piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Late amendments, strike outs, summary judgment & remote heads of loss

  The High Court has recently handed down judgment in Gonul Guney v Kingsley Napley & Anor [2016] EWHC 2349 (QB). This was a professional liability claim based on the Claimant's retainer of the Defendant solicitors, in respect of litigation concerning the estate of the Claimant’s father. It touches upon a number of issues of interest to those involved in a broad range of civil litigation.   Mrs Justice McGowan recited that in very simple terms that action is based on the Defendants' alleged negligence, it having been alleged that had she been properly advised the Claimant would have settled a claim brought by a third party at a much earlier date and thereby avoided liability for the Defendants' costs after that date as well as those of the said third party.   The court was faced with cross applications: By an application issued on 12 April 2016, the Defendant “applied for summary judgment against and/or to strike out of parts of the claim in relation to various heads of loss...” The Claimant “[a]s late as 31 August 2016... served an application for permission to re-amend the Particulars of Claim. By this new application she seeks to introduce two new aspects to the claim.”   The Claimant argued that the proposed amendments should not be regarded as truly late, as they would not cause the trial to be derailed, that the same would only have limited impact on the case, and turn on factual evidence from the Claimant and family members, and the same were necessary to ensure justice is done between the parties.   The Defendant diametrically-opposed submissions were that the proposed amendments were both fundamental and too late. In addition, they submit that there are entirely at odds with the pleaded case.   McGowan J produced a summary of the law pertaining to such applications:   “The imperative of strict adherence to the rules of procedure governing the conduct of litigation has changed substantially in recent years. ... Inaction or flawed action can now be penalised even without proof of serious consequential effect on the litigation [Mitchell and Denton considered] ... Delay will meet with less tolerance and intervention to ensure that only those matters which should be litigated are... The rules are not inflexible but will be enforced strictly, more strictly than before...” (paragraph 17)   “It is a balancing act between competing factors and is a matter of discretion. ... It is no longer acceptable to use the test advanced by the Claimant in this case that if the trial date can withstand the amendments, they should be allowed without more. If the date fixed for trial is to be lost, then the factors would need to be extremely compelling. ...” (paragraph 18)   “In this application there is no reason given for the lateness of the proposed amendments. Nothing is raised in the application that could not have been pleaded in the original or amended Particulars of Claim. No explanation is given for the omissions or the delay...” and that the point was of great significance and if allowed “[t]he entire nature of the litigation would have been different” (paragraph 19)   It was not accepted “that all evidence, factual and expert can be obtained and exchanged within a timeframe that does not imperil the trial date...”  (paragraph 20)   “A compelling factor, capable of determining the outcome is much more likely to be admitted that a "kite being flown" in forensic terms” and “There is nothing compelling in the amended claims that would be pursued if these amendments were allowed” (paragraph 21)   The learned judge held as to the Claimant’s application to amend was manifestly made as a reaction to and in an attempt to defeat the Defendant’s Applications, and were “misconceived and much too late in the protracted history of this litigation” (paragraph 26).   In respect of the Defendant’s Applications, it was held that its applications for summary judgment and/or strike out are made in good time.   The court gave summary judgement as to two aspects of the claim relating to whether the Defendant breached its fiduciary duty and an alleged lost opportunity to share in the increase in value of estate property.   The Court struck out the claim for loss of profits brought by the Claimant (a solicitor herself) to her own practice in assisting the gathering of evidence for the case. It was held that the Defendants had not “been put on notice that this was having a detrimental effect on her own practice and it was never in the contemplation of the parties that they had assumed such a risk. Even if they had been made aware of such a risk it is too remote from the duties they assumed to include this. In any event this has never been particularised and still remains an assertion without evidence.” (paragraph 24)   The Court also struck out the claim for damages for stress and inconvenience. It held “Such general damages are irrecoverable. This was a not a contract for the provision of a holiday, a pleasurable activity relaxation or peace of mind. ... This was a contract to act in relation to a family dispute over inheritance matters. It is too remote to say that solicitors conducting litigation assume liability for the stresses that that imposes on the litigants involved. It is difficult to imagine what would happen to litigation if there was such a general duty. The Claimant denies that this is a personal injury claim and relies on Malyon v Lawrance, Messer & Co [1968] QBD 2 539 but that was a case in which the litigant claimed damages for the aggravation of his injuries by the solicitors' negligent delay when those injuries were the cause of action in the case. This claim discloses no reasonable ground and has never been particularised.”   The judgment is available at http://www.bailii.org/ew/cases/EWHC/QB/2016/2349.html.

QOCS : applies to appeals?

Qualified One-way Costs Shifting: does it apply to appeals?   Yes, according to Edis J in Parker v Butler [2016] EWHC 1251 (QB), who held:   3.         If (as is likely to be the case here) the claimant's access to justice is dependent on the benefit of QOCS, that access will be significantly reduced if he is exposed to a risk as to the costs of any unsuccessful appeal which he may bring or any successful appeal a defendant may bring against him. ...   4.         The power to make enforceable orders for costs is designed to compensate successful parties for their expense in bringing or resisting claims, but it also has an effect of deterring people from bringing or resisting claims unsuccessfully. It is an incentive to resolve disputes and serves a public as well as a private interest. ...   9.         CPR 44.13 provides "(1) This Section applies to proceedings which include a claim for damages – (a) for personal injuries"   10.       The issue is, therefore, whether the appeal is part of the proceedings which include a claim for damages for personal injuries or whether it is separate from them and thus not subject to the regime. If it is separate from the proceedings which culminated in the trial, is it nonetheless a set of proceedings which includes a claim for damages?   17.       An appeal by a claimant against the dismissal of his claim for personal injuries is a means of pursuing that claim against the defendant or defendants who succeeded in defeating that claim at trial. There is no difference between the parties or the relief sought as there is between the original claim and the Part 20 claim. Most importantly, to my mind there is no difference between the nature of the claimant at trial and the appellant on appeal. He is the same person, and the QOCS regime exists for his benefit as the best way to protect his access to justice to pursue a personal injury claim. To construe the word "proceedings" as excluding an appeal which was necessary if he were to succeed in establishing the claim which had earlier attracted costs protection would do nothing to serve the purpose of the QOCS regime. ...

Scrutiny of Medical Evidence & Physiotherapy Charges in low-value PI cases

I recently acted for an insurer in a routine low value personal injury case (to which QOCS applied) which had an unusual twist.   The claimant claimed damages for neck injuries sustained in a road traffic accident. He signed the Particulars of Claim which were vague as to the description of his injury, but which made reference to an appended medical report. The medical report was of the lamentably short “tick box” variety and concluded that the claimant had sustained a “soft tissue neck injury which resolved in around five months”. At the time of the examination by the GP expert around three months post-accident, the claimant complained of some ongoing symptoms.   Well, the Claimant’s social media persona begged to differ. The Defendant’s online sleuths obtained evidence that the Claimant actually undertook a half marathon a few days post-accident and an ‘Iron Man’ a few weeks after that. This was at a time when the medical report suggested that the Claimant’s symptoms were most acute (“moderately-severe” – whatever that means!).   The Claimant submitted a Notice to Discontinue.   His solicitors came off the record as acting for him.   The Defendant applied to have the Notice of Discontinuance set aside.   On the day of the listed hearing, the Defendant’s solicitors received a remarkably candid witness statement from the Claimant, who had procured the services of a direct access counsel. This expressed a great deal of regret for what had occurred and made a large number of serious allegations against the claimant firm of personal injury solicitors including: that the firm aggressively pursued the Claimant to encourage him to litigate when he was reluctant; indeed, that the firm “reminded” him that he may have sustained an injury despite his being unaware of it at the time and/or drawing any causal link with the index accident; that despite the Claimant telling the firm that his injury resolved in “about one week” she was pressured into attending physiotherapy sessions; the said physiotherapy sessions were arranged by the solicitors without any reference to any medical opinion; and he was persuaded to sign the Particulars referencing the medical report despite knowing the conclusion of the doctor therein to be incorrect. (This does not explain the complaints of ongoing symptoms however!).   The Claimant settled with the Defendant insurer with a Strike Out on the grounds of Abuse of Process by consent ant the payment of costs, however the case throws into an unpleasantly harsh light the tactics which many who may represent insurers and indeed the insurers themselves have long since suspected are employed by some less scrupulous law firms.   The lesson for such firms is of course obvious, but those for legal professionals representing defendant parties can be distilled thus in cases where the medical evidence appears formulaic (i.e. in the majority of routine Fast Track cases, particularly now costs for the provision of such evidence have been limited by the CPR): defendants should be less prepared to accept the conclusions of medical professionals as face value; claimants ought to me more rigorously cross-examined on the duration and significance of their symptoms; charges for physiotherapy charges should be more stringently scrutinised. These frequently are “evidenced” by invoices made out to the solicitors. Without further evidence of under what mechanism the claimant party is expected to meet these, they are arguably unproven losses. This may raise consumer credit points of course and potentially wider issues in cases where it transpires there is a connection between solicitors and physiotherapy providers. In my experience it is not unusual for the claimant to deny receiving such treatment or as many sessions as claimed for; the chronology also should be more carefully looked into. Perhaps Part 35 Questions should ask when was physiotherapy recommended and by whom? If it was the (medically-unqualified (and often formally legally-unqualified) “solicitors”, can the fact that a subsequent medical report makes reference to this in the “treatment received” section, undermine such a report or seriously be said to pertain upon its conclusion?

Have we started yet? Commencement of contested hearing and CFA uplifts

When a trial begins is of obvious import to any litigant where one or more party is funded by a conditional fee agreement which provides for an uplift per CPR 45.16 and 45.17. Mrs Justice Slade in a recent appeal from Master Campbell held that a contested hearing on the issue of liability had yet to commence before a subsequent settlement.   The facts of James v Ireland [2015] EWHC 1259 (QB) are unusual but not exceptional.   On the first day of a three day trial of a personal injuries case, the claimant successfully applied for an adjournment of the issue of quantum, it being intended that the issue of liability would proceed. Unusually however, late evidence disclosed by the defendant that hitherto unidentified independent witness. To allow for a statement to be taken from the same by the claimant, the matter was adjourned to the following day. The judge asked counsel what to read overnight. The next day it was revealed that attempts to contact the elusive independent witness had been unsuccessful. Nevertheless, the case was adjourned to the afternoon so that attempts could continue. These attempts were also fruitless, however given the likely importance of the witness the case was stood out. The judge reserved the matter to himself for a hearing at a later date. This hearing never took place as the claim was settled.   Had the liability trial commenced? The master held that it had. Counsel had entered court. Reading had commenced. Submissions had been provided and considered as to the adjournments. Thus, it was held that the claimant was entitled to the 100 percent costs uplift.   The defendant appealed, arguing that the master erred by failing to hold that nothing in the heard proceedings constituted a core event, such as would indicate that the liability trial had begun (Cutler v Stephenson and Manchester City Council [2008] EWHC 3622 (QB); Gandy v King [2010] EWHC 90177 (Costs)). It was further submitted that the judge would have held that the case was part heard had he considered the trial to have begun, rather than ordered it to be relisted reserved to himself. The claimant argued that the trial had begun as the judge had done pre-reading and that the submissions on the quantum aspect of the case would not have required further elucidation to open as to liability.   The Defendant’s submissions found favour with Mrs Justice Slade who held that a final contested hearing of the liability issue was not triggered by the commencement of any hearing of any nature related to the same. The hearing which was commenced was akin to a case management hearing, as the same did not consider any aspect necessary to determine the question of liability. The reading undertaken by the judge was held to have been prudent use of court time rather than a substantive consideration of a core issue. She held further that the transcripts actually supported the contention that the judge was unaware of the scope of the main issues of the case as to liability when the matter was stood out.

Application of Procedural Rules and Litigants-in-Person

There can be little doubt that modern litigation involves the increased presence of people representing themselves in court. Particularly amongst some kindlier judges (in all courts) there could be said frequently to be a culture of benevolence towards such litigants-in-person when it comes to non-compliance with the Civil Procedure Rules and other procedural rules.   This can lead to significant frustration amongst represented parties, particularly in circumstances where a Strike Out or other such punitive sanction is sought, but denied on the grounds that the defaulting party should be afforded another chance (perhaps applying the third limb of the Denton test?). Yet further frustration is likely to be felt should the prospect of recovering any costs from the said defaulting party is considered, notwithstanding those thrown away by any such default, assuming as one may that the reason most litigants-in-person are just so is for reasons of pecuniary necessity.   Lord Justice Briggs in giving the sole judgment of the Court of Appeal (Underhill and Moore-Bick LJJ concurring) in Nata Lee Ltd v Abid & Anor [2014] EWCA Civ 1652, may provide such represented and non-defaulting parties with some hope. This was an appeal concerning the trial of a boundary dispute, at which the Appellant was represented by a company director and the Respondent by leading and junior counsel. The Appellant’s application for to change its expert was unsuccessful on the grounds that it was “too late” and provided insufficient reasons for its request. The Court of Appeal found that this decision was “seriously flawed”, but not before emphasising that  the application of procedural rules of the court were to be applied levelly to represented and unrepresented litigants.   Briggs LJ held:   53.       I make it clear at the outset that, in my view, the fact that a party (whether an individual or a corporate body) is not professionally represented is not of itself a reason for the disapplication of rules, orders and directions, or for the disapplication of that part of the overriding objective which now places great value on the requirement that they be obeyed by litigants. In short, the CPR do not, at least at present, make specific or separate provision for litigants in person. There may be cases in which the fact that a party is a litigant in person has some consequence in the determination of applications for relief from sanctions, but this is likely to operate at the margins.

The Problem with some Uncooperative Litigation Friends

What happens when you are involved in litigation where a party’s interests (either your client or the other side’s) are represented by litigation friend who refuses to cooperate with you or other people involved in the case? In many cases, surely the answer is simply to apply to the court for the recalcitrant litigation friend to be replaced for the best interests of the protected litigant. However it is clear that notwithstanding the manifest damage being caused by an uncooperative litigation friend, their removal may be anticipated to do more harm than good. Such was the case in M (a child by his father & litigation friend) v LB of Lambeth (Defendant / Pt 20 Claimant) & Hyde Southbank Homes Ltd (Pt 20 Defendant) [2014] EWHC 57 (QB). Here C had suffered a serious injury after falling from a window, aged four. His own medical expert stated that C had probably suffered a brain injury and there was "significant brain impairment". However, the defendant's experts stated that C's impairments "were consistent with his pre-injury functioning" and on balance were probably "secondary to his inherent pattern of development and may have been contributed to by social and cultural factors". In short, the experts were poles apart. C’s litigation friend was no longer prepared to co-operate with medical experts and was not amenable to putting in place the support recommended for C. He and C’s mother had instructed C's solicitor to settle the claim as soon as possible. Sensibly worried about the situation they found themselves in, C's solicitors sought the court's guidance upon whether the litigation fiend’s appointment should be terminated, and whether the case should be settled even though it remained unclear whether C had suffered a brain injury and what his disabilities might be in the future. However, the Court held that as the litigation friend was also C’s father, even should a new litigation friend be appointed, it would be unlikely that C’s parents would become any less uncooperative as they were being presently and would probably continue to hinder C’s best interests. Against this background, it was held that the best (or perhaps the “least worse”) course in this particular case was for C’s solicitors to seek to negotiate settlement on the basis of the existing medical and other evidence, as instructed by C’s father and current litigation friend. Clearly this was a far from ideal position for either C or indeed the Defendant Party. Without greater clarity as to C’s medical position there was inescapably a risk of significant injustice to both sides. However when faced with such an unusual situation, the Court held there was little positive it could do, rather than risk making the position worse. This must have weighed heavily upon Mr Justice Tugendhat’s mind when he later came to approve the settlement the Parties reached.

The Length of Judgments and the Cost of Litigation

For a number of reasons, the cost of litigation is a hot topic at the moment.   Lord Justice Mummery in giving the lead judgment of the Court of Appeal in Neumans LLP v Andrew Andronikou & Ors [2013] EWCA Civ 916, suggested a way that he and his brethren could assist in ensuring that legal costs are kept to a minimum by judges keeping their judgments as short as possible.   He held that this would (at paragraph 40 of the judgment) “stem the soaring costs of litigants when their advisers have to spend too long working out what the law is. They may be faced with a multiplicity of separate, complex, discursive and (increasingly, imitating the style of subordinate legislation) cross-referential judicial pronouncements at different levels of decision, or at the same level of decision, but sometimes leading to the same overall result.” In this case which concerned a solicitor’s costs generated by the liquidation of Portsmouth Football Club, the Court of Appeal upheld the judgement below of Mr Justice Morgan.   Lord Justice Mummery asked (at paragraph 36): “What sensible purpose could be served by this court repeating in its judgments detailed discussions of every point raised in the grounds of appeal and the skeleton arguments when they have already been dealt with correctly and in detail in the judgment under appeal? No purpose at all, in my view.”   He advocated (at paragraph 37) that courts should follow the “excellent lead” of Lord Wilberforce in Brumby v Milner (1975) 51 TC 583. In this case, Lord Wilberforce (with whom the rest of the court agreed) gave a single page opinion In a one-page tax opinion, stating that he would go no further in stating the law than the Court of Appeal had done below (who themselves affirmed the judgment of Walton J at first instance).    Lord Justice Mummery continued (at paragraphs 38-39):   “… The proper administration of justice does not require this court to create work for itself, for other judges, for practitioners and for the public by producing yet another long and complicated judgment only to repeat what has already been fully explained in a sound judgment under appeal. If the judgment in the court below is correct, this court can legitimately adopt and affirm it without any obligation to say the same things over again in different words. The losing party will be told exactly why the appeal was dismissed: there was nothing wrong with the decision appealed or the reasons for it.”    “… It can do so, as in an old style judgment, by setting out short legal propositions relevant to this case and the conclusions reached by applying them in this case. It does not begin to attempt to cover all the law on administration and liquidation expenses. That would not be a proper exercise in a judgment.”

Lights, Camera … Appeal!

    It’s Channel 4’s fault!   Was it just coincidence that on 10 July, the day after “The Murder Trial” was first screened on television, the Court of Appeal (Recording and Broadcasting) Order 2013 was published?   Or that yesterday (17 July) saw the release of the Crime and Courts Act 2013 (Commencement No 3) Order 2013 which, amongst other things, permits the Lord Chancellor by order to enable the making and use of films and other recordings of proceedings in courts in England and Wales?   Nick Holt's documentary concerned the retrial of Nat Fraser for the murder of his wife, Arlene, in Scotland. Mr. Fraser had already been tried and found guilty but in 2011 his conviction was quashed by the Supreme Court and the Channel 4 film followed his retrial.   Compressing a five week trial into two hours was always going to be challenging. Six remote cameras were placed inside the courtroom in Edinburgh with the consent of all the parties including Mr. Fraser who was re-convicted for the murder of his wife whose body has never been found after she went missing in 1998.   The public can already watch proceedings in the Supreme Court. The new Order sets out the conditions under which broadcasters in England and Wales will be able to film in the Court of Appeal later this year.   Currently, section 41 of the Criminal Justice Act 1925 makes it an offence to film in court and section 9 of the Contempt of Court Act 1981 makes it a contempt of court to record sound in court except with the permission of the court. The new Order provides that these provisions do not apply where the conditions in the Order have been satisfied. There is power in the Order to prescribe the types of hearing that can be recorded, what part of the hearing can be recorded and who can record a hearing. There is also power to set out when the recording of a hearing in the Court of Appeal can be broadcast and what content is permitted in a broadcast.   In “The Murder Trial” I thought Mr. Fraser's defence team did a pretty good job on his behalf. However, dramatic compromises were still necessary. These included the action in the court room being interspersed with shots of isolated forest tracks and a soundtrack clearly chosen to ratchet up the tension and anxiety.   Personally, I get all the tension and anxiety I need just by being in the Court of Appeal but when drafting my next skeleton argument, I will definitely give some thought to the music to go with it … just in case!          

Litigants in Person, the Judges and You!

      According to the government's own figures, 623,000 of the 1,000,000 people who previously received public funding each year ceased to be eligible for such assistance when the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 came into force on 1 April 2013.   On 5 July 2013 the Judicial Working Group on Litigants in Person (LIPs) published its report on how the judiciary proposes to deal with the massive increase in LIPs in courts and tribunals. It merits careful reading by all practitioners.    www.judiciary.gov.uk/Resources/JCO/Documents/Reports/lip_2013.pdf    The challenges are immense and will be further increased by the impending rise in the financial limit for the small claims track from £5,000 to £10,000. A doubling of this limit will inevitably mean more cases fall within the small claims track where public funding is not available. As for alternative sources of assistance, the Citizens Advice Bureau estimates that local advice and community based services will lose over 77% of their public funding.    In 2012, District Judge Richard Chapman, the immediate past president of the Association of Her Majesty’s District Judges observed that already:   “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 or the Family Procedure Rules 2010 and have breached most of the case management directions”.    The report recommends that the Ministry of Justice and Her Majesty’s Court and Tribunal Service should devote the necessary time and resources to producing, with judicial involvement, appropriate materials, including audio-visual materials, to inform LIPs what is required of them and what they can expect when they go to court as well as reviewing the information that is currently publically accessible on the various judicial websites – see [2.8] and [3.49-3.52] of the report.   The Judicial College should also urgently assess the  feasibility of providing training on LIPs –  a sort of “Quick Lit” course for judges – together with developing a  “litigants in person toolkit” utilising the existing judicial guidance – see [2.9] and [4.9-4.19] of the report.   More far reaching proposals include:   1.      The inclusion in the CPR of a dedicated rule which makes specific modifications to other rules where one or more of the parties to proceedings is a litigant in person.  2.      The introduction of a power into Rule 3.1 CPR to permit the court to direct, where at least one party is an LIP, that proceedings should be conducted as a more inquisitorial form of process.  3.      The introduction of a specific general practice direction or new rule in the CPR to address, without creating a fully inquisitorial form of procedure, the needs of  LIPs in obtaining access to justice whilst enabling  courts to manage cases consistently – see [2.10] and [5.11] of the report.    The stark reality is that in some courts and tribunals LIPs will be the rule rather than the exception. This will inevitably slow down and drive up the cost of proceedings and take up valuable judicial time. Equally inevitably, the call will surely go out from the judges to practitioners at all levels for assistance in responding to the challenges that lie ahead.   Image – www.123rf.com