Fox v Foundation Piling Ltd

JurisdictionEngland & Wales
JudgeLord Justice Jackson,Lord Justice Moore-Bick,Lord Justice Ward
Judgment Date07 July 2011
Neutral Citation[2011] EWCA Civ 790
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: B3/2010/1177
Date07 July 2011
Mr Trevor Michael Fox
Foundation Piling Limited

[2011] EWCA Civ 790


Lord Justice Ward

Lord Justice Moore-Bick and

Lord Justice Jackson

Case No: B3/2010/1177






Royal Courts of Justice

Strand, London, WC2A 2LL

Mr. Matthew Stockwell (instructed by Atherton Godfrey) for the Appellant

Mr. Peter Burns (instructed by DWF Solicitors) for the Respondent

Hearing date: 9 June 2011

Lord Justice Jackson

This judgment is in five parts, namely:

Part 1 Introduction,

Part 2 The Facts,

Part 3 The Appeal to the Court of Appeal,

Part 4 The Law,

Part 5 Decision.


This is an appeal by the claimant in a personal injuries case against an order that he pay a substantial part of the costs of the action. The basis of this appeal is that the claimant recovered a larger net sum in the final settlement than the defendant had been willing to pay at any earlier stage. Accordingly, it is said that the claimant should recover the entire costs of the action.


In this judgment I shall refer to the Compensation Recovery Unit as "the CRU".


It should be noted that the term "Calderbank offer" is a term used to describe an offer made without prejudice save as to costs. This term is named after a matrimonial case in which that device was first used. The term is commonly applied to any offer outside Part 36 of the Civil Procedure Rules ("CPR").


It should also be noted that Part 36 of the CPR underwent some significant amendments on 6 April 2007. When considering decisions on costs, it is always necessary to note whether the relevant Part 36 offer was made before or after that date.


After these introductory remarks, I must now turn to the facts.


The claimant was born on 6 June 1949 and so is now aged 62. In 2003 the claimant was employed by the defendant as a foreman/winch driver.


On 11 April 2003 the claimant suffered a fall whilst carrying a piece of heavy equipment across a building site. The claimant made a claim for damages against his employers for injuries sustained in that accident. The claimant maintained that his place of work was unsafe. The defendant and its insurers decided to make some independent investigations. Accordingly, they obtained a video of the claimant's activity on 29 September 2004. This video showed that the claimant was able to walk normally and that his general mobility and the mobility of his lumbar spine were generally good. There was no evidence of limping. He was able to get in and out of a car on several occasions with ease.


On 6 April 2006 the claimant commenced proceedings in the Central London County Court, alleging that his accident had been caused by the defendant's negligence and breach of statutory duty.


On 28 June 2006 Mr. Jan Jakubowski, the claimant's medical expert, examined the claimant for the purpose of these proceedings and prepared a report. Mr. Jakubowski was not aware of the video surveillance. He therefore relied upon the claimant's description of his symptoms. Mr. Jakubowski's conclusions were as follows:

"As a result of the accident which occurred on 11 April 2003, Mr Fox suffered from a lumbar back injury. He developed acute lumbar back pain and bilateral sciatica. In spite of conservative treatment this has not improved and he is still suffering from severe back pain and pain in both legs. The MRI scan has reported that there is lumbar disc protrusion at L4/5 level but there are also some degenerative changes in other disc spaces. The past medical history shows that Mr Fox suffered from lumbar back problems in the 1980's and also had a lumbar back strain in August 1996. There is no history suggesting any lumbar back problems subsequently and he was free of complaints from 1996 until the accident. The past medical history and radiological appearance suggest that Mr. Fox suffers from degenerative problems in his lumbar spine and the present accident appears to have aggravated seriously a pre-existing condition. In order to be able to consider the prognosis and possible treatment, I will need to review the lumbar spinal MRI scan.

As things are at present, it is unlikely that Mr. Fox will return back to his previous employment."


On 27 July 2006 the claimant's solicitors sent a copy of Mr. Jakubowski's report to the defendant's solicitors. They also served a schedule, claiming damages of £82,000 to date and a continuing loss of £23,000 per year. On 20 March 2007 the court made an order for a split trial.


On 14 December 2007, the day before the liability hearing, it was agreed that the defendant was liable for the claimant's injuries caused by the accident, subject to a discount of twelve and a half percent for contributory negligence. This apportionment of responsibility was subsequently embodied in a consent order.


In January 2008 the defendant made an interim payment of £7,500 to the claimant. On 15 April the claimant's solicitors served a schedule claiming damages of £280,000 up to 31 March 2008.


On 22 May 2008 Mr. J. B. Williamson, the medical expert instructed by the defendant, prepared a report based upon a review of the documents. The materials supplied to Mr. Williamson comprised the claimant's statement, Mr. Jakubowski's initial report, a report by a clinical psychologist and the claimant's schedule of expenses and losses. Somewhat surprisingly, the defendant and its insurers did not see fit to furnish Mr. Williamson with the video surveillance evidence which they had obtained.


On the basis of the evidence before him, Mr. Williamson concluded that the claimant had suffered from degenerative changes of the spine before April 2003 and that the effect of the accident was to accelerate a disc prolapse which was inevitable.


On 28 May 2008 the defendant applied for permission to adduce expert evidence from Mr. Williamson at the quantum hearing. On 13 June 2008 that application was granted.


Somewhat surprisingly, the claimant appealed against the order allowing the defendant to call expert evidence. I say "somewhat surprisingly", because by June 2008 it was clear that there was an issue between the experts as to the extent of the injuries which had been caused by the claimant's accident. The claimant's notice of appeal was filed on 27 June 2008. The appeal was heard and dismissed on 2 October 2008. The claimant was ordered to pay costs of £2,750 in respect of that inappropriate appeal.


In the meantime, on 29 September 2008 the defendant had made an offer under CPR Part 36 to settle the claimant's claim for £63,000. Out of this sum £39,449.21 would be paid to the CRU and the balance would be paid to the claimant. In other words the defendant was offering to pay a net sum of £16,050.79 in settlement to the claimant, inclusive of the previous interim payment of £7,500. By letter dated 16 October 2008 the claimant's solicitors rejected that offer, but made a counter-offer under Part 36 to accept £150,000 in settlement, which sum would include the monies repayable to the CRU.


On 20 or 30 November 2008 (the precise date is unclear) the claimant attended Mr. Williamson's clinic for examination. The defendant and its insurers obtained video surveillance evidence of the claimant's conduct on that day. This showed the claimant to be generally free of disability, except when he approached the spine clinic. At that point the claimant started to use a walking stick and was limping.


Mr. Williamson duly carried out his examination of the claimant and prepared a report dated 18 December 2008. In that report Mr. Williamson concluded that the accident on 11 April 2003 precipitated a disc prolapse, which would have occurred subsequently in any event. Mr. Williamson also stated that the claimant's clinical presentation was exaggerated, which might indicate an attempt to inflate his claim. On 23 December 2008 Mr. Williamson examined the claimant's medical records. He reported that these showed a significant history of low back problems and that the x-ray showed severe degenerative change.


On 2 March 2009 the defendant's solicitors disclosed their video surveillance evidence. On 27 March 2009 the defendant applied for disclosure of the claimant's MRI scans. This material was provided to them on 20 April 2009.


On 14 May and 10 September 2009 Mr. Jakubowski and Mr. Williamson met and produced two joint reports. They agreed that the accident on 11 April 2003 had accelerated spinal degeneration which would have occurred in any event. Mr. Jakubowski considered that the period of disability caused by the accident was two years. Mr. Williamson considered that the period of disability caused by the accident was one year.


On 19 October 2009 the claimant's solicitors served a schedule of loss and damage based upon a period of two years' disability, in accordance with Mr. Jakubowski's revised opinion. This schedule set out a claim for £59,451.56 in respect of financial losses between 11 April 2003 and 11 April 2005.


By letter dated 25 November 2009 the defendant's solicitors withdrew the defendant's previous Part 36 offer and made a new offer to settle on the following terms: the defendant would pay to the claimant £31,702.53, inclusive of the previous interim payment of £7,500; the defendant would also pay £5,797.47 to the CRU in respect of national insurance benefits previously paid to the claimant. The defendant's offer to the claimant and the defendant's proposed payment to the CRU were both based upon the assumption that the accident of 11 April 2003 had...

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