piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

What is a Witness Statement?

What is a witness statement? What is it for? And what should it contain?   These are all questions which ought to be simple-enough to answer. However frequently it appears to those involved in litigation that the simple-enough answers are not always correct! Witness statements not infrequently go wildly beyond the confines of a lay witness’s actual knowledge of proceedings; opinions and hearsay are sneaked in; and witnesses sometimes appear to make sweeping legal submissions. It is not always easy to persuade a trial judge in a preliminary oral application ahead of a case to strike through offending paragraphs. One is often met with a rebuff that any offensive aspects of a witness statement will merely be judicially ignored.   A recent judgment of the Chancellor of the High Court, Sir Terence Etherton in J D Wetherspoon plc v Harris & Ors [2013] EWHC 1088 (Ch) may provide a litigator in such a situation with a useful authority, as well as affording guidance to anyone drafting witness evidence in a civil case.   In his judgment, the Chancellor exemplified the tenor of the latest round of CPR reform in advocating a back-to-basics and streamlined approach to witness statements.    The applicant (a firm which really does seem to have made a far greater than average contribution to the jurisprudence of personal injury law – now it seems, even from the Chancery Division) made the bold application to strike out the majority of a witness statement adduced by one of the defendant parties. This was upon the basis that the said witness statement contained little more than a recitation of facts based upon documents, commentary upon those documents, argument, submissions and expressions of opinion. In short, Wetherspoons thought the witness statement was improper and abusive.   Counsel for the two respondent parties submitted that as his clients were accused of dishonesty, and as neither party employed any personnel who had direct knowledge of the subject matter of the allegations of dishonesty, they were entitled to adduce evidence refusing the accusations with reference to the documents available in the case.    The Court disagreed and with reference to CPR 32.4 (and paragraph 7 of the Chancery Guide, 7th Edition), held that the witness could not give such opinion evidence orally at trial, nor could he comment factually upon events to which he had no first-hand knowledge or make submissions. Thus, it was held (whilst acknowledging that the said rules were not set in stone and in certain circumstances could be relaxed) that the witness could not give such evidence in written form as contained within the witness statement.  

Personal responsibility, unfortunate accidents and the liability of occupiers

Criminal lawyers are often asked how they can bring themselves to defend people who they know are guilty.  Actually, I am asked that not infrequently too...  But the more common dinner party accusation aimed at civil common law lawyers is: "Pft!  Nanny state!  People can sue for anything nowadays!  Don't people have to take some responsibility for themselves?"  I have two responses to this.  My usual one is to disappear behind my glass of wine before changing the subject.  The other is to say that yes, people bring some ridiculous claims, but it doesn't necessarily mean they win.  The newspaper reading nation has been shocked by publicity about some of the claims brought by police officers injured in the course of their duties that have been pursued.  I don't know any lawyers in our line of business who have.  One has the impression that the Court of Appeal were perhaps a little vexed by the case of Tacagni v Cornwall County Council and ors.  Judgment was handed down yesterday.  Ms Tacagni sued various parties.  Her claim was dealt with under the Occupiers Liability Act 1957.  After consuming eight drinks over a "long" evening Ms Tacagni was walking home in the dark with her partner.  They had no torch and she was wearing uncomfortable shoes.  The pair walked along a raised pathway that ran approximately two metres above and alongside a road until they decided that it was too dark and turned back.  Ms Tacagni's partner left her to go and call a taxi.  Ms Tacagni set off on her own, using a fence to guide her along the path. Following the line of the fence Ms Tacagni left the path, crossed 4.8 metres of grass and fell off the edge of the raised section onto the road below. The fence had been erected around an area of the pathway's retaining wall which had collapsed in 2001. The Court at first instance heard some evidence from the Defendant about concerns one of its employees had had about whether the fence was sufficient to protect cyclists and children.  The judge was obviously swayed by this criticism and found for the claimant, with a two thirds deduction for contributory negligence.  The Court of Appeal allowed the local authority's appeal and dismissed Ms Tacagni's claim.  Their lordships concluded that the evidence as a whole did not warrant the judge's finding that the local authority had unreasonably failed to guard against the risk of accident that in fact befell Ms Tacagni. It was hard to envisage that a person would be using the fence as a guide and that it would not have been obvious to them that they were departing from the path and crossing a significant portion of the grass. Accordingly, the evidence did not warrant the conclusion that the local authority had breached its common duty of care.  The judge had left out a material factor in his evaluation: the degree of care that was to be expected of an ordinary visitor under s.2(3) of the Act. So next time you find yourself at a dinner party being harangued about the state of the law and the fact that people are not expected to take care for themselves you can disappear behind your glass of wine secure in the knowledge that, for the purposes of the Occupiers Liability Act 1957 at least, from time to time the courts conclude that yes they do.   Image: © Bellemedia | <a href="http://www.dreamstime.com/">Dreamstime Stock Photos</a> & <a href="http://www.stockfreeimages.com/">Stock Free Images</a>  

Shut out: The UK Supreme Court’s first "secret hearing"

Bank Mellat v HM Treasury UKSC 2011/0040     The Supreme Court held a hearing in secret today, for the first time in its history.   According to the BBC, the justices spent 45 minutes in a locked session with a security guard stood outside the door to prevent anyone from entering. The hearing was so sensitive that the justices had to leave one courtroom and set up in another which had greater soundproofing.   The hearing arises out of the Treasury’s decision in 2010 to ban an Iranian bank from operating in the UK, using powers under the Counter-Terrorism Act 2008. The government alleged that the bank had been indirectly involved in financing companies linked to the Iranian nuclear programme.   At first instance, Mr Justice Mitting permitted some of the government’s evidence to be adduced behind closed doors on grounds that it contained sensitive material that may compromise national security. The first instance judgment was therefore produced in two drafts, with only the redacted version being made available to the public.   A nine-strong panel decided that the court did have jurisdiction to consider the closed judgment, but would only do so if persuaded (on the basis of submissions in open court) that it was necessary for the purpose of fairly disposing of the appeal. At that stage the court was not so persuaded. Lord Hope described the government’s refusal to spell out even its basic national security case in open court as ‘cloak and dagger stuff’ that was ‘difficult to swallow’.   The court was reluctantly persuaded this morning that it was indeed necessary to consider the closed judgment and that this would necessitate a closed hearing. According to Lord Neuberger ‘unless and until an appellate court sees the judgment, it often cannot be sure its contents will be irrelevant or that its contents have been fully gisted’. He went on ‘no doubt in due course when we have completed the closed hearing...we will have quite a few things to say about this unhappy procedure.’   The court clearly has it in mind to use this episode to issue guidance to other courts faced with similar requests for a closed hearing. But whatever tests and safeguards are laid down, the use of secret courts is bound to become more widespread with the passage of the Justice and Security Bill.   Where litigants are prevented from seeing the State's evidence against them, hearing its submissions on that evidence, or understanding what part that evidence played in their claim being dismissed, the balance of justice is dangerously skewed. And far from being immune to these changes, PI litigation, employers’ liability in particular (for instance, claims by wounded servicemen against the MoD) may yet become the area of law most acutely affected.

Applicable Law in Tort under Rome II and English Case Management Decisions

    It’s one of the oldest chestnuts in private international law and has been brought into sharper focus by the Rome II Regulation on applicable law in tort. Assume that the English Claimant is catastrophically injured in a road traffic accident in France. The Claimant sues the tortfeasor’s French insurer in the English Courts (in line with his right to do so under section 3 of the Brussels I Regulation and the Odenbreit (2007) decision of the ECJ). Liability is not in issue and it is agreed that, by reason of Articles 4 and 15 of Rome II, French law will apply to the assessment of the Claimant’s damages. The Claimant wishes to rely on a panel of English experts (medico-legal and non-medical) of the kind usually instructed in catastrophic injury claims case managed and tried in this jurisdiction. The Defendant insurer, by contrast, wishes to restrict the Claimant to the sort of expertise that a French Court would rely upon (usually, one principal expert and a very limited number of additional experts). The Defendant’s argument is that the English Court – required to assess damages on a French law basis – needs, so far as possible, to adopt and replicate the approach that would be taken by a French Court. The Claimant argues that the selection and instruction of expert witnesses is a matter reserved to the law of the forum (English law) by reason of Article 1.3 of Rome II. An issue of just this kind arose in the very recent decision of Tugendhat J in Wall v Mutuelle de Poitiers Assurances [2013] QB 53 (QB). The following preliminary issue was tried, “Does the issue of which expert evidence the court should order fall to be determined: (a) By reference to the law of the forum (English Law) on the basis that this is an issue of ‘evidence and procedure’ within Article 1.3 of Rome II; or (b) By reference to the applicable law (French law) on the basis that this is an issue falling within Article 15 of Rome II?” The academic writing on this issue was somewhat mixed and inconclusive. However, Tugendhat J resolved the preliminary issue – thought to be the first time this question had been tried in this jurisdiction – by accepting the Claimant’s argument: the instruction of experts is a matter of evidence and procedure and, therefore, a matter for the law of the forum (English law). There is an application by the French insurer for permission to appeal.

The Rolls Royce of hire claims...

  This is the latest round in the Court of Appeal in the battle over car hire (Singh v Yaqubi [2013] EWCA Civ 23). The rear door of Mr Singh’s Roller was dented in a road traffic accident. The car took 54 days to repair and the hire bill claimed from the defendant was £92,953.90. Mr Singh was in partnership with Mr Thakrar in a property development business and the Rolls Royce was one of the fleet of seven vehicles owned by the partnership. The judge dismissed the hire claim in its entirety. In doing so he admitted to anxious thoughts about ‘whether the ever increasing insurance premiums of the ordinary motorist, particularly one struggling to make ends meet and needing a modest car to go to work, should in some part be used so that the rich may continue at no expense to themselves to be filled with good things that they think they need.’ In response to Mr Singh’s case that he used the Rolls Royce ‘to maintain the correct impression’ in the circles in which he did business, the judge commented ‘well, what a testament that is to the superficial if not false nature of the warped values of society…’ The Court of Appeal discouraged such comments but concluded that the manner and openness of their expression encouraged a conclusion that the judge was well aware of his responsibility to decide the case on legal principles and in accordance with the evidence. The Court also dismissed the remainder of the appeal concluding that the burden was on the claimant to show a reasonable need for a replacement Rolls during the period of repair. The required need was the need of the partnership and that need was not self-proving. If need is not proved then questions arising out of the reasonableness of measures in mitigation do not arise. That principle had not been weakened by cases following Giles v Thompson.  An important point to note is that the need was put in issue in the defence. It was for the claimant to establish it and if successful, the defendant would have had to show that it had not been met in a reasonable manner. The Court commented that very large hire claims should be scrutinised very carefully. The judge was entitled to require specific evidence of need such as evidence of the actual use of the vehicle for business purposes before the accident and the use to which the hired vehicle was put during the period of hire. This is a helpful case for defendants where a large hire claim is made on the basis that the vehicle is needed for business use. However the Court contrasted business use with a claim by a private motorist. The evidential threshold for the private motorist to establish reasonable need is much lower. The court cited Lord Foscote in Lagden:  he said such a motorist may not be able to predict what particular use will be made during the period of hire; it may just be about convenience and not avoiding some financial loss he or she might otherwise have incurred. The battles continue…. (Image Courtesy of www.freefoto.com)

Are counsel’s doodles privileged?

    Do you doodle in meetings? Should you doodle in meetings?   There is both good news and bad.       The good news is that doodling may be good for you! A study by the University of Plymouth and published in Applied Cognitive Psychology suggests that doodling actually helps improve concentration and memory. Two groups of people were asked to listen to a boring telephone conversation. One group was doodling, the other was not. The doodlers remembered 29 per cent more information than those who had simply sat and listened.   The bad news at least so far as counsel is concerned is that any doodles may now have a wider audience than the doodler may have intended. In Hellard and another v Irwin Mitchell [2012] All ER (D) 71; [2012] EWHC 2656 (Ch) His Honour Judge Purle Q.C. sitting as a judge of the Chancery Division heard an application in a claim for alleged professional negligence against the defendant firm of solicitors.       The essential issue was limitation and, in particular, whether it was reasonable for the solicitors to rely on the advice of counsel and what counsel's advice had been. The solicitors applied for a declaration that the claimant trustee in bankruptcy had impliedly waived the obligations of the bankrupt’s former counsel to uphold legal professional privilege in respect of the subject matter of the claim.       It was common ground that the bringing of the claim had operated as a waiver of privilege with regard to the solicitors’ file including the solicitors’ notes of conferences with counsel and the deliberations of the solicitor including deliberations with counsel. The issue was whether privilege still attached to counsel’s own papers such as working papers and notes of conferences because counsel had not been joined in the claim.       The court held that privilege attached to confidential communications between the solicitors, counsel and their mutual client. Once privilege regarding those communications had been waived, any evidence as to those communications could be adduced - see [9], [12], [15] of the judgment.       Thus having waived privilege in relation to counsel's advice, the claimant could not pick and choose which bits of counsel's advice or deliberations could be withheld from the court. The waiver would therefore extend to all of counsel’s own working papers, deliberations and notes including, presumably, any doodles!       Despite the results of the Plymouth study, it seems that doodling does not always help with concentration and memory. One individual is quoted as saying:   “I always doodle, and I don't pay attention … It kind of hurts my memory”.   

The addition of a late expert: case note

Van Niekerk v Carnival Plc & Anor. [2012] LTL 13/6/12 (QB, HHJ Seymour QC)   This claim concerned further directions for a High Court trial that was listed a little over 2 months after a Pre-trial review in which further permissions for expert evidence were sought. The Claimant’s husband had died on holiday while he had been taking part in a diving excursion arranged by or through the Defendant cruise line operator. Liability, causation and quantum were all in issue. The Claimant brought a substantial claim for damages. The Claimant’s schedule of loss included, among other things, a claim for loss of financial dependency based on pension income. In correspondence, the Defendant had queried the calculation of this head of loss. Approximately, two months before the date fixed for trial of liability and quantum the Claimant applied for permission to obtain and rely on a report from an expert forensic accountant on the investment growth rates relating to the financial dependency claim. Each party had also obtained a medico-legal report on the cause of death. The Claimant's expert was a histopathologist. The Defendant's expert was a cardiologist with experience in the cardiological aspects associated with diving. The issues considered at the Pre-trial review concerned: (i) whether permission should be granted to adduce expert accounting evidence; (ii) whether directions should be given for a joint statement by the cause of death experts; (iii) the appropriate order for costs.HELD: (1) Permission was granted to obtain expert accounting evidence limited to the issue of investment growth rates - while this evidence was being sought at a late stage, it would likely assist in the accurate calculation of loss and would be helpful to the Trial Judge. (2) There was potential value in the cause of death experts producing a joint statement, despite the risk that it would simply repeat their individual reports (and in spite of the fact that they were experts in different disciplines). (3) Although the Claimant had succeeded on her application to admit accounting evidence, it had been necessary because there was a deficiency in her case which the Defendant had pointed out some months earlier, and she had sought to adduce additional evidence close to the trial and in circumstances where it raised serious questions about whether the trial could proceed in the event that permission were granted. The issue about a joint experts' report had been a serious issue. Taking those issues into account, the proximity to trial and the matters on which the parties had argued, it was appropriate to consider the hearing as a pre-trial review. In those circumstances, the appropriate order for costs was costs in the case.

Whiplash: Again ...

A short article in yesterday’s Guardian caught my eye (Let’s not add insult to personal injury: 20.2.12). It wasn’t the author’s commentary on David Cameron’s recent “Insurance Summit” that attracted my attention (see, Laura Johnson’s PIBLAWG piece a week ago). It wasn’t the reporting of the statistics, although it has to be admitted that these are eye-popping (the CRU apparently reports a 52% increase in reporting of motor personal injury claims – up to 790,999 claims in 2010/11. The reported statistics are not consistent, but everyone seems to agree that there has been an increase in claims and, er/um, the increase has been massive: can we believe that all of these claims are entirely genuine?) Instead, my eye was drawn to the following, “The practice of insurers making a compensation offer to injured people before they have even had a proper medical examination has become more widespread, and they are trying hard to get to third parties quickly and settle their claims before they have gone to a solicitor for independent advice. This all encourages people to have a go. Why, instead, have insurers not challenged in court claims they believe to be bogus? Interestingly, one outcome of the Downing Street summit was a commitment that they will. [emphasis added by me]” It remains to be seen whether the insurers’ “commitment” proves to be real, but we probably all know why such claims are not contested to trial. First, by the time that a modest whiplash claim comes to Court, the costs will usually have outstripped by a considerable margin the amount that is at stake in the claim itself: an obvious reason why insurers will instead seek to settle claims early – even those that are believed to be bogus (indeed, contesting a bogus or fraudulent claim will generate greater costs than taking issue with discrete aspects of a claim believed to be genuine). The problem, of course, with paying Danegeld of this kind is that it simply encourages more claims – as the statistics referred to above make clear. It also removes work from solicitors, although insurers probably won’t lose any sleep over this. Second, it is not easy to satisfy a Court that a claim is bogus; most Judges will apply – whether or not this is acknowledged – a Hornal v Neuberger Products [1957] 1 QB 247 approach to any allegation that a claim is bogus/fraudulent and will require a quantity of cogent evidence in order to find such allegation proved. Some medical expert witnesses are adept at finding a whiplash injury in factual circumstances where it would be surprising (at least to the lay person) that a Claimant had sustained any injury at all. Where such medical evidence is available, it is not easy for the Defendant to challenge this without incurring speculative costs. The result is that, by a default process, the claim will succeed/be settled. Third, it has to be said (on the finest anecdotal evidence) that on occasions the Courts have encouraged questionable claims. One is reminded of the increasing volume of highway tripping claims (some decades ago); the advancing tide was only retarded when the higher Courts started to dismiss these claims and provided guidance on what needed to be proved in order for the Claimant to succeed. If the Judiciary had been less credulous as to whiplash then we might all – genuine Claimants and insurers alike – have been in a happier position. If the Guardian piece is to be believed, we seem now to be reaching a position where only the bravest insurer would challenge a whiplash injury claim at trial; it will be interesting to see whether recent Government action will make any difference.  

"I never knew that ....!"

    The Freedom of Information Act (FOIA) 2000 is an important piece of legislation. Correctly used, it can bring into the public domain information that would otherwise be unknown to the general public. Yesterday (31 January) it led, indirectly, to the revelation that the James Bond villain that Michael Gove, the Education Secretary, would most like to be is Sir Hugo Drax in Ian Fleming’s novel “Moonraker”. The Education Secretary was answering questions by MPs (and the public via Twitter at #AskGove) during a session of the Education Select Committee. In the course of his evidence, Mr. Gove also revealed that he has not yet complied with the guidance from the Information Commissioner last month that private e-mails which discussed official business were subject to the FOIA 2000. Mr Gove told MPs that he was “awaiting fresh civil service advice” before complying. Mr. Gove was clearly too busy discussing with the Education Select Committee how James Bond, with the help of Special Branch agent Gala Brand who became C.I.A agent Dr. Holly Goodhead in the film, sabotaged Drax's “Moonraker” missile launch to know that on Monday (30 January) the Information Commissioner's Office (ICO) had released a new and, I think, very helpful plain English Guide to help public authorities better understand what the FOIA 2000 says and how to apply it in practice. http://www.ico.gov.uk/for_organisations/freedom_of_information/guide.aspx In 56 pages the guide looks at the law in a sensible and straightforward fashion and explains in simple terms what public authorities and organisations need to do to comply, including how to respond to requests and decide what information they should routinely publish. What is, I think, particularly useful is that the guide answers many frequently asked questions and gives practical examples to illustrate how to apply the FOIA 2000 in practice. For any busy practitioner who is currently trying and failing to get answers from a public authority, I recommend simply forwarding the guide to the person dealing with his or her request. It is surely just a coincidence that yesterday (31 January), the day after the ICO published its new guide, the government issued a 133-page memorandum to the Justice Select Committee containing its “Post-Legislative Assessment of the (FOIA) 2000”. http://www.justice.gov.uk/downloads/publications/policy/moj/post-legislative-assessment-of-the-foi-act.pdf The memorandum sets out the government's position on what it considers to be the primary concerns about the FOIA 2000 and concludes that “the Government’s commitment to transparency stands alongside its commitment to reduce regulatory burdens. A question worthy of consideration is whether the current FOIA regime strikes the right balance between those two objectives”. The fate of the FOIA 2000 is thus uncertain unlike that of Drax who, as film goers will recall, was fatally wounded by Bond’s poison dart wrist watch before being escorted into an airlock and ejected to die in space.  

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