overriding objective, it was appropriate to grant relief from sanctions albeit on very strict terms.The claimant had to serve the report by the following day. Such a failure to comply with court orders could not be tolerated, particularly as it was a serious breach and there was no good reason for it, and the claimant was not entitled to recover any of its costs relating to the expert reports, regardless of the outcome of the claim.

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