piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Evidence and interim payment applications

  The High Court has given useful guidance (which serves as a warning) to defendants on their evidential obligations when defending applications for interim payments. In Sellar-Elliot v Howling [2016] EWHC 443 (QB) Sweeney J refused permission to appeal an interim payment order by Master Cook and held that it was not enough for a defendant to rely – when defending an application for an interim payment – on the defence (supported by a statement of truth) and a witness statement from a solicitor confirming that expert evidence supporting the defence had been obtained.   The defendant must go further and provide the court with some reasoned response to the claimant’s expert evidence (which had been unilaterally served to support the application in this case).  Even though – in accordance with court directions – the defendant had since served expert evidence disputing the claimant’s points, the court had to judge the interim payment application on the evidence before it at the time of the application.  In other words, and drawing on the Court of Appeal’s decision in Test Claimants in the FII Group Litigation v Revenue and Customs Comrs (No 2) [2012] 1 WLR 2375, the court must be satisfied that if the case went to trial on the material before the judge at the time of the application that the claimant would succeed and would obtain a substantial amount of money. Defendants therefore bear an evidential burden “to raise matters, on the basis of evidence, which would justify the court in concluding that a claimant would not succeed in obtaining substantial damages”  Sweeney J held that: “…the mere fact that the Defendant’s causation case was supported by reputable expert opinion, and that the Defendant’s expert would dispute the Claimant’s expert evidence at trial, did not mean that, on the evidence, the Claimant had failed to persuade [Master Cook] that the requisite test was met” The message for defendants would seem to be therefore that when a claimant chooses unilaterally to serve expert evidence to support an interim payment application, defendants must serve an argued and detailed expert response, even when the court has already directed that expert evidence is scheduled to be disclosed at a later date The case is on Bailli: http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2016/443.html&query=title+(+Sellar-Elliott+)+and+title+(+v+)+and+title+(+Howling+)&method=boolean                        

Vicarious liability: extension, extension, extension

 “The law of vicarious liability is on the move” are the opening words to the opinion of Lord Reed in Cox v Ministry of Justice [2016] UKSC 10 (quoting Lord Phillips in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56). The Supreme Court has handed down two judgments in the field of vicarious liability (Cox and Mohamud v WM Morrison [2016] UKSC 11) which continue to extend its scope. The five policy reasons for the vicarious liability relationship identified in the Christian Brothers case have effectively been narrowed to three in Cox - a case in which the Supreme Court found that the prison service was vicariously liable for the negligence of a prisoner working in a prison kitchen. In Mohamud the Supreme Court stuck to the articulation of the law in Lister v Hesley Hall [2002] 1 AC 215 but elaborated saying that the court has to consider (1) what functions or “field of activities” have been entrusted by the employer to the employee (a question to be approached “broadly”) and (2) whether there was a sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable. That broad approach meant that the employer of an attendant at a petrol station was vicariously liable for the attendant’s violent attack on the claimant on the petrol station forecourt. For more detailed analysis of these decisions see 1 Chancery Lane Personal Injury Briefing March 2016. Photograph courtesy of Freefoto.com                                                                 http://www.freefoto.com/thanks.jsp

Foreign Law in the English Courts

A number of the English lawyers who conduct PI litigation in cross-border cases have warned that the full implications of the Rome II Regulation (864/2007) – and the impact that it has on the assessment of damages awarded to English Claimants by English Judges – have yet to be felt. By way of recap, Rome II provides (in Article 15(c)) that once the applicable law of the tort has been identified it will apply (among other things) to the existence, the nature and the assessment of the damages to which the Claimant is entitled. In other words, (and by contrast to the previous position under the Private International Law (Miscellaneous Provisions) Act 1995) Rome II extends the reach of the foreign applicable law beyond the identification of heads of recoverable loss and into the assessment of damages process itself. This means a much greater role for foreign legal experts in the English Courts and it also means that English Judges may find themselves confronting (on a regular basis, given the volume of EU RTA claims in the English jurisdiction) vexed foreign law issues which have not been clearly resolved in the foreign jurisdiction from which they derive. In this sense, an English Judge may be called to determine (if you like “to make”) German/French/Lithuanian (delete as appropriate) law. Soole J confronted a dilemma of just this kind in the very recent case of Syred v PZU SA [2015] EWHC 254 (QB) (12.2.16): a PI claim by an English Claimant against a Polish insurer Defendant in respect of an RTA in Poland (to which the English Court applied the law of Poland). One of the issues confronting the Court was the assessment of (what we would call) general damages for pain, suffering and loss of amenity. Polish law provided no fixed scales or guidelines for such damages, but there was evidence that Polish Judges tended to use the non-pecuniary elements of a table or tariff published in an Ordinance by the Polish Labour Ministry. So far, so good, but the additional expert evidence was that the Polish Supreme Court had criticised the use of the Ordinance in this way. Despite this, the Polish lower Courts had continued to use the Ordinance and the Supreme Court had failed to provide an alternative method of calculation of such damages. What was the English Judge to do? The use of the Ordinance was (per Polish Supreme Court) unlawful where it was the sole method of assessment of general damages, however, it was a continuing convention of the Polish Courts to have regard to the Ordinance (in the "overall" assessment process) and it was, therefore, permissible for the English Judge to have similar regard in assessing damages (see, Wall v Mutuelle de Poitiers Assurance [2014] 1 WLR 4263 (CA)). Soole J went ahead and assessed damages accordingly. This looks like a pragmatic solution: after all, the Judge has to find some means by which to make the appropriate award. However, it also looks like an English Judge has resolved an issue of Polish law that the Polish Courts have yet wholly to resolve for themselves. One wonders whether Soole J’s decision will have any precedent value in Poland?

Part 36 Offer: derisory or genuine?

The case of Jockey Club Racecourse Ltd v Willmott Dixon Construction Ltd  [2016] EWHC 167 deals with two interesting questions: (1) does a Part 36 offer have to reflect an available outcome in the litigation to be valid? (2) when is it a genuine attempt to settle liability?  The case concerned a defective roof at the racecourse at Epsom. The claimant offered to settle the issue of liability on the basis that the defendant would “accept liability to pay 95% of our client’s claim for damages to be assessed.” The issues of liability were ultimately resolved by consent wholly in the claimant’s favour. The claim was pleaded at in excess of £5m. The judge endorsed the remarks of Henderson J in AB v CD  [2011] EWHC 602  in which he drew the distinction between a genuine offer or ‘merely a lightly disguised request for total capitulation’. A request to a defendant to submit to judgment for the entirety of the relief sought by the claimant was not an ‘offer to settle’ within the meaning of Part 36. An offer to settle had to contain some genuine element of concession on the part of the claimant to which a significant value could be attached in the context of the litigation. Henderson J considered in the context of a road traffic accident that the offer of 95:5 was derisory. In Huck v Robson [2003] 1 WLR 1340 the Court of appeal held that although no judge would apportion liability 95:5, that was irrelevant. The offer reflected the fact that most claimants prefer certainty to the ordeal of trial and uncertainty about its outcome. They did not think it was merely a tactical step to secure the benefit of the incentives provided by the rule but provided the defendant with a real opportunity for settlement. In Jockey Club Racecourse Edwards-Stuart J. found that, although the Part 36 offer of a 95:5 split was not an outcome available to the court, it did not prevent it being a valid offer. Nothing had been changed by the addition to rule 36.17(5) of subparagraph (e) which requires the court to consider whether the offer was a genuine attempt to settle the proceedings. The judge then went on to consider whether it would be unjust to order the consequences which flow from a failure to better a Part 36 offer. He did not order the consequences to flow from 21 days after the date of the offer but allowed the claimant to have costs on the indemnity basis from the earliest date after that by which “the Defendant could reasonably have put itself in a position to make an informed assessment of the strength of the claim on liability”. That conclusion sits uneasily with the comments of the Court of appeal in its harsh decision in Matthews v Metal Improvements Co Inc [2007] C.P. Rep. 27 where the judge was criticised for deciding the case on the basis of reasonableness. The answer to the two questions I posed above is: (1) a Part 36 Offer does not have to reflect an available outcome in the litigation to be valid although this is less likely to be an issue in personal injury where contributory negligence can reduce a finding that a defendant is liable. (2) A genuine attempt to settle liability is one where the offer is not derisory and is one in which there is ‘some genuine element of concession on the part of the claimant, to which a significant value can be attached’. This will depend on the facts of each case although in the context of a personal injury claim an offer of less than a 5% reduction would be risky where the value is not high.

Top personal injury decisions of the Court of Appeal in 2015

The Court of Appeal has made a number of important decisions in 2015 in the field of personal injury. As the year draws to a close, Ella Davis and I review some of the most important of them for the PI practitioner. They cover psychiatric damage, causation, quantum, the Athens Convention, jurisdiction, duties of care, vicarious liability and non-delegable duties... Psychiatric Damage Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588 was a case of a claimant claiming damages for psychiatric injury consequent on seeing the condition of a loved one brought about by the negligence of a defendant. Of the four requirements for recovery, the decision focused on whether C’s illness had been “induced by a sudden shocking event.” Three issues were at the heart of the case: (1) whether C had suffered a recognised psychiatric illness, (2) Whether there had been “an event” and (3) how “shocking” the event must be. Edward Bishop QC provided a masterly analysis of this and other decisions in the 1 Chancery Lane October 2015 PI Briefing. In brief, C’s wife became extremely unwell due to the negligence of D. C claimed he had suffered psychiatric injury as a result of the shock of seeing his wife’s sudden deterioration and appearance in hospital. The CA confirmed that courts should pay close attention to diagnostic criteria, that whether an event is ‘horrifying’ must be judged by objective standards and by reference to persons of ordinary susceptibility and that for an event in a hospital to be ‘shocking’ required something “wholly exceptional in some way so as to shock or horrify”. It also considered what was meant by an ‘event’ and ‘sudden’ finding that C had not been exposed to one event (“a seamless tale with an obvious beginning and an equally obvious end”) but a series of events with no “inexorable progression”. What had happened was not sudden, it had not caused an “assault upon the senses” but at each stage C had been conditioned for what he was about to perceive. Causation Reaney v University Hospital of North Staffordshire NHS Trust  [2015] EWCA Civ 119 was considered on this blog in a posting by Ella Davis “Quantity not Quality”. She rightly observes that the decision brings clarity to the law rather than any new departure. The CA considered causation in a case where a patient was a paraplegic requiring a care regime (due to non-negligent causes) but due to the negligence of D causing pressure sores, her care needs were increased. The question was whether D caused all her care needs or whether D was only liable for those needs less the needs which she would have had but for the negligence. The key issue was whether the pre-existing care needs were qualitatively different from those caused by the negligence or whether they were merely quantitatively different. The CA found they were only quantitatively different and therefore D was only liable for C’s increased care requirements. In future parties will doubtless pay careful attention to whether losses are qualitatively or quantitatively different as a result of negligence adding to a pre-existing condition. Causation and the Burden of Proof Graves v Brouwer [2015] EWCA Civ 595 concerned a house fire of unknown cause. Mr Brouwer set fire to a small bundle of papers in the passageway next to his house. Very shortly afterward the roof of his neighbour’s house caught fire. The experts agreed that the chances of an ember from the papers travelling to the eaves of the building and starting a fire were very low but, absent arson, were unable to come up with a more probable cause. The judge rejected arson as fanciful and found that, while the flying ember theory was scientifically improbable, the Claimant succeeded on causation. The Court of Appeal overturned her decision saying she had failed to ask herself the ultimate question whether the flying ember theory was more likely or not to be true. The fact that no other possible causes were identified, in large part because there was no investigation at the time, did not make it more probable than not the fire was caused by a flying ember. As Roderick Abbot observed in his blog post “Sherlock Holmes in the Court of Appeal”, the exercise is not one of identifying the least unlikely cause. The Claimant had failed to discharge the burden of proof and that was all the judge was required to find. Quantum Billett v Ministry of Defence [2015] EWCA Civ 773 concerns how courts should assess damages for loss of future earning capacity in circumstances where the claimant suffers from a minor disability, is in steady employment and is earning at his full pre-accident rate. Should the court follow the traditional Smith v Manchester approach or should the court use the Ogden Tables, suitably adjusted? C suffered from a minor Non Freezing Cold Injury (“NFCI”) which had a substantial impact on his day to day life in cold weather. The condition had less impact on his work as a lorry driver than it had on his leisure activities. The judge found that his loss of future earning capacity should be assessed by using Ogden Tables A and B, suitably adjusted, not by applying Smith v Manchester.  The CA upheld his decision that C had a minor disability clarifying that where a court considers whether an injury substantially limits a claimant’s ability to carry out normal day-to-day activities, the enquiry should be directed at what the claimant cannot do rather than what he can do. The CA overturned the judge’s decision to use the Ogden Tables: unadjusted they produced an unrealistic future loss; adjustment however was a matter of broad judgment which was no more scientific than the approach in Smith v Manchester. The judgment still leaves open the question when a disability becomes serious enough to engage the approach in Ogden Tables A and B and when and how those might be adjusted.  However as Andrew Spencer said in his blog on this case (Loss of future earnings and disability) the case is strong authority for retaining the Smith v Manchester approach in cases of minor disabilities with little effect on the claimant’s chosen career. Athens Convention In South West Strategic Health Authority v Bay Island Voyages [2015] EWCA Civ 708 the CA considered two issues relating to the Athens Convention (which governs personal injury to passengers at sea). The first was whether it extended to claims against carriers for contribution to liability of others and the second was the effect of the time bar prescribed by the convention. Dr Feest was injured in a boating accident in the Bristol Channel. The carrier was Bay Island Voyages (“BIV”). Dr Feest’s first firm of solicitors failed to issue against BIV within the 2 year time limit under the Convention and so she sued her employer SWSHA on the basis the accident occurred in the course of her employment. SWSHA joined BIV who successfully applied to have the Part 20 proceedings struck out. The Court of Appeal found that the provisions of the convention were not directly applicable to SWSHA’s claim against BIV. It also found that the time bar in Article 16 did not extinguish the cause of action but only barred the remedy: this was critical for SWSHA’s contribution claim as, if the limitation provisions had extinguished the right to bring the claim, under the provisions of the Civil Liability (Contribution) Act 1978 SWSHA could only have brought a claim within 2 years of the accident. Ian Miller, who represented SWSHA with John Ross QC, blogged on the case: “Contribution, limitation and the Athens Convention.” Jurisdiction Brownlie v Four Seasons Holding Incorporated [2015] EWCA Civ 665 involved the application of the Canada Trust gloss and a novel question about where damage in a tort claim was sustained. C bought an off package excursion in Egypt in which her husband was killed and she was injured. She booked the excursion by making a telephone call in England to the concierge at the hotel in Egypt. After the accident she brought proceedings in the High Court in contract and tort. She brought three tort claims (1) in respect of her own injuries; (2) as a dependant of her husband and (3) for the loss suffered by her husband’s estate. On appeal the court of appeal, applying the Canada Trust gloss – which is well set out and explained in the judgment - found that there was a good arguable case as to the identity of the defendant and as to whether the contract was made in England. This was not novel point of law: it was merely a finding that it was likely that C had called the concierge with proposals and he had accepted them. Given a contract for an excursion is made at the place where the words of acceptance are received, the contract was made in England. The novel point of law considered by the CA was the question of whether damage was sustained within the jurisdiction for the purposes of C’s claim in tort. This is the requirement of paragraph 3.1(9)(a) of the Practice Direction 6B (the tort gateway) for permission to serve out of the jurisdiction. The CA held the jurisdictional gateway should be interpreted consistently with Rome II and therefore the country in which the damage occurs should be the country where the injury was sustained regardless of the country in which the indirect consequences could occur. Thus the Claimant’s personal claim and the claim on behalf of the estate should be brought in Egypt. However, the dependency claim under the Fatal Accidents Act 1976 was not properly described as a consequential loss it was an independent loss and so the Claimant had shown a good arguable case that English law should apply to this claim. Matthew Chapman who appeared in this case with John Ross QC has blogged on it here. Duties of care and mental impairment In Dunnage v Randall [2015] EWCA Civ 673  the Defendant (“V”) was a paranoid schizophrenic who poured petrol over himself and ignited it, injuring his nephew the Claimant. V’s mental state was agreed to be grossly impaired. On a spectrum between completely healthy volition and absent volition he was at least 95 per cent impaired and probably 100 per cent absent volition. A number of helpful points arise from the three lengthy judgments given. First, the court rejected any need to differentiate between mental and physical impairment. Second, a person with a mental impairment owes a duty of care. Third, the standard of care should not be adjusted to take account of the personal characteristics of the Defendant, it is purely objective. Fourth, only Defendants whose attack or medical incapacity has the effect of entirely eliminating any fault or responsibility for the injury can be said not to have broken their duty of care. The Claimant’s appeal was therefore allowed. Interestingly the court noted that insanity is a defence in crime because criminal law is punitive whereas the function of the law of tort is to compensate victims. Vicarious Liability In Graham v Commercial Bodyworks Ltd [2015] EWCA Civ 47  the court had to determine whether an employer was vicariously liable for the acts of an employee who sprayed a co-worker’s overalls with thinning agent and then set them alight causing him considerable injury. Having looked at the Canadian authorities in sex abuse cases, the court considered that the starting point was to examine whether there was a close connection between the creation or enhancement of a risk by the employer and the wrong that accrues therefrom. In this case the employers created a risk in requiring their employees to work with paint thinners but there was not a sufficiently close connection between that risk and the wrongful act. The wrongful act did not further the employer’s aims and it was not related to friction, confrontation or intimacy inherent in the employer's enterprise. Where the employment does not require the exercise of force and there is no inherent friction, intentional conduct in the workplace, whether horseplay or more serious acts, will not normally give rise to vicarious liability. Vicarious Liability and Non-Delegable Duties The Court of Appeal in NA v Nottingham County Council [2015] EWCA Civ 1139 held that a local authority was not vicariously liable for the abuse of a child by the foster carers with which it placed her, nor did it owe her a non-delegable duty to protect her from harm. The relationship between the local authority and the foster carers was not sufficiently akin to one of employment to give rise to vicarious liability. On the issue of a non-delegable duty all three members of the court of appeal gave different reasons summarised in our November 2015 PI Briefing. In brief, Tomlinson LJ held that the local authority had discharged rather than delegated its duty in placing the child with foster carers. Burnett LJ held that what the Claimant sought to do was to expand the common law imposing a strict duty on local authorities on the basis that foster parents were not always able to satisfy a claim. Black LJ held that it would not be fair just and reasonable to apply such a duty; in fact it would be unreasonably burdensome and potentially harmful if it led to over cautious practice.  

Stroke Caused By Beauty Facial Case Settles

Claims against negligent beauticians and the like are not altogether uncommon. The injuries tend to be dermatological in nature consequent of some allergic reaction to an untested product. But who would have thought it possible, let alone likely, for someone to suffer a stroke as a result of a beauty facial treatment? Tragically that is what happened to Elizabeth Hughes after her visit to the spa at the Eastwell Manor Hotel. What should have been a weekend treat resulted in a serious stroke that left her disabled for life. Her claim, which otherwise would have been tried in the High Court this week, settled for an undisclosed amount. How did it happen? The medical experts on both sides were agreed that the stroke occurred as a result of a dissection to the carotid artery. The dissection was in all probability caused when beauty cream was massaged onto the sides of her neck by the beauty therapist. The issue was whether she was negligent or had applied an excessive degree of force. Unlike sports injury or deep tissue massages, where there are reported cases of stroke, this was a novel situation. This type of injury had not been encountered previously by beauty therapists. Mrs Hughes who was employed by the NHS as a nurse was left significantly disabled. Her disabilities prevented her from returning to employment in the nursing sector. The case has been watched closely by the beauty industry and the press. (http://www.mirror.co.uk/news/uk-news/nurse-disabled-stroke-after-allegedly-6798935) Elizabeth Hughes was represented by Edward Bishop QC and Kiril Waite at 1 Chancery Lane, instructed by Ciaran McCabe at Moore Blatch Legal Resolve.

Quantity not quality

The decision of Foskett J in Reaney v University Hospital of North Staffordshire NHS Trust  [2014] EWHC 3016 (QB) (rightly) caused some excitement in the legal blogosphere when it was handed down in October 2014. It appeared that he had extended the familiar eggshell skull rule by holding that a Defendant who had injured a woman with pre-existing care needs was liable to compensate for her full care needs not just the additional needs. That decision has now been overturned by the Court of Appeal [2015] EWCA Civ 1119  who draw a useful distinction between qualitatively and quantitatively different care needs. The Facts Mrs Reaney, was admitted to hospital in December 2008 with transverse myelitis. As a result she was permanently paralysed below the mid-thoracic level and classified as a T7 paraplegic. It was common ground that this was not caused by any negligence. As a result of a prolonged hospital stay she suffered pressure sores. It was admitted that this was caused by the Defendant’s negligence. As a result of the transverse myelitis she was always destined to be confined to a wheelchair for the rest of her life. It was found that but for the development of the pressure sores, the Claimant would have required some professional care, increasing as she got older. But as a result of the pressure sores and their resulting complications, she would require 24/7 care from 2 carers for the rest of her life. The Decision of Foskett J Foskett J with reference to Paris v Stepney Borough Council [1951] A.C. 367 held at ¶69 that while a Defendant is only liable to compensate for damage which he has caused or to which he has materially contributed, where he has made the Claimant’s position substantially worse he must make full compensation for that worsened condition. He therefore concluded that she was entitled to full compensation for all her care, physiotherapy and accommodation costs, including the care she would have required but for the negligence. The Decision of the Court of Appeal This conclusion was firmly rejected by the Master of the Rolls who held at ¶18 that the tortfeasor must compensate for the condition in which the Claimant finds herself only to the extent that it has been worsened by the negligence. The rule that a Defendant must take his victim as he finds him is, as the Defendant had argued before Foskett J (¶53), sometimes to a Defendant’s disadvantage and sometimes to their advantage. A Defendant who injures someone with a pre-existing vulnerability, such as the famous eggshell skull, is liable for the full loss flowing from his negligence. However, in this case, it was right that the loss should reflect that the Defendant had injured a T7 paraplegic who already had significant care needs. In fact before the Court of Appeal it was, perhaps surprisingly, common ground between the parties that if the Defendant’s negligence gave rise to substantially the same kind of care and other needs as her pre-existing needs, then the damage caused by the negligence was only the additional needs. However, if the care needs flowing from the negligence were qualitatively different from the pre-existing needs, then those needs were in their entirety caused by the negligence. This view was endorsed by Dyson MR at ¶19. The Claimant’s unsuccessful case on appeal was, therefore, that Foskett J had found the care needs arising from the tortious act to be qualitatively different and so there was no need to disturb his overall conclusion. The Master of the Rolls dealt with the question raised as to the position where there was no means of recovery of the underlying loss. He was firm that the ability to recover for the underlying loss was irrelevant and that a person can only ever be liable for the loss they have caused. Comment At first blush the Court of Appeal’s decision appears to have brought welcome clarity. Foskett J’s judgment, while perhaps giving an attractive result, was not easy to reconcile with the earlier authorities. However, as shown by the point taken by the Claimant before the Court of Appeal, it leaves open significant scope for argument as to when a care need is qualitatively different from pre-existing needs. Those advising both Claimants and Defendants will in future cases of this sort want to scrutinise carefully the differences between the care packages and be ready with arguments as to why those differences should be found to be qualitative or quantitative as appropriate. Finally, as unattractive as this result might seem, there is still nothing to stop a court applying the principle in Paris v Stepney Borough Council and making a higher award for PSLA to reflect the fact that the consequences of injury may be substantially worse for an already injured person.

CPR 35.1: When is expert evidence ‘reasonably required’? (1/2)

Expert evidence is often talked of in terms of parties’ ‘rights’, i.e. to a fair trial or for equality of arms. In the field of PI and Clinical Negligence, it is taken for granted that except in the clearest of cases, the Court will admit (often gratefully) expert opinion on condition and prognosis as well as liability and causation. However, two recent decisions in different divisions of the High Court are a reminder that the Court’s powers under Part 35 are framed in terms of the power to restrict rather than permit, the use of experts.   Background   CPR 35.1 ("Duty to restrict expert evidence") provides:   "Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings."   The White Book notes (at paragraph 35.1.1) that the underlying objective is to reduce the inappropriate use of expert evidence.   The courts have taken an increasingly strict line on this, particularly following the changes to civil procedure ushered in by LASPO 2012 (the so called ‘Jackson reforms’).  In Andrew Mitchell MP v News Group Newspapers Limited [2014] EWHC 3590 (QB) for instance, Warby J considered whether it would be appropriate to admit expert evidence:   "CPR 35.1 imposes a duty on the court to restrict expert evidence to that which is reasonably required. I do not, however, read this as imposing a test of absolute necessity. A judgment has to be made in the individual case, and it has to be made before the evidence is heard and evaluated. My conclusion was that evidence which it is credibly said could conclusively determine the single most important issue in the case meets the criterion in the rule."   British Airways Plc v Spencer and (and ors) [2015] EWHC 2477 (Ch)   In British Airways Plc v Spencer and 11 others (present trustees of the British Airways Pension Scheme) [2015] EWHC 2477 (Ch), the Deputy Master refused BA permission to rely on expert evidence. He held that ‘various points raised in the pleadings’ on which BA suggested expert evidence would assist were, in fact, ‘eminently capable of being determined by the judge at trial as issues of fact and law without the assistance of expert evidence...’.  BA appealed.  The appeal succeeded in part. Warren J encouraged courts to consider applications to rely on expert evidence in the following way: Whether, looking at each issue, expert evidence is necessary to resolve it. If it is necessary (not just helpful), it must be admitted. If the evidence is not necessary, whether it would assist the court in resolving the issue. If it would be of assistance, but not necessary, the court could determine the issue without it. Whether (in circumstances where the evidence would be of assistance but not necessary), in the context of the proceedings as a whole, expert evidence on that issue is reasonably required to resolve the proceedings (taking account of factors such as the value of the claim, the likely impact of the judgment, where the costs will fall, and the possible impact on the conduct of the trial).    Although the decision was fact sensitive, the court identified the following points in favour of allowing expert evidence:    The ‘very large’ financial implications of the decision for BA meant that it should be entitled to advance its best case. It would be undesirable to ’tie the hands of’ the trial judge. If the trial judge concluded that expert evidence would not assist, then he could decline to receive that evidence. The fact that BA would bear the costs of the expert evidence whatever happened, and that the trustees would bear no financial risk.    The full judgment is available at http://www.bailii.org/ew/cases/EWHC/Ch/2015/2477.html

Edward Bishop QC considers obstacles in claims for psychiatric damage

In Speirs v St George’s Healthcare NHS Trust (Unreported, December 2014) a mother claimed damages for psychiatric injury which she said had arisen as a result of the shock of seeing one of her daughters who had been seriously damaged during an instrumental ‘ventouse’ birth. The judge dismissed the mother’s claim on the grounds that she had not suffered a psychiatric injury as a result of the ‘event’ identified by the claimant. In an extremely helpful article, Edward Bishop QC, who appeared for the Defendant in Speirs, sets out what a secondary victim must prove to establish his or her claim. Namely: A close tie of love and affection with the person killed, injured or imperilled Physical proximity to the incident in time and space Direct perception of the incident That he or she suffered a recognised psychiatric illness as a result of witnessing a sudden, shocking event. As he says in his article, it is (d) which has arisen for particular consideration in recent case law. He goes on to examine the questions “did seeing the ‘event’ cause a ‘recognised psychiatric illness? What is meant by ‘an event’? And how ‘shocking’ must it be?” The article has been published in the October 2015 1 Chancery Lane Personal Injury Briefing and can be accessed via this link.

Fixed costs in RTA, EL and PL multi track claims

A claim which starts under the RTA protocol but proceeds on the multi track remains subject to the fixed recoverable costs regime. So held HHJ David Grant in the case of Qader v Esure (Unreported, 15th October 2015). The case concerned a claim for damages for personal injury arising out of an RTA. The value of the claim was pleaded at £5,000 to £15,000. The Defendant alleged that the accident had been staged by the Claimant and the claim was allocated to the multi track. At a CCMC a district judge ordered that “CPR 45.29A fixed costs will apply to the claimant’s costs. Costs management does not apply to this case.” The Claimant appealed. CPR rule 45.29A is to be found in Section IIIA of Part 45, which is entitled "Claims which no longer continue under the RTA or EL/PL Pre-Action Protocols - Fixed Recoverable Costs". Paragraph (1) provides as follows: "Subject to paragraph (3), this section applies where a claim is started under (a) the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents ("the RTA Protocol"); or (b) .... the EL/PL Protocol but no longer continues under the relevant Protocol or the Stage 3 Procedure in Practice Direction 8B." The judge found that the text of this rule is clear and states that section IIIA of Part 45 will apply when a claim is started under the RTA Protocol but no longer continues under that protocol or the stage 3 procedure set out in the Practice Direction 8B. The Claimant argued that the district judge’s ruling breached Article 6 of the European Convention of Human Rights as claimants' solicitors would not be willing to risk expending substantial sums in costs without certainty of recovery and would be unwilling to act on a ‘no-win no fee’ basis with such uncertainty. HHJ David Grant rejected this argument saying that the provisions of CPR rule 45.29J provided a material safeguard against such injustice. That rule allows the court in exceptional circumstances to allow costs greater than the fixed recoverable costs at the end of proceedings. The judgment of HHJ David Grant is well-written, compelling and seems right on the rules as they have been drafted. Many claims start out on the EL/PL and RTA protocols but are subsequently moved to the multi-track when it becomes clear that there are much more complicated issues and that the value might be more than originally anticipated. The rules and this judgment are likely to have far-reaching consequences although the provision in the rules for fixed costs to include 20% (RTA claims) and 30% (EL/PL claims) of the damages may go some way to mitigating the harsher consequences in claims which start out as low value but end up as high value. Stuck between the Scylla of paying very high court fees and the Charybdis of a fixed costs regime for a claim which starts under the relevant protocols, claimants’ solicitors will want to exercise great caution. Whether the rule committee intended or foresaw all of this is open to question.