Legal Watch:Personal Injury11th June 2015

Issue: 065

In this issue:

• RTA/liability

• Costs

• Jackson/Mitchell/Denton

RTA/liability Vann(ProtectedParty)andanothervOcidental-Companhiade

SegurosSA(2015)EWCACiv572 is a relatively rare example

of an appeal court interfering with the findings of a trial judge.

The claimants were a married couple and the accident took

place when they were on a family holiday in Portugal. They had

been out for dinner with their adult children and their partners.

After leaving the restaurant, it was necessary for them to cross

the road to reach their car. The car driver saw them in the road

as he approached. He applied his brakes, but his car struck

both claimants. The first claimant survived but was left with

disabilities and cognitive impairment. The second claimant died.

The first claimant claimed damages for her personal injuries.

Her two children claimed damages for the psychological injuries

which they had suffered as a result of witnessing the accident.

They also claimed as executors on behalf of the deceased’s estate.

Under Article4(1)of RomeII the action had to be determined

in accordance with Portuguese law. Where both parties were

at fault, the applicable principles were essentially the same as

the English law of contributory negligence. The judge found

that the driver was driving too fast for the conditions and that

although the car headlights were on, none of the family had

seen them. He held that it had been safe for the family to cross

the road when they did, and that they had not failed to keep a

proper lookout.

The defendant accepted that the driver had been negligent,

but submitted that having found that the driver’s car headlights

were on, the judge should have concluded that the claimants

ought to have seen the car in time to avoid an accident.

02

‘…the car would have been clearly in view if (the claimants) had looked in that direction...’Allowing the defendant’s appeal, the Court of Appeal held that

it had to proceed on the basis of the findings of primary fact

made by the judge below, namely that the car was travelling

substantially too fast and had its headlights on. However, the

finding that the claimants were keeping a proper lookout was

not a finding of primary fact. It was an inference from primary

facts and it had not been a permissible inference.

On the basis of the experts’ assessment of speed, the claimants

could only just have stepped into the road when the car came

into view. As they walked across the first half of the road, the

car would have been clearly in view if they had looked in that

direction. Even if they had not looked in that direction, the

sound of the approaching car should have alerted them to the

danger. In those circumstances, they ought to have noticed

its approach before they crossed the centre of the road.

If they had been keeping a proper lookout, they would have

become aware of the approaching car whilst they were still

on the first half of the road. In fact, they remained oblivious

to the risk and simply kept walking across the road. An

obvious explanation was their daughter’s evidence that they

were engaged in conversation as they walked over the road.

That probably distracted them from looking out for traffic.

Their negligence was a contributory cause of the accident.

However, the driver was principally at fault. Liability would

be apportioned 80% to the driver and 20% to the claimants.

03

There have been a number of attempts by claimants to

recover a 100% uplift from a defendant under an ‘old style’

CFA on the basis that by the time the claim settled the trial

had started. The latest of these is James v Ireland (2015)

EWHC1259(QB).

The claim, arising out of a road traffic accident, had been

listed for a three-day hearing that began on 8 June 2011.

On the first day, the claimant successfully applied for an

adjournment of the issue of quantum. It was intended that the

now separate issue of liability would proceed. However, the

defendant’s counsel disclosed late evidence that identified

an independent witness to the accident. The claimant’s

counsel was keen to obtain a statement from the witness

and the case was adjourned until the following day. The

judge invited both counsel to advise him on what material to

read overnight. The court convened on 9 June but attempts

to contact the witness had been unsuccessful. The court

adjourned until the afternoon but the witness could not be

reached. His evidence was considered significant, and as

the time allocated for the hearing was running out, the judge

stood the case down and reserved it to himself for another

hearing at a later date. The claim was settled before that

hearing occurred.

A master decided that the liability trial had begun on 8

June because counsel had come into court, the judge had

listened to submissions on whether he should rise until the

next morning and counsel had advised him on what to read

for the case overnight.

The defendant appealed and argued that the master had failed

to realise that nothing in the proceedings had constituted a

“core” event to indicate that the liability trial had commenced.

He further submitted that the judge would not have needed

to reserve the case to himself if it had already begun. The

claimant argued that the liability trial effectively began in the

morning of 8 June when he opened his submissions on the

quantum issue, as a further opening on liability had not been

deemed necessary.

‘...the commencement of the final contested hearing…was not triggered by the commencement of any hearing of whatever nature related to the contested liability hearing...’Allowing the defendant’s appeal, the High Court judge

held that the transcript of the proceedings of 8 June and

9 June did not support the master’s judgment. The 100%

increase in a legal representative’s fees was payable when

a settlement was reached after the commencement of the

final contested hearing or, in the instant case, the contested

hearing of the liability issue. It was not triggered by the

commencement of any hearing of whatever nature related

to the contested liability hearing. There might be hearings

before the start of the contested liability hearing to deal with

evidence and other case management matters. The hearing

in the afternoon of 8 June and on 9 June was related to the

liability issue but it was not the contested liability hearing

within the meaning of CPR45.15(6)(b).

Although the case had been called on, counsel had come

into the court and the judge had listened to submissions on

whether to put back the case, those steps did not support a

conclusion that the liability trial had started in the afternoon of

8 June. Nor was such a conclusion supported by the fact that

the judge had asked what papers he should read overnight.

He had simply wanted to make the best use of time in the

hope that the trial would start the next day. Further, there was

considerable force in the defendant’s submission that the

Costs

04

judge’s reservation of the liability trial to himself was a strong

indication that it had not commenced. If it had commenced,

it would have been adjourned, not stood out of the list, and

there would have been no need to reserve the case.

The transcript did not support a conclusion that the liability

trial started in the morning on 8 June. The claimant’s counsel

had not opened the case on the liability issue when applying

for the quantum issue to be adjourned. Discussions which

might have been relevant to liability took place after the

quantum issue was adjourned. Further, it was clear from the

exchanges between the defendant’s counsel and the judge

when the case was stood out on 9 June that the judge did

not know the scope of the main issue in the liability trial.

05

The care that must be taken post-Denton by a party seeking to

take advantage of another’s default is graphically illustrated

by the commercial case of ViridorWasteManagementLtdv

VeoliaES[Lawtel27/05/2015].

Towards the end of the six year limitation period the

claimant commenced proceedings against the defendant

seeking the return of £27m. The defendant commenced

similar proceedings in the Chancery Division seeking the

payment of £32m. The claimant served its claim form four

days prior to the expiry of the four month period for the

validity of the claim form. In without prejudice discussions,

the parties agreed to a 28-day extension for the service of

the particulars of claim, and agreed to stay the proceedings,

to allow an opportunity to settle. The deadline for service

then became 14 January 2015.

Although the claimant filed its particulars of claim in

accordance with the court order, due to an administrative

error the particulars were sent one day late by second class

post, contrary to that firm’s procedure, and arrived at the

defendant’s solicitors’ offices on 15 January. The defendant

complained that service was not effective as the particulars

had been sent second class which was an unrecognised

method. The claimant re-effected service by hand, email

and first class post on 19 January.

The defendant refused to consent to the claimant’s

application for an extension of time for service of particulars,

and applied to strike-out its application. The issues were (i)

whether the claimant’s default was serious and significant

such that it should be refused relief from sanctions; (ii) costs.

The High Court judge held that in deciding whether to

grant relief from sanctions, there were potentially three

stages to consider: the identification and assessment of the

seriousness and significance of the breach; consideration

of why the default occurred, and an evaluation of all of the

circumstances of the case in particular the two factors in

CPR3.9(1). In the instant case, it was not necessary to resolve

the date on which service was finally effected, whether

that was on 15 or 19 January: what mattered was that the

particulars of claim had been in the defendant’s solicitors’

hands by lunchtime on 15 January, which had only been

a few hours after the time permitted for service. Although

there were formal rules to be complied with, ultimately the

purpose was to bring the relevant document to the attention

of the other party where it knew that procedural steps had

been taken. In assessing the seriousness and significance of

default, it was important to focus on the rule’s purpose. The

default was not one which had any real impact on the course

of litigation, other litigation or court users; the litigation

would not be disrupted save for the instant application.

The substantive proceedings had been stayed for six

weeks to allow for settlement, and could be further stayed.

It was clear that no delay or inefficiency had been caused.

The breach was immaterial. Although it was right that the

particulars of claim was generally an important document, a

submission that any delay was always serious and significant

was unrealistic and not in accordance with the clear guidance

in Denton. In circumstances where the defendant had agreed

to an extension until 14 January, the delay was neither

significant nor serious. The defendant’s arguments in relation

to the limitation period did not make any delay significant or

serious. It was the claim form’s issue that started time running:

that did not depend on the validity of the particulars of claim.

Those conclusions were sufficient to decide the application

for an extension of time in the claimant’s favour.

Jackson/Mitchell/Denton

06

‘As the (defendant’s application) had been opportunistic and unreasonable, it was appropriate to award the claimant costs on the indemnity basis.’The defendant had decided to take unreasonable advantage

of the claimant’s default in the hope of obtaining a windfall

strike-out when it was obvious that relief from sanctions

was appropriate and had caused further delay by refusing

to consent, which had impacted other court users. As the

proceedings had been opportunistic and unreasonable,

it was appropriate to award the claimant costs on the

indemnity basis.

As the previous case illustrates one of the consequences of

Denton is that costs arguments are arising when relief from

sanctions is allowed. The commercial case of Art&Antiques

vMagwells[Lawtel8/06/2015] is another example of this.

The claimant applied to serve an expert’s report late. It

accepted that it was out of time for serving the evidence, and

that the default was serious and without good reason. The

issue was whether it was appropriate to grant the claimant

relief from sanctions.

The defendants submitted that they would be prejudiced if

relief was granted as the date for making a Part 36 offer

giving rise to costs consequences had passed.

‘The defendants would be entitled to argue that whatever costs order was made should take into account the claimant’s default.’Allowing the claimant’s application, the deputy High

Court judge held that in order for the court to grant the

claimant relief from sanctions, it had to apply Denton and

consider all the circumstances of the case so as to enable

it to deal justly with the application. One of the factors

was whether the defendants would be prejudiced if relief

was granted. If the defendants were to make a Part 36

offer after receiving the late report, then, in the absence

of agreement, the question of costs would be a matter for

the court. The defendants would be entitled to argue that

whatever costs order was made should take into account

the claimant’s default. If, on the other hand, the offer was

not accepted and the claimant subsequently failed to

obtain judgment more advantageous than the defendant’s

Part 36 offer, then CPR 36.17(3) provided that the

defendants were entitled to their costs. That rule said

nothing about costs before the expiry of the Part 36

offer, and it was open for the defendants to contend

that there should be a further costs penalty imposed on

the claimant. Additionally, the defendants had the draft

expert report for some time.

Taking into account that there would be no real prejudice

to the defendants, that the trial date could still go ahead,

and the overriding objective, it was appropriate to grant

relief from sanctions albeit on very strict terms. The claimant

had to serve the report by the following day. Such a

failure to comply with court orders could not be tolerated,

particularly as it was a serious breach and there was no

good reason for it, and the claimant was not entitled to

recover any of its costs relating to the expert reports,

regardless of the outcome of the claim.

The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 12 Dingwall Road, Croydon, CR0 2NA. Parabis Law LLP is authorised and regulated by the SRA.

www.plexuslaw.co.ukwww.greenwoods-solicitors.com

Contact UsFor more information please contact:

Geoff Owen, Consultant

T: 01908 298216

E: gro@greenwoods-solicitors.com

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