piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Application of Procedural Rules and Litigants-in-Person

There can be little doubt that modern litigation involves the increased presence of people representing themselves in court. Particularly amongst some kindlier judges (in all courts) there could be said frequently to be a culture of benevolence towards such litigants-in-person when it comes to non-compliance with the Civil Procedure Rules and other procedural rules.   This can lead to significant frustration amongst represented parties, particularly in circumstances where a Strike Out or other such punitive sanction is sought, but denied on the grounds that the defaulting party should be afforded another chance (perhaps applying the third limb of the Denton test?). Yet further frustration is likely to be felt should the prospect of recovering any costs from the said defaulting party is considered, notwithstanding those thrown away by any such default, assuming as one may that the reason most litigants-in-person are just so is for reasons of pecuniary necessity.   Lord Justice Briggs in giving the sole judgment of the Court of Appeal (Underhill and Moore-Bick LJJ concurring) in Nata Lee Ltd v Abid & Anor [2014] EWCA Civ 1652, may provide such represented and non-defaulting parties with some hope. This was an appeal concerning the trial of a boundary dispute, at which the Appellant was represented by a company director and the Respondent by leading and junior counsel. The Appellant’s application for to change its expert was unsuccessful on the grounds that it was “too late” and provided insufficient reasons for its request. The Court of Appeal found that this decision was “seriously flawed”, but not before emphasising that  the application of procedural rules of the court were to be applied levelly to represented and unrepresented litigants.   Briggs LJ held:   53.       I make it clear at the outset that, in my view, the fact that a party (whether an individual or a corporate body) is not professionally represented is not of itself a reason for the disapplication of rules, orders and directions, or for the disapplication of that part of the overriding objective which now places great value on the requirement that they be obeyed by litigants. In short, the CPR do not, at least at present, make specific or separate provision for litigants in person. There may be cases in which the fact that a party is a litigant in person has some consequence in the determination of applications for relief from sanctions, but this is likely to operate at the margins.

Prosecution of PI Fraud

Any regular reader of the PIBlawg will be aware that I have an interest in fraudulent personal injury claims, being involved as I am in numerous cases where a vast range of fraud is alleged by Defendant parties (also see http://bit.ly/1vRcuWT; http://bit.ly/1znwXHI; http://bit.ly/1GokHKm).   In recent years there appears to have been a change in culture of insurers, who are far more prepared to fight claims on the basis of that they are fraudulent. There have been many high-profile news articles suggesting that fraudulent road traffic accidents cost each motor insurance policy holder up to £100, but this is falling due to the rise in claims being run to trial alleging foul play: a pour encourager les autres approach?   The courts too appear now more prepared to commit PI fraudsters to prison, but recently the police and CPS stepped in to prosecute a man who deliberately "slipped" on a wet bag in a supermarket. Waheed Iqbal was seen on CCTV feigning a slip of a Lidl store in Bradford which is well worth a watch on the BBC website at http://www.bbc.co.uk/news/uk-england-leeds-30352231.   At trial at Bradford and Keighley Magistrates' Court, he was found guilty of two counts of fraud by false representation. He was sentenced at Bradford Crown Court to a 10-month jail sentence, suspended for two years.   The CCTV shows Mr Iqbal was wheeled out of the Lidl store to an ambulance but it is reported that an insurance fraud investigation team later found he asked the paramedics to stop before they reached hospital, alighting the vehicle unaided and returning straight back to the Lidl store to request the incident was reported.   It seemed that this may not have been Mr Iqbal’s first attempt at a false PI claim. The BBC reported that Police also discovered he staged another "accident" with a punchbag in a gym so he could make a PI claim.   This case must also represent another risk to would-be fraudulent PI litigants: even if for commercial reasons a committal is not pursued by a defendant insurer at the successful conclusion of a trial where fraud is found, the matter may well be taken up by the CPS.

"Professional" McKenzie Friends: LSB reaction to Consumer Panel's Recommendations

Those of us who are professional advocates reacted largely with horror when the Legal Service Consumer Panel called in April of this year for a “culture shift” in favour of recognising the rise in and increasing use of paid McKenzie Friends in our courts by extending regulation to them. Quite why this quango exists in the first place may well be a mystery to some (as it is to the writer) but surely for them to have spent clearly much time and (of course, public) money coming to such a conclusion may well lead to some (yes, including the writer) to question its utility. The recognition of a role for paid McKenzie friends and such a “culture shift” (whatever that could possibly mean) would put such individuals on a par in the eyes of many court users with professional lawyers.   The reality in the eyes of many of those appearing before the civil courts on a daily basis (yes, you have guessed it – including the writer) is that such “professional” McKenzie friends are a complete hindrance to the just and efficient disposal of a case. Judges in certainly the County Court are well used to assisting litigants in person. Usually unreasonably intransigent in negotiation, ignorant of procedure and improper in their conduct, a case where one party is being “represented” by such an individual tend to take at least twice as long as those where the litigant is represented, and at least half as long again as compared to when they act in person.   Professional fairness amongst both branches of the legal profession dictates openness and a certain assistance must be afforded lawyer-less litigants, at least in terms of procedure and as regards the conduct of any negotiation. The presence of a professional McKenzie Friend is unlikely to be of any added benefit to a litigant, even commensurate to the relatively lowly fees they seek.   It is only with a modicum of relief that it has been reported that the Legal Services Board Chairman has not exactly swallowed the Consumer Panel’s recommendation whole. In a letter to the Panel,  Sir Michael Pitt is reported as having supported the suggestion that paid legal advisers should be recognised as a ‘legitimate feature’ of the legal services market and  perhaps bizarrely agreed McKenzie friends may improve access to justice, but  he stated that he was ‘cautious about formally accepting’ all the Panel’s recommendations. He wrote that safeguards are needed to clarify the role and limitations of paid McKenzie Friends, however he did not state that he advocated the regulation of their services. Showing he may not be wholly out of touch he added that the “skeptical – and indeed sometimes hostile” view of many in the legal professions showed the importance of providing clear and targeted information for litigants. However he is reported as having agreed with the Panel that McKenzie friends should form a recognised trade association, with client protection measures such as accreditation and indemnity insurance introduced to manage the risks. Sir Michael is reported as writing quite properly: “We are concerned that [McKenzie friends] may be misleadingly perceived as offering a service underpinned by the same standards and consumer protections that are provided by a regulated professional… That is not to say, however, that we are advocating the regulation of the services provided by McKenzie friends. To do so might drive such provision out of the market.”

The ever-ageing 13-Year-Old Compensation Discount Rate

There has been a further delay to the much-anticipated and important decision on the discount rate to be applied to compensation. And this comes almost two years after conclusion of the consultation on the question of whether the current rate of 2.5% should be modified.   This issue is of course of extreme importance to anyone involved in injury litigation. The legal professions are somewhat divided as to whether the rate should be increased or decreased, along (usually) respectively defendant and claimant lines.     Chris Grayling, the Justice Secretary (as he is more commonly known rather than Lord Chancellor) has now announced that he wishes to appoint  panel of three financial investment experts to analyse all the responses to a consultation on the discount rate that closed as long ago as October 2012. It has been widely reported that the government’s initial response to its consultation was that successful claimants were prepared to invest in higher-risk investments than currently assumed. However, further research published in August 2013 the diametric opposite! The tender process for the appointment of these experts has yet to be completed.   The further delay prompted an understandably outraged response from the Association of Personal Injury Lawyers (APIL), who with some justification accuse the Government of ‘dragging its heels’ on the issue of a discount rate that has been set at the same level for 13 years. In the Ministry of Justice’s somewhat testy reply Mr Grayling said he saw ‘no reason’ to publish a timetable setting out how long the decision will take. (Perhaps he sees little reason to attempt to garner favour with lawyers, recognising bridges and boats may have been well-burned?)   It is unclear when anything approaching a final decision will be reached. Clearly it is unlikely to be in the lifetime of the current Government. The only seemingly sure advice, is for anyone interested not to hold their breath!

Fighting Fraud - paying off for motor insurers and their customers?

Recent growth has been seen in the litigation market in the field of allegations of fraud in road traffic accident cases. Insurers (particularly certain insurers) have latterly been far more confident in fighting claims where there is good evidence of something untoward: dishonesty, such as contrived accidents, phantom passengers or exaggerated medical symptoms.   This strategy appears to be working. Miles Costello in The Times' Business Section reported yesterday that an analysis by EY of Britain's motor insurers annual profits to March 2014, shows they paid out less in claims than they received in premiums for the fist time since 1994. The article however quite properly cites other reasons for this, such as the ban on referral fees and restructuring of the fees recoverable under "new" CFAs. The knock-on effect has been felt by the motorist - this time in a good way - with a 16.6 per cent drop in premiums over the last year to March.   It would be interesting to see if this trend continues. Certainly as the new costs provisions become the norm, it is likely to. The effect of allegedly to be tighter "rules" for diagnosing whiplash injuries (if brought in) are likely to reinforce it as are bans on "distasteful" advertising and incentives such as free tablet computers and cash advances promised to potential claimants. 

Legislating for "Statutory Common Sense" and Personal Injury Litigation?

A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might— (a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or (b) discourage persons from undertaking functions in connection with a desirable activity. Please excuse the cumbersome language. This is section 2 of the Compensation Act 2006 – a statutory provision which is rather underused by defendant lawyers (and apparently largely unknown to judges). However, perhaps this is not without good reason. Whilst the provision’s introduction was fêted as being a powerful weapon in the hand of the defendant and judge in the fight against the rising tide of personal injury litigation seen since the late-1990s, it clearly has not had much of an effect. Part of the reason for this may well be the slightly vague nature of the terms of the provision: firstly the word “may” instead of “must”; and the obvious subjectivity of the interpretation of the word “desirable”.   This is something of a worry to the current administration, at least following the recent local and European Elections. Concern more widely about ‘health and safety’ (particularly amongst older and more Euro-sceptical sections of the electorate, whose votes may no longer be a safe bet for the current political party in power) appears to have been taken more seriously.   It has recently been widely reported that the Lord Chancellor wants an inclusion in the Queen’s Speech setting out the Government’s commitment to statutory reform to end any ‘chilling effect’ that any such concerns may engender. The BBC reports that the Ministry of Justice “wants to force judges to give weight to three factors in cases where people do end up facing litigation: If the person was doing something "for the benefit of society", such as clearing snow If they were acting in a "generally responsible way" If they stepped in to help in an emergency” It is reported that the MoJ wishes to "put the law more clearly on the side of employers" when something goes wrong at work through no fault of their own”, and that  the “law change would protect small business owners who take a "responsible approach to safety training and procedures" from the challenges of "irresponsible employees". The Lord Chancellor is quotes as suggesting that he would "want a society where common sense is the order of the day, and I believe this measure will help us get there."   So ‘watch this space’ as to whether/how this may change the nature of personal injury litigation…

Costs Budgets and Unallocated Part 8 Claims issued before 22 April 2014

Some further clarity as to when to file costs budgets can be gleaned from the decision of Mr Justice Hickenbottom in the case of Kershaw v Roberts & Anor  [2014] EWHC 1037 (Ch). Here it was argued on appeal from the county court that the first directions hearing in a Part 8 Claim should be treated as the “first CMC” for the purposes of CPR 3.12-14 and thus costs budgets must be filed in advance.   It was argued that whilst the claim had not been allocated to the multi-track, this was inevitable as it was commenced by way of Part 8.   The learned judge however dismissed this argument, holding that the claim was not allocated to the multi-track until the district judge specifically allocated it to that track during the course of the county court hearing. IT was held that “consequently, that hearing itself was not – indeed could not have been – a CMC… The notice of the hearing did not refer to it as a CMC; and it seems to me clear that the court, in sending out that notice, never intended the hearing to be a CMC.”   This guidance is however of somewhat limited scope in that it only really applied to unallocated Part 8 Claims. This is because, on 1 April 2014 (the same day as the hearing of Kershaw), the Civil Procedure Rules Committee made amendments to the CPR by the Civil Procedure (Amendment No 4) Rules 2014 (SI 2014 No 867). Which are due to come into force on 22 April 2014. From that date, the costs management provisions of CPR Rule 3 Section 2 and CPR PD 3E (including costs budgets) will not automatically apply to any Part 8 claim. Those provisions will only apply if the court makes a positive order that they should (as expressly confirmed by new Rule 3.12(1A)).

The Problem with some Uncooperative Litigation Friends

What happens when you are involved in litigation where a party’s interests (either your client or the other side’s) are represented by litigation friend who refuses to cooperate with you or other people involved in the case? In many cases, surely the answer is simply to apply to the court for the recalcitrant litigation friend to be replaced for the best interests of the protected litigant. However it is clear that notwithstanding the manifest damage being caused by an uncooperative litigation friend, their removal may be anticipated to do more harm than good. Such was the case in M (a child by his father & litigation friend) v LB of Lambeth (Defendant / Pt 20 Claimant) & Hyde Southbank Homes Ltd (Pt 20 Defendant) [2014] EWHC 57 (QB). Here C had suffered a serious injury after falling from a window, aged four. His own medical expert stated that C had probably suffered a brain injury and there was "significant brain impairment". However, the defendant's experts stated that C's impairments "were consistent with his pre-injury functioning" and on balance were probably "secondary to his inherent pattern of development and may have been contributed to by social and cultural factors". In short, the experts were poles apart. C’s litigation friend was no longer prepared to co-operate with medical experts and was not amenable to putting in place the support recommended for C. He and C’s mother had instructed C's solicitor to settle the claim as soon as possible. Sensibly worried about the situation they found themselves in, C's solicitors sought the court's guidance upon whether the litigation fiend’s appointment should be terminated, and whether the case should be settled even though it remained unclear whether C had suffered a brain injury and what his disabilities might be in the future. However, the Court held that as the litigation friend was also C’s father, even should a new litigation friend be appointed, it would be unlikely that C’s parents would become any less uncooperative as they were being presently and would probably continue to hinder C’s best interests. Against this background, it was held that the best (or perhaps the “least worse”) course in this particular case was for C’s solicitors to seek to negotiate settlement on the basis of the existing medical and other evidence, as instructed by C’s father and current litigation friend. Clearly this was a far from ideal position for either C or indeed the Defendant Party. Without greater clarity as to C’s medical position there was inescapably a risk of significant injustice to both sides. However when faced with such an unusual situation, the Court held there was little positive it could do, rather than risk making the position worse. This must have weighed heavily upon Mr Justice Tugendhat’s mind when he later came to approve the settlement the Parties reached.

Lest we Forget (our senses)

Personal injury law has a poor image in the eyes of the general public. For many reasons of course, this is unfair. Often it is the overreactions of various (frequently Public Sector) organisations who utterly overreact to potential alleged “health and safety risks”. Examples are legion: conkers in schools, blu-tac on walls and Christmas decorations are all subjects of recent media hype, when they have been cited by over-zealous (to be charitable about them) health and safety advisors as being sources of potential injury and consequent expensive litigation.   Today we remember those who gave their lives for our Country in war. Most right-thinking people wear poppies as a mark of remembrance. However some schools and businesses have been worried about the health and safety implications of such a practice. Some organisations have been refusing to distribute poppies due to the fact that some require the use of pins!   The Government has seen fit to step in however to assuage such overreaction in this case. Michael Penning, the new minister for health and safety has written to the Royal British Legion as well as business leaders telling them essentially that no legal challenge would be possible from people who “injure” themselves with poppy pins.

A defendant's nightmare?

  A Defendant’s Nightmare?   Sarah Davison would normally get to her desk by 6 a.m., work for twelve hours and often head out thereafter to meet and entertain clients. Sleep felt like it was secondary to achievement. She worked in a macho environment and her boss was a man who, in the words of Andrews J, “does not suffer fools gladly, or indeed at all”. But Mrs Davison was well-paid: at the time she left on maternity leave to have her first child she was earning over £200,000 a year. When, after giving birth to that child, she suffered a career-ending injury as a result of clinical negligence, the resulting claim was always going to be of the size that makes defendants and their insurers wake up in a cold sweat in the middle of the night.   Andrews J’s judgment on damages (Sarah Davison v Craig Leitch [2013] EWHC 3092 (QB)) makes interesting reading. A court called upon to assess loss of earnings in such a situation is engaged in a difficult exercise, perhaps best characterised, to borrow one of my favourite judicial dicta of Lindsay J, as “a glance at a crystal ball of, so to speak, only a low wattage” (see Douglas v Hello! Ltd (No.5) [2003] EWHC 786 (Ch)). There are often a number of variables and changing any one of them can have a significant effect on the ultimate award.   One approach is to consider a number of possible scenarios, determine the probability of each of them occurring, and then multiply that figure by what would have been earned in each scenario; that can sometimes be the only way to do justice, particularly where a person had a chance of a “big break” which, had it occurred, would have lead to very significant rewards. The kick-boxing claimant in Langford v Hebran [2001] PIQR Q13 is a good example of this approach being applied; it works best where there are a limited number of clearly defined possible scenarios; where they are more numerous, or the lines between them more blurred, the calculation can become unwieldy.   The more traditional approach, and the one adopted by the court in Davison, is simply to make a best guess as to how the claimant’s career would have progressed absent the tort. This will inevitably involve scrutiny of the claimant’s pre-accident career and abilities. Andrews J was clearly impressed by the evidence on this point of Mrs Davison’s ex-boss, a man so busy he had to give evidence “via video link ... en route to catching a plane”. There may also be a need, particularly in a volatile or cyclical industry such as financial services, to assess what the future demand would have been for a person’s services.   Andrews J broadly accepted the Claimant’s evidence on these two points; where she differed was as to the likelihood of the Claimant continuing in her pre-accident role as an equities trader once her three children were born, holding “it highly unlikely that when Mrs Davison returned to work after her maternity leave ... she would have had the appetite to return to the stresses of the trading floor and face the prospect of never seeing her three small children during the week ... However much she would like to believe otherwise, in my judgment it is far more likely that she would have moved to a less stressful position within the bank, involving shorter working hours.”   The judgment is also interesting for its award of £6,500 for loss of congenial employment. Given the description of Mrs Davison’s working life at the start of this post, one may well question whether it can really be described as “congenial”. Andrews J justified the award on the basis that Mrs Davison’s “future is uncertain and any work she does undertake in future is likely to be fairly solitary and considerably well paid”. This is curious reasoning. The fact that the Claimant was likely to be paid less was, of course, compensated by an award for future loss of earnings. It might be said that her earnings are relevant to what was in effect an award for loss of status, but here again surely one has to look at all the circumstances of her pre-accident employment. Andrews J found as a fact that the most likely future for the Claimant would be running her own small business, possibly as an interior designer. Of course, that would lack the stimulus and status of a job in the City, but it would also lack its stresses and uncertainties. Can it really be said, taking everything into account, that the Claimant’s overall quality of life would undoubtedly be the poorer? Less well-paid, certainly; but less congenial? - it is perhaps to be doubted. There is a danger that awards under this head will become routine in all cases where a claimant is unable to pursue their chosen career. Perhaps the Law Commission’s suggestion that this should not be a separate head of damage at all, but rather should be considered as part of the award for PSLA, deserves reconsideration.