Legal Watch:Personal Injury14th October 2015Issue: 080

Events

Plexus and Greenwoods hold a series of events which are open to interested clients. See below for those being held in the next few months:

The Major Bodily Injury Group (MBIG) | Spring Seminar - You the client | 21.04.16 | The Wellcome Collection, London

In this issue:

• Civil procedure/adjournment of a trial

• Provisional damages

• Jackson/Denton/CFAs

• Watch this space

Civil procedure/adjournment of a trialIt is rare in the current regime for a case to be adjourned close to a trial date that has long been set, particularly where one party applies to introduce fresh expert evidence at such a late stage. However, as Welds (a minor) v Yorkshire Ambulance Service NHS Trust and another [Lawtel 13/10/2015] illustrates a court will still try to achieve justice for both parties where the circumstances warrant it.

The claimant had been born prematurely in 2000. His mother had been taken to hospital after bleeding, although there was conflicting evidence regarding the time she arrived. Aspecialist saw her at 6.16pm, an emergency caesarean was performed and the claimant was delivered at 6.31pm. He was bornwithcerebralpalsyandsignificantbraindamage,causedby placental abruption causing acute profound hypoxia and bradycardia.

The claimant’s case was that there had been negligent delay by the first defendant ambulance service and the seconddefendant hospital, without which he would have been delivered earlier and unharmed. The defendants’ case was that the mother’s arrival at hospital and the claimant’s delivery had been within a reasonable time frame.

Following the exchange of expert reports, one of the defendants’ experts produced further evidence, saying that if the court found that the mother had been clinically assessed at an earlier time, then at that stage, although there might have been other foetal abnormalities present, there would have been no hypoxia or bradycardia, and the time-lapse between assessing the mother and delivering the claimant would have been different as therewould not have been such urgency.He said that it was the onset of bradycardia that made the decision to deliver the claimant easy.

The claimant submitted that there had been a substantial change in the defendants’ case on causation, which required a considerable amount of further work to be undertaken by him.

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He argued that he needed to know what foetal abnormalities the defendants’ expert was referring to, and would have to obtain expert evidence on that matter. He argued that if the evidence was admitted, then the trial would have to be adjourned until the New Year. He said that he should not be put into position whereby he entered a trial unprepared, through no fault of his own, and that commencing with the trial as planned would be unfair. The defendants submitted that the claimant should be in a position to proceed with the trial, as the expert evidence would not be required in its firstweek.

Allowing the claimant’s application to adjourn and the defendants’ applications for permission to adduce the additional expert evidence and amend their defence, the High Court judge held that it was unfortunate that a claim which related to the claimant’s birth 15 years ago was still on-going. However, it was not appropriate to exclude the defendants’ expert’s evidence. That exclusion would beartificial inparticular if thecourt foundthat themothershould have been clinically assessed earlier than she was. It was particularly unfortunate that the expert had not at the time of the original report taken into account the other expert’s reportwhich hadbeen available for fivemonths.Nevertheless, the amendment to the defendants’ defence was allowed.

‘A court would only adjourn a trial at such a late stage reluctantly. However, it was not appropriate to proceed with the trial as set’A court would only adjourn a trial at such a late stage reluctantly. However, it was not appropriate to proceed with the trial as set. The new evidence raised a number of issues on causation which might be fundamental, and the parties

should be given an opportunity to fully prepare. Without details of the foetal abnormalities that the defendants’ expert said might have been present, it was impossible for the claimant to receive helpful expert opinion.

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Provisional damagesCases relating to whether or not provisional damages should be awarded are relatively rare these days and so the case of Butler v Ministry of Justice [Lawtel 13/10/2015] is of interest.

The claimant, aged 48, had been employed as a prison officer and dog handler. He had lived a very sporting,working and family life. Whilst working he slipped on ice causing two fractures to the metatarsals in his right foot. Fusion procedures failed to unite the fractures. The claimant suffered chronic regional pain syndrome and neuroticpain, in part due to retained metal work within his foot. His foot was unable to bear weight. He lacked movement and had to wear a moon boot. Walking on uneven terrain andupstairswasdifficult.Hesufferedchronicdepressiveepisodes of moderate severity and required cognitive behaviouraltherapy.Hesufferedtenniselbowfromtheuseof crutches. Although he could drive with a special vehicle, hehadsignificantdifficulties.Hewasleftunabletodealwithhousehold chores and gardening as he had done before, with his wife taking the burden of the tasks.

The claimant was considering an elective amputation. The expert evidence was that there was a 25% chance of amputation, which would lead to a 70% chance of an improvement in the claimant’s symptoms, with the potential of becoming a highly active prosthetic limb user. The risk of a recurrence of chronic pain following an amputation, rendering the claimant unable to use a prosthetic limb and wheelchair-bound, was put at 25%. There was an overall 7.5% risk of an adverse outcome post-amputation. The issue was whether there should be a provisional or finalaward of damages.

The defendant submitted that the claimant’s condition had plateaued and it had been his choice not to opt for an amputation; it would be wrong to make an award underwhich the claimantwouldbebetter off for electingan amputation and a provisional award was inappropriate where the deterioration would lead the claimant back to the same position, or slightly worse, than he had been before

ThedeputyHighCourt judgeheld that a final awardwasalmost always made as it provided finality and certainty.The court had the discretion to make a provisional award where the claimant had proven that there was a chance that, because of the defendant’s liability, he would develop aseriousillnessorsufferaseriousdeterioration.Eachcasedepended on its facts. The risk had to be measurable rather than merely fanciful, and had to be somewhere between de minimis and a probability.

‘…being wheelchair-bound and developing phantom pain was a serious deterioration’The authorities indicated that if the materialisation of the risk would result in going back to the previous position, or a slightlyworse one, the finality of an award outweighedthe need for a provisional award. The fact of an amputation followed by a 70% chance of improvement could not be described as a serious deterioration, and a final awardwouldbemade inthat instancetoreflect thevalueof thefuture loss of the leg and the cost of the prosthesis. If the amputation occurred and the condition deteriorated, it was not right to say that the claimant would be in the same or a somewhat worse position; being wheelchair-bound and developing phantom pain was a serious deterioration. In that event there would be a provisional award to reflectthe 7.5% risk of an adverse outcome, and the claimant would be able to return to court. The time limit would be until the claimant’s 60th birthday, as by that point he would have resigned himself to his situation. The court went on to determine the quantum of damages.

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Jackson/Denton/CFAsThe case of Mishcon De Reya and another v Caliendo and another (2015) EWCA Civ 1029 combines two controversial subjects: giving proper notice of a CFA and relief from sanctions. The outcome shows a marked change from the brief period when the strictness of Mitchell was being applied.

The claimant/respondents had retained the defendant/appellant solicitors to act on their behalf and had brought a professional negligence claim against them. They entered into a conditional fee agreement (CFA) and an after-the-event (ATE) insurance policy. However, they notified thesolicitors about the funding arrangements some three-and-a-half months late, failing to comply with the seven-day period laid down by CPR44.15(1) and the Practice Direction - Pre-Action Conduct. The claimants claimed that the default had been inadvertent. The judge applied the three-stage approach prescribed in Denton (2014) and granted relief from sanctions. He found that whilst the default was serious, earlier notification would not have altered thesolicitors’ position with regard to any potential settlement, so that the default had not had a serious or significantadverseeffectontheefficientconductandprogressofthelitigation.

The defendants appealed and submitted that (1) in relation tothefirststageoftheDenton test, the judge had wrongly concluded that theyhadnot sufferedprejudice; (2) at thesecond stage, the judge had failed to attach any weight to the fact that no good reason had been given for the default; (3) in applying the third stage, the judge had failed to concentrate on the serious consequences for them if relief fromsanctionsweregranted,but insteadhehadaffordedtheclaimants’thetacticaladvantageofeffectivelylitigatingunder the pre-April 2013 costs regime; (4) the judge had wrongly held that CPR 3.9(1) required consideration of whether the default had undermined or been inconsistent withtheneedfor litigationtobeconductedefficientlyandat proportionate cost because the wide wording of the rule

required him to consider instead whether the granting of relief would be consistent with that need.

Dismissing the appeal, the Court of Appeal held that the judge’s analysis under stage one of the Denton test could not be characterised as wrong such that the court should interfere with his conclusion. He had clearly articulated and taken account of the presumption that failure to give notice of funding arrangements would necessarily result in the other party proceeding on a false footing as to its exposure in the event of liability against it being established at trial. However, there was no good reason to think that the defendantswouldhavechangedtheirpositionifnotificationof the claimants’ funding arrangements had been given three-and-a-half months earlier.

‘…even if there was a serious or significant breach of a relevant rule, with no good reason for the breach, it did not automatically follow that relief would be refused’The failure to attach weight to the absence of a good reason for the default did not mean that the exercise of the judge’s discretionwasflawed.Itwasobviousthatthedefaulthadbeen inadvertent and that the litigator had not been aware of the obligation to notify the solicitors of the funding arrangementswithinaspecifiedtime.Thejudgehadclearlyattachedappropriatesignificancetotherequirementtogivenotice. The exercise of his discretion could not be regarded asflawedsimplybecausehetooktheviewthattheabsenceof any good reason for the breach was not something that

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had to weigh heavily against the claimants. The weight to be attached to any particular factor was a matter for the judge’s own exercise of his discretion. Moreover, even if there was a seriousorsignificantbreachofarelevantrule,withnogoodreason for the breach, it did not automatically follow that relief would be refused. In each case, the court had to have regard to all the circumstances.

The old costs regime had been criticised because success fees and ATE premiums were contingently recoverableunder it. However, the introduction of the new costs regime in April 2013, and the fact that the old costs regime had been criticised, did not predicate that relief from sanctions should be refused in the instant case. The judge had properly and adequately taken account of the defendant solicitors’financialexposureifreliefweregrantedandhadbeen aware that theATEpremiumcouldbe considerableand that the solicitors would be exposed to the risk of paying it if their ‘accrued right’ was lost as a consequence of the application being granted. The judge had been right to hold that the defendants being adversely affected bythe grant of relief should be accorded less weight than the breach and its consequences. The judgment in Denton expresslystatedthatthecourthadtogiveparticulareffecttothetwoimportantfactorsoftheeffectofthebreachandthe interests of justice in the particular case. The prejudice whichwouldbesufferedifreliefwasgrantedwasafactorunder the ‘all the circumstances’ heading in CPR 3.9, but was only a subsidiary factor.

The distinction which the defendants drew in relation to the interpretation of CPR 3.9(1) was not well-founded. In considering the third stage of the Denton test, the approach to CPR 3.9(1) requiredafocusontheeffectofthebreach,not the consequence of granting relief. There was no justification for any interference with the exercise of thejudge’s discretion.

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Watch this spaceGuide to the Conduct of Cases Involving Serious InjuryAfter years of discussion between claimant and defendant lobbies A Guide to the Conduct of Cases Involving Serious Injury has been agreed and came into force on 12 October. It relates primarily to multi-track cases with a potential full liability value of £250,000 and above but including an element of future loss.

At the heart of the guide is the intention of promoting collaboration between the parties and putting the claimant at the centre of the process.

The starting point of the process is the early notificationof the claim by the claimant to the defendant so that a case plan may be devised which covers (among other issues) resolving liability within a target time of six months; considering rehabilitation; exchanging evidence; and working towards an overall settlement.

Given that the flow of evidence will often be more fromthe claimant to the defendant, the incentive for co-operation comes in the form of interim payments for costs and disbursements and not just on account of damages. The defendant will also refrain from making Part 36 or Calderbankoffersuntil it is clear thatoneormore issuescannot be resolved through discussion/negotiation.

A number of forms of ADR are suggested as an alternative to legal proceedings.

CommentThe success or otherwise of this process will depend on the willingness of the parties to set up and maintain a dialogue and to provide information when it becomes available. If either considers that the other is not ‘playing ball’ there will be a system for escalating concerns to a nominated higher authority. It is to be hoped that in the current environment, both claimants and defendants will see the benefits and

economic sense of working in collaboration in this way. In the early days thatmay depend on how effectively eachorganisation polices the way in which its claims handlers operate. The guide requires a change of culture that some inthepasthavefounditdifficulttoadaptto.ThoseLudditeswill surely see the necessity of working in this way, if further changes are not to be enforced on them.

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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