Hall and Others v Stone
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller,Lady Justice Smith,Lord Justice Lloyd |
| Judgment Date | 18 December 2008 |
| Neutral Citation | [2007] EWCA Civ 1354 |
| Date | 18 December 2008 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2007/0754 |
[2007] EWCA Civ 1354
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Aldershot & Farnham District Registry
His Honour Judge Marston
Claims 4AF01667 and 4NE05545
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Waller
Vice President of the Court of Appeal, Civil Division
Lady Justice Smith and
Lord Justice Lloyd
Case No: B2/2007/0754
Benjamin Williams (instructed by The Clarke Partnership) for the Appellant
Paul Higgins (instructed by Horwich Farrelly Solicitors) for the Respondent
Hearing date: 28 th November 2007
Introduction
This is an appeal from a ruling of His Honour Judge Marston on costs following his handing down of a judgment in a personal injury action. He had awarded the three claimants damages in the modest sums of £1000, £400 and £600 which he had held to flow from the negligent driving of the defendant. The judge awarded the claimants only 60 % of their costs.
They are dissatisfied with that order maintaining they were the successful party and there was no reason why they should not get 100%. They appeal with permission of Moses LJ. The defendant is also dissatisfied with the order but would only seek permission to cross appeal and seek a reduction in the award of costs, if we were to find that the judge had in some way misdirected himself. That shows an appreciation also recognised by Mr Williams for the appellants that it will be in rare circumstances that the court of appeal will interfere with the exercise of a judge's discretion in relation to costs. To interfere with any exercise of discretion, this court must take the view that the judge has misdirected himself or has made a decision with which it does not agree and outside the generous ambit where reasonable disagreement is possible.
How one might ask has a point arisen on costs in this way in respect of these small claims? The answer is as follows. Where claimants make claims and recover sums of £1000 or less and where defendants can establish that the claims were exaggerated so that they are tried inappropriately on the fast track or the multi track at great expense, the defendants seek to limit the costs recoverable from them to the fixed sums applicable to the small claims track. An example of a defendant succeeding in so arguing is provided by Devine v Franklin [2002] EWHC 1846(QB) a decision of Gray J who, on appeal from the decision of a District Judge who had not accepted the argument, allowed the appeal but did not limit recovery to fixed costs exercising the discretion to award further costs where a party had behaved unreasonably (see CPR 27.14(2) (g)). One point made before the judge in this case was that if it is the exaggeration which has caused the claim to be on the fast or the multi track the defendants are somewhat trapped because if (applying the rules pre-April this year) they make a part 36 payment in or as per the new rules make a part 36 written offer and it is accepted, the result will be that a claimant who accepts such an offer obtains an order for his costs not limited in any way. That they say is unfair- unfair because the costs should be limited to the costs available on the proper track. I shall return below to the question whether it is true that defendants can do nothing to protect themselves but before doing so deal with a further problem which is relevant to this case.
What also sometimes happens, and happened in this case, is that a defendant or more accurately insurers allege not only that the claim is exaggerated but that it is in fact dishonest. This case was about a very minor incident in which the defendant's car bumped into the back of the car in which the claimants were travelling and the defendant's insurers alleged that the impact was so slight that it was impossible for the claimants to have suffered any physical injuries. They alleged that the claimants were dishonest in making any claim to have been injured at all. The defendants obtained an engineer's report in order to establish the extent of the forces that would be operating on those in the car with such a minor bump and expert medical evidence so as to demonstrate that no real injury could have been caused by the accident. These particular insurers would appear to be conducting a considerable campaign in relation to low velocity accidents and the reports of their experts show all the signs of adaptation from already standard reports.
The allegation of dishonesty is a serious one and with that allegation being made the District Judge was bound to direct that the claims should be tried as a multitrack case. It is not clear whether without the allegation the claims as made would have been fast track or multi track; nor indeed is it clear whether if the claims had been limited to the sums ultimately awarded that the claims would simply have been allocated to the small claims track but there is certainly some chance that they would have been. CPR 26.8 sets out the matters to which the court should have regard when allocating, and the financial value of a case is the first matter. Furthermore where there are two or more claims the court does not aggregate the claims in considering the financial value. What it is possible to say is that by pleading the claims the way they did, the claimants ensured that the claims would not be allocated to the small claims track. The pleading might have led to the claims being multitrack as opposed to fast track even without the serious allegation of fraud as opposed to bone fide over optimism, but the defendant's insurers' allegation of dishonesty ensured a multi track trial and the increase in costs that that entailed. The fact that the case was multitrack did increase the costs and with the charge being made of fraud the period of trial was extended over some days.
In the result the most important issues at the trial that ultimately took place were whether the claimants had brought a dishonest claim or whether they had brought an exaggerated claim albeit honestly. We were told that the costs of the claimants including solicitors' success fee were in the region of £80,000; the costs of the defendants about half of that. If the case had been a fast track case without any issue as to dishonesty we were told the claimants' costs would have been about £8,000- £10,000 and the defendants' about £6,000. If the case had been allocated to the small claims track then the fees would have in part been fixed and otherwise very much less than the fast track.
The judge's judgment following the trial
The judge in his judgment following the trial dismissed any allegation of fraud or dishonesty. He recognised that the defendant's case i.e. that the “Delta velocity” resulting from the minor bump that took place was not sufficient for the claimants to have been injured, involved an assertion that “the claimants here are lying or, at the very least, massively exaggerating their injuries”. So far as the first claimant's evidence and injuries were concerned he summarised the position after a review of her evidence in the following terms:—
“So on her oral evidence we have an accident that took place, we have an impact equivalent to a car stalling, we have some bruising caused to her but she was a hundred per cent better within a couple of weeks, we have some minor pain caused to Bryony who was, according to her mother, fine within the next couple of days, although she did cancel her dancing rehearsals for about two weeks thereafter”
His view of the 3rd Claimant was as follows:—
“I will compare what she said to me with what she said to the Claimant's medical expert later in this judgment, but I do have to say that I found this lady's evidence vague and, at time, contradictory. I gained the impression that she wasn't deliberately setting out to lie to me but that she was quite immature, was not used to expressing herself very clearly and was also struggling to remember things.”
Having reviewed the defendant's evidence which he accepted in its entirety as to the seriousness or otherwise of the accident he made the following findings of fact:—
“I think I am therefore in a position to make some findings of fact about the accident itself. First of all it was caused by the Defendant as she accepts in that her car rolled forward a matter of a few feet at most and impacted against the back of the 1 st Claimant's car. The impact, I find, caused no damage that was visible on the Claimant's car and was the equivalent of a stall, the occupants of the car being pushed forwards and then back by the forces of the impact which I find took place, at the fastest, at about 5 or 6 miles per hour and caused, if any damage, very minor damage to the Claimant's car. I find that the 1 st Claimant has given a truthful account in her evidence of the injuries that were sustained by her daughter and I also find that Miss Lynas has given, at the end, a truthful account of the injuries that she sustained. It is quite difficult to pick this account out of her evidence but I have done so. The reason why her evidence is difficult to understand is from those factors which I have outlined in my assessment of her. I will return to the issue of the 1 st Claimant's injuries subsequently in this judgment.”
So far as the extent of any injury was concerned he found as follows so far as the second and third claimants were concerned:—
“With these two injuries, if they were sustained, we are on the very outside edge of injury that will sustain a claim, the sort of claims which are dealt with in the Small Claims...
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