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.

Getting your hands on an undisclosed expert report and more

When the other side wants to change expert are you entitled to their original expert’s reports and other documentation containing the substance of the expert’s opinion? This was the question considered in the case Allen Tod Architecture v Capita Property and Infrastructure Ltd ([2016] EWHC 2171). Unsurprisingly the claimant in that case resisted disclosure on the grounds that the documents and reports sought were privileged. The claimant had grown exasperated by his expert’s delays and shortcomings and so turned to an alternative expert. At paragraph 32 of his judgment the judge set out the authorities and principles to be applied when considering whether to grant permission to a party to change expert:  (1) The court has a wide and general power to exercise its discretion whether to impose terms when granting permission to a party to adduce expert opinion evidence (2) In exercising that power or discretion, the court may give permission for a party to rely on a second replacement expert, but such power or discretion is usually exercised on condition that the report of the first expert is disclosed (and privilege waived - see Vasiliou v Hajigeorgiou [2005] 1 WLR 2195) (3)  Once the parties have engaged in a relevant pre-action protocol process, and an expert has prepared a report in the context of such process, that expert then owes a duty to the Court irrespective of his instruction by one of the parties, and accordingly there was no justification for not disclosing that report as a condition for changing expert (see  Edwards-Tubb v JD Wetherspoon plc [2011] 1 W.L.R. 1373 – a PI case)  (4) The court's power to exercise its discretion whether to impose terms when giving permission to a party to adduce expert opinion evidence arises irrespective of the occurrence of any ‘expert shopping’. It is a power to be exercised reasonably on a case-by-case basis, in each case having regard to all the circumstances of that particular case.   (5) The court will require strong evidence of ‘expert shopping’ before imposing a term that a party discloses other forms of document than the report of expert A (such as attendance notes and memoranda made by a party's solicitor of his or her discussions with expert A) as a condition of giving permission to rely on expert B (see (BMG (Mansfield) Ltd v Galliford Try Construction Ltd  [2013] EWHC 3183)  In the case of Allen Tod itself the judge found that there was no real reason for making a distinction between the expert’s final report, draft or provisional reports or other documents setting out his opinion: neither would have been discloseable if the expert had remained the claimant’s expert. He ordered disclosure of the original expert’s notes and preliminary report as a condition of permitting the claimant to rely on the new expert and he also ordered disclosure of any document in which the original expert had provided his opinion. To the extent any other material was contained in any such document, it was to be redacted before disclosure.

PI claim by tenant: SC overules CA and Dowding & Reynolds

For years tenants have relied upon Brown v Liverpool Corporation [1969] 3 All ER 1345 when suing landlords for damages for personal injury caused by an accident on external steps or a front path leading to the front door of a house. In that case the Court of Appeal held that the steps were part of the exterior of the dwelling-house. In the case of Edwards v Kumarasamy [2016] UKSC 40, the Supreme Court held that decision was wrong. The case of Edwards involved a subtenant being injured when he tripped on an uneven paving stone on the paved area between the main entrance to the block of flats and a carpark. The subtenant brought proceedings against his landlord (the headlessee) claiming his injury was caused by his landlord’s failure to keep the paved area in repair in breach of the covenants implied into the subtenancy by section 11(1)(a) and 11(1A)(a) of the Landlord and Tenant Act 1985. Section 11(1)(a) of the 1985 Act implied a repairing obligation into the subtenancy “to keep in repair the structure and exterior of the dwelling-house…”. Section 11(1A)(a) required section 11(1)(a) to be read as if it required a landlord “to keep in repair the structure and exterior of any part of the building in which [he] has an estate or interest.” Presumably influenced by the decision in Brown, the Court of Appeal had held that the path leading from the car park to the main entrance was “a part of the exterior of the front hall”. Lord Neuberger PSC said that ordinary language simply did not permit the path to be described in this way. He said “it is hard to see how a feature which is not in any normal sense part of a building and lies wholly outside that building, and in particular outside the floors, ceilings, walls and doors which encase the front hall of the building, can fairly be described as part of the exterior of the front hall.” Lord Neuberger was not persuaded that the words should be given a wide effect in the light of section 11(1A)(a). Having decided that the path was not a part of the ‘structure or exterior’ of the dwelling house the Supreme Court needed go no further. It did however go on to consider whether the landlord/headlessee had an “estate or interest” in the front hall. He had been granted a right of way over the front hall by the headlease and as a matter of property law, that constituted an interest in land (although not an estate). It was argued that the landlord/headlessee had, for the purposes of s.11(1A)(a), effectively disposed of his right of way to the tenant under the tenancy. This argument was rejected preserving the liability of the landlord/headlessee for disrepair in the common parts. Lord Neuberger said that s.11(3A) would have offered him some protection in that he would not have been liable for disrepair without prior notice. The final issue considered by the Supreme Court (again, not technically necessary due to its initial finding) was the question of notice. The court reiterated the law as it stands. The general principle is that a repair covenant effectively operates as a warranty that the premises will be in repair. As soon as premises are out of repair, the covenantor is in breach irrespective of whether he has had notice or whether he has had time to remedy the disrepair. There are exceptions to this general rule, one of which is that a landlord is not liable under a covenant with his tenant to repair premise which are in the possession of the tenant and not the landlord, unless and until the landlord has notice of the disrepair. The court went on to consider what happens when the landlord has covenanted with one tenant to repair the structure but has let part of it to another tenant. In other words, what happens when property is in possession of neither the landlord or tenant? The answer is that the exception to the general principle does not normally apply: the landlord will be liable to the one tenant even though he is not in possession of the structure in concern and has had no notice from the other tenant. The final question on notice was whether s.11 always required it: in other words, whenever a tenant relies on the covenant implied by s. 11, is the landlord only liable when notice is given? The text Dowding & Reynolds, Dilapidations: The Modern Law and Practice, 5th ed (2013) supported the landlord’s submission that notice was required when a tenant relied upon the s.11 covenant. The Supreme Court thought otherwise. The s.11 covenant was to be interpreted and applied in precisely the same way as a landlord’s contractual repairing covenant.

Inadequate bundles: a costly mistake...

The July edition of Civil Procedure News reports a case in which a claimant's bundles were inadequate, two applications were adjourned and the claimant was ordered to pay the costs of producing properly prepared bundles and the costs thrown away as a result of the adjournment. The claimant had brought three applications for summary judgment on three separate claims. Two of the applications were supported by a witness statement which had 750 pages of exhibits. The judge criticised the lack of pagination and the fact that many of the exhibits were not placed in the bundle where they were stated to be in the witness statements. The inadequate pagination meant that the time-estimate for pre-reading and the hearing was inadequate. The judge found there had been a breach of the Overriding Objective (managing the courts resources proportionately). PM Project Services Limited v Dairy Crest Ltd [2016] EWHC 1235 is a sobering reminder of the potential consequences of poorly-prepared bundles. This decision comes hot on the heals of a decision earlier this year by the Court of Appeal. The editor of the Civil Procedure News draws attention to the decision in Pawar v JSD Haulage Ltd [2016] EWCA Civ 551 in which the Court of Appeal granted the respondent its costs of having to prepare appeal bundles as those submitted by the appellant were described as "chaotic".

Fighting fraud

Judgment in the case of Da Costa v Sargaco [2016] EWCA Civ 764 was handed down last week and represents the latest round of the struggle between claimants bringing claims for injury or damage arising out of road traffic accidents and defendant insurers alleging that claims are fraudulent. The case deals with the cogency of evidence required to establish an allegation of fraud, with the inferences which can be drawn from evidence and with the exclusion of a claimant from court whilst the other is giving evidence. The facts of the case conform to a familiar pattern: a claim for losses arising out of damage to mopeds brought by members of a certain community in London. The claimants’ case was that their parked mopeds were struck by a vehicle, the driver of which had apparently disappeared or at least had not participated in proceedings*. One of the claimants had had three other accidents despite having only arrived in the country in 2010. One of the claimant’s mopeds was involved in another accident etc… The judge ordered each claimant be excluded from court whilst the other gave evidence. She subsequently found that the claimants had not proved their case, she went further and made a finding of fraud and she found they had failed to establish their claim for damages. The judge’s decision was challenged on the ground that the case of Hussain v Hussain and Aviva [2012] EWCA Civ 1367 established “the parameters of appropriate inferences that can be drawn in a case where fraud is alleged, but there is no direct evidence connecting parties alleged to be in a fraudulent conspiracy.” Black L.J. found that “what inferences are appropriate depends entirely on the particular facts of the particular case” and dismissed this ground of appeal. The Court of Appeal was not willing to interfere with the judge’s finding that the claimant’s cases were not proven illustrating the mountain appellants have to climb to overturn a judgment on this basis. Black L.J. spelt out that a finding of fraud does not inevitably follow from a rejection of an accident claim as not proved. She went on to find that the judge did not make sufficient findings or provide sufficient reasoning to substantiate the fraud finding she made against the claimants – that finding was set aside. The judge’s decision was also challenged on the basis that one of the claimants had been excluded whilst the other gave evidence. The Court of Appeal held that there was not an absolute requirement that claimants had the opportunity to be present personally throughout the entirety of the hearing. It gave the example of a litigant who disrupts the hearing by unruly behaviour and may have to be excluded to allow progress to be made. The starting point is that claimants are entitled to be present throughout trial. Black L.J. said that she found it extremely difficult to contemplate there being any sufficient reason for taking excluding one claimant from hearing the evidence of the other in a case such as that of Da Costa. However she did not find that the claimant’s exclusion was automatically fatal to the whole trial. Both claimants were represented by the same counsel, no application was made at the end of cross examination to take instructions from the absent claimant and counsel for the claimant was unable to point to any part of the transcript where things would or might have been different had the claimant been in court during the second claimant’s evidence. The court therefore found that the trial had not been rendered unfair and therefore this ground of appeal failed. The normal incentive to seek a finding of fraud is that it leads into a finding of fundamental dishonesty and the disapplication of qualified one-way costs shifting. This case did not include a claim for personal injury and therefore QOCS did not apply. The defendant did not therefore need a finding of fraud to win or fundamental dishonesty to get its costs. Defendants may therefore want to discourage a judge from going further than he or she needs to in order to dismiss a case. Claimants will want to impress on a judge the requirement for “sufficient findings” and “sufficient reasoning to substantiate” any fraud finding. The cogency of the evidence required makes it difficult for defendants who harbour plenty of understandable suspicions but lack the hard evidence to get a finding of fraud or fundamental dishonesty. As to the finding about excluding claimants from hearing evidence of other claimants, the position is now clear in cases of this sort. What is not so clear is what stance a court can take about the exclusion of witnesses who are not claimants – that is a point which still needs to be argued.   *Black L.J. says that the driver was "untraced" but he was named as the First Defendant and one of the allegations was that he used the same address as the claimants. I assume therefore she was not using the word in its technical sense and meant that noone knew of his whereabouts. I am grateful to Steven Templeton for pointing out that it was not the case that Mr Sargaco was "untraced".

Assessing the cost of ATE Premiums

If anyone needs a reminded why the costs landscape for personal injury litigators has changed so dramatically they may not need look much further than the judgment of the Designated Civil Judge of the County Court at London, HHJ Walden-Smith, sitting with DJ Letham as assessor in the costs case of Banks v London Borough of Hillingdon, which has been commented upon in the legal press. The case concerned the correct assessment of an After-The-Event insurance policy, an issue which ranked high on the list of insurers' (and it seems the Government's) bugbears with the unreformed CFA system.   The underlying case was a straightforward, low-value, public liability tripper case. The successful claimant was awarded just under £7,000 in damages and costs were assessed/agreed save for a somewhat eye-watering £24,694 ATE premium. Master Gordon-Saker the costs judge cut this down to £9,375 on the basis that it was patently unreasonable for a premium to so extensively exceed the likely assured sum. This latter figure the Master considered would have been a maximum of £15,000, that is, the maximum amount such an insurer would have to pay out in costs should the claimant lose the case. He awarded half this sum, plus another 25 percent. Before the learned senior circuit judge it was argued that the costs master misdirected himself and should have considered the “basket of risk” for insurers, rather than applying some sort of common-sense approach on a case-by-case basis. The court overturned Master Gordon-Saker’s decision on the ground that he indeed erred and failed to consider the august guidance of the Court of Appeal in Rogers v Merthyr Tydfil CBC [2006] EWCA Civ 1134. The court held that it was for the paying party to adduce evidence that the premium was excessive and as this had not been available in the instant case, the costs master had no basis to conclude that the sum claimed was unreasonable (per, Kris Motor Spares Ltd v Fox Williams LLP [2010] EWHC 1008). This decision must be seen as victory for claimant litigators, given that it should serve as a persuasive reminder to trial judges to follow Rogers in the ever-diminishing rump of cases where such high ATE premiums are seen. The lesson for defendants is obvious: in cases where they are put on notice that, if successful, a claimant party will seek payment of what appears to be a very high ATE premium, it would be prudent to obtain evidence that lower premiums were available to support the conclusion that what is allowed should be assessed down. In the event that such information is not available until at or after trial, such a defendant would have little option other than to request that the matter be subject to detailed assessment, potentially at the expense of the claimant party.

Clean air: a claim under Article 2?

In February 2013 nine-year-old Ella Kissi-Debrah from Hither Green in South London died after suffering a severe asthma attack. “Can the courts be used to establish that we have a human right to clean air?” asked Nick Robinson on the Today Programme this morning. A report by Royal College of Physicians has apparently linked 40,000 deaths to pollution each year.  A successful case against the government would arguably put the government under considerable pressure as well as resulting in justice for affected families. Ella’s mother and her lawyer were interviewed on the programme. Ella had very severe asthma. According to the Today Programme, nitrogen dioxide levels around their home on the South Circular are double the EU legal limit. Her lawyer, Jocelyn Cockburn, a partner at Hodge Jones & Allen, commented that the coroner had not looked into pollution as a cause of death. The immediate objective, she said, was to try and get a wider investigation into pollution and whether it contributed to Ella’s death. She is seeking to do this by bringing a claim against Lewisham Council and the Mayor of London. She said that they were considering whether or not a case could be brought against the UK government under Article 2 of the European Convention on Human Rights (the Right to Life) on the basis that the government knew that Ella was at immediate risk. There is clearly a long way to go in terms of establishing causation and a claim, but this will be one to keep a close eye on. The full interview can be heard on http://www.bbc.co.uk/programmes/b07dkk07#play

Trial by ambush?

In Hayden v Maidstone & Tunbridge Wells NHS Trust [2016] EWHC 1121 (QB) Foskett J, albeit with “considerable misgiving”, allowed a Defendant to rely on surveillance footage that had been disclosed so late that it caused the trial date to be vacated. The decision is not so much of interest because of its outcome but for the judge’s more general comments on the issue of when surveillance evidence might properly be served. Facts It was held that from May 2015, when their pain management expert expressed the view that it was possible the Claimant was “grossly exaggerating for the purposes of financial gain”, the Defendant had every reason to commission surveillance evidence. Its failure to do so until January 2016 was unexplained and unreasonable. A series of lengthy but less culpable delays thereafter meant that the edited surveillance was finally served by post on 24 March, Maundy Thursday and received on Tuesday 30 March. The Defendant’s application to rely on it came before Foskett J on 8 April who decided that the Claimant should have time to consider her position and that therefore the trial due to commence in the week beginning 11 April had to be vacated. When it came back before him later that month he considered the events leading to that outcome and decided that the interests of justice required the evidence to be admitted. However, he declined to reserve costs to the trial judge holding that this was the “clearest possible case in which the order should be that the Defendant should bear the costs thrown away by the vacation of the trial date on the indemnity basis”. The Defendant was also ordered to pay the costs of the Claimant’s experts considering the surveillance, again on the indemnity basis Points of General Application  In reaching this decision Foskett J made a number of useful observations on the approach that parties and the court should take to surveillance evidence. Lawyers on both sides would be well advised to take those points on board, particularly Defendant representatives considering when to disclose footage. At paragraph 1 the judge explained that he was giving the Claimant time to consider whether she in fact wanted to oppose the application on the basis that this type of application can backfire on Defendants and represent a bonus to Claimants. It’s easy to see how unconvincing footage, presumably the high water mark of a Defendant’s case, might lend weight to a Claimant’s case. At paragraph 31, in the course of reviewing the authorities, he reiterated that the question of whether or not there is an ambush does not require a sinister motive to be shown but asks only whether the behaviour is otherwise culpable. Thus a Defendant does not have to be shown to be acting in bad faith or sharply – what matters is the effect of the conduct on the Claimant’s ability to deal with the evidence fairly. The judge observed at paragraph 34 that were it necessary to find a deliberate attempt to wrong foot the Claimant then this could only be done fairly in a mini-trial of the solicitor’s conduct. This is the sort of satellite litigation which is to be avoided. Reassuringly for those advising Defendants it is clear from paragraph 36 that his decision is not to be taken as altering the well-recognised position that a Defendant is entitled to wait until a Claimant has nailed his colours to the mast in a witness statement and/or schedule of loss before serving surveillance evidence. Having considered paragraphs 71 and 71 of Judge Collender QC’s decision in Douglas v O’Neill [2011] EWHC 601 (QB) he held that the fact that footage existed and more significantly had been seen by experts was not determinative of the question of whether permission to rely on it should be given. Experts are capable of putting such material out of their minds when giving evidence, just as they know not to reveal matters discussed without prejudice. In this case the judge notes that the Claimant’s solicitors perceived it was inappropriate for the experts to be shown the surveillance footage before permission to rely on it was given but does not really deal with whether they were correct. One can see that if the experts’ knowledge of the footage is, while not determinative, a relevant factor it might be improper to share it with experts and then make the application. Conversely the experts’ opinion might be required to decide whether to make the application. He observed that any inadequacy in the rules dealing with surveillance was a matter for the Civil Procedure Committee but noted that two cases on that issue were heard in the Royal Courts of Justice on the same day. At paragraphs 44 to 46 he questioned whether case management might resolve many such issues. It is the experience of the Senior Master that Claimants often seek an order specifying a date by which surveillance evidence must be served and this is frequently resisted by Defendants. It was suggested that it would be prudent for Claimants to raise the matter with the court as soon as they are in receipt of expert reports which suggest there might be an issue and indeed for the court to raise it of its own motion at the case management stage. Finally, at Paragraph 47, once a Claimant’s case as to the level of disability is clearly articulated and the Defendant has an expert opinion suggesting the claim is “suspect”, an obligation arises actively to obtain surveillance evidence if proportionate. This is not therefore a decision which particularly advances the law but it is a useful insight into how courts will approach applications of this nature.