Legal WatchPersonal InjuryIssue Number: 001

Welcome!

Welcome to the first edition of Legal Watch: Personal Injury.

Many of the cases reported this week have a common theme:

the courts are applying the Civil Procedure Rules strictly.

While, in many respects, that approach must be correct, there

is concern that judges are ignoring the realities of the litigation

process and justice is becoming secondary to process.

In This Issue:

- RTA/Liability

- Civil Procedure

- Costs/CFA

- Damages

- Fraud

- Limitation

- Periodical Payments

Events

Plexus and Greenwoods hold a series of eventwhich are open to interested clients. See belowfor those being held in the next months:

An Audience With ... | 21.01.14 |Central London

03

RTA/Liability

The case of Wheeler v Chief Constable of Gloucestershire

Constabulary [Lawtel 19/12/2013] illustrates the Court of

Appeal’s reluctance to interfere with the findings of a judge

who has heard the evidence.

The claimant/appellant had been driving a car with a

passenger when his car collided with a police van driven by a

police officer which was turning right across oncoming traffic.

Both the claimant and his passenger suffered injuries and they

brought a claim against the defendant/respondent for his

officer's negligent driving. The judge found that the officer had

been negligent in failing to stop before he turned right or to

check for oncoming traffic. He further found that the claimant

had been driving at 55mph in a 30mph speed limit. He held

that both parties had been negligent and apportioned liability

at 50:50.

The claimant appealed. submitting that the judge had reached

an apportionment of liability which was not open to him on the

facts and he had failed to give adequate reasons for his

decision. He argued that the officer had failed to stop; keep a

proper look out; wait for a safe gap; or have regard to the

painted lines on the road. He relied on Grealis v Opuni (2003)

for the proposition that exceeding the speed limit did not make

him more negligent.

“...it was impossible tothink that the judge hadfailed to have regard tothe duties on bothparties in assessing theirblameworthiness’’

Rejecting the appeal, the Court of Appeal held that it was

reluctant to interfere with the apportionment of liability decided

by a judge. The claimant's submissions underplayed his own

negligence in failing to comply with the speed limit and driving

25mph faster. The speed of the car in question in Grealis was

in the 30s. The officer's negligence was two-fold, not four-fold:

he had failed to stop before turning or to keep a proper look

out. The judgment was short but it was impossible to think that

the judge had failed to have regard to the duties on both

parties in assessing their blameworthiness. His apportionment

of 50:50 was open to him having heard the witnesses and the

Court of Appeal would not interfere with his decision.

The defendant was awarded his costs of the appeal but both

parties had failed to produce a statement of costs as was

required under CPR PD 44 so that the court could not

summarily assess the costs. In light of the stricter approach

to be adopted to the failure to comply with rules following

Mitchell, the defendant was ordered to pay the costs of a

detailed assessment.

CommentThe way in which costs were dealt with in this case serves yet

again to illustrate just how rigorously the courts are enforcing

compliance with CPR.

A second case under this heading is Horner v Norman [Lawtel

20/12/2013]. The defendant, whilst driving her car on a dual

carriageway, had struck the claimant, a pedestrian, when he

ran out onto the road. The defendant's evidence, supported

by a witness, was that she had braked lightly upon seeing the

claimant approach the dual carriageway, but ceased braking

once he had retreated slightly. She further stated that she was

forced to perform an emergency stop once he then sprinted

into the road, but she clipped him. Experts for both parties

agreed that the collision had occurred at a speed of 30 miles

per hour. The claimant's expert stated that the likely friction

coefficient of the road had been 0.65, consistent with a damp

road, so that the calculations meant that the defendant could

have stopped in time for the claimant to reach the central

reservation. The defendant's expert preferred a lower

coefficient, consistent with patches of ice on the road as

identified by police reports, so that the defendant had done all

that she could to stop in time. The issues were whether (i) the

coefficient of the road had been 0.65 and, if so, whether that

was determinative of the defendant's negligence; (ii) the

accident itself proved the defendant to have been negligent;

(iii) the claimant had been contributorily negligent.

The deputy High Court judge held that he did not share the

claimant's view that a finding that the coefficient of the road

had been 0.65 would be determinative of the case. The

photographs from the scene and police reports all indicated

patches of ice on the road. The temperature had been below

zero and no skid testing had occurred because conditions

were icy. There had been patches of ice on the road and a

coefficient of 0.65 was not reliable. The defendant's expert

evidence was preferred as the claimant's expert evidence had

included inappropriate content, including advocacy on his

behalf.

The circumstances had been highly unusual. Pedestrians

crossing dual carriageways were relatively less common

occurrences. The claimant had stepped out and then

retreated, so that the traffic had been visible to him. He had

given the impression that he had seen the traffic approaching.

It was more likely that he had decided to beat the traffic, rather

than having forgotten the side of the road on which cars drove.

There was no evidence that he was drunk and he had not

checked to his right before attempting to cross. The defendant

had been driving at a modest speed, had kept a proper look

out and had twice reacted to the claimant's presence. She had

braked as hard as she could and the court did not accept that

she had applied the brakes too late. There was nothing more

that she could have done and her actions were those of a

reasonably competent and prudent driver. Although there were

often situations where the mathematics meant that the driver

could or should have done more, the instant case was not that

case.

If that was wrong, the claimant's contributory negligence was

to be assessed at 75 per cent.

“The defendant hadbeen driving at a modestspeed, had kept aproper look out and hadtwice reacted to theclaimant's presence”

CommentAlthough it is a first instance decision on its facts, this case

will give heart to defendants. It shows that where a driver and

a pedestrian see each other but there is still a collision, the

courts will not always find that the motorist’s duty was a higher

one and that she must bear some liability

Wheeler v Chief Constable of Gloucestershire Constabulary

[Lawtel 19/12/2013]

Horner v Norman [Lawtel 20/12/13]

04

05

Civil Procedure

“We are already seeingthe fall-out from theMitchell case’’

In Karbhari and another v Ahmed (2013) EWHC 4042 (QB) the

defendant applied for permission to serve a supplementary

witness statement out of time.

The claimants’ case was that, in the context of more than 20

transactions, they had handed over to the defendant millions

of pounds in cash and cheques pursuant to an agreement that

he would repay the monies after a fixed period together with

a guaranteed return. Some of those transactions involved

monies allegedly provided directly by the claimants; others

involved third parties who, it was said, provided the first

claimant with monies upon the promise of a return lower than

that which had been offered by the defendant to the first

claimant, thus leading him to expect to earn a substantial

commission. The investors, it was said, understood that the

returns were being generated by profits in the Dubai property

market through a company. In the vast majority of, if not all,

cases neither the original investments nor any return was

recovered. In his defence, the defendant denied receiving any

of the sums in question. On the morning of the second day of

the period over which the matter had been listed for trial, he

produced an amended defence. It purported to strike out the

original defence almost in its entirety, and it was admitted that

he had received four cheques from four different investors

which he passed on to a representative of the company. He

also filed a supplementary witness statement. In it he admitted

receiving cheques for onward transmission and investment.

He explained that the reason his earlier statement, which had

been filed over seven months previously, was so short of facts

and detail was that he was concerned that if he told the full

story he could get a number of other people into trouble in

connection with money laundering.

Refusing the application and striking out the defence, the High

Court judge held that the defendant’s supplementary witness

statement had been proffered over seven months late and,

even more importantly, on the second day of the trial. Where

the court had ordered witness statements to be served by a

certain date and they had not been served by that date, then,

to obtain the court's permission under the CPR.32.10, the

party in default had to persuade the court to grant relief under

CPR 3.9(1). Applying the approach in Mitchell it would not be

appropriate to grant the defendant the permission sought. His

breach was far from trivial. The delay of over seven months

and the timing of the application on the second day of the trial

amounted to a serious departure from the terms of the court

order relating to the service of witness statements. The

supplementary witness statement was no mere formality but

sought to introduce wholly new (and inconsistent) material to

the case as originally presented. Further, there was no "good

reason" for the defendant's default. Money laundering was a

serious criminal offence. Omitting until the very last moment

large volumes of evidence to protect those guilty of the offence

on the unwarranted assumption that the case might not come

to trial was a thoroughly bad reason. In the particular

circumstances of the case, the proportionate response to the

breaches was to strike out the defence and give judgment for

the claimants.

Where there was a realistic possibility of evidential

developments between the date on which witness statements

were to be served and the trial date, the wisest course would

be to seek to persuade the court to make two orders relating

to the service of witness statements. The first would provide

for a date which would give a realistic opportunity for all sides

to prepare statements covering existing events. A later

backstop date could be ordered for the service of

supplementary statements limited in content to matters which

occurred, or were reasonably discoverable, only after the first

date. That would have the advantage of obviating the need for

further applications to the court and of giving the court the

opportunity to exercise proportionate case-management

discipline in advance. In that way, the unanticipated last-

minute service of witness statements should become a thing

of the past. The same would be expected to apply to expert

reports.

CommentThe outcome of this application was unsurprising, even

without the impact of the tougher approach to compliance

with CPR. However, the judge’s more general comments

illustrate just how far parties must now plan well ahead when

suggesting directions and setting their costs’ budgets.

Karbhari and another v Ahmed (2013) EWHC 4042 (QB)

06

07

Costs/CFA

Another case showing the impact of the tightening of the rules

is Harrison and another v Black Horse Ltd [Lawtel 07/01/2014].

The claimants claimed that they had been mis-sold payment

protection insurance. They brought proceedings in the County

Court for recovery of the premiums they had paid. When their

claim was dismissed, they appealed, first to the High Court

and then to the Court of Appeal. Although they were

unsuccessful, they obtained permission to appeal to the

Supreme Court. At that point the matter was settled by

consent, with the defendant agreeing to refund the premiums

and to pay the claimants’ costs throughout, though not any

sums in respect of after-the-event insurance premiums. The

claimants had entered into four conditional fee agreements

(CFAs) with their solicitors, one covering the proceedings in

the County Court, the remainder covering the two appeals and

the Supreme Court application. It was common ground that

they had given the defendant notice of the first and fourth

CFAs. They accepted that they had not given notice of the

second, which related to the High Court appeal, and the

dispute centred on whether they had given notice of the third,

which related to Court of Appeal. The claimants’ solicitors

maintained that they had sent the notice via the Document

Exchange. In points of dispute served in February 2013, the

defendant claimed that it had never received the notice and

that, by virtue of CPR 44.3B(1), the claimants were not entitled

to recover any success fees or counsel's fees incurred under

that CFA. In July 2013, the claimants applied for relief from

sanctions. The issues were (i) whether they had served notice

of the third CFA on the defendant; (ii) if not, whether relief from

sanctions ought to be granted.

Refusing the application, the master held that it was not

disputed that the claimants’ solicitor’s file contained a copy of

a letter to the defendant's solicitor purporting to enclose an

"updated notice of funding". Nor was it disputed that the

solicitors had faxed a copy of the notice to the Civil Appeals

Office. The letter to the defendant had been prepared by a

paralegal employed by the claimants’ solicitors. She recalled

typing it, but could not recall putting it in the post tray. Her

evidence was that she had not put it in the Document

Exchange. That was not sufficient to prove service. Because

there was no evidence as to what happened to the letter after

it left the paralegal's hand, service could not be deemed under

CPR .6.26.

“..the new version ofCPR 3.9 introduced atougher approach torelief applications”

The sanction in CPR 44.3B(1) was automatic and, since the

requisite notice had not been given, the claimants could not

recover success fees in relation to the second appeal unless

the court granted relief from sanctions. In that respect, the

relevant version of CPR 3.9 was that in force after 1 April 2013.

It was clear that the claimants solicitor had intended to give

the defendant notice of the CFA, and there was no reason to

doubt that they believed that they had done so. However, the

purpose of the notice was to alert the other party to the

possibility of its having to pay success fees or insurance

premiums if it was ordered to pay costs. The defendant's

unchallenged evidence was that it had had no reason to

assume that the appeals were funded by CFAs and that, had

it known, its approach to settlement might have been different.

That evidence, which had to be taken at face value, was

sufficient to show that the defendant had been prejudiced by

the failure to give notice. Under the pre-April 2013 version of

CPR 3.9, the case for relief would have been borderline:The

defendants had given notice of the first CFA, and their failure

to give notice of the third was inadvertent; on the other hand,

they had failed to give notice of the second CFA and had not

applied for relief promptly. However, the new version of CPR

3.9 introduced a tougher approach to relief applications. If the

failure to give notice could properly be regarded as trivial, relief

would usually be granted provided that the application had

been made promptly. If the failure could not be characterised

as trivial, the defaulting party bore the burden of persuading

the court to grant relief. The court had then to consider

whether there was a good reason for the default. The

claimants’ failure could not be said to be trivial: no notice had

been given at all. Nor had they shown good reason for the

default. While that might seem harsh, the solicitors should

have known that CPR 3.9 was to be amended so as to

introduce a tougher approach, and an application for relief

could have been made before 1 April.

Harrison and another v Black Horse Ltd [Lawtel 07/01/2014].

08

09

Damages

Although it is not a personal injury case, many readers will be

interested in the decision in Coles and others v Hetherton and

others (2013) EWCA Civ 1704.

The claimants’ vehicles had been damaged by the defendants’

negligence. Insurance policies provided by the claimants’

insurer provided for policyholders to choose its system for

repairing cars, entitling the policyholder to a courtesy car, or

to choose another repairer. The claimants all chose the

insurer's system, which involved the repairs being undertaken

by a company within the insurer’s group of companies. The

repair company sub-contracted the work to repairers. The

defendants alleged that the insurer's system inflated claims

and challenged the sums claimed. The preliminary issues were

whether (i) where a vehicle was negligently damaged and

reasonably repaired, rather than written off, the measure of the

claimant's loss was the reasonable cost of repair; (ii) if the

insurer arranged repair, the reasonableness of the repair

charge was to be judged by reference to what the claimants

could obtain on the open market or to what the insurer could

obtain; (iii) if the insurer arranged repair, and where the amount

claimed was no more than the reasonable cost of repair, that

amount was recoverable.

Upholding the decision at first instance, the Court of Appeal

held that where a chattel was damaged by negligence, direct

loss was suffered as soon as the chattel was damaged. The

measure of that loss was the chattel's diminution in value.

Events occurring after the damage were irrelevant to

calculating diminution in value. Subsequent destruction, a

decision to delay repairs, or an ability to have the repairs done

at less than cost would not prevent recovery of the diminution.

Generally, the courts calculated that diminution by considering

the reasonable cost of repair so as to put the chattel back in

the state it had been. In general, that was a convenient

practice which courts should continue to follow. A claim for

diminution in value was one for general damages. The cost of

the repairs was not itself the loss suffered. The defendants had

argued that the claimants could not recover the full cost of

repair to the insurer because they had to mitigate their loss by

having the repairs done at a lower cost. That was wrong:

mitigation was not relevant in respect of that direct loss.

Accordingly, the claimants’ loss was taken as the reasonable

cost of repair: that was taken, as a rule of thumb, as

representing the diminution in value, although it might not

always represent the full amount of the diminution.

There was no difference between the cases of uninsured and

insured chattels. Even where the insurer's rights became

subrogated to those of the insured, the cause of action against

the tortfeasor remained the claimants’, unless it was assigned.

Further, the benefits obtained under the insurance were

irrelevant in assessing damages. The defendants had argued

that the instant case was outside those general rules because

the insurer had acted as the claimants’ agent when arranging

repairs so that the contract between the repair company and

the repair sub-contractor was relevant for ascertaining repair

costs. That argument was unsupported by the facts. The

policies did not provide that the insurer would be the insureds’

agent and the claimants had not given the insurer authority to

enter repair contracts on their behalf. Thus the repairer could

not recover repair costs from the insured. Further, the

defendants could not rely on Copley v Lawn (2009): that case

recognised that where a claimant received an offer to make

amends, in deciding whether the claimant acted reasonably,

the advice he could reasonably have been expected to obtain

from other professionals was to be taken into account, but it

went no further than that, and did not undermine the general

rules. If the claimants’ insurer arranged repair, the

reasonableness of the repair cost was to be judged by

reference to what the claimant could obtain on the open

market.

If the insurer paid for repairs and the claimant sued for the

diminution in value, the court only had to consider whether the

sum claimed was equal to or less than the notional sum the

claimant would have paid, as a reasonable cost of repair, on

the open market. The court would examine the components

of the notional overall figure and would then compare that

figure with the total actual sum. Accordingly, the court would

not have to examine the administrative charges included in the

total repair cost paid by the insurer to the repair company. The

question was not whether each item was reasonable, but

whether the overall cost was reasonable. Courtesy car costs

could not be part of the repair costs. However, the right to a

replacement car was set out in the policy and was therefore a

contractual benefit; provided that the benefit was at a

reasonable rate and was reasonably incurred, it was

recoverable. There was no question of mitigation. The claimant

exercised rights contracted for before the tort had occurred;

that was not mitigating the loss of use of the vehicle.

“The question was notwhether each item wasreasonable, but whetherthe overall cost wasreasonable’’

CommentNotwithstanding the favourable outcome of this decision from

the claimants’ point of view, the Competition Committee has

expressed concern about the way in which non-fault drivers’

insurers are able to seize control of the repair and claims

processes with neither the at fault insurer or the claimant

having any means of exercising any control. We may well see

controls being introduced to prevent these practices.

Coles and others v Hetherton and others (2013) EWCA Civ

1704.

10

11

FraudDespite some success in prosecuting claimants for contempt

of court, as the result of fraudulent claims, defendants still face

an uphill struggle. In AXA Insurance Plc v Rossiter (2013)

EWHC 3805 (QB) the applicant insurer applied to commit the

respondent to prison for contempt of court.

The applicant had been the insurer of the tortfeasor who had

injured the respondent in a road traffic accident. Liability was

admitted and, in February 2011, the claimant issued a claim.

Judgment was entered in her favour and she served medical

reports, a witness statement and an updated schedule of loss

asserting that she was suffering from permanent, severe,

continuous disability such that she rarely left her house or bed.

The applicant disclosed to video surveillance evidence to the

respondent of 13 days of filming between November 2011 and

January 2012 showing her leaving home unaccompanied,

shopping, driving, walking her dogs, collecting her son from

school, and walking up and down steps carrying heavy and

bulky objects. There was also filming from two days in April

2012 in which she was not seen to have left her house. The

claim was formally compromised in September 2012.

The applicant argued that the respondent was in contempt of

court by having fraudulently exaggerated her claim for gain in

her statements in the medical reports, witness statement and

schedule of loss. It submitted that the surveillance evidence

demolished her claim by showing a starkly different picture of

her injury from that which she suggested. The respondent

asserted that the symptoms described and the picture

presented in the reports and her statement were accurate,

save that there were periods when she had not suffered quite

as much, and where the restrictions on her lifestyle were not

as great. She denied any dishonesty but accepted that she

should have pointed out the variability in her symptoms. The

applicant alleged that the respondent had tailored her

evidence after seeing the surveillance evidence, and that it

was inconceivable that 13 days of random filming should by

chance have occurred on her "relatively good days".

“Discrepancies betweenwitness statements andvideo evidence would notautomatically amount toa contempt of court’’

Rejecting the application, the High Court judge held that for

the applicant to establish the contempt alleged it had to prove

beyond reasonable doubt (a) the falsity of the respondent's

statements; (b) that those statements had or would have

materially interfered with the course of justice; (c) that she had

no honest belief in the statements and had known of their

likelihood to interfere with the course of justice. On the

evidence, the respondent had not been dishonest. Her

statements were false in that they did not deal with what she

could do, as shown on the surveillance evidence, on good

days, but the applicant had not satisfied the court beyond

reasonable doubt that she could do more than was shown on

the surveillance evidence. She had not generally made false

statements to her doctors or in her schedule of loss. The

surveillance evidence of April 2012 supported her case that

there were days when she was unfit to leave the house. There

was a line between exaggeration and dishonesty.

Discrepancies between witness statements and video

evidence would not automatically amount to a contempt of

court: ultimately, that was a matter of fact and degree, and

some exaggeration might be natural, even understandable..

The respondent's evidence raised considerable doubt as to

whether she was lying, and the applicant had fallen short of

proving dishonesty. Accordingly, whilst the respondent had

made a number of false or inaccurate statements, in the

absence of dishonesty there was no contempt.

AXA Insurance Plc v Rossiter (2013) EWHC 3805 (QB)

12

Limitation

The case of Hall v Ministry of Defence (2013) EWHC 4092 (QB)

looks at the factors to be taken into account by the court when

considering the discretion under S33 Limitation Act 1980 to

disapply the three year limitation period for bringing a personal

injury action.

The claimant had issued a claim alleging negligence in the

medical treatment he had received in respect of injuries

suffered in the army. The claim form had been issued in August

2010 but had not been served by April 2011, which was when

the defendant had agreed to extend time for service to. The

claimant had applied for an extension of time on that date, but

did not inform the defendant of the application until April 2012.

Due to oversights on the court's part, the application was not

heard until July 2012. The application was refused and the

claim struck out. The claimant was ordered to pay £3,000 on

account of the defendant's costs. In December 2012 he issued

a second claim. He accepted that the second claim had been

brought outside the three-year limitation period, so that he

would have to apply under S33 to disapply the limitation

period. A deputy master struck out the second claim, stating

that the claimant's failure to make payment on account and

failure to conduct himself promptly and fairly towards the

defendant rendered his action an abuse of process.

Allowing the claimant’s appeal, the High Court judge held that

a long delay for which the claimant could be held responsible

was not in itself sufficient to amount to an inordinate and

inexcusable delay justifying a strike-out for abuse of process:

there had to be something transforming the delay into an

abuse such as evidence that the claimant had lost interest in

the proceedings. It was difficult to ascertain that the deputy

master's conclusions had addressed the right question.

Regarding the failure to make the payment on account, he had

not considered whether the breach was such that it could be

described as intentional and contumelious, or otherwise a

wholesale disregard of the rules. It could not amount to either.

Further, the question of whether a claimant failed to act

promptly and fairly towards the defendant was significantly

different from the question of whether the claimant was guilty

of inordinate and inexcusable delay. Accordingly, the matter

would be considered afresh on the basis of whether the

claimant had been guilty of inordinate and inexcusable

conduct so as to have abused the process of the court.

“..a long delay for whichthe claimant could beheld responsible was notin itself sufficient toamount to an inordinateand inexcusable delayjustifying a strike-out forabuse of process’’

Looked at in isolation, the second claim was not open to

serious criticism. It had plainly been brought outside the

limitation period, but the reasons for that delay could be

subject to consideration in a S33 application. Given that there

was nothing abusive about the claim itself, the question had

to be whether the conduct of the first claim had been so

wrongfully delayed that the issue of the second claim was in

itself an abuse. The defendant's primary complaint as to delay

related to the 15-month period from the issue of the extension

of time application to its determination. However, the

application would have taken months to determine even if

progressed promptly, and the delay in listing the hearing had

been due to court administration in any event. The defendant

also relied on the four-and-a-half months between the striking-

out of the first claim and the issue of the second, but that

period could not be said to be an abuse in relation to the

conduct of the first claim, and could not be regarded as

abusive delay going beyond what would be considered in a

S33 application in relation to the second claim. Accordingly,

the delays could not be said to be inordinate and inexcusable

such that the second claim should be struck out.

The claimant's failure to make payment on account was not,

either by itself or in combination with the delays, sufficient to

make the second claim an abuse of process. The defendant

had a remedy in relation to the claimant's failure, being entitled

to apply for a stay of the second claim pending payment or to

take steps to enforce the order. Even had the court considered

that the second claim was an abuse of process, the question

would still have arisen of whether it was appropriate to strike

out the claim as a matter of discretion. Had the court arrived

at that point, it would have directed that the issue be

determined in the context of an overall consideration of S33,

the question of abuse of process being one factor in all the

circumstances.

Hall v Ministry of Defence (2013) EWHC 4092 (QB)

13

14

Periodical Payments

The Greenwoods’ case of AA (Protected Party) v BB and

another (2013) EWHC 3679 (QB) is an illustration of how

periodical payment orders made by agreement between the

parties may be used to settle claims, even where the court

could not impose an order in the same terms.

The claimant was aged 28 and lacked capacity. A deputy was

due to be appointed by the Court of Protection to manage his

affairs. The court had approved settlement of his claim which

comprised payment of a substantial lump sum together with

periodical payments. One aspect of the settlement remained

outstanding, namely a proposal that the second defendant pay

periodical payments of £11,500 per annum in respect of the

future deputyship costs, including those relating to the Court

of Protection. The parties had agreed that if the claimant

regained capacity to control his own finances those payments

would cease, but the payments would re-start if he

subsequently lost capacity at a future date.

In seeking the court’s approval of the terms of a consent order,

the claimant’s counsel submitted that when construing the

requirement in CPR 41.8(a) to specify the annual amount of a

periodical payment and at what intervals it would be paid, the

word "intervals" did not merely mean the frequency of

payments but could be construed as meaning an interval

during which a claimant lacked capacity; the proposed order

was within the Damages (Variation of Periodical Payments)

Order 2005

The High Court judge held that read within the context of CPR

41.8(1)(a) the word "intervals" was plainly referring to the

intervals of time within the period of a year at which each

periodical payment would be made. The reference in that

subparagraph was to the annual amount awarded, how each

payment was to be made and at what intervals. The drafter

was not there referring to intervals of years or intervals

between changes in the amount of the payments to be made.

The provisions of CPR 41 did not enable the court to make

orders starting and ending on a date which was uncertain. The

court was also sceptical of a suggestion by the claimant's

counsel that under CPR 41.8 there could be a total

suspension of an order, as opposed to a reduction or an

increase, as referred to in CPR 41.8(3). For all of those reasons,

the court was not satisfied that it had the power to order

periodical payments in the form suggested.

“The parties could agreea Tomlin order with aschedule embodyingtheir agreement inrelation to the periodicalpayments’’.

The 2005 order gave the court power to provide, in an order,

for periodical payments to be varied where there was a chance

that at some definite or indefinite time in the future the claimant

would, as a result of the act/omission giving rise to the cause

of action, suffer some serious deterioration or enjoy some

significant improvement in his condition. The circumstance for

which it was intended to cater was a case where there was to

be a reduction of or increase in the amount of periodical

payments rather than a "stop/start" change. It was intended

for the sort of case where it was necessary for there to be re-

assessment of damages in the future. Article 7 of the order

presented a further problem since it provided that a party

could make only one application to vary in respect of each

specified disease or type of deterioration or improvement. It

was therefore not appropriate to make such an order.

The parties could agree a Tomlin order with a schedule

embodying their agreement in relation to the periodical

payments. If it was in the claimant's interests, as it plainly was,

and if it satisfied the requirements for his protection, the court

was not precluded from approving that order, notwithstanding

that it was one which court could not itself order. Further, since

the proposed periodical payments formed part of an

agreement approved by the court, the periodical payments

made under it would be exempt from taxation.

AA (Protected Party) v BB and another (2013) EWHC 3679 (QB)

15

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