piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Should the solicitor pay up?

Can a solicitor be liable for costs if he or she takes on a case for an impecunious claimant under a CFA where there is no ATE insurance policy in place and where he or she funds the disbursements necessary to allow the case to proceed?   Neil Hamilton famously sued Mohammed Al-Fayed for defamation over ‘cash for questions’, lost and was ordered to pay £1.3m in costs. Mr Al-Fayed then pursued Mr Hamilton’s financial backers (not parties to the litigation) for costs, lost and was ordered to pay their costs. Unsurprisingly there has not been as much media attention and public interest in the case of Tinseltime v Eryl Roberts [2012] EWHC 2628 which was a case in the technology and construction court. There was no personal injury involved: the claimant claimed that the defendant had created dust whilst demolishing a building and the dust had damaged machinery and caused a loss of profit. The claim was unsuccessful and the claimant was ordered to pay the defendant’s costs. The defendants applied for an order under section 51(3) of the Senior Courts Act 1981 and/or CPR 48.2 that the claimant’s solicitor pay the costs as a non-party funder. The claimant’s solicitor had entered into a CFA. He had been unduly optimistic about how straightforward the issue of liability would be. It was clear that he was aware that if the claimant lost it would not be able to pay costs. He estimated the overall costs likely to be incurred to be £20,000 and disbursements, £10,000. In the event disbursements amounted to £22,270 and so burnt a sizeable hole in his pocket. He had expected to recover the disbursements from the defendant (if successful). The judge concluded that the following were the correct legal principles to apply. The first question was whether it just in all the circumstances to make an order. Secondly, when considering a solicitor, had he acted beyond or outside his role as a solicitor conducting litigation? Thirdly, the fact that a solicitor is acting under a CFA and stands to benefit financial from the outcome does not mean he has acted beyond or outside his role as a solicitor. Fourthly, the starting point is that the position of a solicitor funding disbursements is no different from one who is not as both positions are legitimate and meet a legitimate public policy aim. The judge was of the view that, in order to be successful in applying for a non-party costs order there would have to be present either some financial benefit to the solicitor over and above the benefit which he could expect to receive from the CFA or some exercise of control of the litigation over and above that which would be expected from a solicitor acting on behalf of a client (or a combination of both). By way of example the judge suggested that a solicitor’s desire to achieve a successful outcome might cause him to take over the running of the litigation for his own ends. Another example was of a case where the damages claimed were modest in comparison to costs incurred so that the client had lost interest in the proceedings but the solicitor was wedded to them in order to recover his costs. The circumstances of a case might justify the conclusion that a solicitor was making all the decisions for his own benefit. The defendants argued that the claimant’s solicitor had acted improperly, unreasonably or negligently in his conduct of the case. The judge said this was the province of wasted costs (which were not awarded - although pursued in the alternative). He said courts should be astute to keep wasted costs and non-party costs separate. The claimant’s solicitor may have misjudged the case but he came out of the judgment rather well. The judge commented that he was not motivated solely by financial self-interest but with the laudable aim of providing access to justice to the claimant. He thought the claim was genuine and had written a file note stating “the company has been crippled by the defendant tortfeasors and needs assistance.” The judgment draws to a close effectively with a warning against letting financial self-interest get the better of you and an encouragement from a judge to practitioners to be motivated not solely by financial self-interest but by a concern for justice and access to justice. Such a consideration (and file-note for the record!) might well prove worthwhile… Photograph courtesy of freefoto.com

Court of Appeal tightens up on relief from sanctions

Jackson LJ considered case management decisions in his report on costs in civil litigation. He said:-   "...courts at all levels have become too tolerant of delays and non-compliance with orders. In so doing they have lost sight of the damage which the culture of delay and non-compliance is inflicting on the civil justice system. The balance therefore needs to be redressed."  Earlier this year, in Fred Perry v Brands Plaza Trading Limited [EWCA] 2012 Civ 224, the Court of Appeal agreed and applied CPR 3.9 in a way which attempted to redress that balance.   The Defendant had been in breach of a series of orders. Unless orders had been made, the Defendant had not complied and the defence was struck out. The Defendant applied for relief from sanctions. The Court of Appeal reiterated that the interests of the administration of justice - the first item on the CPR 3.9 checklist - requires that parties comply with court orders, and particularly so where the order in question is an Unless order. This is a welcome reminder that the interests of the administration of justice are not necessarily the same as the interests of justice.   The Court of Appeal was critical of the Defendant’s attempt to argue that the Unless should not have been made or was too onerous. It was inappropriate to make a collateral attack on the order in an application for relief from sanctions: if the Defendant did not like the order its remedy was to appeal, which it had not done. The judgment emphasised that the first instance judge has a wide discretion when considering an application for relief from sanctions. The Court of Appeal approved of the judge’s exercise of discretion, and noted that judges who made robust but fair case management decisions should be supported. Lord Justice Jackson was on the panel and made the further point that CPR 3.9 is due to change with effect from 1st April 2013. The familiar checklist is due to be replaced with the following:- "On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider the circumstances of the case, so as to enable it to deal justly with the application including the need – (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and court orders."  Lord Justice Jackson commented that after 1st April 2013, “litigants who substantially disregard court orders or the requirements of the Civil Procedure Rules will receive significantly less indulgence than hitherto”.  

Faking it – lies, fraud exaggeration and abuse of process

In a truly Phyrrhic victory for the Defendant, the Supreme Court has just handed down a judgment overruling Ul-Haq v Shah and Widlake v BAA. In Fairclough Homes v Summers [2012] UKSC 26 the Supreme Court held that it is open to a judge to strike out a fraudulently exaggerated claim on grounds of abuse of process, even after judgment on liability and where it is possible to assess the damages to which the claimant would otherwise be entitled. But the Supreme Court considered that it would only be appropriate to do so in very exceptional circumstances. The circumstances of this case were not exceptional enough and the case should not be struck out.

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What is it about Preston County Court?

The case of R (on the application of Sharing) v Preston County Court [EWHC 515] is perhaps a surprising one to comment on in a personal injury blog. It concerns wrongful eviction, rent arrears and judicial review. However it is of wider interest because the claimant, whose claim for damages was dismissed by the district judge and whose application for permission to appeal to the circuit judge was also refused, successfully had the refusal of permission to appeal quashed in the administrative court and remitted to a different circuit judge. Both this case and the case cited below came from Preston County Court and the circuit judge in concern ended up in the judicial stocks...   The facts of Sharing are, in brief, as follows. The claimant brought a claim for damages for unlawful eviction. The defendant relied upon two witnesses: a WPC and another tenant. At trial he said that the WPC had been served with a witness summons but had said she was unavailable - he was a bit cagy about it when pressed. The other witness was held out to be an independent witness. The trial judge found the independent witness to be essentially truthful and that the claimant had lied about a tenancy deposit. He dismissed the claim finding the police evidence favoured the defendant. The claimant then obtained a statement from the WPC to the effect that she had not received a witness summons, she had been available and that when she interviewed the ‘independent’ witness, she had assumed she was in fact the defendant’s partner because of the way they related to one another. The WPC also provided other evidence which undermined some of the defendant’s case. The claimant then sought permission to appeal on the basis of the WPC’s fresh evidence. That permission was refused and hence an application was made to the Administrative Court for judicial review. Wilkie J was troubled by the way the circuit judge had conducted the hearing saying that, from the transcript, it was apparent that he gave counsel for the claimant an ‘extremely rough ride’. He did not permit her to develop the main point she wished to make and he repeatedly said the case had been won or lost because the district judge had not believed the claimant. He found with great hesitation and regret that the circuit judge acted in such a way that a fair-minded and independent bystander would conclude that he had finally and firmly made up his mind from the outset of the application that he was going to refuse it, that he was going to refuse to admit the fresh evidence of the WPC and his repeated interruptions of counsel and the way he focused on the way in which the district judge had decided the case was the clearest possible evidence of apparent bias. The key case on applying for judicial review of the decision of a circuit judge is R (on the application of Strickson) v Preston County Court & Ors [2007] EWCA Civ 1132. There Laws L.J. said that before JR could be granted a defect much more fundamental than an error of law had to be established. He said ‘I think a distinction may be drawn between a case where the judge simply gets it wrong, even extremely wrong (and wrong on the law, or the facts, or both) and a case where… the judicial process itself has been frustrated or corrupted. This, I think, marks the truly exceptional case.’ He gave a number of examples: the court embarking on an enquiry it lacks all power to deal with, failure to enquire or adjudicate upon a matter which was its unequivocal duty to address, a substantial denial of the right to a fair hearing, a court acting ‘incomplete disregard of its duties’. Photo courtesy of Freefoto.com

What's in a name?

  On 22 March, after 200 years of being called Cadbury, Kraft, the US food conglomerate which bought the Cadbury business in 2010, is changing its name to - Mondelez (pronounced mohn-dah-LEEZ) International.   The article I read suggests this means delicious world – “monde” coming, I suppose, from the French (or perhaps the Latin) for world and “delez” being a diminutive (or it could be “street” - I would need to check) for delicious. Apparently it is the result of suggestions by two different Kraft employees based in Chicago and Vienna respectively.   I was reminded of this when I read a thoughtful article in the Law Society Gazette on 5 April by District Judge Richard Chapman, the new president of the Association of Her Majesty’s District Judges.   http://www.lawgazette.co.uk/opinion/comment/solicitors-can-help-litigants-person-prepare-their-day-court   Judge Chapman reminds those who did not know that litigants in person are also changing their name - to self-represented litigants or SRLs.   SRLs are likely to feature increasingly in the courts. In November 2011 the Civil Justice Council published a helpful report on “Access to Justice for Litigants in Person”.   http://www.judiciary.gov.uk/about-the-judiciary/advisory-bodies/cjc   This is well worth downloading and filing as it contains amongst other goodies a “nutshell” guide for SRLs and in Appendix 2 “Suggested Draft Guidance for legal professionals representing against a self-represented litigant”   The report points out in the Overview in Chapter 2 that “every informed prediction is that, by reason of the forthcoming reductions and changes in legal aid, the number of self-represented litigants will increase, and on a considerable scale. Such litigants will be the rule rather than the exception” (my emphasis).   This prospect clearly concerns Judge Chapman who says that “judges like me are spending more and more of our time having to deal with litigants who simply do not know the law, have never heard of the Civil Procedure Rules 1998 … and have breached most of the case management directions”.   Any advocate is already under a duty to do what they reasonably can to ensure that an SRL has a fair opportunity to prepare and put his or her case. However, the likelihood is that Judge Chapman and other judges at all levels will increasingly be looking for help from lawyers in managing the changes which will follow the new “funding landscape”.    As Judge Chapman ruefully observes:   ”A new name but old problems”.   [Image - thechocolatereview.net]

EXPERTS: BUY ONE GET ONE FREE?

In an earlier post on piBlawg – “An End to Expert Shopping” – Thomas Crockett discussed the likely impact of Edwards-Tubb v JD Wetherspoon PLC [2011] EWCA Civ 136.    In Edwards-Tubb it was held that a claimant who obtains a medical report from an expert (A), but chooses, for whatever reason, not to rely on it and applies, instead, for permission to rely on another expert in the same field (B), the court has a discretionary power under CPR 35.4 to require him to disclose A’s report as a condition for the grant of permission to rely on B (see Hughes LJ, at paragraph 31 of the judgment).     In the very recent case of Burnett v Discover the World (14.10.11), Teare J, sitting in the Admiralty Court, had to consider the meaning of “in the same field”. In Burnett, A was a neurologist and B was a neuropsychologist. The Claimant had suffered a head injury. He disclosed only the report of B, although stated in correspondence that he also had a report from A. The Defendant wanted to see A’s report. The Claimant opposed this on the grounds that A’s report was privileged and that A and B worked in different fields of medicine. Accordingly, it was argued that the disclosure sought by the Defendant fell outside the scope of the approach taken by the Court of Appeal in Edwards-Tubb.   On the face of it, the two experts worked in different medical fields: neurology is generally concerned with objective nervous system pathology, particularly of the brain. By contrast, neuropsychology is principally concerned with psychological conditions which may or may not originate in the neuropathology. It was submitted for the claimant that B’s report had only been commissioned on A’s express recommendation (presumably on the basis that B would consider matters that were outside the scope of A’s expertise). Teare J held that “the same field” (where used by the Court of Appeal in Edwards-Tubb) required a wide construction. The court was concerned with examining the nature and extent of the injuries alleged and the symptoms attributable to the same. Where A and B are attempting to investigate substantially the same symptoms, both reports will be of assistance to the court, notwithstanding that the experts have subtly different expertise or methodologies. Requiring a litigant to disclose an earlier expert’s report is the price for the permission to rely on another. The choice, therefore, lies with the litigant. As such, the approach taken in Edwards-Tubb contemplates the waiver of privilege as to the earlier report as the condition for the grant of the Court’s permission to rely on the subsequent expert; it maximises the information available to the court and discourages “expert shopping”. It is clear that in many cases litigants have attempted to obtain more favourable evidence yet side step the rule in Edwards-Tubb by approaching experts with similar expertise, but from slightly different scientific/medical disciplines. This ruling may close off this escape route. It suggests that the court will look to the symptoms in question in order to see whether A and B are in, in substance “in the same field”.   Case note prepared with the assistance of Thomas Collins, Pupil Barrister.  

RSA Repair Costs - an end to the saga?

There has been a significant and until now unpublicised development in the long-running line of case concerning inflated repair costs claimed by RSA.   Well, as the judgment is on BAILII and publicised on the Judiciary Website, this is not quite an exclusive, but it is close!   Judgment was handed down in Kevin Fallows v Harkers Transport on Friday 2 September 2011. It came to my attention appearing at a trial the day before, when the district judge I was appearing before hinted very strongly that HHJ Platt in Fallows had come to a very firm decision in a case which should put this matter to bed. For what it is worth, the district judge in my case held that in his view these cases "were tantamount to fraud" and that counsel should go outside and "talk". The matter was settled by consent.   HHJ Platt, sitting at Romford County Court sought to clarify the situation as to various standard charges RSA was routinely claiming from defendant insurers, pursuant to an arrangement whereby their clients’ motor repairs were carried out by a subsidiary company. The judgment is somewhat scathing of this approach and suggests that simply this is a matter of the trite law of causation; reasonableness; mitigation and simply the obligation upon a claimant party to prove its loss.   The judge is also scathing as to the frequent refusal by RSA to disclose any proper invoices from repairing garages. The Judge held that by redusing to do so, the cases had little chance of settling without requiring a trial. At paragraph 60, the court held: “The court is left with the clear and unhappy impression that the provisions of CPR r 1.3 have simply passed by RSA and its solicitors unheeded both in this case as in others, and they remain in a mindset where the obligation to make proper disclosure is some kind of optional extra.”   Is this an end to the saga? HHJ Platt clearly intended his judgment to constitute some kind of final word. He held at the final paragraph that: “Although this is not a binding judgement in terms of the rules of precedent it carries a degree of authority which requires claimant's solicitors and advocates to carry out their professional duty to the court by bringing the judgement to the attention of any judge before whom they appear in any subsequent case in which these issues are litigated. Failure to do so may lead to costs orders under CPR 44.14.”   Read all about it at http://www.bailii.org/ew/cases/Misc/2011/16.html

Clinical Negligence Claims against the NHS Up 30%

The NHSLA published its annual report on 4 August 2011. Last year: (a)    it faced 8,655 clinical negligence claims, an increase from 6,652 the year before (up about 30.11%); (b)   of those,  5,398 cases were settled with only about 4% being resolved by litigation; and (c)    it paid out £729,100,000 pursuant to these, which was an increase from £651,000,000 the year before;   The report welcomes the introduction of the reforms recommended by the Jackson Review and laments the increased costs they have been facing claimed by claimant solicitors. It states: “We paid over £257m in total legal costs, of which almost £200m (76% of the total costs expenditure) was paid to claimant lawyers... we paid over £257m in total legal costs, of which almost £200m (76% of the total costs expenditure) was paid to claimant lawyers.”   The Report raises many issues. Two of note would be: (a)    Why has there been this recorded increase in claims? Are doctors becoming more negligent, or is our culture simply becoming increasingly litigious and the legal markets have facilitated this? Has the Recession contributed to this? (b)   Whilst they will undoubtedly assist in maintaining proportionality between damages and costs, how will the Jackson Reforms (particularly the irrecovarability of CFA uplifts from unsuccessful defendants), affect access to justice?   The Report is available at: http://www.nhsla.com/NR/rdonlyres/3F5DFA84-2463-468B-890C-42C0FC16D4D6/0/NHSLAAnnualReportandAccounts2011.pdf    

Part 36... again

The Court of Appeal has overturned Warren J's decision in "C v D1 & D2". Question: was an offer headed "Offer to Settle under CPR Part 36" which was expressed to be "open for 21 days":- a) A time-limited offer and/or b) A Part 36 offer. The party making the offer argued it was a time-limited Part 36 offer. Warren J agreed it was time-limited, but held a time-limited offer was not a Part 36 offer. The Court of Appeal disagreed, construing the offer so as to be compatible with Part 36. It was a part 36 offer and, not having been withdrawn, was open for acceptance.  

We can all now resile from pre action admissions

In Woodland v Stopford [2011] EWCA Civ 266 handed down today the Court of Appeal again considered the law on resiling from pre action admissions when it dismissed an appeal by the Claimant of the decision of HHJ Holman who had permitted the Defendant to resile from their pre action admission. The claim arises as a result of the infant Claimant suffering an hypoxic brain injury during the course of a school swimming lesson on 5th July 2000. The Claimant was left severely disabled as a result of this injury and the claim is valued at between £2 and £3 million. After an initial denial of liability a pre action admission of liability was made by the Defendant on 27th November 2007. The Defendant then made an interim payment. Thereafter however the Defendant purported to retract that admission in further pre action correspondence on 27th July 2009. The claim was then issued on 25th November 2009 and the pre action admission was pleaded. There then followed cross applications made by the Claimant for Judgment on the admission and by the Defendant for permission to resile from the pre action admission. The applications came before HHJ Holman in April 2010. The applicable law was contained within CPR 14.1A and in particular paragraph 7.2 of the Practice Direction which sets out a non exhaustive list of factors for the Court to consider when hearing such an application. In relation to the Practice Direction HHJ Holman held that the fact that no new evidence had come to light was not fatal to a party wishing to resile. New evidence coming to light was simply one of the matters that the Court must have regard to. In addition HHJ Holman found that the reason why the Defendant had changed their mind about admitting liability was unclear. This absence of information again did not bar the Defendant from succeeding in their application. The clear inference that HHJ Holman formed was that the Defendants had simply misjudged the value of the claim when making the admission. In all the circumstances HHJ Holman permitted the Defendants to reslie from their admission. The main grounds of appeal raised were that there had been no new evidence relied on by the Defendant and that there had been no explanation given to explain the Defendants change of mind. Reliance was placed upon the decision of Steel J in American Reliable Insurance v Willis [2008] EWHC 267 (at present cited in the White Book) that these factual issues were crucial for a Court when deciding whether a party should be permitted to resile. In that case Steel J had described the requirement to show why a party had changed its mind and to evidence the same as a threshold requirement for the party making such an application.      The Court of Appeal held that American Reliable was an unusual commercial case on very different facts. The Court held that it would be “quite wrong” to lift Steel J’s observations out of context and elevate the factual issue of why a party had changed its mind on an admission to a threshold test. Instead the Court has a wide discretion under CPR 14.1A and the listed factors are not listed in any hierarchical order. In this case the Defendant had changed its mind mainly following a second careful appraisal of the known facts. This was an adequate explanation to found such an application. The Judge had carefully considered all of the listed factors he was required to consider and had come to a decision he was entitled to come to.    As a result the Claimants appeal was dismissed and the Defendant was permitted to resile from their pre action admission.