IN THE BIRMINGHAM COUNTY COURT. Civil Justice Centre The Priory Courts 33 Bull Street Birmingham B4 6DS

Transcription

1 IN THE BIRMINGHAM COUNTY COURT 0BM71244 Civil Justice Centre The Priory Courts 33 Bull Street Birmingham B4 6DS Friday 27 th August 2010 Before: DISTRICT JUDGE WYATT B e t w e e n: EMMA CARLON Claimant and DOMINO S PIZZA GROUP LTD Defendant (Transcribed from the Official Tape Recording by Cater Walsh & Co, Transcription Suite, 1 st Floor Paddington House, New Road, Kidderminster, Worcs. DY10 1AL Tel: Fax: ) MR CHRISTOPHER PERRY appeared on behalf of the Claimant MS NATALIE SWALES appeared on behalf of the Defendant JUDGMENT -1-

2 Friday 27 th August 2010 EMMA CARLON -v- DOMINO S PIZZA GROUP LTD JUDGMENT 1. DISTRICT JUDGE WYATT: This is the case of Carlon v Domino s Pizza Group Ltd, claim number 0BM The claim itself was one for damages for personal injuries arising out of a road traffic accident, that accident having occurred on 6 th November The claimant was at that time and throughout the proceedings a protected party in that she was at all times under 18, namely 13 at the time of the accident and I think 16 by the time the overall settlement of her claim for damages was achieved earlier this year. 2. The parties did in fact agree eventually the quantum of damages at The standard proceedings for approval of an infant settlement were issued and the matter came to court on 14 th June of this year when damages were approved by the court in that figure and an order made. A few days before that hearing the claimant s solicitors had indicated to the defendant s then solicitors that they were going to allege and argue that the costs fell outside the fixed recoverable costs regime on the basis that there were exceptional circumstances and so although the quantum of damages was agreed, the approach to costs was not and so the parties invited the judge on 14 th June to make provision for a hearing at which the question of whether or not there were exceptional circumstances which would take the case outside the fixed recoverable costs regime applied and indeed that order was made and the hearing has been listed before me today. 3. The claimant has appeared by counsel, Mr Perry, and he has submitted a skeleton argument and chronology and has drawn my attention to a case decided -2-

3 in Sheffield County Court, a case called York v Adams [8SE 50415], a decision of District Judge Oldham. 4. On the defendant s side I have had a helpful appearance by Ms Swales, a costs draftsman, and she, too, has submitted a helpful skeleton argument and reminded me of the decision of Simons J sitting with Master Hurst and Mr Rowley as assessors in Butt v Nizami : Butt v Kamuluden [2006] EWHC 159 (QB); [2006] 3 Costs LR 495. I have looked at that and the passage to which she has particularly referred me, and paragraph 23 in particular. 5. There are certain aspects of this case about which it seems to me the parties agree and I respectfully agree with them about the approach that they have adopted, to this extent that this was a case in which a barely adolescent child was knocked over by a car on a zebra crossing, landing on the bonnet falling on to the road. She suffered some orthopaedic injuries and some psychological consequences, post traumatic stress disorder and phobic anxiety about the pedestrian travel. The defendant driver did not stop and so initially the claim had to be made to the Insurers Bureau and eventually the defendant insurance company was identified to deal with the claim. 6. Those matters, it is said and agreed, would not by themselves take the matter into the realm of exceptional circumstances although it seems to me that the claimant is in effect arguing that they do take it to the perhaps outer edge of the swings and roundabouts barrier or cushion that applies, as it were, to that regime to which Ms Swales reminded me and drew my attention in the authority. The claimant accepts that there is in the regime an in-built provision for swings and roundabouts and that I should be careful (and I so remind myself) not to look at -3-

4 the matter as though this was a single straight forward claim and that anything out of the entirely ordinary is the same as exceptional. 7. The position is that CPR simply says: The court will entertain an amount for costs, excluding any success fee or disbursements, greater than the fixed recoverable costs but only if it considers that there are exceptional circumstances making it appropriate to do so. Perhaps surprisingly, there is no binding authority on me as to what exceptional should be taken to mean. There is this one decision to which Mr Perry has referred that he thinks I might find helpful. 8. It seems to me that the important features of the case are these; that the case proceeded on what would be a relatively routine fast track road accident case through orthopaedic assessment and recovery and an initial assessment of psychological consequences which might be above average but would not be exceptional, but the case came to a point where the consultant psychologist. Mr Lockyer, came to deal with the possibility that this claimant, who had begun to suffer very obvious symptoms of anorexia nervosa some nine months after the accident, raised the possibility that that might be a consequence of the accident. He simply looked at two possibilities perhaps the obvious ones that there was no connection or, alternatively, that there was a connection and he suggested that that matter be explored further by the treating psychiatrist. -4-

5 9. The treating psychiatrist initially reported that again it was possible that there was some slight acceleration but it is difficult to be any more precise about it than that. He was pressed and indeed pressed by counsel but in the end he came to the view that it was impossible to say that there was an identifiable period of acceleration and so at that stage the normal litigation decisions had to be made about whether or not to settle and that decision was made to settle at the figure I have indicated. Within the time frame from the accident to the settlement of the claim it is right to point out, it seems to me, that the severity of the claimant s anorexia nervosa led to her being an inpatient for at least several months from 2008 through into I have come to the view that the element of the possibility that there was a connection between her eating disorder or its exacerbation and this accident is and amounts to in itself exceptional circumstances. I would have come to that view without knowing about York v Adams but I am helped by some extent to it and I take a similar view that the possible connection to a severe eating disorder, particularly one that led to a prolonged period of inpatient treatment, was something that took this case well outside the normal range of orthopaedic and psychological consequences of a road accident that would be otherwise likely to fall within the fast track regime. I also take the view that it made it well outside the buffer zone of swings and roundabouts. 11. As I say, I am satisfied on that matter alone. If I had any hesitation, and I do not, but if I had any and if I am wrong about that, then it seems to me that the feature that the claimant was a child undoubtedly makes it a case for me that these are exceptional circumstances. Had the case come to court without any -5-

6 investigation of that matter it is inevitable that the learned judge will have asked the claimant about how she had felt and how she was feeling after the accident and if she had said to the judge, Well, nine months after the accident we were on holiday and I stopped eating and I stopped eating to such a degree that I ended up in hospital for several months with anorexia nervosa, then the judge s first reaction would have been to say to the legal representatives, Why has this not been explored, and he would have had no proper answer to that question. So it seems to me inevitable that that matter had to be explored, every avenue had to be looked at, and if someone had attempted to say to a judge in those circumstances, Oh, well, we had a medical report and it said that there was a possibility of a slight exacerbation but it would have happened anyway, I am quite satisfied that a judge would have said, You should have explored how slight is slight. So it seems to me that the explorations that were carried out in this case had to be done in the course of carrying out the proper representation of the child. 12. As I say, I would be satisfied that there were exceptional circumstances in this case without that element but if I were to be wrong about that, it seems to me the fact that she was a child, every avenue had to be explored in order to ensure that her case was properly recompensed, would clinch the matter in any event, despite, as I say, Ms Swales (inaudible) and helpful submissions. 13. Ms Swales then takes the point and in her assertion that costs above the fixed costs regime would be sought should have been pleaded in the claim. She relied on the practice direction 25A.8. I agree with Mr Perry that that requirement applies to costs only proceedings, that these were not costs only proceedings, -6-

7 these were proceedings that had to come to court regardless of agreement in order to have the proposed settlement approved by the court and that was the nature of those proceedings. 14. Again if I am wrong about that I am satisfied that I would grant the claimant relief from that requirement. It seems to me that the defendant was not prejudiced by its absence from the claim form in how it came to deal with the case and had time to arrange for this hearing and this argument to be conducted before the matter came before the judge on 14 th June So for those reasons I am satisfied that the proper approach to costs in this case would be to conduct an assessment without being limited to the fixed recoverable costs provisions. ---ooo000ooo