BXB v Watch Tower and Bible Tract Society of Pennsylvannia
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 11 March 2020 |
| Neutral Citation | [2020] EWHC 656 (QB) |
| Date | 11 March 2020 |
| Docket Number | Case No: HQ17P02006 |
| Court | Queen's Bench Division |
[2020] EWHC 656 (QB)
Mr Justice Chamberlain
Case No: HQ17P02006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
James Counsell QC (instructed by Bolt Burdon Kemp) for the Claimant
Catherine Foster (instructed by Legal Department Watch Tower) for the First and Second Defendants
Hearing dates: 25 – 29 November & 10 December 2019
Approved Judgment No. 2
The Claimant sought damages for personal injuries arising from a rape which took place in 1990. The rapist was Mark Sewell. At the time he was an elder in the Barry Congregation of Jehovah's Witnesses. On 30 January 2020, I gave judgment for the Claimant against the Second Defendants, the Trustees of that Congregation, in a sum to be assessed. I extended time to allow the claim to be brought, upheld the vicarious liability claim, held that the Claimant's psychiatric injuries were attributable to the rape and awarded the Claimant £62,000 in general damages. I rejected the principal claim for special damages – which was based on the proposition that, but for rape, the Claimant would have secured better paid employment as a teacher. Other parts of the claim for special damages were to be the subject of written submissions. In the event, the parties have been able to agree the quantum of those other claims, together with simple interest on general and special damages, in the sum of £7,500. This means that there will be judgment in the total sum of £69,500.
There are consequently only two issues for determination. Both concern costs. The issues are narrow. First, because the Claimant has ‘beaten’ her first Part 36 offer (made on 9 July 2019), the Second Defendants accept that they must pay the Claimant's costs on the indemnity basis from 30 July 2019, 21 days after that offer was made. The Claimant, however, says that the Second Defendants should pay all her costs on the indemnity basis, in view of the Defendants' unreasonable conduct, in particular their refusal to engage in alternative dispute resolution (‘ADR’). Second, there is a dispute about the enhanced rate of interest applicable to damages and costs from 30 July 2019 pursuant to CPR r. 36.17(4).
On the first issue, Mr Counsell QC for the Claimant relies on the direction made by Deputy Master Brown in the standard form on 20 April 2018:
‘At all stages the parties must consider settling this litigation by any means of Alternative Dispute Resolution (including Mediation); any party not engaging in such means proposed by another must serve a witness statement giving reasons within 21 days of that proposal; such witness statement must not be shown to the trial judge until questions of costs arise.’
Despite that, Mr Counsell submits, the Defendants did nothing even to try to explore settlement other than to suggest (in a ‘without prejudice save as to costs’ conversation on 17 January 2019) a ‘global offer’ to settle the Claimant's case and those of CXC and DXD, who had also been sexually assaulted by Mark Sewell and were represented by the same solicitors. The Claimant's solicitors made clear in that conversation, and reiterated in an email on 22 January 2019, that a global offer would give rise to a conflict of interest for them and invited the Defendants to make separate offers. In response, on 6 February 2019, the Defendants offered a joint settlement meeting ‘with your clients CXC and DXD only’. The Claimant's solicitors asked whether the Defendants would be amenable to a similar meeting in BXB's case. The response, on 25 February 2019, was that ‘we have no authority to negotiate settlement of BXB's claim at the JSM’, but said that if there were proposals in that case they would be considered. There was then a round table meeting about CXC's and DXD's cases in March 2019, but no further discussion of the Claimant's until she made her Part 36 offer to accept £62,750 on 9 July 2019. The Defendants rejected that offer without giving a reason on 31 July 2019. The Claimants made a further Part 36 offer on 31 October 2019, this time to accept £25,000. This was also rejected – again without giving a reason – on 7 November 2019.
Mr Counsell notes that the Defendants breached the obligation imposed on them by Deputy Master Brown's order. They made no real attempt to settle this claim. They did not even offer to settle quantum subject to liability. Had they done so, the Claimant would have been spared most of the intrusive questioning she in fact had to endure.
Ms Foster for the Second Defendant notes that an award of indemnity costs is appropriate only where the conduct of the paying party is ‘unreasonable to a high degree’: Dixon v Radley House Partnership [2016] EWHC 3485 (QB). In this case there was nothing unreasonable about the Defendants' conduct. The Claimant's case was very different from CXC's and DXD's. They were children at the time of the assaults, so different issues arose both in relation to limitation and in relation to liability. Given that the Claimant was an adult at the time of her rape, and a friend of the perpetrator, there was a proper factual and legal basis for the Defendants to defend the Claimant's claim; this was made clear at the joint settlement meeting held in relation to the other two cases. This is ‘the first known judgment whereby a religious organisation has been held liable for the rape of an adult by an unpaid, volunteer minister’. The Second Defendant is a registered charity and it would not have been appropriate for it to concede liability in circumstances not previously identified by the courts as giving rise to liability. An award of indemnity costs would deprive the Second Defendant of the opportunity to challenge the ‘significant’ costs claimed by the Claimant, in circumstances where ‘it appears that the Claimant has made an inappropriate apportionment of incurred costs in order to shift the burden to the costs bill in this action rather than to the bills relating to CXC and DXD’. Finally, Ms Foster draws attention to...
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Julie Mate v Shirley Claire Mate
...up to 10% over base over this period of some five months for the reasons given by Mr Ranson as set out above. 53 In BXB v Watch Tower and Bible Tract Society of Pennsylvania [2020] EWHC 656 (QB); [2020] Costs L.R. 341, Chamberlain J said as follows at [14]–[15]: 14. The second matter in di......