legal watch - personal injury - issue 65
DESCRIPTION
Legal Watch - Personal Injury - Issue 65TRANSCRIPT
Legal Watch:Personal Injury11th June 2015
Issue: 065
In this issue:
• RTA/liability
• Costs
• Jackson/Mitchell/Denton
RTA/liability Vann(ProtectedParty)andanothervOcidental-Companhiade
SegurosSA(2015)EWCACiv572 is a relatively rare example
of an appeal court interfering with the findings of a trial judge.
The claimants were a married couple and the accident took
place when they were on a family holiday in Portugal. They had
been out for dinner with their adult children and their partners.
After leaving the restaurant, it was necessary for them to cross
the road to reach their car. The car driver saw them in the road
as he approached. He applied his brakes, but his car struck
both claimants. The first claimant survived but was left with
disabilities and cognitive impairment. The second claimant died.
The first claimant claimed damages for her personal injuries.
Her two children claimed damages for the psychological injuries
which they had suffered as a result of witnessing the accident.
They also claimed as executors on behalf of the deceased’s estate.
Under Article4(1)of RomeII the action had to be determined
in accordance with Portuguese law. Where both parties were
at fault, the applicable principles were essentially the same as
the English law of contributory negligence. The judge found
that the driver was driving too fast for the conditions and that
although the car headlights were on, none of the family had
seen them. He held that it had been safe for the family to cross
the road when they did, and that they had not failed to keep a
proper lookout.
The defendant accepted that the driver had been negligent,
but submitted that having found that the driver’s car headlights
were on, the judge should have concluded that the claimants
ought to have seen the car in time to avoid an accident.
02
‘…the car would have been clearly in view if (the claimants) had looked in that direction...’Allowing the defendant’s appeal, the Court of Appeal held that
it had to proceed on the basis of the findings of primary fact
made by the judge below, namely that the car was travelling
substantially too fast and had its headlights on. However, the
finding that the claimants were keeping a proper lookout was
not a finding of primary fact. It was an inference from primary
facts and it had not been a permissible inference.
On the basis of the experts’ assessment of speed, the claimants
could only just have stepped into the road when the car came
into view. As they walked across the first half of the road, the
car would have been clearly in view if they had looked in that
direction. Even if they had not looked in that direction, the
sound of the approaching car should have alerted them to the
danger. In those circumstances, they ought to have noticed
its approach before they crossed the centre of the road.
If they had been keeping a proper lookout, they would have
become aware of the approaching car whilst they were still
on the first half of the road. In fact, they remained oblivious
to the risk and simply kept walking across the road. An
obvious explanation was their daughter’s evidence that they
were engaged in conversation as they walked over the road.
That probably distracted them from looking out for traffic.
Their negligence was a contributory cause of the accident.
However, the driver was principally at fault. Liability would
be apportioned 80% to the driver and 20% to the claimants.
03
There have been a number of attempts by claimants to
recover a 100% uplift from a defendant under an ‘old style’
CFA on the basis that by the time the claim settled the trial
had started. The latest of these is James v Ireland (2015)
EWHC1259(QB).
The claim, arising out of a road traffic accident, had been
listed for a three-day hearing that began on 8 June 2011.
On the first day, the claimant successfully applied for an
adjournment of the issue of quantum. It was intended that the
now separate issue of liability would proceed. However, the
defendant’s counsel disclosed late evidence that identified
an independent witness to the accident. The claimant’s
counsel was keen to obtain a statement from the witness
and the case was adjourned until the following day. The
judge invited both counsel to advise him on what material to
read overnight. The court convened on 9 June but attempts
to contact the witness had been unsuccessful. The court
adjourned until the afternoon but the witness could not be
reached. His evidence was considered significant, and as
the time allocated for the hearing was running out, the judge
stood the case down and reserved it to himself for another
hearing at a later date. The claim was settled before that
hearing occurred.
A master decided that the liability trial had begun on 8
June because counsel had come into court, the judge had
listened to submissions on whether he should rise until the
next morning and counsel had advised him on what to read
for the case overnight.
The defendant appealed and argued that the master had failed
to realise that nothing in the proceedings had constituted a
“core” event to indicate that the liability trial had commenced.
He further submitted that the judge would not have needed
to reserve the case to himself if it had already begun. The
claimant argued that the liability trial effectively began in the
morning of 8 June when he opened his submissions on the
quantum issue, as a further opening on liability had not been
deemed necessary.
‘...the commencement of the final contested hearing…was not triggered by the commencement of any hearing of whatever nature related to the contested liability hearing...’Allowing the defendant’s appeal, the High Court judge
held that the transcript of the proceedings of 8 June and
9 June did not support the master’s judgment. The 100%
increase in a legal representative’s fees was payable when
a settlement was reached after the commencement of the
final contested hearing or, in the instant case, the contested
hearing of the liability issue. It was not triggered by the
commencement of any hearing of whatever nature related
to the contested liability hearing. There might be hearings
before the start of the contested liability hearing to deal with
evidence and other case management matters. The hearing
in the afternoon of 8 June and on 9 June was related to the
liability issue but it was not the contested liability hearing
within the meaning of CPR45.15(6)(b).
Although the case had been called on, counsel had come
into the court and the judge had listened to submissions on
whether to put back the case, those steps did not support a
conclusion that the liability trial had started in the afternoon of
8 June. Nor was such a conclusion supported by the fact that
the judge had asked what papers he should read overnight.
He had simply wanted to make the best use of time in the
hope that the trial would start the next day. Further, there was
considerable force in the defendant’s submission that the
Costs
04
judge’s reservation of the liability trial to himself was a strong
indication that it had not commenced. If it had commenced,
it would have been adjourned, not stood out of the list, and
there would have been no need to reserve the case.
The transcript did not support a conclusion that the liability
trial started in the morning on 8 June. The claimant’s counsel
had not opened the case on the liability issue when applying
for the quantum issue to be adjourned. Discussions which
might have been relevant to liability took place after the
quantum issue was adjourned. Further, it was clear from the
exchanges between the defendant’s counsel and the judge
when the case was stood out on 9 June that the judge did
not know the scope of the main issue in the liability trial.
05
The care that must be taken post-Denton by a party seeking to
take advantage of another’s default is graphically illustrated
by the commercial case of ViridorWasteManagementLtdv
VeoliaES[Lawtel27/05/2015].
Towards the end of the six year limitation period the
claimant commenced proceedings against the defendant
seeking the return of £27m. The defendant commenced
similar proceedings in the Chancery Division seeking the
payment of £32m. The claimant served its claim form four
days prior to the expiry of the four month period for the
validity of the claim form. In without prejudice discussions,
the parties agreed to a 28-day extension for the service of
the particulars of claim, and agreed to stay the proceedings,
to allow an opportunity to settle. The deadline for service
then became 14 January 2015.
Although the claimant filed its particulars of claim in
accordance with the court order, due to an administrative
error the particulars were sent one day late by second class
post, contrary to that firm’s procedure, and arrived at the
defendant’s solicitors’ offices on 15 January. The defendant
complained that service was not effective as the particulars
had been sent second class which was an unrecognised
method. The claimant re-effected service by hand, email
and first class post on 19 January.
The defendant refused to consent to the claimant’s
application for an extension of time for service of particulars,
and applied to strike-out its application. The issues were (i)
whether the claimant’s default was serious and significant
such that it should be refused relief from sanctions; (ii) costs.
The High Court judge held that in deciding whether to
grant relief from sanctions, there were potentially three
stages to consider: the identification and assessment of the
seriousness and significance of the breach; consideration
of why the default occurred, and an evaluation of all of the
circumstances of the case in particular the two factors in
CPR3.9(1). In the instant case, it was not necessary to resolve
the date on which service was finally effected, whether
that was on 15 or 19 January: what mattered was that the
particulars of claim had been in the defendant’s solicitors’
hands by lunchtime on 15 January, which had only been
a few hours after the time permitted for service. Although
there were formal rules to be complied with, ultimately the
purpose was to bring the relevant document to the attention
of the other party where it knew that procedural steps had
been taken. In assessing the seriousness and significance of
default, it was important to focus on the rule’s purpose. The
default was not one which had any real impact on the course
of litigation, other litigation or court users; the litigation
would not be disrupted save for the instant application.
The substantive proceedings had been stayed for six
weeks to allow for settlement, and could be further stayed.
It was clear that no delay or inefficiency had been caused.
The breach was immaterial. Although it was right that the
particulars of claim was generally an important document, a
submission that any delay was always serious and significant
was unrealistic and not in accordance with the clear guidance
in Denton. In circumstances where the defendant had agreed
to an extension until 14 January, the delay was neither
significant nor serious. The defendant’s arguments in relation
to the limitation period did not make any delay significant or
serious. It was the claim form’s issue that started time running:
that did not depend on the validity of the particulars of claim.
Those conclusions were sufficient to decide the application
for an extension of time in the claimant’s favour.
Jackson/Mitchell/Denton
06
‘As the (defendant’s application) had been opportunistic and unreasonable, it was appropriate to award the claimant costs on the indemnity basis.’The defendant had decided to take unreasonable advantage
of the claimant’s default in the hope of obtaining a windfall
strike-out when it was obvious that relief from sanctions
was appropriate and had caused further delay by refusing
to consent, which had impacted other court users. As the
proceedings had been opportunistic and unreasonable,
it was appropriate to award the claimant costs on the
indemnity basis.
As the previous case illustrates one of the consequences of
Denton is that costs arguments are arising when relief from
sanctions is allowed. The commercial case of Art&Antiques
vMagwells[Lawtel8/06/2015] is another example of this.
The claimant applied to serve an expert’s report late. It
accepted that it was out of time for serving the evidence, and
that the default was serious and without good reason. The
issue was whether it was appropriate to grant the claimant
relief from sanctions.
The defendants submitted that they would be prejudiced if
relief was granted as the date for making a Part 36 offer
giving rise to costs consequences had passed.
‘The defendants would be entitled to argue that whatever costs order was made should take into account the claimant’s default.’Allowing the claimant’s application, the deputy High
Court judge held that in order for the court to grant the
claimant relief from sanctions, it had to apply Denton and
consider all the circumstances of the case so as to enable
it to deal justly with the application. One of the factors
was whether the defendants would be prejudiced if relief
was granted. If the defendants were to make a Part 36
offer after receiving the late report, then, in the absence
of agreement, the question of costs would be a matter for
the court. The defendants would be entitled to argue that
whatever costs order was made should take into account
the claimant’s default. If, on the other hand, the offer was
not accepted and the claimant subsequently failed to
obtain judgment more advantageous than the defendant’s
Part 36 offer, then CPR 36.17(3) provided that the
defendants were entitled to their costs. That rule said
nothing about costs before the expiry of the Part 36
offer, and it was open for the defendants to contend
that there should be a further costs penalty imposed on
the claimant. Additionally, the defendants had the draft
expert report for some time.
Taking into account that there would be no real prejudice
to the defendants, that the trial date could still go ahead,
and the overriding objective, it was appropriate to grant
relief from sanctions albeit on very strict terms. The claimant
had to serve the report by the following day. Such a
failure to comply with court orders could not be tolerated,
particularly as it was a serious breach and there was no
good reason for it, and the claimant was not entitled to
recover any of its costs relating to the expert reports,
regardless of the outcome of the claim.
The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 12 Dingwall Road, Croydon, CR0 2NA. Parabis Law LLP is authorised and regulated by the SRA.
www.plexuslaw.co.ukwww.greenwoods-solicitors.com
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