Dorinel Cojanu v Essex Partnership University NHS Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ritchie |
| Judgment Date | 02 February 2022 |
| Neutral Citation | [2022] EWHC 197 (QB) |
| Docket Number | Case No: Appeal Ref: QA 2021 000154 |
| Court | Queen's Bench Division |
[2022] EWHC 197 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Ritchie
Case No: Appeal Ref: QA 2021 000154
County Court case No; E97YJ062
( Gemma McGungle instructed by Jefferies solicitors) for the Claimant
( Cecily White instructed by Hempsons) for the Defendant
Hearing dates: 25 & 26 January 2022
Approved Judgment
The parties
The Claimant, at the time of the relevant events, was on remand at Her Majesty's prison in Bedford.
The Defendant is an NHS trust supplying medical services to Bedford prison.
The appeal
This judgment is given after the full hearing of the appeal made by the Claimant and cross appeal made by the Defendant from the judgment of Mr. Recorder Gibbons delivered on 11 May 2021 at Norwich County court in the trial of a clinical negligence claim. The Recorder dismissed the claim having found fundamental dishonesty under S.57 of the Criminal Justice and Courts Act 2015 (CJCA) by the Claimant, rejected the Defendant's defence of illegality and assessed damages at £8,500.
For the reasons set out below I shall: allow the Claimant's appeal and overturn the Recorder's decision on fundamental dishonesty; reject the Respondent's appeal in relation to illegality, and enter judgment for the Claimant for damages of £17,750 plus interest on pain and suffering to be calculated by the parties.
The Bundles
For the appeal I had before me an Appellant's bundle, a Respondent's bundle, skeleton arguments and some late handed up cases. The bundles contained the transcript of the judgment, the pleadings, the Claimant's witness statement in the trial, some of the Claimant's medical evidence and some documents relating to the Claimant's earnings. Importantly the schedule and counter schedule were in the bundles.
An application was made on the morning of the 2 nd day of the appeal for admission in evidence before me of the whole transcript of the trial but I rejected that because the Appellant made it late, failed to serve the transcript on the Respondent soon after it was received (August 2021) and only wished to rely on two pages which, when read (pages 195/196), added little to any issue in the appeal.
The Claim
By a letter before action dated the 22nd of June 2018 the Claimant, through his lawyers, asserted a personal injury claim based on the Defendant's clinical negligence whilst he was on remand at Her Majesty's prison Bedford. The Claimant was admitted to the prison on the 17th of June 2015 with deep cuts to his right ring and little finger. He asserted that the Defendant cancelled pre-arranged day surgery at the Royal Free Hospital listed for the 22nd of June 2015 and thereafter delayed making arrangements for appropriate treatment of his cut fingers. In relation to causation the Claimant alleged that he would have made a “full recovery” had he had surgery within 10 days of suffering the original injury. The Claimant relied on the prison service order, PSO 3200, which requires that prisoners are provided with an equivalent health service to that provided to members of the public. The claim was funded on a CFA.
In its response dated the 8th of November 2021 (I am told that is a printing error, it was 23 October 2018) the Defendant admitted a decision was made on the 19th of June 2015 to cancel the Claimant's appointment for surgery at the Royal Free Hospital. It asserted the treatment was available more locally and that a security risk arose when prisoners were given the dates for their appointments in advance of their appointments. The Defendant asserted that it “wrote” to the Lister hospital on the same day asking for an appointment locally. That was delayed.
On the 18th of June 2019 the Claimant issued a claim form against the Defendant and ten other Defendants including the Ministry of Justice. All ten other Defendants were deleted before the claim form was served. The claim form alleged negligence by the Defendant in June 2015 and damages were limited to a maximum value of 5,000 pounds.
By his particulars of claim dated the 21st of May 2019 the Claimant asserted that he entered prison on the 17th of June 2015 with a laceration on his ring and little fingers on his right dominant hand and that he had pre-arranged surgery to repair those listed on the 22nd of June. However the Defendant cancelled the pre-arranged surgery and delayed arranging local surgery so that he lost the window of opportunity to have his cut finger tendons repaired. He served a report from a medical expert, Mr Henderson, dated the 18th of September 2018 and a schedule which claimed reconstructive surgery costing £15,000, all other items were unquantified. I note that on the front sheet of that report the Claimant's address is a prison.
I find as a fact that the Defendant must have been aware from the letter before action and the pleading that the Defendant was a criminal serving time.
In its defence stated 12th July 2019 the Defendant admitted responsibility for the health services at Bedford prison. It admitted cancelling the pre-arranged surgery and pleaded at paragraph 7 that it sent a referral letter to the Lister hospital and denied needing to put on that letter that it was a priority. I mention here that there was no pleading that the letter was sent by fax.
On causation the Defendant admitted that repair to the fingers was no longer feasible after the 24th of July 2015 but asserted that the Claimant would not have made a full recovery in any event if the repair operation had been done within the window. The Defendant pleaded that the Claimant needed reconstructive surgery to improve his condition.
In November 2019 District Judge Reeves permitted the Claimant to amend the claim form to increase the value to £390,000. The Defendant consented to that order.
On the 4th of February 2020 District Judge Reeves gave directions in the action. It was allocated to the multitrack. Disclosure was to take place in January 2020, witness statements were to be served in March 2020, experts on breach and causation were permitted on both sides which were to be served in April 2020 and experts on condition and prognosis were to serve their reports in July 2020. The experts' joint reports were to be provided in September 2020 and an updated schedule by the 23rd of October 2020 with the counter schedule in November 2020. The trial window for three days was listed from January to March 2021.
On the 22nd of April 2021 District Judge Spencer granted the Defendant's application to file an amended defence. That amended defence dated the 8th of February 2021 alleged fundamental dishonesty by the Claimant. It alleged that the Claimant had attacked his wife with a knife and stabbed her whilst drunk and whilst their children were in the house. It alleged he injured himself in the attack or whilst resisting arrest. It was alleged that he was convicted of attempted murder in December 2015 and imprisoned. It alleged that the Claimant's served witness statement in the personal injury claim contained evidence that was fundamentally dishonest by stating that the Claimant's wife had attacked him and that he had defended himself from the knife attack and that that was how he came to have cuts to his fingers. In addition, the Defendant pleaded that in February 2016 a surgeon offered reconstruction to the Claimant who said he would think about it but never returned and never took up the offer. In addition, the Defendant pleaded ex turpi causa (illegality) and relied on case law stating that his injuries and the claim were result of his own criminal actions and therefore he should be denied any damages. The amended defence went on to suggest further fundamental dishonesty by the Claimant in that the Claimant's evidence and case relating to quantum was based on various dishonest premises. The Claimant was living in Romania by that time, where surgery was cheaper, the Claimant's claim was premised on loss of earning capacity based on UK salaries and yet he intended to live in Romania and the Defendant relied on section 57 of the Criminal Justice and Courts Act 2015 (CJCA). Three weeks later the trial took place.
On the 7th of May 2021 judgment was given for the Defendant by Recorder Gibbons, permission to appeal was refused and the Claimant was ordered to pay the Defendant's costs. There is no mention in the order that the Recorder disapplied QOCS protection.
The appeal
By a notice of appeal dated the 14th of July 2021 the Claimant appealed the Recorder's order. The notice of appeal had been filed late and permission to appeal was sought.
The grounds of appeal are set out at paragraphs 1a-f and 2 a-c. In summary it was asserted that the decision of the Recorder was wrong in relation to his finding of fundamental dishonesty. In ground 1a it was asserted that any dishonesty in relation to the description of the injury or the mechanism by which it was suffered was not relevant to the negligence claim. By ground 1b it was asserted that the criminal proceedings were not a related claim within section 57. By ground 1c it was asserted that the Recorder was wrong in concluding that the Claimant's evidence on the mechanism of injury was “very far from the true picture”. In ground 1d it was asserted that the Recorder was wrong to find that the schedule assumed the Claimant would be living in the UK rather than Romania. In ground 1e it was asserted that the Recorder was wrong to find a lack of evidence of employment in Romania. In ground 1f it was asserted...
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...at 1 Chancery Lane. ...And Finally... We were interested to read the judgment of Ritchie J in Cojanu v Essex Partnership NHS Trust [2022] EWHC 197 (QB), in which our erstwhile colleague at the cross border Bar overturned a finding of fundamental dishonesty on the part of Mr Recorder Gibbons......
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