piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

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.

Paying the (full) price? Underpaid fees and limitation periods

If you pay less than the appropriate fee when issuing your claim before the expiry of the limitation period is your claim in time? Or do you pay the price by being statute barred?   On 7 April 2016 Warby J. sitting in the QBD was asked to determine a summary judgment/strike out application in case called in Bhatti v Asghar which raised this issue.   The claimants in this breach of contract case had underpaid the relevant court fees on issue.   The defendants applied for summary judgment /to strike out of the claimants’ claim, as they said the failure to pay the correct court fees meant the proceedings were invalid and given the expiry of the limitation period, no valid claim had been brought in time.   Warby J did not allow the strike out application, which on its face seems logically to follow from the underpayment. The reasoning is seemingly a cautionary tale.   As a matter of law an action was only "brought" for the purposes of the Limitation Act 1980 where a claimant had done all it could to set the claim in motion, including paying the court fees, per Page v Hewetts Solicitors [2012] EWCA Civ 805, [2012] C.P. Rep. 40 and Lewis v Ward Hadaway [2015] EWHC 3503 (Ch), [2016] 4 W.L.R. 6.   The Civil Proceedings Fees (Amendment) Order 2014 Sch.1 prescribes the required fees for starting  proceedings and specifies separate fees imposed for specific money claims, interest claims, and claims for any other remedy. The fees for interest and other remedies were additional to the fee for a money claim.   It was alleged that the defendants, a solicitor and his firm, had asked the Claimant to invest in property in Dubai. They made payments to the first defendant but the property purchase never took place. The final payments had been made in 2009, more than six years before the instant hearing. One claimant  sought damages not exceeding £150,000, interest, loss of rental income since 2013, and "further relief". The other claimant sought damages not exceeding £1 million, interest, and again "further relief". Along with their claim forms, the claimants each paid a court fee in line with the amount of their damages claims as stated.   Oddly the defendants did not raise a limitation bar in their defences. They applied for summary judgment and/or striking out of the claims, but apparently, and again somewhat bizarrely, did not provide the grounds for the application until shortly before hearing. It was said that the claimants had not paid the correct court fees, the first claimant should have paid an additional £680 and the second should have paid an additional £480   Warby, J. said the court shared the concerns set out by the Court of Appeal in that a limitation defence could be brought based on a claimant's miscalculation of court fees, especially where sums were proportionately small, but the authorities were clear that in determining whether a claim had been brought, a party must have done all in its power to set the wheels of justice in motion; that would usually require paying the correct fee at the time of submitting the claim form for issue per Barnes v St Helens MBC [2006] EWCA Civ 1372, [2007] 1 W.L.R. 879.   In principle, a calculation error by the court staff could result in a claim being brought without the correct fee, and in that case a blameless claimant would have done all it could reasonably do.   In the instant case both claimants had underpaid the court fees: The second claimant’s claim for loss of rental income brought the money claim to a higher threshold, and both claimants had claimed "further relief" and that general phrase triggered the obligation to pay £480 under the Order. Accordingly the claim had not been brought, and the limitation period for the contract claims had expired. Was the payment of the wrong fee as a result of an error by the court staff?   Warby J declined to order that summary judgment be entered in favour of the Defendants or to strike out the claims. He noted the failure to raise limitation in the defences – or in the summary judgment application. Rightly the judge was of the view that there was no excuse for only raising the argument it at a late stage. Accordingly, the judge held that the claimants had not had a reasonable opportunity to address the defendants' arguments.   The judged also noted that the limitation argument applied only to the breach of contract part of the claims. He considered that the limitation issue would be addressed at trial which would allow the claimants an opportunity to address the factual issue of whether they had in fact ‘done everything in their power to bring the claim’. They would have the possibility of bringing evidence to show that the miscalculation had been the court's fault. The defendants were allowed to amend their pleading to include the limitation defence, so that the issue would be live at trial.   All of this shows that a failure to pay the correct fee prior to the expiry of limitation is not a ‘slam dunk’ for the Defendant. The reason for the failure to pay the correct fee is a highly material consideration.

Damages for abuse

The Claimant in KCR v The Scout Association [2016] EWHC 597 (QB) suffered sustained abuse by a Cub Scout Group Leader when a young boy in the 1980s. In 2003 the abuser was convicted of a large number of sexual offences against boys including the Claimant. As might be expected, given recent trends in this area of law, the Defendant admitted that it was vicariously liable for the abuser’s actions. The court was therefore concerned solely with the assessment of damages. The case had one feature that is depressingly common and one that is rather unusual. It is also, in more general terms, a helpful illustration of how courts may approach the difficult issues that cases of this kind throw up. It is often the case that victims of abuse are peculiarly vulnerable individuals. Sometimes this gives the abuser the opportunity to perpetrate abuse (for example, if a child is in care) or prevents the abuse being detected (because there is no-one the child can trust enough to confide in). The correlation (or at least frequent concurrence) of pre-existing vulnerability and abuse makes determining issues of causation in such cases difficult, because children who have experienced traumatic childhoods may already be destined to lead difficult adult lives in any event. In this case, the Claimant’s parents separated when he was four or five years old after his father had been violent towards his mother. He began using drugs in his teens and subsequently obtained his income principally from drug-dealing, with the exception of a few short-lived periods when he was in employment. He had a number of convictions for offences relating to drugs, firearms, dishonesty and violence.   The Claimant contended that he was entitled to a Blamire award for loss of earnings, past and future, on the basis that his inability to find sustained employment was a result of the abuse he had suffered. The Defendant accepted that the Claimant was entitled to general damages, but disputed the loss of earnings claim, contending that it was his “lifestyle choices” rather than the abuse that had prevented him being in sustained employment. The Defendant further contended that, even if factual causation was established, much of the Claimant’s loss should be deemed irrecoverable as a matter of public policy because it arose from the consequences of the Claimant’s own criminal conduct. After a careful analysis of the facts, the court preferred the Defendant’s case on causation. As a result, it did not have to go on to consider the application of the ex turpi maxim. It assessed general damages at £48,000 and dismissed the claim for aggravated damages with reference to Richard v Howie [2004] EWCA Civ 1127. The unusual feature of the case was that at the time he was subject to the abuse, and for some time afterwards, the Claimant and another boy effectively blackmailed the abuser when they realised they could demand from him rewards of money and material possessions in return for keeping quiet about the abuse. The Defendant contended that it should be given credit for the sums thereby extorted from the abuser by the Claimant. It was prayed in aid in support of this submission that the Claimant had himself described the payments in his witness statement to the police as “compensation”. Such a submission is so obviously unattractive that it is perhaps surprising that it was ever advanced and it is not at all surprising that it was rejected by the judge, who held (a) that the payments were gifts and hence could not properly be considered as compensation and (b) that as a matter of public policy the Claimant’s damages should not be reduced as the Defendant suggested. The judge reached the right conclusion, but for the wrong reasons. The payments were not gifts; they were, on the facts, part of a bargain between the Claimant and the abuser whereby the abuser sought to buy the Claimant’s silence so that he could continue to perpetrate abuse (of the Claimant and of others). The real reason the Defendant was not entitled to credit for the payments was that they did not relate to the subject matter of the claim, which was damages for the effect of the abuse on the Claimant in terms of pain, suffering, anguish etc. The abuser made the payments so that he could continue his abuse, not to compensate the Claimant for the effects of that abuse. Because the Defendant’s contention could have been dismissed for that reason, the resort to public policy was unnecessary and possibly unhelpful for future cases where the same or similar issues arise. There may be cases where it would be appropriate for a defendant to be given credit for payments made by an abuser. Suppose an abuser later repented of their abuse and wrote to their former victim expressing contrition for the harm they had caused and enclosing a cheque which the victim banked. Such cases are likely to be exceptional, but as and when they do occur then on what principle of public policy should a defendant who was vicariously liable for the abuser’s actions not be entitled to have that payment taken into account? There will be cases at the margins which will be difficult to decide, but the principle that should be applied remains whether the payments were genuinely compensatory or whether, as here, they were really the price that the abuser was willing to pay to avoid detection. A victim extorting money from an abuser may be unusual but it is not unprecedented. A case that sticks in the mind from criminal law lectures is R v Camplin (“the chapati pan case”) where the defendant murdered his abuser, who he had been blackmailing in return for not revealing the abuse of another boy called “Jumbo”: see the report from the Court of Appeal [1978] QB 254 at 257C. Many of the abuse cases currently working their way through the courts involve wealthy abusers who may have made payments to their victims. How to treat those payments is therefore an issue which the courts are likely to have to address again before too long.

Daniel v St George's Healthcare NHS Trust & London Ambulance Service: a human rights cautionary tale?

  Daniel v St George’s Healthcare NHS Trust  and London Ambulance Service [2016] EWHC 23 (QB) Introduction Edward Bishop QC has successfully defended an NHS trust and the London Ambulance Service against claims under the Human Rights Act 1998 brought by the foster family of a man who died of a heart attack in Wandsworth Prison.  The judgment deals with the legal test for liability, causation and victim status.     The central allegation was that there was culpable delay in the attendance of paramedics caused by nursing error and an insufficiently flexible ambulance triage system.  The judge rejected both allegations on the facts and clarified the law on causation in cases of death in custody from natural causes.  She also dealt with “victim status” under the HRA, ruling that the deceased’s foster mother was entitled to bring a claim but his “foster brother” was not. Background James Best (“JB”) was a prisoner on remand at Her Majesty’s Prison (HMP) Wandsworth when he died from natural causes on 8 September 2011. He suffered a myocardial infarction (a heart attack), as a result of a ruptured plaque in the coronary artery, which caused cardiac arrest and death. He was only 37. He had no previous history of heart disease and it is likely that the plaque was ruptured by over-exertion in the prison gym. The First Defendant (“St George’s”) is a National Health Service (“NHS”) Trust responsible for the provision of primary health care within HMP Wandsworth. Doctors and nurses employed by the First Defendant in the Department of Primary Care at HMP Wandsworth tried unsuccessfully to save JB’s life on the day of his death. The Second Defendant (“the LAS”) is a NHS Trust responsible for the provision of ambulances within the London area. HMP Wandsworth is within its catchment area. On 8 September 2011, an emergency call for an ambulance for JB was made, but he was dead by the time the ambulance arrived. The central allegations were that the nurse who attended on JB in his cell failed to request an ambulance quickly enough, and further that there was unnecessary and unreasonable delay in the dispatch of an ambulance by the LAS. The Claimants had a close relationship with JB which began when the First Claimant fostered JB for 3 years when he was a teenager, between 1988 and 1991. The Second Claimant is the First Claimant’s biological son, and described JB as his foster brother. The Claimants have brought their claim for declarations and damages under the Human Rights Act 1998 (“HRA 1998”), alleging that the First and Second Defendants, as public authorities, acted in breach of Articles 2 and 3 of the European Convention on Human Rights (“ECHR”). Violation of Articles 2 and 3 Mrs Justice Lang set out the appropriate legal test to be applied when considering whether or not there had been a breach. She reiterated the guidance: “I remind myself that the test to be applied is whether the Defendants did “all that could reasonably be expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge” (Osman at [116]). In Rabone, Lord Dyson considered that an “immediate” risk was one which “present and continuing” (at [39]). He added, at [43]:   “The standard required for the performance of the operational duty is one of reasonableness. This brings in “consideration of the circumstances of the case, the ease or difficulty of taking precautions and the resources available”; per Lord Carswell In re Officer L [2007] 1 WLR 2135 , para 21.   The ECtHR and the domestic courts have emphasised that the operational duty must not be interpreted in a way “which imposes an impossible or disproportionate burden on the authorities” (Osman at [116])”   On causation, and having considered the evidence, the test was: “the legal test of causation is whether there was a failure to take reasonably available measures which could have had a “real prospect of altering the outcome”. Put another way, the Claimants have to establish that JB “lost a substantial chance of avoiding the outcome”.”   The court heard extensive evidence, not just from the actual persons involved in the immediate aftermath, but also from medical experts who gave evidence on the chances of survival following such a heart attack. Careful consideration was given to transcripts of the 999 call-outs, and the exact timing of those calls. The criteria and policy of the ambulance service was scrutinised.   Mrs Justice Lang was emphatic in her dismissal of the claims of breach. She did not consider that the “Claimants have succeeded in establishing, on the balance of probabilities, that, even if [the nurse at the prison] had called an ambulance earlier, or LAS had dispatched an ambulance sooner, that there would have been a “real prospect of altering the outcome” or that JB “lost a substantial chance of avoiding the outcome”.   As for the claims brought under Article 3, the Judge said: “The claim under Article 3 was unarguable, in my view. [the prison nurse] acted promptly, reasonably and professionally and did all she could to save JB’s life. There was no unreasonable delay in calling an ambulance. The LAS handled the emergency call in accordance with their procedures which were required to ensure that a limited resource of emergency vehicles and personnel were allocated fairly within the community according to priority need. ” It certainly did not amount to “inhuman and degrading treatment”.   Victim status   Both Claimants brought claims alleging that they were “indirect victims”. Mrs Justice Lang considered the law on victim status, and set out the relevant test:   “In my judgment, the likely approach of the ECtHR in determining the status of the Claimants in this case would be to consider all the facts and circumstances to assess: ·       1. the nature of the legal/family relationship between the Claimants and JB; ·       2. the nature of the personal ties between the Claimants and JB; ·       3. the extent to which the alleged violations of the Convention (1) affected them personally and (2) caused them to suffer; ·       4. involvement in the proceedings arising out of JB’s death.”   On applying that criteria, she was satisfied that the first Claimant was a indirect victim as she had been JB’s foster mother for three years, leading to a longstanding parent-child relationship. JB had no other family of his own, and shortly before his death referred to himself as the first Claimant’s “third son”. Not only this, but the first Claimant had clearly suffered from acute distress following JB’s demise, and had been extremely active in the aftermath of his death.   However, the second Claimant was found not be an indirect victim. The status of “foster brother” is not recognised in UK domestic law or in ECtHR case law. There can be no question that the second Claimant suffered hugely from the loss of a close friend; but this alone is not a sufficient basis on which to found a claim.   The claims were dismissed.

Autumn Statement for PI Lawyers

The government has released a summary of the Autumn Statement with 20 Key Announcements, the last of which will be of great interest to personal injury lawyers. It reads as follows: “20. People will no longer be able to get cash compensation for minor whiplash claims To make it harder for people to claim compensation for exaggerated or fraudulent whiplash claims, the government is ending the right to cash compensation. More injuries will also be able to go to the small claims court as the upper limit for these claims will be increased from £1,000 to £5,000. This means that annual insurance costs for drivers could fall by between £40 to £50 a year.” George Osbourne anticipates these changes “will remove over £1bn from the cost of providing motor insurance” and expects insurers to pass on that saving to consumers. There had already been speculation over the last week that the government was going to introduce its previously shelved plan to increase the small claims limit for personal injury claims when the insurance fraud taskforce reported next month. What is surprising though is the reference to “ending the right to cash compensation”. It is as yet unclear what it meant by this. Footnote 55 to the Autumn Statement gives some clarification by explaining that “Claimants will still be entitled to claim for ‘special damages’ (including treatment for any injury if required and any loss of earnings) but entitlements for general damages will be removed.” It will be interesting to see though how it will be decided that a case falls into the category in which there is no entitlement to general damages. Elsewhere in the Autumn Statement is a statement that the government will reduce the excessive costs to insurers of whiplash claims by “removing the right to general damages for minor soft tissue injuries”. This would seem to cover more than just whiplash injuries. There may also be interesting arguments where multiple injuries are involved. These problems are unlikely to be straightforward and may result in substantial argument, inevitably using court time. It seems likely we will have to wait for the report of the insurance fraud taskforce, due before the end of the year, for further details.  Keen readers who can’t wait until then might be interested in the research briefing published in advance of last Wednesday’s debate in Parliament. Otherwise, watch this space!

Stroke Caused By Beauty Facial Case Settles

Claims against negligent beauticians and the like are not altogether uncommon. The injuries tend to be dermatological in nature consequent of some allergic reaction to an untested product. But who would have thought it possible, let alone likely, for someone to suffer a stroke as a result of a beauty facial treatment? Tragically that is what happened to Elizabeth Hughes after her visit to the spa at the Eastwell Manor Hotel. What should have been a weekend treat resulted in a serious stroke that left her disabled for life. Her claim, which otherwise would have been tried in the High Court this week, settled for an undisclosed amount. How did it happen? The medical experts on both sides were agreed that the stroke occurred as a result of a dissection to the carotid artery. The dissection was in all probability caused when beauty cream was massaged onto the sides of her neck by the beauty therapist. The issue was whether she was negligent or had applied an excessive degree of force. Unlike sports injury or deep tissue massages, where there are reported cases of stroke, this was a novel situation. This type of injury had not been encountered previously by beauty therapists. Mrs Hughes who was employed by the NHS as a nurse was left significantly disabled. Her disabilities prevented her from returning to employment in the nursing sector. The case has been watched closely by the beauty industry and the press. (http://www.mirror.co.uk/news/uk-news/nurse-disabled-stroke-after-allegedly-6798935) Elizabeth Hughes was represented by Edward Bishop QC and Kiril Waite at 1 Chancery Lane, instructed by Ciaran McCabe at Moore Blatch Legal Resolve.