Personal Injury Alert. Year Book A compilation of the cases reported in Greenwoods PI Alert during 2013

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1 Personal Injury Alert Year Book 2013 A compilation of the cases reported in Greenwoods PI Alert during 2013

2 CONTENTS 1. Civil Procedure Costs Liability Limitation Fraud Credit Hire Periodical Payments Part Damages Miscellaneous Contents

3 CASES INDEX Parkin and others v Alba Proteins and others (2013) EWHC 2036 (QB)... 7 Small v North Bristol NHS Trust [Lawtel 25/02/2013]... 8 Newbury v Sun Microsystems (2013) EWHC 2180 (QB)... 8 Atlantic Electronics Ltd v Revenue and Customs Commissioners (2013) EWCA Civ Monk v Cann Hall Primary School and another (2013) EWCA Civ Matthews (Deceased) v Collins and others (2013) EWHC 2952 (Civ) Wm Morrison Supermarkets Plc and others v Mastercard Inc and others [Lawtel 06/08/2013] Ward Hadaway v DB UK Bank Ltd [Lawtel 13/11/2013] Benn Wroe v Sivaraman [Master Roberts 02/12/2013] Smith v Secretary of State for Energy and Climate Change (2013) EWCA Civ Bulic v Harwoods and others (2012) EWHC 3657 (QB Rogers and another v Hoyle (2013) EWHC 1409 (QB) Turner v Walsall Hospital NHS Trust [Lawtel 12/04/2013] Fisher Offshore Ltd v Offshore Installation Services [Lawtel 03/07/2013] Daly v Milton Keynes Hospital NHS Trust [lawtel 03/07/2013] Dass v Dass [Lawtel 09/07/2013] Mengiste and another v Endowment Fund for the Rehabilitation of Tigray and others [Lawtel 28/03/2013] Wright v Michael Wright (Supplies) Ltd (2013) and another EWCA Civ Lewis v Narayanasamy and another [Lawtel 31/10/2013] R (on the application of Prudential Plc) and another v Special Commissioner of Income Tax and onother (2013) UKSC Jet Airways (India) Ltd and others v Barloworld Handling Ltd [Lawtel 14/10/2013] Ryder Plc v Beever (2012) EWCA Civ Thevarajah and another v Riordan and others [Lawtel 13/08/2013] Rayyan Al Iraq Co Ltd v Trans Victory Marine [Lawtel 28/08/2013] Biffa Waste Services Ltd v Dinler and others [Lawtel 11/10/2013] Thevarajah v Riordan and others [Lawtel 15/10/2013] SC DG Petrol SRL v Vitol Broking Limited and another (2013) EQHC 3920 (Comm) Durrant v Chief Constable of Avon & Somerset (2013) EWCA Civ Adlington and other v ELS International Lawyers [Lawtel 18/12/2013] Bill v Simes [Lawtel 22/07/2013] Coles v Perfect [Lawtel 15/05/2013] Atrium Training and others v McNally and others (2013) EWHC 1562 (Ch) Kesabo and others v African Barrick Gold Plc and another (2013) EWHC 3198 (QB) BMG (Mansfield) Ltd and another v Galliford Try Construction Ltd and another (2013) EWHC 3183 (TCC) XYZ v Various (2013) EWHC 3643 (QB) Harrison and others v Technical Sign Co Ltd and others (2013) EWCA Civ Atrium Training and others v McNally and others (2013) EWHC 1562 (Ch) Hussain v Ahmed [Central London County Court 12/12/2013] Jones and others v Secretary of State for Energy and Climate (2012)EWHC 3647 (QB) Wilson v Haden [Lawtel 18/03/2013] Royal Devon & Exeter NHS Foundation Trust (2013) EWHC 652 (QB) Murray and another v Neil Dowlman Architecture Limited (2013) EWHC 872 (TCC) Heron v TNT (UK) Ltd and another (2013) EWCA Civ Contents

4 Jones and others v Secretary of State for State for Energy and Climate Change (2013) EWHC 1023 (QB) Ali v Ali and others (2013) EWGC 1233 (QB) Emezie v Secretary of State for the Home Department (2013) EWCA Civ Grupo Hotelero Urvasco SA v Carey Value Added SL and others (2013) EWHC 1732 (Comm) R (on the application of Grimshaw) v Southwark LBC [Lawtel 18/07/2013] A P (UK) Ltd v West Midland Fire & Civil Defence Authority (Defendants) and Patel and others (Respondents) (2013) EWHC 385 (QB) Dawe v IDG Communications and others (2013) EWPCC Vava and others v Anglo American South Africa Ltd (2013) EWHC 2326 (QB) Scopema Sarl v Scot Seat Direct Ltd (2013) EWPCC Murray (an Infant) v Smith [Lawtel 20/08/2013] Mengiste and another v Endowment Fund for the Rehabilitation of Tigray and others (2013) EWCA Civ Sims (Deceased) v Carruthers (Deceased) and others [Lawtel 21/10/2013] PGF II SA v OMFD Co 1 Ltd (2013) EWCA Civ Thinc Group Ld v Kingdom (2013) EWCA Civ Bartkauskaite v Bartauskiene: Tasleem v Beverley [Lawtel 07/11/2013] Davies and others v Greenway [Lawtel 20/11/2013] Simmons & Simmons v Hickox (2013) EWHC 2141 (QB Chung v Funafloat Ltd and another [Lawtel 04/02/2013] Henry v news Group Newspapers Plc (2013) EWCA Civ Elvanite Full Circle Ltd v Amec Earth & Environmental (UK) Ltd (2013) 1643 (TCC) CRM Trading Ltd v Chubb Electronic Security Ltd [Lawtel 05/09/2013] Brookes v DC Leisure Management and another [Lawtel 14/10/2013] Hussain v Chartis Insurance UK Ltd [Lawtel 11/12/2013] Flatman v Germany; and Barchester Healthcare Ltd v Weddell (2011) EWHC 2945 (QB) Centrehigh Ltd v Amen and others (2013) EWHC 1448 (Ch) Mitchell v News Group Newspapers Ltd (2013) EWCA Civ Germaine v Epsom & St Helier University Hospital NHS Trust [Lawtel 04/02/2013] Sharp (Protected Party) v Top Flight Scaffolding Ltd (2013) EWHC 479 (QB) International Energy Group Ltd v Zurich Insurance Plc UK (2013) EWCA Civ Brumder v Motomet Service and Repairs Ltd and another (2013) EWCA Civ Uren v Corporate Leisure (UK) Ltd and another (2013) EWHC 353 (QB) Hill and another v John Barnsley & Sons Ltd and others (2013) EWHC 520 (QB) Chief Constable of Hampshire v Taylor (2013) EWCA Civ Willcock and others v Corus UK Ltd (2013) EWCA Civ Hide v Steeplechase Co (Cheltenham) Ltd and others (2013) EWCA Civ Lloyd v Arriva Southern Countries Ltd [Lawtel 11/06/2013] Birch v Ministry of Defence (2013) EWCA Nicholls v Ladbrokes Betting & Gaming (2013) EWCA Civ Cooper v Bright Horizons Family Solutions Ltd (2013) EWHC 2349 (QB) Wembridge Claimants and others v Winter and others (2013) EWHC 2331 (QB) Allen and others v Chief Constable of Hampshire (2013) EWCA Civ Heavey v TMD Friction [Lawtel 15/11/2013] Boulton v Weaver Vale Housing Trust Crewe County Court Judgment 26/09/ Poole v Wright and others (2013) EWHC 2375 (QB) Cockbill v Riley (2013) EWHC 656 (QB) Tacagni v Cornwall County Council and others [Lawtel 25/04/2013] Contents

5 West Sussex County Council v Pierce (a minor) (2013) EWCA Civ Risk v Rose Bruford College (2013) EWHC 3869 (QB) Wilson v Haden (2013) EWHC 29 (QB) Furnell and another (minors) v Flaherty (defendant) and Health Protection Agency and another (third parties) (2013) EWHC 337 (QB) Jackson (Protected party) v Oxfordshire County Council [Lawtel 28/03/2013] Shaw (deceased) v Fuller and another (2013) EWCA Civ R v Watkin Jones & Sons [Lawtel 26/04/2013] Corbett (Protected Party) v Cumbria Kart Racing Association and others (2013) EWHC 1362 (QB) Ireland v David Lloyd Leisure Ltd (2013) EWCA Civ Garner v Salford City Council and another (2013) EWHC 1573 (QB) Thomas Cook and another v Louis Hotels SA (2013) EWHC 2139 (QB) Woodland v Essex County Council (2013) UKSC Barker v Lancashire County Council (2013) EWCA Civ Simson v London Borough of Islington [Lawtel 22/07/2013] Saha v Imperial College of Science, Technology and Medicine (2013) EWHC 2438 (QB) Hoteles Pinero Canarias SL v Keefe [Lawtel 10/10/2013] Japp v Virgin Holidays Ltd (2013) EWCA Civ Smith v Harding [Lawtel 11/12/2013] Robert Marston v Coventry Sport & leisure Centre Coventry County Court 24 June Ayres (Protected Party) v Odera (2013) EWHC 40 (QB) Paramasivan v Wicks [Lawtel 24/01/2013] Goodman v Faber prest Steel (2013) EWCA Civ Smith v Fordyce another (2013) EWCA Civ Jones (Protected Party) v First Tier Tribunal (Social Entitlement Chamber) and another (2013) EWCA Civ Faunch v O Donoghue and another [Lawtel 06/12/2013] Hughes (a minor) v Williams (Defendant) and Williams (Third party) (2012) EWHC 1078 (QB) West Midlands Travel v Aviva Insurance Ltd (2013) EWCA Boyle v Commissioner of Police of the Metropolis Nedarajah v Sotnick (2013) EWHC 3389 (QB) William Campbell v (1) Peter Gordon Ltd (In admin) & (2) Peter Gordon (2013) CSOH Sayers v Chelwood and another (2012) EWCA Civ Davidson v Aegis Defence Services (BVI) Ltd and another [Lawtel 29/01/2013] Chandra and another v Brooke North and others (2013) EWHC 417 (QB) Collins v Secretary of State for Business and Innovation & Skills and another (2013) EWHC 1117 (QB) Page and another v Hewetts Solicitors and another (2013) EWHC 2845 (Ch) Nemeti and others v Sabre Insurance Co Ltd (2013) EWCA Civ Davidson v Aegis and another (2013) ECWA Civ Airbus Operations Ltd and another v Roberts (2012) EWHC 3631 (Admin) Dar v Vonsak and another (2012) EWHC 3632 (QB) Homes for Haringey v Barbara Fari and Piper Fari [Lawtel 24/01/2013] Royal & Sun Alliance v Kosky [Lawtel 08/03/2013] R v Mckenzie [Lawtel 22/08/2013] Abdulla v Linkevicius and another [Lawtel 1/02/2013] Armon v Jinks Bournmouth and Poole County Court 27 November Contents

6 Trivonovs v Quasim (1) and Quinn Direct Insurance (2) Mr Jamie Holland v Mr Colin Chesters Singh v Yaqubi (2013) EWCA Civ Opoku v Tintas [Lawtel 08/07/2013] Salat v Barutis (2013) EWCA Civ Dickenson and others v Tesco Plc and others (2013) EWCA Civ Lewis v Campling Beasley v Alexander [Lawtel 05/02/2013] Wallace v Follett (2013) EWCA Civ RH v University Hospitals Bristol NHS Foundation Trust (2013) EWHC 229 (QB) Matharoo v Medway NHS Foundation Trust [Lawtel 31/01/2013] Sutton Jigsaw Transport Ltd v Croydon London Borough Council [Lawtel 28/02/2013] Wilson v Ministry of Defence [Lawtel 29/05/2013] Walsh v Shanahan and others (2013) EWCA Civ Mehjoo v barker and another (2013) EWHC 1669 (QB) Igloo Regeneration (General Partner) Ltd and others v Powell Williams Partnership (2013) EWHC 1859 (TCC) Cave v Bulley [Lawtel 17/07/2013] Hammersmith Properties (Welwyn) Ltd v saint-gobain Ceramics and Plastics Ltd and another (2013) EWHC 2227 (TCC) Burcham v W Metcalf Limited Wright v Mills (Canterbury County Court 18/11/2013) Loughlin (Protected Party) v Singh and others (2013) EWHC 1641 (QB) Ali (Protected Party) v Caton and MIB (2013) EWHA 1730 (QB) Dudney v Guarantee Asphalt Ltd [Lawtel 22/07/2013] Tutas v East London Bus and Coach Co Ltd [Lawtel 17/10/2013] Davison v Leitch (2013) EWHC 3092 (QB) Ministry of Defence v Blythe [Lawtel 07/05/2013] Blyth v Ministry of Defence British Airways Plc v Fox (Deceased) (2013) EWCA Civ Proctor v Raleys Solicitors [Lawtel 12/11/2013] Everett v London Fire & Emergency Planning Authority [Lawtel 02/11/2013] John Ruskin College v Harley (2013) EWHC 3714 (QB) Taylor v A Novo (UK) Ltd (2013) EWCA Baker Tilley v Makar [Lawtel 02/04/2013] Charman v John Reilly (Civil Engineering) Ltd Liverpool County Court Stylianou v Masamoto Toyoshima and another (2013) EWHC 2188 (QB) Bloy and another v Motor Insurers Bureau (2013) EWCA Civ Contents

7 1. Civil Procedure From issue 365 AMENDMENT OF CLAIM Parkin and others v Alba Proteins and others (2013) EWHC 2036 (QB) It may be tempting on occasions to leave a claimant guessing as to which of a number of defendants is the correct one to sue. However, as Parkin and others v Alba Proteins and others (2013) EWHC 2036 (QB) illustrates, the tactic can backfire. The claimants claimed compensation from the first defendant for an alleged continuing nuisance by an odour caused by rendering operations from 1 January 2005 until 24 December In September 2009 the claimants solicitors had indicated to the second defendant that they acted for local residents who wished to pursue a remedy against the operator of the factory in question. That letter made it clear that the allegation of nuisance went back a number of years and asked for confirmation of the correct defendant. The solicitors received no reply to that or subsequent correspondence. In 2010 the claimants discovered that the second defendant had been incorporated in April 2006 and issued an application against it for pre-action disclosure, again making it clear that the subject matter of the claim related to the period which included In ensuing correspondence, the second defendant's solicitors failed to indicate when the second defendant had become responsible for the site. The claimants issued proceedings against the second defendant alone on 23 December A group litigation order was issued in In an amended claim form dated 31 October 2012, the claimants pleaded the successive operation of the site by the first defendant from a date prior to 1 January 2005 until 24 December 2006 and by the second defendant from 25 December 2006 until 30 April In its defence, submitted in July 2012, the second defendant asserted that it had operated the site from "about the end of 2007". That error was repeated in subsequent documents. The first defendant pleaded that any claims which were said to have accrued against it before 14 November 2006, namely the date on which it accepted that it was deemed to have been served with the amended claim form, were statute-barred. The claimants argued that (1) the second defendant was estoppel from denying that it had operated the site throughout the period since 1 January 2005; (2) the second defendant had deliberately concealed a fact relevant to the claimants rights of action, namely that it had operated the site until 23 December 2006; (3) the court should exercise its discretion under CPR 19.5 to permit the addition of the first defendant as a defendant. The High Court judge held that if the claimants estoppel argument were to succeed, it would provide them with a cause of action against the second defendant in respect of the period between 1 January 2005 and 25 December 2006 where none previously existed and there had been no legal relationship between the parties. Moreover, since the second defendant was not incorporated until 4 April 2006 it would provide that cause of action against a company which did not even exist for most of the period concerned. To accede to the claimants submissions on that point would be to permit estoppel to be used as a sword rather than a shield. Concealment of facts relevant to the cause of action pursuant to the S32(1)(b) Limitation Act 1980 might be in the form of non-disclosure as well as active concealment. On the evidence, the claimants did not know that any claim for damages for nuisance during the period 2005 to 2006 should be directed against the first defendant. It was illogical to infer that they did know that fact but chose nevertheless to proceed against the second defendant instead. There had been active misrepresentation by the second defendant which caused the claimants to believe that it was the correct and only defendant for the whole of the relevant period. From the outset, the claimants had specifically sought confirmation that they had correctly identified the defendant to be sued but had received nothing from the second defendant to identify the first defendant as the party responsible for the site for a significant Page 7

8 part of the claim. A close collaboration could be inferred between the defendants as members of the same group. Thus, the conduct of the second defendant positively led the claimants to believe that it was the only appropriate defendant. Moreover, the failure of the second defendant to inform the court at the time of the group litigation order that the first defendant was responsible for the site in 2005 to 2006 was a serious breach of duty under CPR 1.3 Accordingly, the period of limitation for the claimants claims against the first defendant did not begin to run until they could with reasonable diligence have discovered that it was the appropriate defendant between 1 January 2005 and 14 November The earliest date on which they could have done so was on receipt of the defence in July It was known to both defendants that the claimants wanted to sue the company responsible for the operation of the site from 1 January A mistake as to whether that company was the first or second defendant at a particular time could properly be regarded as a mistake as to name rather than as to identity. Therefore, the addition of the first defendant was an amendment which came within CPR 19(5)(3)(b). Alternatively, it would come within CPR 19(5)(3)(a). It was consistent with the overriding objective of dealing with the case justly to permit the amendment. From issue 342 APPLICATION FOR ADJOURNMENT Small v North Bristol NHS Trust [Lawtel 25/02/2013] The difficulty in obtaining an adjournment of an imminent trial is illustrated in Small v North Bristol NHS Trust [Lawtel 25/02/2013]. The defendant/applicant had admitted liability for negligence in its delay in identifying and removing a benign brain tumour from the claimant, who subsequently required drug therapy for resulting epilepsy and chronic seizures. In the year prior to the present application, the claimant began to suffer from more seizures, with an expert for the trust claiming that the deterioration had coincided with a change in his drugs regime, and suggested a change to the regime which would provide long-term benefits. An expert for the claimant accepted that different drugs should be tried but anticipated that any benefits were likely to be short-term. It was accepted that if the new drugs restored the claimant to his position before deterioration, he would require care only during the waking hours, but that if they were only short-term then he would require additional care overnight. It was in dispute as to whether the new drugs regime would take nine months or two years to assess any benefits. The hearing on quantum was to take place in one month's time. The defendant submitted that vacating the hearing date was appropriate as the court needed to be better informed about the consequences of the proposed change of drugs regime. Rejecting the application, the High Court judge held that this was not a situation where, if the hearing date was vacated, there would come a time at an identifiable point in the future when there would definitely be greater clarity in respect of the benefits, if any, of the change of drugs regime. Therefore there was no obvious benefit sufficient to justify vacating the trial date. Indeed there were reasons against that proposition: the action had been commenced three years ago; the negligence complained of occurred twelve years ago; the claimant had endured the consequences of the defendant's negligence for the duration of his teenage and adult life; he had expressed a firm desire to have the damages, to which he was entitled, assessed. It was appropriate that the trial took place. The trial judge would have to do his best with the evidence in front of him, as was routine for a judge. From issue 363 BINDING CONTRACTS Newbury v Sun Microsystems (2013) EWHC 2180 (QB) The basic elements of a contract: offer and acceptance, were considered in the commercial case of Newbury v Sun Microsystems (2013) EWHC 2180 (QB). Page 8

9 The claimant had issued a claim for contractual commission against the defendant which had counterclaimed for recovery of an alleged overpayment. The trial was set to commence on 12 June On 3 June, the defendant wrote to the claimant setting out an offer to settle with "such settlement to be recorded in a suitably worded agreement". The claimant accepted the offer in a letter on the same day. A Tomlin order was sent by claimant for the defendant's approval. It replied with amendments to the order which the claimant did not agree to. There was a dispute as to whether a binding contract had been entered into following the 3 June letters. It was the claimant s case that the 3 June letters contained an agreement which was intended to bind the parties and was to be recorded in a suitably worded agreement but that the execution of such an agreement was not a condition of the agreement coming into effect. The defendant contended that, in determining whether the letters of 3 June gave rise to a binding contract, the court could look at the conduct of the parties after that date which showed that they were still negotiating and had not reached a binding contract. Finding in favour of the claimant, the High Court judge held that the letters, viewed objectively, gave rise to a binding legal contract. The terms of the contract were that the defendant would pay sums in full and final settlement of the claim and counterclaim by a specified time. That agreement would be recorded in a suitably worded agreement which reflected the terms of the agreement set out in the offer and accepted by the claimant but the execution of the agreement was not a condition of creating a binding legal contract. The defendant's letter of 3 June was a binding offer capable of acceptance and was not expressed to be "subject to contract". Where a contract was said to be contained in documents, it was not legitimate or of any assistance to have regard to the parties subsequent conduct for the purpose of considering whether those documents gave rise to a binding agreement. In any event, the subsequent conduct of the parties did not support the defendant's contention that they were still negotiating. From issue 357 CASE MANAGEMENT Atlantic Electronics Ltd v Revenue and Customs Commissioners (2013) EWCA Civ 651 At a time when the courts are being robust in enforcing compliance with procedural rules, there is a crumb of comfort from the commercial case of Atlantic Electronics Ltd v Revenue and Customs Commissioners (2013) EWCA Civ 651. It is normally difficult to appeal successfully a case management decision but that is what the defendant/respondent achieved in this case. The claimant/appellant appealed that decision. The Court of Appeal dismissed the appeal. The section of the judgment which is of general relevance is where the Court of Appeal held that case management decisions were reviewable on appeal only in limited circumstances but those circumstances were not limited to perversity. They might include the inclusion or exclusion of relevant considerations, including the erroneous evaluation of relevant considerations. Whenever a relevant consideration was wrongly excluded, the judge's exercise of discretion had to be set aside. Added to that test should be a requirement that the considerations which were wrongful had to, alone or in aggregate, constitute considerations that were material in the exercise of the discretion in question. From issue 360 CAUSE OF ACTION Monk v Cann Hall Primary School and another (2013) EWCA Civ 826 Whether or not a claimant can claim damages for psychiatric harm flowing from a dismissal from work was considered in Monk v Cann Hall Primary School and another (2013) EWCA Civ 826. Page 9

10 The appellant/claimant was made redundant after 11 years of service as an administrative assistant with the respondent/defendant. She would normally have worked until the end of term, but ten days before, the governors decided to deny her access to the school immediately. She had to clear her desk and hand over her keys, before being publicly escorted from the premises by a governor. The claimant was humiliated by her treatment in front of teachers, children, and parents in a way that suggested that she had committed an act of gross misconduct. Her claims for damages for unfair dismissal in the employment tribunal and for defamation were compromised but she subsequently claimed damages for psychiatric injury in the High Court. In a letter and in its defence the local authority admitted liability, but disputed causation and quantum. Before trial, the local authority became aware of the decision in Johnson v Unisys Ltd (2001) [where the claim had been struck out because it arose out of the manner of the claimant s dismissal and disclosed no reasonable cause of action]. It applied for permission to withdraw its admissions, and to strike out this claimant's claim. The judge gave permission and struck out the claim as disclosing no cause of action. Allowing the claimant s appeal, the Court of Appeal held that given the proximity of the trial and the likely effect on cost and delay, there was some force in the argument that the local authority should not have been allowed to withdraw its admissions. However, the local authority had not contested the facts but only wished to remove any impediment to raising the Johnson point and it was unnecessary to consider the question. The employment tribunal had no jurisdiction to consider a personal injury claim, so the compromise agreement had excluded only a "potential" claim and had made no findings on whether the claimant had a good cause of action, nor had it limited the arguments the local authority might raise in defence but had simply preserved her right to pursue a claim. Moreover, there was no evidence that the agreement rested on a common assumption that she had a good cause of action. There was no support for the claimant s submission that it would be unconscionable for the defendant to raise the Johnson point. It was pure speculation that the claimant would have obtained a more generous settlement had the local authority raised the point at tribunal. In the absence of estoppel, the judge's decisions had been within his discretion and were not open to challenge. Although injury to feelings or future employment prospects and damages for personal injury resulting from breach of the common law duty of care were not recoverable in an action for wrongful dismissal, a claim at common law before dismissal was available. The judge had been wrong to stick rigidly to the pleadings and, as the point had been raised in argument, he should have allowed the claimant to rely on it. She was granted permission to amend her claim to change the pleaded date of dismissal. From issue 370 CORONERS Matthews (Deceased) v Collins and others (2013) EWHC 2952 (Civ) A procedural point has arisen as a consequence of an inquest which is of potential importance to a wide range of industrial disease claims. In Matthews (Deceased) v Collins and others (2013) EWHC 2952 (Civ) the claimant had brought a claim against the defendants following the death of her husband. The deceased had been employed by each of the defendants. The claimant alleged that during his employment, the deceased had been exposed to asbestos dust and, as a result, had developed lung cancer and asbestosis. In July 2008, she had consulted solicitors about an asbestosis claim, but the matter had not been pursued because at that time he was asymptomatic. He died in January A post mortem referred to asbestos exposure and concluded that he had died from pulmonary fibrosis and lung cancer. The claimant instructed the solicitors in connection with a possible claim against the defendants. In July 2009, an inquest returned a verdict of death by industrial disease and, in November 2010, the coroner's office asked the claimant what she wanted to do with samples of the deceased's lung tissue, taken for the purposes of the post mortem and retained by the coroner. Upon being told that samples were not normally retained, the claimant authorised their destruction. The solicitors, who had not represented the claimant at the inquest and were unaware of that exchange, issued proceedings in January The defendants denied both liability and causation and Page 10

11 sought access to the tissue samples. Upon discovering that they had been destroyed, they made an application to strike out as an abuse of process. They submitted that the destruction of the tissue samples was unreasonable and blameworthy and was an abuse of process giving rise to a real risk of injustice such that a fair trial was no longer possible. Refusing the application the High Court judge held that the defendants criticism was unjustified. The claimant had lost her husband quite suddenly and had been confused and distressed. It was most unlikely that she would have appreciated why it might have been necessary to preserve the tissue samples. Her solicitors had not represented her at the inquest and were thus not in a position to have explained matters. When she was approached by the coroner's office she had sought clarification and had seen no reason to depart from what she had been told was the usual practice, which was to authorise disposal of the samples. There was no reason to believe that she would have connected the preservation of the samples with a possible claim against the defendants, and the suggestion that she should have recognised that the samples might be required for her claim was wholly unrealistic. It would not have occurred to her to consult the solicitors about what she should do, and she could not be criticised for her actions. With hindsight, it was easy to say that the solicitors should have told both the claimant and the coroner that the samples should be preserved until they advised otherwise. However, they could not be criticised for failing to anticipate what happened. Given the post mortem report, the inquest verdict, and the fact that the coroner's office knew of their involvement, it was not unreasonable for them to have assumed that the coroner would not dispose of the samples without seeking their prior agreement or advising the claimant to do so. In any event, a fair trial was still possible and it would not be just, necessary or proportionate to deprive the claimant of the opportunity of having her claim heard. The histological evidence would have been of only limited value, and the remainder of the evidence was sufficient to enable a judge to reach a satisfactory conclusion on causation. The chief coroner should consider advising coroners that, in any case where the verdict involved industrial disease, the deceased's family should be advised that, if a claim in respect of the death was pending, they should consult their solicitor before authorising the disposal of tissue samples. In such cases it would be good practice for solicitors to advise both their clients and the relevant coroner's office that histological samples should not be disposed of without confirmation that they were not required for the purposes of a claim. From issue 364 DISCLOSURE Wm Morrison Supermarkets Plc and others v Mastercard Inc and others [Lawtel 06/08/2013] The case of Wm Morrison Supermarkets Plc and others v Mastercard Inc and others [Lawtel 06/08/2013] looked at the status of a document mentioned in a witness statement. The claimants claimed damages for losses arising from the defendants alleged breach of competition law. The defendants application for a stay pending the outcome of proceedings before the European Court of Justice had been refused. Standard disclosure had not yet taken place. The claimants applied under CPR for inspection of documents that had been mentioned in a witness statement in support of the stay application, which related to the investigation and decision of the Office of Fair Trading, the European Commission and the appeal to the ECJ. The defendants argued that inspection should not be ordered because the documents sought had not been "mentioned" in the witness statement within the meaning of CPR 31.14, the application for which the witness statement had been made had been disposed of, and it would be inconsistent with the overriding objective. The claimants argued that once a document had been mentioned in a witness statement there was an imperative to order inspection unless there was an established right to withhold it. CPR states: (1) A party may inspect a document mentioned in Page 11

12 (a) A statement of case; (b) A witness statement; (c) A witness summary; or (d) An affidavit Finding in favour of the defendants and refusing to order disclosure the High Court judge held that the principles to be applied under CPR were derived from the case of Expandable Ltd v Rubin (2008). The test for whether a document had been "mentioned" within CPR was whether there was a direct allusion to it, or a specific mention of it. The mention had to be to the document itself, not merely to its contents or effect. It only had to be mentioned, not relied on, in order to qualify. A "mention" within the meaning of CPR was treated as a form of disclosure giving rise to a right of inspection. The right of inspection was subject to the qualification in CPR There was a presumption in favour of inspection by virtue of the fact that the party was to be treated as having already disclosed the documents. There were two relevant consequences of treating a mention as a species of disclosure within rule 31 generally. First, inspection was subject to CPR and the court had a discretion to refuse to order inspection where disclosure would be contrary to the public interest. Second, the court had a discretion to refuse inspection where it was not proportionate or otherwise in accordance with the overriding objective. All the documents sought had been "mentioned" in the witness statement, except that a reference to an appeal having been filed did not amount to a mention of the notice of appeal within CPR The fact that the stay application had been disposed of was not in itself a sufficient ground for refusing inspection, but it was inappropriate and not in accordance with the interests of justice or the overriding objective to order inspection. The relevance of the documents sought at the instant stage of the proceedings was uncertain and doubtful, and the relevance to the existing issues might have to be reconsidered after the ECJ's decision. The public interest was potentially engaged because the effective enforcement of competition law depended on the European Commission and the OFT receiving confidential information voluntarily. There was a balancing exercise between the respective interests in favour of disclosure and in favour of protection was applicable to material volunteered to the Commission and the OFT. On the material available, the court was not in a position to undertake the balancing exercise that the authorities suggested was appropriate. Moreover, the European Commission and the OFT had not yet been given an opportunity to give their views on inspection. There was a small degree of force in the argument that there might be difficulties with setting up a confidentiality agreement. Although the application concerned eight documents, the balancing exercise would have to be applied to a wider category of documents for the purpose of discovery as a whole. It was appropriate that that exercise should be undertaken once by the court. There was no urgency. It was relevant, on the exercise of discretion, that the witness statement had been prepared for an application that had been dispensed with and was no longer relevant to an issue or dispute between the parties. It was also relevant that the documents had been mentioned not for the purpose of relying on them, but for setting out the history of events. That was not sufficient to avoid them being mentioned, but in the context of the overall judgment as to where the interests of justice lay it was a significant reason for declining to order inspection. From issue 374 DISCLOSURE Ward Hadaway v DB UK Bank Ltd [Lawtel 13/11/2013] Ward Hadaway v DB UK Bank Ltd [Lawtel 13/11/2013] is a commercial case but of wider interest because it looks at the working of CPR That rule states that standard disclosure requires a party to disclose only (a) the documents on which he relies; and (b) the documents which (i) adversely affect his own case; (ii) adversely affect another party s case; or (iii) support another party s case; and Page 12

13 (c) the documents which he is required to disclose by a relevant practice direction (emphasis added). The appellant solicitors had acted for the respondent bank in relation to three buy-to-let loans used to purchase properties. The bank brought a claim against the solicitors for professional negligence. The solicitors made certain admissions in respect of liability, in particular that there had been a breach of contract and negligence in failing to report that the sales involved back-to-back sub-sales in which the intermediate vendor was not the registered proprietor. However, they defended the claim on grounds of causation, asserting that the bank would still have made the loans even if it had made the reports that it should have made. In pre-action correspondence the bank had disclosed its business underwriting guidelines (BUG) which were said to contain its lending policy. The guidelines referred to a credit process guide (CPG) which was described as the key credit policy document and which took priority over the guidelines in case of conflict. The solicitors argued that the CPG should be disclosed as obviously relevant to causation. The bank refused, saying that the CPG was commercially sensitive since it amounted to a blueprint of how to run its lending business and was relevant to the raising of funds by the bank and not to individual lending decisions which were covered by the BUG. It therefore did not include the CPG in its disclosure on the basis that it did not adversely affect its case or support the solicitors case within CPR The solicitors applied for disclosure of the CPG which the deputy master refused on the basis of evidence from the bank that the buy-to-let loans in issue did not engage the provisions of the CPG but only of the BUG. In their appeal the solicitors argued that there was an evidential gap because the issue on causation was not how the loans were in fact processed but how they would have been processed had the appropriate reports been made and that the BUG provided that loans that did not comply with its criteria might still be good business and referred to the CPG. At the appeal hearing, the High Court judge admitted further evidence from the bank about the nature of the CPG and its relationship with the BUG. That was not opposed by the solicitors. He refused the appeal, holding that decisions about disclosure were case management decisions within CPR PD 52A but the decision in the instant case was not a matter of pure judicial discretion, such as whether claims should be tried together. The issue was whether the CPG should have been disclosed as part of standard disclosure because the criteria in CPR 31.6 were met. The test was not one solely of relevance but whether the document fell within the wording of the rule. If there was evidence that the document was not within CPR 31.6 the party seeking disclosure had to show not that that evidence might be wrong but that it had to be wrong. The new evidence was to the effect that the CPG made no reference to sub-sales and did not set out circumstances in which transactions involving subsales might still be regarded as good business even though they did not comply with the BUG. The reference in the BUG to the CPG related to circumstances in which the loan to value or rental income criteria were exceeded and the CPG dealt with the level of authority needed to approve such loans. In the light of that evidence the court could not infer that the CPG contained anything about whether sub-sale transactions might still be good business and that it would cast light on how the bank would have reacted if the appropriate reports had been made. Even if the CPG might provide material for cross-examination it did not tend to disprove the bank's case or prove the solicitors case and was therefore not disclosable within CPR The deputy master had therefore come to the right conclusion. It appeared, surprisingly, that the application for the court to determine whether the guide was within the obligation of standard disclosure was not specifically covered by the provisions of CPR 31. The application was not one for specific disclosure since the guide, having been referred to in the evidence, had already been disclosed. Nor was it an application for specific inspection within CPR Nor was it a claim by the bank that it had a right or duty to With hold inspection within CPR From issue 378 DISCLOSURE Benn Wroe v Sivaraman [Master Roberts 02/12/2013] In Benn-Wroe v Sivaraman [Master Roberts 2/12/2013] the claimant sought disclosure of the defendant s professional indemnity insurance policies. Page 13

14 The claim was for damages for alleged clinical negligence arising from surgery and advice in November A number of insurers with which the defendant had policies refused cover and the claim proceeded on the basis that he was not insured. The claimant applied for disclosure of the documents necessary to enable him to evaluate the merits of any refusal of indemnity. Disclosure had been ordered in the case of Harcourt v Griffin (2007) but pursuant to a Part 18 request and in the context of the claimant exploring whether or not an award of periodical payments would be viable. In that case it was the extent of the cover that was of relevance. Judgment had been entered and an interim payment of 1million already paid. A similar view was taken in Weston v Clayson (2013) where it was found that details of insurance arrangements were relevant to the issue of the reasonable security of the continuity of periodical payments. The defendant in this case opposed the application on the basis that his insurance position was not an issue in the action. He relied in support on West London Pipeline and Storage v Total (UK) Ltd and others (2008). There it was held that the court had no jurisdiction to require disclosure of a party s insurance position under CPR 31. Nor was the insurance position relevant to any matter in dispute in the proceedings for the purposes of a Part 18 request. Before this judgment was handed down, the master became aware of the High Court judgment in X, Y and Z v Various (2013) in which it had been held that the respondent should provide a witness statement under CPR 3.1(2)(m) setting out the nature and extent of its liability insurance cover. This was on the basis that the respondent s level of cover was relevant to the case management of the litigation as a whole. However, the judge refused to order disclosure of more detailed information under CPR 31 indicating that (w)hether or not the claimants will be able to enforce judgment is not a matter which affects case management. The master concluded that the nature and extent of the defendant s insurance cover was not a matter in dispute in the proceedings, nor was the issue of whether or not the claimant would be able to enforce a judgment. The application therefore failed under both CPR 31 or CPR 18. Comment These authorities suggest that the courts have now reached a reasonable settled approach to when a defendant will be obliged to disclose details of its liability insurance in one for or another. The two situations where disclosure is likely are: - where it is necessary for effective case management of the claim (but here disclosure may be limited only to that necessary to do so) - where it is desirable to enable the parties and the court to consider the viability of a periodical payment order. From issue 378 PRE-ACTION DISCLOSURE Smith v Secretary of State for Energy and Climate Change (2013) EWCA Civ 1585 In pre-action disclosure applications, defendants are always concerned that the claimant should not be allowed to pursue a speculative fishing expedition. Where the threshold lies was the issue in Smith v Secretary of State for Energy and Climate Change (2013) EWCA Civ The appellant/claimant was aged 65 and had been employed for 30 years by the respondent/defendant s predecessor, the National Coal Board (NCB), mostly underground. He asserted that he had suffered hearing loss because the NCB had failed to take adequate steps to protect him from the damaging effects of noise and, in particular, that he had never been provided with hearing protection. The claimant obtained disclosure of his work medical, Page 14

15 and personnel records (which were supplied in accordance with the relevant pre-action protocol), but requested further disclosure of documents which might help to establish the levels of noise in various pits where he had worked, and the NCB's contemporary knowledge of those levels and the consequent risks. The secretary of state refused. The claimant's application for pre-action disclosure under CPR was initially granted by a district judge, but then refused on appeal, on the ground that the claimant had failed to provide evidence that his claim was more than merely speculative. On appeal, the claimant submitted that the judge below had been wrong to hold that he had been required to establish an "arguable" or "prima facie" case in order to establish the jurisdiction for an order. The defendant contended that the claimant had provided inadequate evidence to mount a claim, the bare minimum being a screening audiogram or a medical opinion. Allowing the appeal, the Court of Appeal held that the judge had been wrong to find that CPR 31.16(3)(a) and 31.16(3)(b) prescribed any kind of jurisdictional threshold of arguability. However, the same issues needed to be addressed under the second part of the test, that relating to the court's discretion. The language of "arguability" should be avoided, particularly where proceedings had not yet started. The question should rather be whether the claimant had shown some reason to believe that he might have suffered a compensatable injury and, if so, with what degree of likelihood. It was advisable that potential claimants provided fuller evidence than in the instant case where, although the claimant had provided very little, the district judge had correctly exercised his discretion by allowing the application without the need for an audiogram or a medical opinion. There was no dispute that the burden of disclosure on the secretary of state had not been too onerous. Comment This case serves to emphasise that pre-action disclosure applications involve judges using discretionary powers, following on from decisions taken by a party during the pre-action protocol stage of a claim. The protocols comprise guidelines, rather than rules. A clear distinction needs to be drawn between cases where the claimant is uncertain as to whether or not he has a claim and those where he has but the defendant refuses to provide disclosure which may harm its defence. The situation may be complicated further where, even if the claimant has a prima facie case, there are major problems with causation. There the defendant may require the claimant not only to prove that he may have a case to answer, but also that a causative link can be established by the claimant between any breach of duty and the injury or disease of which he complains. In those cases where the claimant advances the position that the documents are required to enable him to assess whether or not he has a case, the cost of providing the documents or dealing with the request ought to be born by the claimant and not the defendant. It is necessary, therefore, to consider the tactics of whether to object to disclosure or to agree to it subject to costs, particularly in disease claims. This judgment is silent on the issue of costs. A respondent/defendant is usually entitled to the costs of a pre-action disclosure application but it is relatively common for the costs to be awarded immediately to the claimant, where the court is of the view that the defendant has not acted within the spirit of a pre-action protocol. The costs order may be dependent on the precise basis of the application and the reasoned objections to a very wide ranging request. From issue 337 EVIDENCE Bulic v Harwoods and others (2012) EWHC 3657 (QB The courts favour the use of single joint experts wherever feasible. The case of Bulic v Harwoods and others (2012) EWHC 3657 (QB) looks at this issue. The appellant/claimant had brought a claim for damages against the respondent/defendants following a serious, mechanical engine failure in his car. The critical issue between the parties was the cause of the engine failure. A single joint expert was instructed. The claimant applied Page 15

16 unsuccessfully for permission to call his own expert witness and for the single joint expert to be dis-instructed. The claimant s nominated expert produced a report which doubted the single joint expert's technical expertise and reasoning. The claimant submitted that the judge erred in (1) applying the wrong test when deciding whether the single joint expert should be dis-instructed; (2) dismissing the expert's concerns regarding the technical inadequacy of the single joint expert's report and his alleged lack of expertise; (3) assessing the instant litigation as not being sufficiently "substantial" to justify dispensing with a single joint expert. Allowing the appeal, the High Court judge held that the expert evidence in this case went to an issue which was far from peripheral, namely the cause of the engine failure. It was fundamental to the resolution of the dispute between the parties and was technical. The judge allowed himself to become too focused on the "exceptionality" test attributed to the judge in Kay v West Midlands Strategic Health Authority (unreported), namely whether or not the circumstances were so exceptional as to justify departing from the normal course of appointing a single joint expert, without making sufficient allowance for the fact that, unlike in Kay, the issue in question was not peripheral. The expert's concerns about the single joint expert's expertise might be proved wrong on closer examination, but the claimant's sense of grievance would be understandable if he had to go through a trial of the critical issue on liability while still being barred from having the relevant points properly investigated. It was impossible to provide a bright line boundary between cases that were "substantial" and those which were not. In any event, whether or not litigation was substantial could not be determined solely by reference to the amount claimed. Issues raised in litigation might be important to the parties or the public generally for a variety of reasons other than financial considerations. The judge thought it appropriate to decide whether it was a "substantial" case, and having decided that it was not, he treated it as a significant factor in refusing the application. Although it was a relevant factor, it should not have assumed such importance. The judge should have allowed the claimant's expert s evidence because it was technical and not peripheral. That was what the overriding objective required, whether or not the judge assessed the value of the claim as substantial. From issue 355 EVIDENCE Rogers and another v Hoyle (2013) EWHC 1409 (QB) The case of Rogers and another v Hoyle (2013) EWHC 1409 (QB) looks at the status of a quasi expert report i.e. one which contains a mix of statements of fact and opinion. The defendant sought a declaration that a report produced by the Air Accident Investigation Branch of the Department for Transport (AAIB) was inadmissible as evidence in an action brought by the claimants. The claimants were the executors of a man who had died when an aircraft piloted by the defendant had crashed into a field during a pleasure flight. They alleged negligence on his part and sought to rely on the AAIB report. He argued that the report constituted inadmissible opinion evidence. Allowing the report into evidence, the High Court judge found that it contained statements of fact as well as statements of opinion. On any view, the factual evidence in the report was admissible, as the evidence was relevant and the fact that it was hearsay was not a ground for its exclusion, nor was there any other rule of law which prohibited its reception. The opinion evidence in the report was also in principle admissible insofar as the opinions stated were those of qualified experts on subjects involving special expertise. Many of the opinions stated in the report on subjects such as aeronautical engineering, the piloting of aircraft, meteorology, pathology and the interpretation of flight-track logs and other data clearly fell into that category. As to the findings in the report, as they involved inferences Page 16

17 drawn from facts they fell into the category of opinion evidence. The opinions expressed, however, were not those of a lay person. The AAIB was a body which was specifically established by statute and charged with responsibility for the investigation of air accidents and in consequence had very considerable experience and expertise in determining the circumstances and causes of such accidents. The findings in an AAIB report were therefore informed by knowledge gained from past investigations as well as the general aeronautical knowledge of the inspectors and the inspectors' own observations in carrying out the particular investigation. That knowledge and experience gave the findings in the report a special value as opinions of experts who were, moreover, entirely independent of the parties to the action. Looking at the matter in principle and apart from authority, the AAIB report was admissible. It was necessary to consider the controversial case of Hollington v F Hewthorn & Co Ltd (1943). Properly analysed, it expounded the principle that the responsibility of a judge to make his own independent assessment of the evidence in a case entailed that weight ought not to be attached to conclusions reached by another judge, all the more so where the party to whose interests the conclusions were adverse was not a party to the earlier proceedings. However, the rule in Hollington did not apply where the findings were those of an expert investigator, not a judge. AAIB inspectors did not act as judges whose role was limited to evaluating evidence put before them. As well as the evidence of others, the inspectors were able to take into account their own first-hand observations, their own technical knowledge and their own experience gained from other accident investigations. Those characteristics gave the opinions of the AAIB a value for a court seeking to determine the cause of an air accident which could not and should not in principle be accorded to the opinions of another judge. That was not to say that all the findings in the AAIB report were of equal significance. To the extent that they reflected or might be taken from their nature to reflect matters of expertise, the court would accord them weight. To the extent that they consisted of inferences drawn from factual evidence which involved no special expertise and which the court was equally well qualified to draw, the court would not accord weight to the findings over and above the evidence on which they were based. The whole of the AAIB report was admissible as evidence, with it being a matter for the trial judge to make such use of the report as he thought fit. In that respect, the court had both an inherent jurisdiction to control its own procedure and express powers under the CPR 32 to control the evidence it would receive. From issue 348 EXPERT EVIDENCE Turner v Walsall Hospital NHS Trust [Lawtel 12/04/2013] The case of Turner v Walsall Hospital NHS Trust [Lawtel 12/04/2013] illustrates both the courts reluctance to allow employment experts in personal injury claims and the difficulty in successfully appealing a case management decision. The claimant, who was 14 years old and lived in Jersey, had suffered serious brain damage as a result of admitted clinical negligence by the defendant trust during a surgical procedure when he was 8 years old. Judgment had been entered with damages to be assessed. The parties agreed that it would be some time before the full extent of the damage could be assessed and the claim was stayed until a telephone case management hearing in Before the hearing the master received the claimant's written submissions on why permission should be granted for the instruction of an employment expert. His case was that the difficulties associated with quantifying his loss of earnings claim could only be resolved by an employment expert. Those difficulties included the need to consider both English and Jersey employment law and statistics; the difficulty in obtaining information relating to Jersey career opportunities; pension provision; average earnings and employment benefits, and the fact that he had attended a prestigious school with 99% of students achieving A - C in public examinations indicating that he was not likely to have been an average wage-earner. The Page 17

18 master refused permission to rely on an employment expert but approved the parties' proposals to rely on 11 other experts. The claimant appealed and submitted that the master's decision had been plainly wrong, as the present case was clearly one in which an employment expert should be instructed due to the difficulties highlighted and such instruction would not affect the trial timetable and was likely to result in a cost saving, as the hourly rate was less than half that of a solicitor who would have to do the work otherwise. Refusing the appeal the High Court judge held that Under CPR 52.11(1) the claimant s appeal was limited to a review of the decision. Under CPR.52.11(3) the appeal should only be allowed where a decision was wrong or where there had been a procedural or other irregularity. It was well established that it was a high threshold for an appellant to cross in order to overturn a case management decision made within the court's discretion. Pursuant to CPR 35.1 the master had a duty to restrict the expert evidence to that which was reasonably required to resolve the proceedings. The instant case was not one in which a judge had refused to allow any or a substantial amount of the expert evidence and in doing so had refused to apply his discretion properly under CPR The master had granted permission for 11 experts to be relied upon by the parties. The question was whether it was so plainly wrong to refuse permission to rely on an employment expert as the 12 th expert, such that the master had acted outside the generous ambit of his discretion. The master had acknowledged the issues The claimant had raised and accepted that determining his loss of earnings was not straightforward. It was not a case in which the issues had not been articulated to him; the documents and transcript clearly demonstrated that. He had all the issues in mind in making his decision including the fact that permission to rely on employment experts was not normally granted for loss of earnings claims. Accordingly, the claimant had not established that the decision was plainly wrong and outside of the ambit of the master's discretion. It was a classic case calling for the exercise of judicial discretion and that discretion had been properly exercised. (Obiter) Bearing in mind the test on appeal, it was not for the instant court to exercise that discretion afresh. However, for completeness, in the overall context of the case, the instant court would have exercised its discretion in exactly the same way and refused permission to rely on an employment expert. From issue 359 EXPERT EVIDENCE Fisher Offshore Ltd v Offshore Installation Services [Lawtel 03/07/2013] In Fisher Offshore Ltd v Offshore Installation Services [Lawtel 03/07/2013], the defendant applied to redact an expert s report on the grounds that it raised matters not pleaded. In the substantive proceedings, the claimant had proposed to amend its pleading but had then agreed not to pursue those amendments, accepting that the matters sought to be raised were new. The defendant sought the redactions on the basis that the expert report raised issues that had not been pleaded and the fact that the claimant described matters that were raised in the report, which had not been pleaded, as "central to the dispute". The substantive hearing was to take place in three weeks' time. The claimant argued that the present issue was quintessentially one for the trial judge and that all it had done in the proposed amended pleading was set out a case of contributory negligence which was consequent on the pleading. Refusing the application, the High Court judge held that it was commonly the case that an expert in performing his duty went into issues that he had not been asked to deal with and those matters would be sorted out at trial. The trial judge would have three days to read the papers, and would be in a better position to decide how far from the centre the relevant evidence fell. It was evident from the claimant's application to amend that it recognised that the expert was raising matters not previously pleaded. In the instant circumstances, it was not right for the court to redact an expert's testimony the relevance of which was a matter for the trial judge. However, the instant application raised a point which, if it were pursued, the Page 18

19 defendant would be unable to respond to before trial; the only way that issue could be pursued would be through an application to amend and an application to vacate the trial; the latter would not be granted for that reason at the instant stage. To the extent to which the issues had been raised and set out in the defence they could be pursued at trial in the usual way. However, to the extent to which allegations had not been particularised, they could not be fairly pursued at trial as notice was required together with an opportunity to respond to them. Accordingly, although the court refused to redact the expert's report, it indicated that the defendant should not have to find evidence and instruct experts in relation to the now abandoned amended pleading. Daly v Milton Keynes Hospital NHS Trust [lawtel 03/07/2013] In Daly v Milton Keynes Hospital NHS Trust [Lawtel 03/07/2013] the claimant applied for permission to instruct a pain management expert in relation to her clinical negligence claim against the defendant. The claimant had received treatment at the defendant s hospital after falling from a horse, and alleged that it had acted negligently in the diagnosis and/or treatment of her spinal damage. After she commenced proceedings, the parties agreed on directions, including the instruction of a range of experts in relation to liability, quantum, and condition and prognosis. At the present hearing, two weeks before the trial was listed to commence, the claimant sought permission to instruct a pain management expert. She accepted that if permission was granted, the trial would have to be adjourned. She submitted that permission should be granted, not only because expert evidence would be useful in relation to the reliability of her account of the pain she suffered, but also because the court would be assisted on the issues of liability and causation. The deputy High Court judge rejected the application and held that insofar as the claimant said that permission should be granted to boost her credibility, evidence of that type was inadmissible: it was well established that evidence that went only to a witness' credibility was inadmissible. Further, it was difficult to see how the court would be assisted in deciding issues of liability and causation by the instruction of a pain management expert. The parties had considered at an early stage the appropriate experts that should be instructed, but it was only recently before trial that the claimant had considered that a pain management expert should be instructed. The court did not lightly contemplate adjourning a trial that had been fixed for some time and which was due to commence in the immediate future. In the circumstances, it was not appropriate to grant permission. From issue 360 EXPERT EVIDENCE Dass v Dass [Lawtel 09/07/2013] Dass v Dass [Lawtel 09/07/2013] illustrates the need to serve expert evidence in accordance with an order for directions or risk losing the right to rely on that evidence. It also confirms how difficult it is successfully to appeal a case management decision. The claimant/respondent had been a passenger in the appellant/defendant's car when it crashed. The defendant admitted liability, and directions were given in November 2010 for the parties to exchange medical evidence in May 2011 in relation to quantum. The defendant's insurers did not provide their medical evidence until May 2013, nearly two years after they were supposed to. At a case management conference on the following day, the master concluded that the defendant's insurers had been sitting on their evidence for some time and had deliberately and tactically decided not to comply with the directions for disclosure. She ruled that the delay had been prejudicial to the claimant and decided to exclude the defendant's evidence. The issue was whether the master's decision fell outside the ambit of discretion afforded to her. Rejecting the defendant s appeal, the High Court judge held that it was well established that case management decisions could only be appealed against in limited circumstances. In the present case, a timetable for the disclosure of medical evidence had been set in November Page 19

20 2010. Nonetheless, the defendant's insurers had chosen to ignore it, apparently for tactical reasons in order to give them more time to carry out surveillance of the claimant and to provide the results of that surveillance to their medical experts. The fact that the claimant had not pressed very hard for compliance with the directions long before the master's order was of some relevance. However, the master was fully entitled to take a dim view of the insurers' conduct. It was ultimately for the court to decide how to exercise its case management powers to ensure that cases were properly progressed and that court orders were complied with. The master had had regard to the overriding interest of justice, including maintaining the integrity of the court system by ensuring that court orders were complied with. From issue 346 EXPERT EVIDENCE Mengiste and another v Endowment Fund for the Rehabilitation of Tigray and others [Lawtel 28/03/2013] As we enter a new era during which we may see the courts show a much greater interest in expert and factual witness evidence and the attendant costs, there are two cases which now take on added significance. The first is a commercial case of Mengiste and another v Endowment Fund for the Rehabilitation of Tigray and others [Lawtel 28/03/2013]. In earlier related proceedings the same judge had made substantial criticisms of an expert witness, including criticisms that he had little appropriate qualification to give the relevant expert evidence; his lack of understanding of his duties to the court; the expert had not had explained to him by the solicitors his potential exposure if he gave evidence recklessly or negligently, and that the expert had been thrown to the wolves without any proper protection with regard to the nature of his role, his duties, and potential liabilities. The defendants sought a wasted costs order against the solicitors, on the basis that they were liable as the case they had put forward was bad in law. The instant issue arose as a precursor to that application. The solicitors argued that it would have been clear to a fair-minded observer that the judge had already made up his mind that the failings that he had found in relation to the expert were the solicitors fault, and that they could not therefore expect a fair and impartial hearing on the wasted costs application. Dismissing the application the High Court judge found that recusal ought to take place in two cases: first, when the manner and conduct of a case showed an actual bias against the party seeking recusal, and secondly, mandatorily where there was a real possibility that the fairminded observer test would be infringed. It was inevitable, in the collision between an application for wasted costs and an application for recusal, that there was judicial criticism of a party's or legal representative's conduct, but in order for recusal to take place a judge would need to have expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind. Accordingly, the solicitors bore the burden of establishing that the criticism of its client was extreme and unbalanced. Mere criticism of the solicitors was not a basis for recusal, and their repeated characterisation ofthe judge's comments as extreme and unbalanced did not in fact render them extreme and unbalanced. The expert s reports had patently not been CPR Part 35 compliant, and there was no doubt that he had been one of the worst expert witnesses ever to have given evidence before the judge; the question was as to how that inadequacy had occurred. The court felt considerable sympathy for the expert: he was an expert in Ethiopian law who, although he had been honest and had not been reckless or grossly negligent, had struggled to give evidence as he had been unfamiliar with the procedure for giving expert evidence in England and Wales. However, the solicitors would have seen that his reports did not comply with Part 35 and yet it allowed him to give expert and it was on his report(s) that the solicitor's clients' case stood or fell. It was clear that the expert had not been properly prepared to give evidence by the solicitors. The court made no apology for the observation that the expert had been thrown to the wolves Page 20

Legal Watch: Personal Injury

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