PERSONAL INJURY Alert

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1 A weekly news bulletin from Greenwoods Issue 373: 6 November 2013 In this issue - Civil Procedure/Extensions of Time CIVIL PROCEDURE/EXTENSIONS OF TIME - Civil Procedure/Expert Evidence - Civil Procedure/Expert Witnesses - Article Seminars - Personal Injury Update A Date for Your Diary One of the greatest areas of risk for claimant solicitors is failing to serve the issued claim form within the four months permitted by the rules. Similar difficulties can arise where the Particulars of Claim are served separately, as is illustrated in the case of Kesabo and others v African Barrick Gold Plc and another (2013) EWHC 3198 (QB). example, if the claim form was served after business hours on the last day for service, it would be deemed to be served two business days later. CPR 6.14 identified the moment from which subsequent steps in litigation were calculated to take place. It followed that the Particulars of Claim were not served within the time specified for service. Bristol One Redcliff Street Bristol, BS1 6NP T London Bedford Square 18 Bedford Square London, WC1B 3JA T London Market Office 77 Gracechurch Street London, EC3V 0AS T Manchester City Tower Piccadilly Plaza Manchester M1 4BT Milton Keynes 2 Eskan Court Campbell Park MK9 4AN T Southampton 3600 Parkway Solent Business Park Fareham PO15 7AN T On 28 March 2013, the claimants had issued a claim form under CPR 7.5, which provides that where the claim form is served within the jurisdiction, the claimant must complete the step required in relation to the particular method of service chosen, before midnight on the calendar day four months after the date of its issue. In the instant case the claimants had to serve the claim form by midnight on 29 July It was in fact served three days earlier but the Particulars of Claim were not served with the claim form; they were delivered to the defendants' solicitors the following day, 16 hours after midnight on 29 July. However, under PD (2) the Particulars of Claim must be served within 14 days after service of the claim form provided that the service of the Particulars of Claim is not later than four months from the date of issue of the claim form (emphasis added). The High Court judge refused the claimants application for a declaration that the Particulars of Claim had been validly served. He held that on the face of it the requirement was clear; the document had to be served before midnight four months after the claim form was issued. That view was supported by CPR PD CPR 6.14 did not have the effect of extending the time in which the claim form had to be served. It gave certainty as to when the claim form was deemed to be served: for As an alternative, the claimants sought relief from sanctions under CPR 3.1(2)(a) and 3.9, for non-compliance with CPR 7.4(2) and that time for service of the Particulars of Claim be extended for 16 hours or, if necessary 21 days from the hearing of the application. The application for relief from sanctions and/or an extension of time under CPR 3.1(2)(a) fell to be considered by reference to CPR 3.9. As from 1 April 2013 it provided that on an application for relief from sanctions the court had to consider all the circumstances of the case, including the need for litigation to be conducted efficiently and at a proportionate cost while giving due weight to the importance of compliance with rules. It was doubted whether, in the usual case, the new words of CPR 3.9 required any further elaboration or refinement. However, some of the criteria in the old version of the rule might be relevant to the exercise of the court's discretion, although they should not be applied in a formulaic way. In the instant case, the balance was in favour of granting the relief sought to enable the claimant within a short period to serve more detailed Particulars of Claim. Comment Although the judge was critical of the claimants solicitors in a number of respects, three factors Personal Injury l Property & Construction l Insurance l Commercial & Financial Risks l Fraud l Health & Safety l Motor Prosecutions

2 Page 2 of 5 CIVIL PROCEDURE/EXTENSIONS OF TIME CONT D weighed in the claimants favour. The first was that if an application had been made for an extension of time for service of the Particulars of Claim, it would almost certainly have been granted. As it was, the application for relief had been made promptly. Secondly, the fault was that of the claimants solicitor and not the claimants, but there had been communication difficulties, as the claimants were residents of Tanzania. Thirdly, if the current actions were struck out, only one of the claims would be statute barred and after an inevitable delay a fresh action could be commenced. CIVIL PROCEDURE/EXPERT EVIDENCE We report briefly the non-personal injury case of Lewis v Narayanasamy and another [Lawtel 31/10/2013] in which the High Court judge hearing the claimant s appeal set out the test to be applied when a case management judge is considering whether or not to permit a party to adduce expert evidence. The master had allowed the first respondent permission to rely on expert evidence and the claimant appealed against that decision. Allowing the appeal, the High Court judge held that in considering the rival submissions and the master's judgment, it did not appear that the master had been referred to the need to undertake three considerations: namely, whether there was a cogent need for the evidence; how helpful the evidence would be in resolving the issue before the court, and the cost of the evidence as a proportion of the overall sums at stake. Even prior to the introduction of CPR 35.4, the court was required to address the matters in CPR 35.4(2): in the instant case, although the first respondent had provided the name of a proposed expert and had identified the field in which expert evidence was required, he had not provided any estimate of costs to the master. It followed that the master had not been in a position to consider the proportionality of the cost of the proposed expert evidence and had not purported to have considered it. Through no fault of his own the master had thus fallen into error, in particular by failing to consider the costs of the evidence and the proportion that those costs bore to the costs as a whole. Accordingly it fell to the instant court to consider the matter afresh. As it was not possible for the appellate judge to determine whether or not expert evidence would assist the court the order allowing permission to adduce the expert evidence was set aside, with liberty to the first respondent to reapply after the provision of the required information. CIVIL PROCEDURE/EXPERT WITNESSES A case from the Technology and Construction Court is of wider interest when considering what happens if an elderly expert witness wishes to retire from a case. In BMG (Mansfield) Ltd and another v Galliford Try Construction Ltd and another (2013) EWHC 3183 (TCC) the claimants, who claimed damages from the defendants in connection with a fire at their shopping centre, applied for permission to call expert evidence from a fresh expert and to amend their Particulars of Claim. The fire occurred in October The claimants case was that the damage was much more extensive than it should have been owing to inadequate fire protection in the roof space and eaves canopies. Within days of the fire, they instructed an expert, an architect in his early 60s, who produced a report in April It was disclosed to the defendants in November Both defendants rejected the claim under the pre-action protocol process. The claimants issued proceedings in October The parties exchanged various documents throughout In April 2012, the claimants expert met with the opposing expert witnesses and in May 2012 there was an unsuccessful attempt at mediation. Thereafter two things happened which prompted the making of the instant application: the claimants instructed their lawyers to review their position including taking a second opinion on the correctness of the expert's advice; and the expert, who was by then nearing seventy, withdrew as an expert. The defendants submitted that the circumstances of the expert's withdrawal from the case were suspicious and that the claimants had known since May 2011 that he wished to retire from the case, and had deliberately withheld that information until it had sourced a new expert and obtained a fresh report. They accused the claimants of "expert shopping", or at least the appearance of expert shopping, and requested, as a condition for permission to call a new expert, disclosure of all undisclosed expert reports, and any communications from the expert to the claimants containing his opinion on the issues in the litigation. Allowing the claimants application, the High Court judge held that there was no evidence before the court from the expert so it was not possible to say whether his wish to retire was driven by his age or by the possibility that he had had a bruising time at the experts' meeting and/or the mediation. On the face of it, there was nothing unreasonable about an expert of his age wishing to be relieved of his duties in litigation which might have been expected to have been concluded some years earlier. On the evidence, the claimants had first learnt

3 Page 3 of 5 CIVIL PROCEDURE/EXPERT WITNESSES CONT D of the expert's retirement wishes in May 2012, a week after the failed mediation attempt, not May The earlier date had been a typing error. The second expert had been instructed around mid-june The claimant did not require permission to call a new expert because no party had yet applied for permission to call any expert. The instant application therefore pre-empted the application that would inevitably be made under CPR 35.4(1) at the first case management conference. Imposing a condition of disclosure of any previous reports ought to be the usual practice where the change of expert came after the preaction protocol procedure had started. That principle applied to all reports, not only those prepared for use in litigation. The court was not limited to ordering disclosure of an expert's "final" report; its powers extended to ordering disclosure of other reports containing the substance of the expert's opinion. In the instant case, it was appropriate to order disclosure of any report prepared by the expert in which he expressed opinions or indicated the substance of such opinions. However, the court was not prepared to order disclosure of documentation falling short of a report, such as the claimants solicitors' attendance notes of telephone conversations with experts which might record expert opinion. As well as being privileged, such notes might not recite the expert's actual words; also they might contain material which was not expert opinion and redaction would not always be an effective solution. Difficulties might also arise if the expert did not agree that the attendance note correctly recorded what he had said. There had to be a very strong case of expert shopping to justify a condition that solicitors' attendance notes should be disclosed, otherwise there would be a significant and unjustified invasion of privilege and a considerable increase in litigation costs. The instant case was nothing approaching a strong case. At best there might be an appearance of expert shopping, but any such appearance was faint. There was no evidence that the second expert had been approached before the existing expert indicated his resignation and the court was not prepared to draw such an inference. A witness statement from the expert would have been preferable, but it could not be assumed that the absence of a witness statement was the result of a tactical decision by the claimants. ARTICLE Husband and wife found guilty of contempt of court after exaggerating a personal injury claim In Homes for Haringey v Barbara Fari and Piper Fari the High Court confirmed that fraudulent and exaggerated claims will not be tolerated. The court found both Mr and Mrs Fari in contempt of court. Sentencing is scheduled for next week but Mr Justice Spencer indicated he would certainly be exploring a prison sentence in relation to Mrs Fari. Our colleagues at Plexus Law have been acting for Homes for Haringey throughout the litigation. Background Mrs Barbara Fari made a claim for personal injury after she tripped over an uneven paving slab in May 2008 injuring her right knee, leaving her severely disabled. She claimed over 750,000 compensation, the majority of which related to care and assistance provided by her husband. Whilst Homes for Haringey admitted liability, the substantial quantum claim was disputed. Undercover surveillance Undercover surveillance showed Mrs Fari walking without assistance and revealed she had grossly exaggerated the effect of her injuries in her witness evidence and at her medical examinations. The witness statement by Mr Fari claiming he provided 70 hours care and assistance per week was also discredited. In light of this evidence the medical experts for both parties altered their initial opinions agreeing they had been misled. The injury would in fact have resulted in a minor aggravation of pre-existing degenerative changes in her knee with symptoms lasting no more than 2-3 months. The strike out Homes for Haringey applied to strike out the entire claim, including any genuine element, on the basis that the exaggeration was so extensive that it amounted to an abuse of process. His Honour Judge Mitchell found that Mrs Fari had suffered a very minor injury worth no more than 1,500 (less than 0.5% of the pleaded value of the case) and accepted there had been an attempt to deceive the court by significantly overstating the suffering caused. Following guidance by the Supreme Court a few months earlier in the case of Summers v Fairclough Homes Ltd, the judge felt compelled to conclude that Mrs Fari had fraudulently exaggerated her claim. It amounted to an abuse of process and it was just and proportionate to strike the claim out in its entirety. Permission to pursue contempt On 22 January 2013 Mr Justice Holroyde gave permission to pursue both Mr and Mrs Fari for contempt of court, for false statements within signed documentation and false representations to the medical experts. The lie unravels At the committal Mrs Fari maintained that her solicitors had put forward the false claims in the schedules of loss without her knowledge and that the documents she signed were not explained to her.

4 Page 4 of 5 ARTICLE CONT D She denied telling experts or her solicitors that she needed continuing care as a result of the accident, maintaining she told them her symptoms lasted no more than 4-5 months. Mrs Fari also denied having put on an act when attending the medical experts. Mr Fari denied telling the medical experts that he was unable to work having become his wife s sole carer. He also denied assisting her to give a false impression of the injuries at the medical examinations. However, the documentary and surveillance evidence revealed a very different story. The judgment Mr Justice Spencer concluded that with consideration of her previous solicitor s file Mrs Fari was well aware of the contents of the witness evidence and schedule of loss she signed having provided the facts contained within it. Further more she had been driving the claim and following its progress with vigour. He simply could not reconcile the account of her symptoms to the three medical experts, which was consistent with the surveillance of her attending the defendant s expert, with the later footage of a relatively sprightly Mrs Fari walking alone, up hill without a stick whilst carrying heavy shopping. Commenting that Although she comes across superficially as a vulnerable and needy woman, I am quite sure she is a strong and domineering character. Although lacking in formal education and literacy skills she is nobody s fool. I am quite sure she is capable of playing upon her educational and physical weaknesses when it suits her. He concluded that there had been a serious and deliberate attempt to mislead. Whilst Mr Fari was clearly the less dominant in the relationship he foolishly followed his wife signing a witness statement despite knowing the contents were false. Comment This is a landmark case achieving the first complete strike out and to be followed by a successful committal it brings about a new era in the battle against fraudulent claims. For insurers this decision sends the strongest possible message to anyone tempted to exaggerate a personal injury claim. The justice system will not tolerate it and the claimant risks losing not just compensation but also their liberty. The fact that both Mr and Mrs Fari face a potential custodial sentence sends a stark warning to those tempted to inflate their claims and anyone that helps them. It is also a warning to claimant solicitors that they have to be careful in fully advising their clients about the genuineness and accuracy of claims advanced. Going forward it is hoped this will serve as a deterrent to others which in a time of continued budget cuts and shorter time frames for investigations is vital. Contact Us For further information please contact: Jennifer Harris, Solicitor (David Melville QC of 39 Essex Street appearing) T: E: jennifer.harris@plexuslaw.co.uk EVENTS Greenwoods hold a series of training events which are open to interested clients. Below are those events being held in the next few months. If you would like to attend any of the following events please crm@greenwoods-solicitors.com, indicating which you are interested in attending. Personal Injury Update 2013 Speaker Geoff Owen Greenwoods Consultant Date Venue Time 3 December 2013 Greenwoods Solicitors 4.00pm Manchester Office A Date for Your Diary Our An Audience With... series restarts on 21 January 2014 at 6.00pm (Central London) with a representative of the Insurance Ombudsman Service The Greenwoods Major Bodily Injury Group annual seminar will take place at the Wellcome Collection in London on Thursday 22 May 2014.

5 Page 5 of 5 Other Greenwoods publications Greenwoods produces a number of regular publications on various topics, namely: PROPERTY, CONSTRUCTION & INSURANCE REVIEW (Monthly) FRAUD REVIEW (Bi-monthly) MOTOR CRIME FOCUS (Quarterly) H & S REVIEW (Quarterly) MARINE INSURANCE REVIEW (Quarterly) If you would like to subscribe to any of the above publications, please crm@greenwoods-solicitors.com, indicating which you would like to receive. Further information For further information on any of the issues dealt with in this Alert, other than where a contact has been provided, please contact Geoff Owen on T or E. gro@greenwoods-solicitors.com To subscribe or unsubscribe from this Alert, please crm@greenwoods-solicitors.com 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. Greenwoods Solicitors is a trading name of Parabis Law LLP, a limited partership registered in England & Wales. Parabis Law LLP is authorised and regulated by the Solicitors Regulation Authority. Registered office: 8 Bedford Park, Croydon, Surrey, CR0 2AP under number OC