Legal Watch:Personal Injury19th February 2015Issue: 052

Events

Plexus and Greenwoods hold a series of events which are open to interested clients. See below for those being held in the next few months:

The Major Bodily Injury Group (MBIG) | Spring Seminar | 28.04.15 | The Wellcome Collection, London

In this issue:

• Civil procedure/expert witnesses

• Civil procedure/withdrawal of admission of liability

• Costs budgeting

• Watch this space

Civil procedure/expert witnessesOne of the concerns practitioners have in the post Jackson era is the extent to which the courts will allow time in which to make up for something overlooked earlier in the claim. As Bain v Lewisham & Greenwich NHS Trust [Lawtel 13/02/2015] illustrates, the courts are likely to be unsympathetic, particularly where a trial date is threatened.

The applicant/defendant had admitted liability for negligence following an operation carried out on the respondent/claimant’s spine in 2008 that caused a spinal cord injury. In February 2014 judgment was entered in the respondent’s favour on the basis of the applicant’s admissions. The parties were given directions for a trial on quantum and in September 2014 the date for service of the defendant’s expert evidence in relation to quantum condition and prognosis was extended totheendofJanuary2015.Thetrialwasfixedtocommenceon 5 May 2015 with a seven-day window and an estimated timeoffivedays.Thedefendantapplied toextend the timefor service of the quantum, condition and prognosis report including an additional report from a neuropsychiatrist and to vacate the trial date until January to May 2016. The application was supported by a witness statement. The neuropsychiatrist the defendant selected was unable to produce a report for a number of months.

‘Vacating a trial date was an exceptional step which was not likely to be countenanced by the court…’Rejecting the application, the deputy High Court judge held that when giving directions in February 2014 the Master gave

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permissionforthedefendanttorelyonexpertsinthefieldofpsychology. It had been open to the defendant to obtain a neuropsychiatrist’s report but it did not do so. No evidence was put forward as to why the defendant had chosen a neuropsychiatrist who was not available to produce a report for four months. There was no evidence that they had tried togeta report fromanotherexpert in thesamefieldwhocouldproduceareportsoonersoasnottoaffectthetrialdate. It was unusual to instruct a neuropsychiatrist in cases that did not involve a head injury or surgery to the head. The contention that such a report was needed was wholly unsatisfactory. Vacating a trial date was an exceptional step which was not likely to be countenanced by the court, particularly since liability and causation had been admitted and the surgery had been performed seven years ago. However, the court was not required to refuse reasonable in-time applications for extensions of time as long as they did not imperil the hearing dates or disrupt the proceedings. The court was prepared to extend time to the defendant for serving the quantum, condition and prognosis report to the end of the month, but was not minded to give time for neuropsychiatric evidence or to vacate the trial date.

A second case under this heading is Carrington (deceased) v Walsall Healthcare Trust [Lawtel 17/02/2015] in which the claimant applied at a relatively late stage to rely on an expert’s report as factual witness evidence in relation to past care. It is worthy of note here that the trial date was not disturbed by what happened.

The claim for damages was on behalf of the estate of a deceased child and arose out of the alleged negligent delayed diagnosis and treatment of meningitis. The claimant claimed damagesforpainandsufferingandforthecostsofcoveringpast care. Liability and quantum were in dispute. Before the proceedings were issued the claimant had submitted a care report, produced by an occupational therapist, on a without-prejudice basis. At a case management conference the defendant submitted that expert evidence on care was not needed. The Master agreed that evidence as to care could be dealt with in a factual witness statement and suggested that as the claimant had already produced the care report it should serve the report as evidence of fact rather than

as expert evidence. The defendant did not initially object to the report and the claimant proceeded on the basis that the care report could be relied on. However three months before the trial date the defendant made an objection to the effectthatthereportwasnotagreedandthattheclaimantdid not have permission to rely on the author of the report as an expert in the case.

The claimant submitted that in the absence of the care report there would be no comprehensive evidence before the court in support of the claim for past care; it was necessary to assist the court to resolve the issue of quantum; the defendant had served a counter schedule and was in a position to respond to the care evidence without prejudicing the trial date.

‘…the defendant had served a counter schedule and was in a position to respond to the care evidence without prejudicing the trial date’Allowing the claimant’s application, the deputy High Court judge held that the care report provided an assessment of the value of the child’s care over and above the normal level of care required by a child without his disabilities. The instant case was one in which the trial court would need to have expert evidence. But given the fairly limited claim for past losses, oral evidence was not necessary. The claimant was granted permission to rely on the care report at trial to adduce more detailed factual evidence of the level of past care. The claimant was ordered to serve a further witness statement within 14 days setting out the details of the past care given to the child and using the care report as a basis. The claimant was also granted permission to give oral evidence based on that statement.

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Civil procedure/withdrawal of admission of liabilityOne area of concern in the post-Jackson era is how courts will approach applications for permission to resile from an admission of liability. We now have some guidance from the case of Moore v Worcestershire Acute Hospitals NHS Trust [Lawtel 16/02/2015]

The Practice Direction (PD) to CPR 14 states:

7.1 An admission made under Part 14 may be withdrawn with the court’s permission.

7.2 In deciding whether to give permission for an admission to be withdrawn, the court will have regard to all the circumstances of the case, including –

(a) the grounds upon which the applicant seeks to withdraw the admission including whether or not new evidence has come to light which was not available at the time the admission was made;

(b) the conduct of the parties, including any conduct which led the party making the admission to do so;

(c) the prejudice that may be caused to any person if the admission is withdrawn;

(d) the prejudice that may be caused to any person if the application is refused;

(e) the stage in the proceedings at which the application to withdraw is made, in particular in relation to the date or periodfixedfortrial;

(f) the prospects of success (if the admission is withdrawn) oftheclaimorpartoftheclaiminrelationtowhichtheofferwas made; and

(g) the interests of the administration of justice.

When aged seven the claimant had attended hospital on three occasions before being diagnosed with a rare infection that had originated in her throat and spread to her left hip, causing severe hip damage. In pre-action correspondence

sheallegedthatherexaminationandtreatmentonherfirsttwo hospital visits had been inadequate. The defendant subsequently admitted breach of duty and primary causation based on a misreading of its expert’s report. The claimant sought clarification of the extent of the trust’s admissionas to causation, and after many months of chasing, the defendant admitted medical causation, still not realising its misinterpretation of its expert evidence. The claimant then issued proceedings. She agreed to two extensions of time for the defendant to serve its defence before it formally applied for a third extension of time. In the absence of evidence in support of its application, the Master refused the application and entered judgment in default in the claimant’s favour. The defendant indicated at that hearing that it would apply to withdraw its pre-action admissions at a forthcoming case management conference. At the conference, the same Master considered the defendant’s expert reports and allowed it to withdraw its admissions on the basis that it had made a genuine mistake. He also set aside the default judgment and permitted the defendant to serve its defence, in which it denied breach of duty.

‘...if the admissions were not withdrawn, there would be the loss of a potentially bona fide defence.’Refusing the claimant’s appeal, the deputy High Court judge held that the Master’s summary of the law on withdrawal of admissions was accurate. He had properly considered each of the grounds under CPR PD 14-7.2.

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As to PD 14-7.2(a), he had properly considered that the defendant’s mistake in making the admissions had been genuine, and that its decision to withdraw was not tactical.

As to PD 14–7.2(b), it was clear that the claimant had acted faultlessly and it was the defendant which had made the mistake. Although it was appropriate to look at the case against the background of the revitalised, robust approach advocated by Mitchell and Denton, it was not the case that an application to withdraw pre-action admissions necessarily imported the full factors that were relevant on an application for relief from sanctions under CPR 3.9. CPR 14 did not standalone and the overriding objective had to be considered, but the Master was right to consider that the situation had arisen out of a genuine mistake and not deliberate conduct.

As to PD 14–7.2(c), the Master had considered the issue accurately and satisfactorily. It was true that the claimant would experience the predictable and inevitable prejudice that ensued whenever an admission was withdrawn, but no hard or irreparable prejudice would follow.

As to PD 14-7.2(d), again the Master had reasonably handled that issue: if the admissions were not withdrawn, therewouldbethelossofapotentiallybonafidedefence.

As to PD 14-7.2(e), it was very important that the application had been made very early in the proceedings.

As to PD 14-7.2(f), the Master was entitled to conclude on the available evidence that the defendant had a real prospect of defending the claim.

As to PD 14-7.2(g), it did not further the interests of the administration of justice if a defendant who had a real defence was not able to advance it.

Further, setting aside the admissions would only cause modest delays. There was no obvious great balance in favour of the administration of justice in refusing withdrawal. The Master had also correctly considered the overriding objective. Accordingly, there was no basis for saying that the Master had erred in allowing the admissions to be withdrawn.

It was clear from the Master’s decision that he regarded his decision on withdrawal of admissions as decisive of whether to set aside the default judgment. Although the new approach to relief from sanctions as advocated by Mitchell and Denton had to be considered, the Master’s conclusion was not incompatible with the principles expounded by those cases. The instant case was not one where a party exercising a genuine right to defend a claim had made a procedural error; rather, if the court did not grant relief, it would prevent the defendant from ever asserting a genuine defence. In those circumstances, there was no true analogy with the scheme of relief from sanctions.

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Costs budgetingWe report that part of the case of Yeo v Times Newspapers Ltd (2015) EWHC 209 (QB) dealing with guidance handed down by the court regarding costs budgeting.

This was a case management hearing relating to libel proceedings brought by the claimant against the defendant. It included consideration of the extent to which the parties’ costs budgets should be approved.

Thecourtofferedthefollowinggeneralguidanceoncostsbudgeting:

(a) CPR 3.16(2) provided that where practicable, costs management conferences were to be conducted by telephone or in writing. Where the arguments were set out fully in the correspondence, it was appropriate to use that correspondence in place of skeleton arguments. The recoverable costs of budgeting were capped at 1% of the approved budget for completing Precedent H, and 2% of that budget for all other costs, save in exceptional circumstances. It was to be hoped that as the system became firmly established, parties would agree to thatmethod of dealing with costs management

(b) Costs incurred before the approval of a budget would normally need detailed assessment after trial. However, in the course of the costs management process, the court could comment on those costs and reduce a budget for reasons which applied equally to incurred costs. If it did so, it should record its reasons so that the parties might reach agreement without the necessity for a detailed assessment

‘The court’s overall criterion (for costs budgeting) was whether the totals were reasonable and proportionate, and

the process was intended to be swift, economical and somewhat impressionistic’(c)Thecourt’sapprovalwouldrelateonlytothetotalfiguresforeachphaseoftheproceedings,andthosefiguresmightconveniently be set out in a table. The court’s overall criterion was whether the totals were reasonable and proportionate, and the process was intended to be swift, economical and somewhat impressionistic. Although the court was not conducting a detailed assessment, it might have to consider rates and estimated hours; the approach would have to be tailored to the case

(d) Contingencies were only to be permitted if the work was identifiable,wasmorelikelythannottoberequired,anddidnot fall within the main categories in Precedent H.

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Watch this spaceLegislative updateAs the present government moves towards the end of its legislativeprogrammedtherehasbeenaflurryofactivity.

The Insurance Act 2015 received Royal Assent on 12 February and will come into force in August 2016.

Under a new “duty of fair presentation”, commercial (non-consumer) policyholders will still have a duty to volunteer information, but what will be required of them is made clearer, and insurers will have to take a more active role in raising questions with the proposer. A new schedule of proportionate remedies will replace the existing single remedy of avoidance, which allows insurers to refuse the whole of a claim.

Insurers will be liable to pay any claim that arises after a breach of warranty has been remedied. They will no longer be able to escape liability on the basis of the policyholder’s breach of a contract term that is shown to be completely irrelevant to the loss suffered. “Basis of the contract”clauses are abolished.

The act provides insurers with remedies when a policyholder makes a fraudulent claim. Where any part of a claim is fraudulent, the insurer will be entitled to refuse the whole claim. They will also have the right to refuse any legitimate claim arising after the fraud but must pay earlier, valid claims.

The act also makes provision for the implementation of the long awaited Third Parties (Rights against Insurers) Act 2010. It is believed that will be brought into force in October 2015.

Royal Assent was also given to the Social Action, Responsibility and Heroism Act 2015. Despite the controversy surrounding this legislation it still provides that when a court is considering an act of negligence ‘it must have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting for the

benefit of society or any of its members’. No date has yet been set for the act to come into force.

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

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