Anna Louise Tuson v Debbie Murphy
| Jurisdiction | England & Wales |
| Judge | Lord Justice Bean,Lord Justice Underhill,Lord Justice Sales |
| Judgment Date | 22 June 2018 |
| Neutral Citation | [2018] EWCA Civ 1461 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2016/1737 |
| Date | 22 June 2018 |
[2018] EWCA Civ 1461
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE OXFORD COUNTY COURT
HIS HONOUR JUDGE CHARLES HARRIS QC
3YQ07200
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
Lord Justice Bean
and
Lord Justice Sales
Case No: A2/2016/1737
Roger Mallalieu (instructed by Royds Withy King) for the Appellant
Brian McCluggage & Ben Morris (instructed by BLM Law) for the Defendant
Hearing date: 24 May 2018
On 19 th August 2010 the Claimant, Ms Tuson, fell from her horse during a lesson at the Defendant's riding school and broke her right arm. She subsequently developed Obsessive Compulsive Disorder which two psychiatrists attributed to the accident. On 2 nd May 2012 liability was admitted subject to an agreed deduction of 15% for contributory negligence. She gave up her work as a schoolteacher in September 2012, and issued proceedings on 9 th August 2013.
Her claim was initially valued at over £1.5 million, based on the premise that she would be unable to work again.
In November 2013 the Claimant obtained a franchise in a playgroup organisation under which she ran “messy play” workshops for children under the name Creation Station. She ran her first playgroup session in January 2014.
On 18 April 2014 the Claimant served her first witness statement (p171) in the case dated 8 days earlier, running to 26 pages, describing in detail the impact of her obsessive compulsive disorder (OCD) on her life. Her mother also served a supporting statement dated 25 th March 2014. Neither of these statements mentions Creation Station. On the contrary, Ms Tuson wrote at paragraphs 85–86:-
“I planned to work until retirement and had plans to become a special educational needs co-ordinator and an NQT (newly qualified teacher mentor). Middle management was also a natural goal. Now I would like to see myself going back to work when Harry (her son) gets to school age; assuming that is when he is 4 1/2, it would be the Autumn of 2017.”
At paragraph 157 she described her “dreams for 2014” as being:-
“To be off the antidepressants, to become pregnant again, to sell my own home and to buy a new home with my husband, to live as a family in my new home, to be in control of my OCD and not the other way around.”
Prior to the issue of proceedings, the Claimant had obtained a psychiatric report from Dr Jacqueline Scott in September 2012. On 4 th June 2014 she was seen by another consultant psychiatrist, Dr Veale, on behalf of the Defendant's insurers. Again no mention was made of the playgroup activity. Dr Veale diagnosed severe OCD caused by the accident (p319).
On 16 July 2014 the Claimant served a schedule of loss signed with a statement of truth. It included a substantial claim for future loss of earnings based on the report of an employment expert, Mr Keith Carter, dated 16 th April 2014. Mr Carter had not been told about the playgroup. Nor had the Defendant's employment expert, Ms Susan Arblaster, who reported on 12 May 2014.
It appears that by September 2014 the Claimant had virtually ceased the playgroup activity. The Creation Station franchise was transferred in January 2015.
On 29 April 2015 the Defendant's solicitors became aware of the Claimant's involvement in Creation Station the previous year. By letter of 22 June 2015 they informed the Claimant's solicitors accordingly.
In her third witness statement dated 7 September 2015 the Claimant set out in detail the involvement she had had with the playgroup. She wrote:-
“6. Whilst searching online for local groups I could attend and keeping in mind my personal CBT goal of taking Harry to ‘messy’ play to challenge myself, I discovered the playgroup organisation Creation Station. I went to a taster session with Paul and Harry in York around October 2013. It was suggested by Creation Station that I could purchase a franchise to run my own group.
7. In one way I was excited and optimistic as I hoped it would benefit my personal CBT focused goals, and give me a reason to get up and do something and that Harry would benefit from mixing with other children. There was also the possibility of making some friends. Getting out of the house would hopefully have its own benefits for me but also give some respite to my parents.
8. I never saw this venture as a way of making any income and in fact I lost money. The purchase was more about me making a playgroup for Harry and me that suited us time-wise and focused upon my CBT goals. I only ever envisaged being able to cover my costs which I failed to do. I feel very guilty about not contributing and Paul and my parents paying for everything.
…
41. I stopped virtually all activities by the time I was admitted to ADRU which I believe was October 2014. I did the odd party I was committed to and did think about doing something at Christmas but decided against that idea.
42. Creation Station failed in the end and was bound to fail for any of two reasons. On the one hand, it did not make any money and was a financial drain. My OCD restricted what I could attempt to do which meant that it could never make money. On the other hand, even if it was a successful business, regardless of the restrictions of running it during restricted hours, I could not ultimately cope with it because of my OCD. And nothing has changed.”
Under the heading “Why I did not mention the playgroup in my evidence” she wrote:-
“64. I should have raised this matter before. I know that.
65. However, please do not think this means I have misrepresented my health and my claim because I have not.
66. The reasons for not mentioning this before are a little complicated but essentially because I did not want to open myself up to criticism generally but especially in case I failed in attempting to operate the playgroup and then indeed it having failed.
67. I have said that the playgroup was not a business – I believed it was a way to combat/control my OCD in a goal based therapy.”
After strongly criticising the Defendant's solicitors and insurers, saying that she felt “violated and disgusted by their attacks on her” she continued:-
“76. The point is that my family and I are always just trying to do our best with varying degrees of support and upsetting attacks from the Defendant.
77. Creation Station was not raised in previous statements partly because it was never regarded as gainful employment — it was just a way of giving me something other than OCD to focus on. This is something I feel strongly about when I mentioned that my life is not a case. My feelings of guilt, shame and being a financial burden are some of the main reasons I began to think about starting Creation Station, but the driving force was being personal CBT therapy. I did not want to attract more criticism for my family and I over a course of action that was rehabilitation and not a business.
78. What I was doing with the playgroup was a million miles away from normal, never mind normal paid work. In some sense it does not add anything to the case except perhaps to support it, through highlighting yet again what my OCD prevents me from doing.
79. I should say that I had briefly mentioned to my solicitor the aim to attend playgroups and perhaps looking at an art group.
80. I am sorry that I did not raise the playgroup before because I should have done. In my mind it has very little bearing on what is said about my claim. Whilst this is true I can see that not raising the subject was misguided.
81. Apart from being wrong, the Defendant's aggressive reaction and their threats have been far more upsetting than would have been the case. They have taken my attempts to improve my condition and suggested I have been deceitful about my health, which is not the case, and this diminished my feelings of progress.
82. The mere fact I have had to write this to justify myself has caused me great stress and anxiety.”
The Defendants' Part 36 offer
A week after receipt of this witness statement the Defendant's solicitors made a Part 36 offer by letter of 17 September 2015:
“We are instructed by Debbie Murphy t/a Angel Riding Centre Defendant to offer £352,060 gross in full and final settlement of this claim.
This offer is made in accordance with Part 36 of the Civil Procedure Rules. The terms of the offer are as follows:
1. Our client offers £352,060 gross of apportionment by way of a lump sum in full and final settlement of your client's claim. This offer is made in relation to the whole of your client's claim.
2. The sum is gross of benefits repayable to the CRU. Accordingly, if the offer is accepted, any such benefits will be deducted from this sum. We have obtained an up to date CRU certificate confirming nil recoverable benefits are owing.
3. This offer is intended to take account of the 85:15 liability apportionment and is NET of interim payment previously made totalling £72,600. The net amount offered is therefore £299,251.00.
4. If the offer is accepted within 21 days, our client will pay your client's legal costs in accordance with Part 36 Rule 20 of the Civil Procedure Rules.
If your client accepts the offer after the 21 day period then either we will need to agree the costs liability or the court will have to make an order as to costs.”
The 21 day period for acceptance of the offer expired on 8 October 2015. The Claimant did not accept the offer. The Defendant was given permission to instruct a new psychiatrist, Dr Holden, who by a report served on 23 November 2015 disputed the causation of the Claimant's OCD.
On 1 st December 2015 the Claimant accepted the Defendant's Part 36 offer of £352,060. The trial of quantum which had been set for 9–11 December 2015 was vacated. But since the parties were unable to agree costs, a hearing on costs took place on...
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...v Murphy [2018] EWCA Civ 1461 The Court of Appeal has found that a Defendant's Part 36 offer made in the knowledge of a Claimant's material non-disclosure did not alter the costs consequences. The Court of Appeal overturned a first instance decision which penalised a Claimant who had been a......
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UK Court of Appeal Confirms Rigidity of Part 36 Convention
...pay not only the usual costs for late acceptance of a Part 36 offer, but also the costs preceding the Part 36 offer. In Tuson v Murphy [2018] EWCA Civ 1461, the Court of Appeal found that the judge’s exercise of discretion had been flawed and the usual Part 36 cost consequences were bound t......
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UK Court of Appeal Confirms Rigidity of Part 36 Convention
...pay not only the usual costs for late acceptance of a Part 36 offer, but also the costs preceding the Part 36 offer. In Tuson v Murphy [2018] EWCA Civ 1461, the Court of Appeal found that the judge’s exercise of discretion had been flawed and the usual Part 36 cost consequences were bound t......