Legal Watch - Personal Injury - Issue 1
-
Upload
plexus-law -
Category
Documents
-
view
219 -
download
4
description
Transcript of Legal Watch - Personal Injury - Issue 1
Legal WatchPersonal InjuryIssue Number: 001
Welcome!
Welcome to the first edition of Legal Watch: Personal Injury.
Many of the cases reported this week have a common theme:
the courts are applying the Civil Procedure Rules strictly.
While, in many respects, that approach must be correct, there
is concern that judges are ignoring the realities of the litigation
process and justice is becoming secondary to process.
In This Issue:
- RTA/Liability
- Civil Procedure
- Costs/CFA
- Damages
- Fraud
- Limitation
- Periodical Payments
Events
Plexus and Greenwoods hold a series of eventwhich are open to interested clients. See belowfor those being held in the next months:
An Audience With ... | 21.01.14 |Central London
03
RTA/Liability
The case of Wheeler v Chief Constable of Gloucestershire
Constabulary [Lawtel 19/12/2013] illustrates the Court of
Appeal’s reluctance to interfere with the findings of a judge
who has heard the evidence.
The claimant/appellant had been driving a car with a
passenger when his car collided with a police van driven by a
police officer which was turning right across oncoming traffic.
Both the claimant and his passenger suffered injuries and they
brought a claim against the defendant/respondent for his
officer's negligent driving. The judge found that the officer had
been negligent in failing to stop before he turned right or to
check for oncoming traffic. He further found that the claimant
had been driving at 55mph in a 30mph speed limit. He held
that both parties had been negligent and apportioned liability
at 50:50.
The claimant appealed. submitting that the judge had reached
an apportionment of liability which was not open to him on the
facts and he had failed to give adequate reasons for his
decision. He argued that the officer had failed to stop; keep a
proper look out; wait for a safe gap; or have regard to the
painted lines on the road. He relied on Grealis v Opuni (2003)
for the proposition that exceeding the speed limit did not make
him more negligent.
“...it was impossible tothink that the judge hadfailed to have regard tothe duties on bothparties in assessing theirblameworthiness’’
Rejecting the appeal, the Court of Appeal held that it was
reluctant to interfere with the apportionment of liability decided
by a judge. The claimant's submissions underplayed his own
negligence in failing to comply with the speed limit and driving
25mph faster. The speed of the car in question in Grealis was
in the 30s. The officer's negligence was two-fold, not four-fold:
he had failed to stop before turning or to keep a proper look
out. The judgment was short but it was impossible to think that
the judge had failed to have regard to the duties on both
parties in assessing their blameworthiness. His apportionment
of 50:50 was open to him having heard the witnesses and the
Court of Appeal would not interfere with his decision.
The defendant was awarded his costs of the appeal but both
parties had failed to produce a statement of costs as was
required under CPR PD 44 so that the court could not
summarily assess the costs. In light of the stricter approach
to be adopted to the failure to comply with rules following
Mitchell, the defendant was ordered to pay the costs of a
detailed assessment.
CommentThe way in which costs were dealt with in this case serves yet
again to illustrate just how rigorously the courts are enforcing
compliance with CPR.
A second case under this heading is Horner v Norman [Lawtel
20/12/2013]. The defendant, whilst driving her car on a dual
carriageway, had struck the claimant, a pedestrian, when he
ran out onto the road. The defendant's evidence, supported
by a witness, was that she had braked lightly upon seeing the
claimant approach the dual carriageway, but ceased braking
once he had retreated slightly. She further stated that she was
forced to perform an emergency stop once he then sprinted
into the road, but she clipped him. Experts for both parties
agreed that the collision had occurred at a speed of 30 miles
per hour. The claimant's expert stated that the likely friction
coefficient of the road had been 0.65, consistent with a damp
road, so that the calculations meant that the defendant could
have stopped in time for the claimant to reach the central
reservation. The defendant's expert preferred a lower
coefficient, consistent with patches of ice on the road as
identified by police reports, so that the defendant had done all
that she could to stop in time. The issues were whether (i) the
coefficient of the road had been 0.65 and, if so, whether that
was determinative of the defendant's negligence; (ii) the
accident itself proved the defendant to have been negligent;
(iii) the claimant had been contributorily negligent.
The deputy High Court judge held that he did not share the
claimant's view that a finding that the coefficient of the road
had been 0.65 would be determinative of the case. The
photographs from the scene and police reports all indicated
patches of ice on the road. The temperature had been below
zero and no skid testing had occurred because conditions
were icy. There had been patches of ice on the road and a
coefficient of 0.65 was not reliable. The defendant's expert
evidence was preferred as the claimant's expert evidence had
included inappropriate content, including advocacy on his
behalf.
The circumstances had been highly unusual. Pedestrians
crossing dual carriageways were relatively less common
occurrences. The claimant had stepped out and then
retreated, so that the traffic had been visible to him. He had
given the impression that he had seen the traffic approaching.
It was more likely that he had decided to beat the traffic, rather
than having forgotten the side of the road on which cars drove.
There was no evidence that he was drunk and he had not
checked to his right before attempting to cross. The defendant
had been driving at a modest speed, had kept a proper look
out and had twice reacted to the claimant's presence. She had
braked as hard as she could and the court did not accept that
she had applied the brakes too late. There was nothing more
that she could have done and her actions were those of a
reasonably competent and prudent driver. Although there were
often situations where the mathematics meant that the driver
could or should have done more, the instant case was not that
case.
If that was wrong, the claimant's contributory negligence was
to be assessed at 75 per cent.
“The defendant hadbeen driving at a modestspeed, had kept aproper look out and hadtwice reacted to theclaimant's presence”
CommentAlthough it is a first instance decision on its facts, this case
will give heart to defendants. It shows that where a driver and
a pedestrian see each other but there is still a collision, the
courts will not always find that the motorist’s duty was a higher
one and that she must bear some liability
Wheeler v Chief Constable of Gloucestershire Constabulary
[Lawtel 19/12/2013]
Horner v Norman [Lawtel 20/12/13]
04
05
Civil Procedure
“We are already seeingthe fall-out from theMitchell case’’
In Karbhari and another v Ahmed (2013) EWHC 4042 (QB) the
defendant applied for permission to serve a supplementary
witness statement out of time.
The claimants’ case was that, in the context of more than 20
transactions, they had handed over to the defendant millions
of pounds in cash and cheques pursuant to an agreement that
he would repay the monies after a fixed period together with
a guaranteed return. Some of those transactions involved
monies allegedly provided directly by the claimants; others
involved third parties who, it was said, provided the first
claimant with monies upon the promise of a return lower than
that which had been offered by the defendant to the first
claimant, thus leading him to expect to earn a substantial
commission. The investors, it was said, understood that the
returns were being generated by profits in the Dubai property
market through a company. In the vast majority of, if not all,
cases neither the original investments nor any return was
recovered. In his defence, the defendant denied receiving any
of the sums in question. On the morning of the second day of
the period over which the matter had been listed for trial, he
produced an amended defence. It purported to strike out the
original defence almost in its entirety, and it was admitted that
he had received four cheques from four different investors
which he passed on to a representative of the company. He
also filed a supplementary witness statement. In it he admitted
receiving cheques for onward transmission and investment.
He explained that the reason his earlier statement, which had
been filed over seven months previously, was so short of facts
and detail was that he was concerned that if he told the full
story he could get a number of other people into trouble in
connection with money laundering.
Refusing the application and striking out the defence, the High
Court judge held that the defendant’s supplementary witness
statement had been proffered over seven months late and,
even more importantly, on the second day of the trial. Where
the court had ordered witness statements to be served by a
certain date and they had not been served by that date, then,
to obtain the court's permission under the CPR.32.10, the
party in default had to persuade the court to grant relief under
CPR 3.9(1). Applying the approach in Mitchell it would not be
appropriate to grant the defendant the permission sought. His
breach was far from trivial. The delay of over seven months
and the timing of the application on the second day of the trial
amounted to a serious departure from the terms of the court
order relating to the service of witness statements. The
supplementary witness statement was no mere formality but
sought to introduce wholly new (and inconsistent) material to
the case as originally presented. Further, there was no "good
reason" for the defendant's default. Money laundering was a
serious criminal offence. Omitting until the very last moment
large volumes of evidence to protect those guilty of the offence
on the unwarranted assumption that the case might not come
to trial was a thoroughly bad reason. In the particular
circumstances of the case, the proportionate response to the
breaches was to strike out the defence and give judgment for
the claimants.
Where there was a realistic possibility of evidential
developments between the date on which witness statements
were to be served and the trial date, the wisest course would
be to seek to persuade the court to make two orders relating
to the service of witness statements. The first would provide
for a date which would give a realistic opportunity for all sides
to prepare statements covering existing events. A later
backstop date could be ordered for the service of
supplementary statements limited in content to matters which
occurred, or were reasonably discoverable, only after the first
date. That would have the advantage of obviating the need for
further applications to the court and of giving the court the
opportunity to exercise proportionate case-management
discipline in advance. In that way, the unanticipated last-
minute service of witness statements should become a thing
of the past. The same would be expected to apply to expert
reports.
CommentThe outcome of this application was unsurprising, even
without the impact of the tougher approach to compliance
with CPR. However, the judge’s more general comments
illustrate just how far parties must now plan well ahead when
suggesting directions and setting their costs’ budgets.
Karbhari and another v Ahmed (2013) EWHC 4042 (QB)
06
07
Costs/CFA
Another case showing the impact of the tightening of the rules
is Harrison and another v Black Horse Ltd [Lawtel 07/01/2014].
The claimants claimed that they had been mis-sold payment
protection insurance. They brought proceedings in the County
Court for recovery of the premiums they had paid. When their
claim was dismissed, they appealed, first to the High Court
and then to the Court of Appeal. Although they were
unsuccessful, they obtained permission to appeal to the
Supreme Court. At that point the matter was settled by
consent, with the defendant agreeing to refund the premiums
and to pay the claimants’ costs throughout, though not any
sums in respect of after-the-event insurance premiums. The
claimants had entered into four conditional fee agreements
(CFAs) with their solicitors, one covering the proceedings in
the County Court, the remainder covering the two appeals and
the Supreme Court application. It was common ground that
they had given the defendant notice of the first and fourth
CFAs. They accepted that they had not given notice of the
second, which related to the High Court appeal, and the
dispute centred on whether they had given notice of the third,
which related to Court of Appeal. The claimants’ solicitors
maintained that they had sent the notice via the Document
Exchange. In points of dispute served in February 2013, the
defendant claimed that it had never received the notice and
that, by virtue of CPR 44.3B(1), the claimants were not entitled
to recover any success fees or counsel's fees incurred under
that CFA. In July 2013, the claimants applied for relief from
sanctions. The issues were (i) whether they had served notice
of the third CFA on the defendant; (ii) if not, whether relief from
sanctions ought to be granted.
Refusing the application, the master held that it was not
disputed that the claimants’ solicitor’s file contained a copy of
a letter to the defendant's solicitor purporting to enclose an
"updated notice of funding". Nor was it disputed that the
solicitors had faxed a copy of the notice to the Civil Appeals
Office. The letter to the defendant had been prepared by a
paralegal employed by the claimants’ solicitors. She recalled
typing it, but could not recall putting it in the post tray. Her
evidence was that she had not put it in the Document
Exchange. That was not sufficient to prove service. Because
there was no evidence as to what happened to the letter after
it left the paralegal's hand, service could not be deemed under
CPR .6.26.
“..the new version ofCPR 3.9 introduced atougher approach torelief applications”
The sanction in CPR 44.3B(1) was automatic and, since the
requisite notice had not been given, the claimants could not
recover success fees in relation to the second appeal unless
the court granted relief from sanctions. In that respect, the
relevant version of CPR 3.9 was that in force after 1 April 2013.
It was clear that the claimants solicitor had intended to give
the defendant notice of the CFA, and there was no reason to
doubt that they believed that they had done so. However, the
purpose of the notice was to alert the other party to the
possibility of its having to pay success fees or insurance
premiums if it was ordered to pay costs. The defendant's
unchallenged evidence was that it had had no reason to
assume that the appeals were funded by CFAs and that, had
it known, its approach to settlement might have been different.
That evidence, which had to be taken at face value, was
sufficient to show that the defendant had been prejudiced by
the failure to give notice. Under the pre-April 2013 version of
CPR 3.9, the case for relief would have been borderline:The
defendants had given notice of the first CFA, and their failure
to give notice of the third was inadvertent; on the other hand,
they had failed to give notice of the second CFA and had not
applied for relief promptly. However, the new version of CPR
3.9 introduced a tougher approach to relief applications. If the
failure to give notice could properly be regarded as trivial, relief
would usually be granted provided that the application had
been made promptly. If the failure could not be characterised
as trivial, the defaulting party bore the burden of persuading
the court to grant relief. The court had then to consider
whether there was a good reason for the default. The
claimants’ failure could not be said to be trivial: no notice had
been given at all. Nor had they shown good reason for the
default. While that might seem harsh, the solicitors should
have known that CPR 3.9 was to be amended so as to
introduce a tougher approach, and an application for relief
could have been made before 1 April.
Harrison and another v Black Horse Ltd [Lawtel 07/01/2014].
08
09
Damages
Although it is not a personal injury case, many readers will be
interested in the decision in Coles and others v Hetherton and
others (2013) EWCA Civ 1704.
The claimants’ vehicles had been damaged by the defendants’
negligence. Insurance policies provided by the claimants’
insurer provided for policyholders to choose its system for
repairing cars, entitling the policyholder to a courtesy car, or
to choose another repairer. The claimants all chose the
insurer's system, which involved the repairs being undertaken
by a company within the insurer’s group of companies. The
repair company sub-contracted the work to repairers. The
defendants alleged that the insurer's system inflated claims
and challenged the sums claimed. The preliminary issues were
whether (i) where a vehicle was negligently damaged and
reasonably repaired, rather than written off, the measure of the
claimant's loss was the reasonable cost of repair; (ii) if the
insurer arranged repair, the reasonableness of the repair
charge was to be judged by reference to what the claimants
could obtain on the open market or to what the insurer could
obtain; (iii) if the insurer arranged repair, and where the amount
claimed was no more than the reasonable cost of repair, that
amount was recoverable.
Upholding the decision at first instance, the Court of Appeal
held that where a chattel was damaged by negligence, direct
loss was suffered as soon as the chattel was damaged. The
measure of that loss was the chattel's diminution in value.
Events occurring after the damage were irrelevant to
calculating diminution in value. Subsequent destruction, a
decision to delay repairs, or an ability to have the repairs done
at less than cost would not prevent recovery of the diminution.
Generally, the courts calculated that diminution by considering
the reasonable cost of repair so as to put the chattel back in
the state it had been. In general, that was a convenient
practice which courts should continue to follow. A claim for
diminution in value was one for general damages. The cost of
the repairs was not itself the loss suffered. The defendants had
argued that the claimants could not recover the full cost of
repair to the insurer because they had to mitigate their loss by
having the repairs done at a lower cost. That was wrong:
mitigation was not relevant in respect of that direct loss.
Accordingly, the claimants’ loss was taken as the reasonable
cost of repair: that was taken, as a rule of thumb, as
representing the diminution in value, although it might not
always represent the full amount of the diminution.
There was no difference between the cases of uninsured and
insured chattels. Even where the insurer's rights became
subrogated to those of the insured, the cause of action against
the tortfeasor remained the claimants’, unless it was assigned.
Further, the benefits obtained under the insurance were
irrelevant in assessing damages. The defendants had argued
that the instant case was outside those general rules because
the insurer had acted as the claimants’ agent when arranging
repairs so that the contract between the repair company and
the repair sub-contractor was relevant for ascertaining repair
costs. That argument was unsupported by the facts. The
policies did not provide that the insurer would be the insureds’
agent and the claimants had not given the insurer authority to
enter repair contracts on their behalf. Thus the repairer could
not recover repair costs from the insured. Further, the
defendants could not rely on Copley v Lawn (2009): that case
recognised that where a claimant received an offer to make
amends, in deciding whether the claimant acted reasonably,
the advice he could reasonably have been expected to obtain
from other professionals was to be taken into account, but it
went no further than that, and did not undermine the general
rules. If the claimants’ insurer arranged repair, the
reasonableness of the repair cost was to be judged by
reference to what the claimant could obtain on the open
market.
If the insurer paid for repairs and the claimant sued for the
diminution in value, the court only had to consider whether the
sum claimed was equal to or less than the notional sum the
claimant would have paid, as a reasonable cost of repair, on
the open market. The court would examine the components
of the notional overall figure and would then compare that
figure with the total actual sum. Accordingly, the court would
not have to examine the administrative charges included in the
total repair cost paid by the insurer to the repair company. The
question was not whether each item was reasonable, but
whether the overall cost was reasonable. Courtesy car costs
could not be part of the repair costs. However, the right to a
replacement car was set out in the policy and was therefore a
contractual benefit; provided that the benefit was at a
reasonable rate and was reasonably incurred, it was
recoverable. There was no question of mitigation. The claimant
exercised rights contracted for before the tort had occurred;
that was not mitigating the loss of use of the vehicle.
“The question was notwhether each item wasreasonable, but whetherthe overall cost wasreasonable’’
CommentNotwithstanding the favourable outcome of this decision from
the claimants’ point of view, the Competition Committee has
expressed concern about the way in which non-fault drivers’
insurers are able to seize control of the repair and claims
processes with neither the at fault insurer or the claimant
having any means of exercising any control. We may well see
controls being introduced to prevent these practices.
Coles and others v Hetherton and others (2013) EWCA Civ
1704.
10
11
FraudDespite some success in prosecuting claimants for contempt
of court, as the result of fraudulent claims, defendants still face
an uphill struggle. In AXA Insurance Plc v Rossiter (2013)
EWHC 3805 (QB) the applicant insurer applied to commit the
respondent to prison for contempt of court.
The applicant had been the insurer of the tortfeasor who had
injured the respondent in a road traffic accident. Liability was
admitted and, in February 2011, the claimant issued a claim.
Judgment was entered in her favour and she served medical
reports, a witness statement and an updated schedule of loss
asserting that she was suffering from permanent, severe,
continuous disability such that she rarely left her house or bed.
The applicant disclosed to video surveillance evidence to the
respondent of 13 days of filming between November 2011 and
January 2012 showing her leaving home unaccompanied,
shopping, driving, walking her dogs, collecting her son from
school, and walking up and down steps carrying heavy and
bulky objects. There was also filming from two days in April
2012 in which she was not seen to have left her house. The
claim was formally compromised in September 2012.
The applicant argued that the respondent was in contempt of
court by having fraudulently exaggerated her claim for gain in
her statements in the medical reports, witness statement and
schedule of loss. It submitted that the surveillance evidence
demolished her claim by showing a starkly different picture of
her injury from that which she suggested. The respondent
asserted that the symptoms described and the picture
presented in the reports and her statement were accurate,
save that there were periods when she had not suffered quite
as much, and where the restrictions on her lifestyle were not
as great. She denied any dishonesty but accepted that she
should have pointed out the variability in her symptoms. The
applicant alleged that the respondent had tailored her
evidence after seeing the surveillance evidence, and that it
was inconceivable that 13 days of random filming should by
chance have occurred on her "relatively good days".
“Discrepancies betweenwitness statements andvideo evidence would notautomatically amount toa contempt of court’’
Rejecting the application, the High Court judge held that for
the applicant to establish the contempt alleged it had to prove
beyond reasonable doubt (a) the falsity of the respondent's
statements; (b) that those statements had or would have
materially interfered with the course of justice; (c) that she had
no honest belief in the statements and had known of their
likelihood to interfere with the course of justice. On the
evidence, the respondent had not been dishonest. Her
statements were false in that they did not deal with what she
could do, as shown on the surveillance evidence, on good
days, but the applicant had not satisfied the court beyond
reasonable doubt that she could do more than was shown on
the surveillance evidence. She had not generally made false
statements to her doctors or in her schedule of loss. The
surveillance evidence of April 2012 supported her case that
there were days when she was unfit to leave the house. There
was a line between exaggeration and dishonesty.
Discrepancies between witness statements and video
evidence would not automatically amount to a contempt of
court: ultimately, that was a matter of fact and degree, and
some exaggeration might be natural, even understandable..
The respondent's evidence raised considerable doubt as to
whether she was lying, and the applicant had fallen short of
proving dishonesty. Accordingly, whilst the respondent had
made a number of false or inaccurate statements, in the
absence of dishonesty there was no contempt.
AXA Insurance Plc v Rossiter (2013) EWHC 3805 (QB)
12
Limitation
The case of Hall v Ministry of Defence (2013) EWHC 4092 (QB)
looks at the factors to be taken into account by the court when
considering the discretion under S33 Limitation Act 1980 to
disapply the three year limitation period for bringing a personal
injury action.
The claimant had issued a claim alleging negligence in the
medical treatment he had received in respect of injuries
suffered in the army. The claim form had been issued in August
2010 but had not been served by April 2011, which was when
the defendant had agreed to extend time for service to. The
claimant had applied for an extension of time on that date, but
did not inform the defendant of the application until April 2012.
Due to oversights on the court's part, the application was not
heard until July 2012. The application was refused and the
claim struck out. The claimant was ordered to pay £3,000 on
account of the defendant's costs. In December 2012 he issued
a second claim. He accepted that the second claim had been
brought outside the three-year limitation period, so that he
would have to apply under S33 to disapply the limitation
period. A deputy master struck out the second claim, stating
that the claimant's failure to make payment on account and
failure to conduct himself promptly and fairly towards the
defendant rendered his action an abuse of process.
Allowing the claimant’s appeal, the High Court judge held that
a long delay for which the claimant could be held responsible
was not in itself sufficient to amount to an inordinate and
inexcusable delay justifying a strike-out for abuse of process:
there had to be something transforming the delay into an
abuse such as evidence that the claimant had lost interest in
the proceedings. It was difficult to ascertain that the deputy
master's conclusions had addressed the right question.
Regarding the failure to make the payment on account, he had
not considered whether the breach was such that it could be
described as intentional and contumelious, or otherwise a
wholesale disregard of the rules. It could not amount to either.
Further, the question of whether a claimant failed to act
promptly and fairly towards the defendant was significantly
different from the question of whether the claimant was guilty
of inordinate and inexcusable delay. Accordingly, the matter
would be considered afresh on the basis of whether the
claimant had been guilty of inordinate and inexcusable
conduct so as to have abused the process of the court.
“..a long delay for whichthe claimant could beheld responsible was notin itself sufficient toamount to an inordinateand inexcusable delayjustifying a strike-out forabuse of process’’
Looked at in isolation, the second claim was not open to
serious criticism. It had plainly been brought outside the
limitation period, but the reasons for that delay could be
subject to consideration in a S33 application. Given that there
was nothing abusive about the claim itself, the question had
to be whether the conduct of the first claim had been so
wrongfully delayed that the issue of the second claim was in
itself an abuse. The defendant's primary complaint as to delay
related to the 15-month period from the issue of the extension
of time application to its determination. However, the
application would have taken months to determine even if
progressed promptly, and the delay in listing the hearing had
been due to court administration in any event. The defendant
also relied on the four-and-a-half months between the striking-
out of the first claim and the issue of the second, but that
period could not be said to be an abuse in relation to the
conduct of the first claim, and could not be regarded as
abusive delay going beyond what would be considered in a
S33 application in relation to the second claim. Accordingly,
the delays could not be said to be inordinate and inexcusable
such that the second claim should be struck out.
The claimant's failure to make payment on account was not,
either by itself or in combination with the delays, sufficient to
make the second claim an abuse of process. The defendant
had a remedy in relation to the claimant's failure, being entitled
to apply for a stay of the second claim pending payment or to
take steps to enforce the order. Even had the court considered
that the second claim was an abuse of process, the question
would still have arisen of whether it was appropriate to strike
out the claim as a matter of discretion. Had the court arrived
at that point, it would have directed that the issue be
determined in the context of an overall consideration of S33,
the question of abuse of process being one factor in all the
circumstances.
Hall v Ministry of Defence (2013) EWHC 4092 (QB)
13
14
Periodical Payments
The Greenwoods’ case of AA (Protected Party) v BB and
another (2013) EWHC 3679 (QB) is an illustration of how
periodical payment orders made by agreement between the
parties may be used to settle claims, even where the court
could not impose an order in the same terms.
The claimant was aged 28 and lacked capacity. A deputy was
due to be appointed by the Court of Protection to manage his
affairs. The court had approved settlement of his claim which
comprised payment of a substantial lump sum together with
periodical payments. One aspect of the settlement remained
outstanding, namely a proposal that the second defendant pay
periodical payments of £11,500 per annum in respect of the
future deputyship costs, including those relating to the Court
of Protection. The parties had agreed that if the claimant
regained capacity to control his own finances those payments
would cease, but the payments would re-start if he
subsequently lost capacity at a future date.
In seeking the court’s approval of the terms of a consent order,
the claimant’s counsel submitted that when construing the
requirement in CPR 41.8(a) to specify the annual amount of a
periodical payment and at what intervals it would be paid, the
word "intervals" did not merely mean the frequency of
payments but could be construed as meaning an interval
during which a claimant lacked capacity; the proposed order
was within the Damages (Variation of Periodical Payments)
Order 2005
The High Court judge held that read within the context of CPR
41.8(1)(a) the word "intervals" was plainly referring to the
intervals of time within the period of a year at which each
periodical payment would be made. The reference in that
subparagraph was to the annual amount awarded, how each
payment was to be made and at what intervals. The drafter
was not there referring to intervals of years or intervals
between changes in the amount of the payments to be made.
The provisions of CPR 41 did not enable the court to make
orders starting and ending on a date which was uncertain. The
court was also sceptical of a suggestion by the claimant's
counsel that under CPR 41.8 there could be a total
suspension of an order, as opposed to a reduction or an
increase, as referred to in CPR 41.8(3). For all of those reasons,
the court was not satisfied that it had the power to order
periodical payments in the form suggested.
“The parties could agreea Tomlin order with aschedule embodyingtheir agreement inrelation to the periodicalpayments’’.
The 2005 order gave the court power to provide, in an order,
for periodical payments to be varied where there was a chance
that at some definite or indefinite time in the future the claimant
would, as a result of the act/omission giving rise to the cause
of action, suffer some serious deterioration or enjoy some
significant improvement in his condition. The circumstance for
which it was intended to cater was a case where there was to
be a reduction of or increase in the amount of periodical
payments rather than a "stop/start" change. It was intended
for the sort of case where it was necessary for there to be re-
assessment of damages in the future. Article 7 of the order
presented a further problem since it provided that a party
could make only one application to vary in respect of each
specified disease or type of deterioration or improvement. It
was therefore not appropriate to make such an order.
The parties could agree a Tomlin order with a schedule
embodying their agreement in relation to the periodical
payments. If it was in the claimant's interests, as it plainly was,
and if it satisfied the requirements for his protection, the court
was not precluded from approving that order, notwithstanding
that it was one which court could not itself order. Further, since
the proposed periodical payments formed part of an
agreement approved by the court, the periodical payments
made under it would be exempt from taxation.
AA (Protected Party) v BB and another (2013) EWHC 3679 (QB)
15
An Audience With....Our “An audience with.......” series restarts on the 21 January
2014 at 6.00pm (Central London) with Caroline Mitchell, of the
Insurance Ombudsman Service. There are just a few places
remaining, on a first come, first serve basis, so if you have not
already booked a place and wish to attend please contact
www.plexuslaw.co.ukwww.greenwoods-solicitors.co.uk
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 forspecific 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 GreenwoodsSolicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 8 Bedford Park, Croydon, Surrey CR02AP. Parabis Law LLP is authorised and regulated by the SRA.
Other PublicationsIf you would like to recieve any of the below,please email indicating which you would like toreceive.
Monthly:• Legal Watch: PICG
Bi Monthly:• Legal Watch: Employment Writes
Quarterly:• Legal Watch: Counter Fraud• Legal Watch: Health & Safety• Legal Watch: Marine• Legal Watch: Professional Indemnity• Legal Watch: Disease
Contact UsFor more information please contact:
Geoff Owen Director of Learning & DevelopmentT: 01908 298 216E: [email protected]