Legal Watch:Personal Injury16th July 2015Issue: 070

Events

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In this issue:

• Interim payments

• Part 36

• Jackson/Mitchell/Denton

Interim paymentsThe case of El-Demellawy v European Bank for Reconstruction and Development [Lawtel 16/07/2015] is a reminder that the starting point for a successful application for an interim paymentinadefendedclaimisthatthecourtmustbesatisfiedthat ‘if the claim went to trial, the claimant would obtain judgment for a substantial amount of money’.

In this case the claimant applied for an interim payment from the defendant bank, her employer, in advance of the trial of her action for psychiatric injury and loss of earnings.

The claimant had begun working for the defendant in 1995 and took sick leave in 2002 from which she did not return. Her case was that the defendant had breached its duty to her during her illness between 2003 and 2007 in that it failed to follow the recommendations of her doctor and their own medical advisers in order to facilitate her recovery and return to work. She claimed that the defendant’s treatment of her had caused her condition to worsen. The defendant had admitted that it had breached its duty to the claimant, but argued that those breaches did not cause her to fail to recover. Its medical expert stated that other factors had caused her condition to continue. The claimant sought an interim payment of £150,000.

The deputy High Court judge held that for an interim payment to be made under CPR 25.7 the high threshold of whether the claimant would obtain judgment for a substantial amount at trial had to be met. The amount sought was not excessive, but theissuewaswhetherthestatutoryrequirementwassatisfiedand how the court should exercise its discretion.

‘It was undesirable for the application to become a mini-trial of factually or legally complicated issues’

02

The burden of proof was on the claimant to the balance of probabilities and the court had to put itself in the position of the trial judge and decide whether the claim would succeed. A mere likelihood of success would not be enough. It was undesirable for the application to become a mini-trial of factually or legally complicated issues. The claimant had presented a good, strong arguable case on its face. Her medical expert’s report presented a clear opinion that the defendant’s failure to follow medical advice had caused her illness to continue. The defendant’s expert report was less persuasive and did not present a clear view contradicting the claimant’s expert. On the basis of those reports the claimant was in a stronger position, but joint and supplemental reports would be available at trial and witnesses would give evidence and be cross-examined. The court was not persuaded that the claimant would win. It was not possible tobesatisfiedastowhattheoutcomeofthetrialwouldbeasitwouldturnonthedifficultquestionofexpertevidence.It was not the sort of case for which interim payments were intended.

03

Part 36As the case of RXDX v Northampton Borough Council [Lawtel 13/07/2015] illustrates, Part 36 continues to provide grounds for argument.

The former rule CPR 36.14(3), (now CPR 36.17(4)), states that where a claimant is successful with his Part 36 offer:

‘…the court must, unless it considers it unjust to do so, order that the claimant is entitled to—

(i) interest on the whole or part of any sum of money (excluding interest) awarded, at a rate not exceeding 10% above base rate for some or all of the period starting with the date on which the relevant period expired;

(ii) costs (including any recoverable pre-action costs) on the indemnity basis from the date on which the relevant period expired;

(iii) interest on those costs at a rate not exceeding 10% above base rate; and

(iv) provided that the case has been decided and there has not been a previous order under this sub-paragraph, an additional amount, which shall not exceed £75,000…’

Theclaimanthadsufferedaseverebrain injuryasachildwhen he nearly drowned in a leisure centre swimming pool. The judge found that the lifeguards had breached their duty of care to the claimant and that there was a direct causal link between that breach and the severity of the claimant’s injuries. The claimant made a Part 36offer tosettle.Thatofferwasnotaccepted.Intheeventtheclaimantrecovereddamages in full. The judge ordered indemnity costs to run throughoutplusinterestfromthedatethattheofferexpired.He made no order in relation to additional costs pursuant to CPR 36.14(3)(a) or (d) as it then was on the basis that in the circumstances, where nothing had been known to either side as to the value of the claim, it would be unjust to apply those provisions.

The claimant appealed and argued that the judge did not have the power to make no order under CPR 36.14(3)(a) and (d) because the rule was a complete code. The defendant argued that it was open to the judge to consider each sub-paragraph of the rule separately and assess if its application would be unjust in the circumstances.

‘It was open to the court to consider each sub-paragraph of CPR 36.14(3) separately…’The High Court judge held that Part 36 was a self-contained code which was to be read and understood according to its terms without importing rules derived from the general law, save where that was clearly intended. CPR 36.14 was triggered in situations where the claimant had achieved a more advantageous result than would have been the case had the Part 36offerbeenaccepted,suchasintheinstantcase. Reading the plain language of the rule the court preferred the defendant’s construction. It was open to the court to consider each sub-paragraph of CPR 36.14(3) separately so as to assess if its application would be unjust in the circumstances of each particular case.

The order as previously drawn was only wrong to the extent that the provision that the defendant should pay the claimant’s costs in relation to liability should be restricted expressly to costs incurred after the date that the Part 36 offerexpiredand theorderwouldbeamended to thatextent.

04

Jackson/Mitchell/DentonAlthough it is a commercial claim Cant v Hertz Corp and others [Lawtel 15/07/2015] is also relevant to personal injury claims.

The second defendant car rental company applied for a declaration that the claimant’s claim form had not been validly served and an order striking out the claim. The claimant applied for an order that the claim form had been validly served, and that the second defendant had submitted to the court’s jurisdiction. The claimant had been commissioned by the second defendant to take photographs to be used in advertising under licence by the second defendant within Europe for two years. Five years after the expiry of the licence, the claimant discovered that the second defendant was still using 29 photographs in which he claimed copyright.

The claimant served a letter before action on the second defendant and two other companies within the defendant corporate group; it did not respond and the two other companies merely said that they were successors to other companies within the group. The claimant decided not to pursue those companies, and did not include them in its draft particulars of claim, although they were included in the claim form. The claimant failed to serve the claim form and particulars of claim on the second defendant within the four-month time limit under CPR 7.5(1). The claimant sent an amended claim form, which only referred to the second defendant, and the particulars of claim, to the second defendantbyfirstclasspostandfiledthemwiththecourt.The claimant contended that a court clerk had told him thatanunnamedjudgehadattachedanotetohisfilethata sealed amended claim form had to be re-served on the second defendant. In fact, an unsealed amended claim form had been served.

The second defendant submitted that for the claim form to be validly served it had to be resealed pursuant to CPR 2.6(1)(a) and the claimant’s claim should be struck out under CPR 3.4(2). It also submitted that if there had been no good

service, the claims were time-barred as more than six years had elapsed since the expiry of the licence. The claimant submitted that it was sufficient if an unsealed amendedclaim form had been served.

Finding in favour of the claimant the judge held that there was no rule in the CPR which required a claimant who properly amended a claim form to serve a resealed version of that claim form as opposed to the version that had oncebeensealedandlateramended.Thedifficultyfortheclaimant was that the version of the claim form on which he had to rely for good service was not an amended version of a claim form properly served; the only claim form the second defendant had received was an unsealed amended claim form. It was at least arguable that the requirement that for good service a claim form had to be sealed had not been satisfiedintheinstantcase.

‘Applying the three stage test in Denton, the claimant’s failure to effect good service was neither serious nor significant...’However, even if that were right, the instant case was certainly one in which the court should decline to sanction the claimant for his failure to make good service of the claim form within the prescribed four months. Applying the three stage test in Denton, the claimant’s failure to effectgoodservicewasneitherseriousnorsignificantanditmadenopracticaldifference to theseconddefendant. Its limitationpoint was bad as the limitation period ran from the date of the tort and each infringement was a separate tort; given that the claimant had become aware, for example, of the second defendant’s alleged infringements in 2014, the

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.

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limitation period for those allegations would not expire until 2020. The claimant’s solicitors had not believed that they were breaching the rules when they served an unsealed amended claim form; even if they were wrong, they could not be criticised for their default. In all of the circumstances of the case, the breach relied on did not make any practical differencetotheseconddefendant.