Eversheds Sutherland's Corporate Claims Bulletin - October 2022

• United Kingdom

• Litigation and dispute management
• Personal injury claims litigation

28-11-2022

LIABILITY

Harrison v Tui UK Limited [2020] 2 EWHC 2557 (KB)

The need to prove all aspects of your case and an unusual procedural manoeuvre.

The claimant was badly injured went on holiday in Portugal. He was found on an emergency road outside his hotel and had no recollection of the circumstances of his injury. No one saw the claimant's accident.

At trial he alleged that he must have exited the hotel through an emergency door and then fallen from a path on which he said there should have been a handrail.

The trial judge found the absence of a fence outside emergency door was a breach of duty but there was no evidence to show that the claimant had actually used that door or that the lack of fence was in any way relevant to the accident. These were the assumptions the claimant was making but there was no evidence to support them.

What evidence there was, the claimant’s wife making an assumption as to where he had gone after they parted that evening and some blood and a piece of glass from the claimant’s glasses which were found on the service road, were all consistent with the claimant's case but not sufficient to prove it.

Unusually, the claimant made an application after judgement, to amend the pleadings to plead an alternative way in which the accident occurred.

In effect, his amended case would have been that he had not exited through the emergency door but had gone for a walk and found himself on the path by the emergency door with the intention of re-entering the hotel through it, and fallen from there in any event. At the trial, the judge seems to have placed some weight on the fact that there was no explanation for the claimant to have exited the hotel via the emergency door and thought it much more likely he had just gone out through the normal door. This amendment was a way of combining that scenario with the breach of duty that the judge had already found in the failure to fence the path at that point.

The trial judge rejected this application on the basis that had it been made during the course of the trial, it would not have altered the outcome of it. The evidence that he had heard was “at least equally consistent with the claimant simply falling while walking along the service road and not falling from the door or the path at all.”

Not content with this outcome the claimant sought permission to appeal the outcome of his application. The Court of Appeal concluded that the trial judge was entitled to find that there was insufficient evidence of how the accident happened based on either of the ways the claimant wished to put his case.

They also rejected the suggestion that the claimant should be allowed to rely as part of his appeal, on an ambulance record which had been before the trial judge only in Portuguese.  Once translated this suggested that the claimant's injury had arisen from a fall from height which was consistent with the case which he was now putting forward.

This case is a reminder that parties in litigation must prove their assertions at least “on the balance of probability”. If a party cannot prove their pleaded case on that basis they will not succeed.

Muyepa v MoD 2022 EWHC 2648 (KB)

Fundamental dishonesty and experts

The claimant, an ex-soldier, claimed damages for a non-freezing cold injury after a training exercise in Wales in 2016.  His claim was dismissed on the grounds of fundamental dishonesty.

When he was examined by doctors he could not stand without a walking stick. He alleged he could only walk around 100 m with a walking stick and could only stand for 10 minutes to make a drink or a snack. He struggled to get up from a sitting position and had to leave his wife to do all the housework. His claim totalled £3.7 million of which £1.7 million was to pay for the cost of carers for the rest of his life.

Unfortunately for Mr Muyepa, a few months before the medical exam his wife had posted video footage from a barbecue in which the claimant could be seen dancing and holding a plate. Another Facebook post showed him performing as a DJ at a party.

Perhaps, not surprisingly, the defendant obtained surveillance footage which showed the claimant out for an hour and a half taking his children to school and going shopping at Lidl and Home Bargains. The footage clearly showed a man who was much more mobile than he had presented to the medics or alleged in his pleadings.

There were many other problems with the detail of the claimant's evidence: Mr and Mrs Muyepa did not live together as they alleged to the care experts, Mrs Muyepa alleged that she spent more than 35 hours per week caring for the couple's daughter but actually was working a significant number of hours which would prevent that level of care. At one point in her evidence the she suggested that she could work 200 hours in a week in an attempt to square her evidence on working and the amount of time she spent on care. There are only 168 hours in a week.

The defendant alleged that the claimant was fundamentally dishonest and the claim should be struck out. The claimant did not help himself by serving a revised schedule of loss the evening before the final day of trial reducing the claim for care and related losses by over £2 million.

During the trial the claimant relied upon a total of 29 lay witnesses who were predominantly friends, family or ex-military, some of them had recently received compensation for similar injuries themselves.

The claimant was found to be fundamentally dishonest. The judge preferred a qualitative approach to witness evidence rather than a quantitative one and despite the claimant's 29 lay witnesses, the judge preferred the defendant’s whom he found to be honest and credible.

The trial judge was also critical of some of the claimant's expert evidence saying “together the evidence of Dr Mumford Dr Friedman and Dr Edwards paint the coherent and consistent picture of conscious, deliberate, prolonged and significant exaggeration which I much prefer to be overly benign and, I regret to say, at times partisan, analysis of Dr Kerry, Dr Baggaley and Dr Sidery.”

The judge also criticised the claimant's care expert Amanda Kerby. Saying that her evidence did not satisfy the test of “reasonableness“ in terms of the amount of care, aids and other equipment that she said the claimant required. Miss Kirby had also failed to address the evidence on Facebook and the surveillance evidence which was an unrealistic approach.

The judge emphasised an expert's duties to the court under Part 35 and said that the claimant's experts in this case had been neglectful of that.

Striking out the claim on the grounds that the Claimant was fundamentally dishonest, the judge noted that had he not been found to be fundamentally dishonest he would have awarded the Claimant £97,595.33. This would have amounted to 3% of the sum claimed.

Section 57 of the Criminal Justice and Courts Act 2015 provides that in a case where a claim has been exaggerated by a “fundamentally dishonest” claimant, the court is to dismiss the claim altogether, including any unexaggerated part, unless satisfied that substantial injustice would thereby be done to him:

57 Personal injury claims: cases of fundamental dishonesty

(1) This section applies where, in proceedings on a claim for damages in respect of personal injury (“the primary claim”)—

(a) the court finds that the claimant is entitled to damages in respect of the claim, but

(b) on an application by the defendant for the dismissal of the claim under this section, the court is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the primary claim or a related claim.

(2) The court must dismiss the primary claim, unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed.

(3) The duty under subsection (2) includes the dismissal of any element of the primary claim in respect of which the claimant has not been dishonest.

(4) The court’s order dismissing the claim must record the amount of damages that the court would have awarded to the claimant in respect of the primary claim but for the dismissal of the claim.

(5) When assessing costs in the proceedings, a court which dismisses a claim under this section must deduct the amount recorded in accordance with subsection (4) from the amount which it would otherwise order the claimant to pay in respect of costs incurred by the defendant.

COSTS

Lally v Butler H17YJ113

Defendant was successful in appeal against Part 7 costs in case that should not have left the portal.

The claimant was pursuing a personal injury action under the portal. They obtained a medical report In support of the claimant’s case. The claimant served the report on the defendant with a request for a state and an interim payment as the claimant said she was “uncertain as to whether she will reach a recovery in line with the prognosis”.

The defendants declined to make an interim payment and the claimant dropped the case out of the portal and pursued Part 7 proceedings instead, on that basis.

At the conclusion of the case the defendant appealed against the award of costs under Part 7 against them.

HHJ Bird held that the claimant had no right to request an interim payment under the Protocol as a further medical report was not, in fact, needed. He said that a claimant could only be said to “need“ a further medical report under the portal where that report is “justified“. The claimant's uncertainty as to whether she would recover in line with the prognosis in her report was not sufficient justification for a further report and the case should not have left the portal.

The judge said that the earlier case of Luvin v Aegean Insurance Ltd (2015)(unreported) had wrongly had the effect of re-writing the portal protocol so that the words “where the claimant needs to obtain a subsequent medical report” would read instead “where a claimant would like to delay settlement”.

Evans v Allegmeine Verischerung [2022] EWHC 2688 (KB)

Indemnity costs. How bad does a party's conduct need to be?

The claimant's personal injury claim succeeded at trial. He beat  his own part 36 offer which had been made on the 7th of July and it was accepted that the claimant was entitled to indemnity costs after that date. However, the claimant also applied for indemnity costs throughout the case on the basis of the defendant’s conduct.

The claimant raised a number of specific allegations in relation to the defendant's failures including:

i) Failure to engage with the Rehabilitation Code.

The rehabilitation code is a voluntary code agreed with the large insurers and other defendants such as the NHS. One of its principal objects is to enable funding to be put in place for rehabilitation on a without prejudice basis to any question of liability. In this case the defendant insurer refused to engage in rehabilitation under the code.

The court found that the code was a voluntary one and although a failure to comply with it could be taken into account here, liability was firmly in dispute and, importantly, the insurer involved was a German one dealing with an accident which occurred in Germany. The German insurer was not a party to the code and in all the circumstances refusing to engage in rehabilitation under it was not sufficient to incur indemnity costs.

ii) Failure to engage with ADR

Defendant made no attempt to settle the case before trial and did not respond to the claimant's offers of ADR taking the view that they are premature as all the evidence had not been resolved. By the time the defendant agreed to ADR there were no suitable dates available prior to trial.

The defendant position was the date was not unwilling to engage with ADR it was simply a question of timing and waiting for the necessary evidence to be available. The judge was critical of that approach saying that “parties should be well used to negotiating at different points of litigation. It should not always be necessary to wait for finalise joint reports from experts before litigation risk can be evaluated”.

In the circumstances the failure to engage with ADR was not enough to warrant an award of indemnity costs.

The judge did point out, however, that negotiation was a “two-way street“ and that it was open to the claimant to have made a part 36 offer much earlier than they had done. If they had made a Part 36 offer at the time they first suggested ADR then the bulk of the costs would have been awarded on an indemnity basis when the defendant failed to beat the Part 36 offer.

iii) Failure to cooperate in narrowing the issues in dispute.

The claimant criticised a number of the of the aspects of the defendant's handling of the expert evidence and failure to agree certain aspects of the reports, particularly those on German law and accident reconstruction.

The judge rejected these allegations saying that although it was “far from the ideal of litigation presentation“ it is not “behaviour which should be condoned but it does not fall Outside the range of reasonable conduct”.

iv) Pursuing a hopeless case

The judge made the point that the decision to fight a case should not be “judged retrospectively from the position of knowledge that certain evidence was ultimately rejected at trial”.

The purpose of a trial was to test evidence and it was not unreasonable for the defendant to fight the case.

v) Failure to respond to a Part 36 offer

The claimant complained that the defendant did not respond in any way when they made a Part 36 offer. The judge rejected this. The claimant had the benefit of indemnity costs from the date of the Part 36 offer and the judge did not see that he could “award double indemnity costs order for failing to respond, nor treat that failure to reflect back on the litigation generally and say that indemnity costs should be awarded from the earlier date.“

vi) Cumulative effect

The judge then took a step back from the individual allegations and looked at the conduct as a whole but concluded that the defendant's conduct did not justify the penalty of indemnity costs.

 “I accept the conduct of this litigation by the defendant has been imperfect. They could have done much more to prepare this matter for trial at an earlier stage, make appropriate applications earlier, and (probably) take a realistic assessment of the strengths of the case. However, parties are entitled to run cases which are not the strongest. They take the chance at trial. The defendant took that chance and lost. “

Achille v Lawn Tennis Association Services Ltd 2022 EWCA CIV 1407

QOCS and mixed claims. What happens if the personal injury element of the claim is struck out?

CPR 44.13 qualified one-way cost shifting: scope and interpretation

(1) This section applies to proceedings which include a claim for damages –

c) which arises out of death or personal injury and survives to the benefit of an estate by virtue of section 1 (one) of the law reform (miscellaneous provisions) act 1934.

The claimant sought damages for personal injury an injury to feelings following his ejection from a tennis club. The claim for psychiatric injury was struck out by district judge. The judge ordered that the claimant pay £4250 immediately as he did not have the protection of QOCS.

The claimant appealed the order on costs but the judge upheld the first instance decision on the basis that once the personal injury injury element of the claim had been struck out it was appropriate for cost to be paid immediately and protection from QOCS was lost. This was on the basis that the purpose of the cost protection provisions was to protect personal injury claimants with a real prospect of success but not those with hopeless claims.

The claimant then appealed to the Court of Appeal and succeeded. The Court of Appeal found that it was appropriate for a court to assess costs immediately but the question of enforcement of those costs should be left to the end of the case for the trial judge to determine.

The Court of Appeal commented:

“but in such proceedings the fact that there is a claim for damages in respect of personal injury, and a claim for damaged property, does not mean that the QOCS regime suddenly becomes irrelevant… I consider it likely that in most mixed claims of the type that I have described, QOCS protection will – in one way or another – continue to apply… It would be wrong in principle to conclude all mixed claims require discretion to be exercised in favour of the claimant, because that would lead to abuse, and the regular “taking on“ of a claim for personal injury damages (regards the strength of weakness of the claim itself) in all other sorts of other sorts of litigation just to hide behind the QOCS protection.”

The Court of Appeal were giving a clear indication here that the fact that a person injury claim is combined with non-personal injury elements will not mean the claimant loses cost protection but in circumstances where that claim is struck out because it is without merit during the course of the action, it would be foolish of the claimant to expect to be able to retain that protection.

PROCEDURE

Eaton v Auto Cycle Union Ltd 2022 EWHC 2642 (KB)

Make sure your expert is actually an expert in what you are asking him to give evidence on.

The claimant was badly injured during a motorcycle race. He brought proceedings against the organisers for failing to put straw bales on the corner on which he crashed.  Instead the organisers had put loose tires on the bend to act as crash protection.

The claimant's claim failed. The judge found that the defendant had no duty to provide straw bales and that the tires were an adequate alternative.

The judge was very critical of the claimant's expert.

The claimants expert was a “rider, driver, team manager, owner and commentator in many fields of motorsport“. The defendant’s expert was a qualified engineer with experience and accident reconstruction and examination of safety fence systems following collisions.

The judge commented “unhappily Mr Parish (the claimant's expert) cut a rather sorry figure in the witness box. Quite simply, he lacked the necessary expertise to substantiate and justify his conclusions “.

In contrast the defendant's expert “performed laboratory tests which demonstrated that straw bales are significantly stiffer than a tire wall“ and would have made the barrier less rather than more safe.

At the time of appointment the claimant would have thought that their choice of expert was a good idea. He had experience of racing in motorsport which the defendant's did not and clearly had views on the merits of straw bales against tires. However, in the end, he did not have the engineering background and rigour that the defendant's expert could bring to the case. Accordingly, his evidence was rejected and the defendant's preferred.

Always consider carefully your choice of expert. The fact that the claimant's expert knew a lot about motor racing here did not mean he was able to provide a report that would convince a judge of his views.