Kieran Blake v Dominic Croasdale and Another
| Jurisdiction | England & Wales |
| Judge | Judge Purle |
| Judgment Date | 19 April 2017 |
| Neutral Citation | [2017] EWHC 1336 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: C90BM231 |
| Date | 19 April 2017 |
[2017] EWHC 1336 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
Civil Justice Centre
The Priory Courts
33 Bull Street
Birmingham
His Honour Judge Purle QC
(sitting as a Judge of the High Court)
Case No: C90BM231
Mr. S. Hunjan QC (instructed by McGrath Solicitors) appeared on behalf of the Claimant.
Mr. B. McCluggage (instructed by Keoghs LLP) appeared on behalf of the Second Defendant.
JUDGMENT (As Approved)
This is an application to determine whether or not an admission that has been made has a binding status under the Civil Procedure Rules 1998 ("CPR"), in particular CPR 14.1A or 14.1B. The fall-back position is that if there is an admission which would otherwise be binding, the applicant ("Esure"), who is the second defendant, applies for permission to withdraw the admission.
The case concerns a road traffic accident which took place on 1 st September 2013 at around half-past midnight. The driver was the first defendant, Mr. Croasdale, who was subsequently, as a result of the accident which occurred, convicted of causing death by dangerous driving and is now serving a substantial period of imprisonment. The immediate cause of the accident appears to have been that the driver, Mr. Croasdale, went through a red light which was observed by the police in a patrol vehicle. The police sought to get Mr. Croasdale to stop. Instead he accelerated away at high speed on the wrong side of the road and had a collision with a car coming the other way. One of the passengers died. Another passenger, a rear-seat passenger, was Mr. Kieran Blake, who is the claimant in these proceedings, who sues by his father and litigation friend. He suffered severe brain injury. The matter was investigated by the police which resulted in the proceedings to which I have referred.
Over a year later on 23 rd October 2014 solicitors for the claimant wrote to Esure's Motor Claims Department as the first defendant's insurer notifying Esure that a claim had been submitted via the Ministry of Justice Portal on 16 th October 2014 and enclosing a claims notification form. That claims notification form is appropriate for cases having a value not exceeding £25,000. The matter comes out of the portal if various issues are raised, one of which is contributory negligence. It was soon realised that this matter would have to come out of the portal.
On 24 th November 2014 Esure wrote to the claimant's solicitors suggesting a 25% reduction in damages on account of the failure of the claimant to wear a seat belt, and notifying the claimant's solicitors that it might well be advancing a further argument in respect of contributory negligence arising from the fact that the driver had consumed drugs prior to the accident about which it would be seeking a toxicologist's report. Although the claim was still in the portal, the same letter recorded as follows: "Clearly regarding the nature of the injuries sustained by your client, this claim is not suitable to be dealt with via the portal." Thus, the nature of the injuries alone were recognised as sufficient to take the case out of the portal. The claimant's solicitors were not initially confident that that was so and, no doubt mindful of possible adverse costs consequences by starting a claim outside the portal which should be started within it, started it within the portal.
By a letter dated 14 th January 2015 the claimant's solicitors acknowledged that the allegation of contributory negligence meant that they should proceed on the basis that liability was in issue.
However, the previous letter of 24 th November from Esure had stated in terms: "Primary liability for the accident is admitted". It was once that admission was made that that the question of contributory negligence was raised later in the same letter. That was queried by the letter of 14 th January 2015 saying: "We are pleased to note that primary liability is admitted. Please advise whether this is an unequivocal and irrevocable admission or if you seek to reserve your position in any way." Then later on, when considering contributory negligence (and in that context alone) they said as already mentioned that they were proceeding on the basis that liability remained in issue.
Just pausing there, it is clear, in my judgment, that an admission was made in the letter of 24 th November 2014, though the claim remained subject to issues of contributory negligence. I doubt whether the claimant's solicitors needed to be as cautious as they were by seeking further clarification on 14 th January 2015. That letter, it is said, showed that the claimant refused to accept the admission. In my judgment, it did no such thing because it stated in terms: "We are pleased to note that primary liability is admitted." The letter qualified that, just as the previous letter had done, by making it plain that the admission was subject to a contributory negligence defence.
The same letter of 14 th January 2015 also expressed the view that the claim was not suitable to be dealt with via the portal and sought acceptance of the letter as formal notification that the claim had left the portal.
Esure wrote a further letter to the claimant's solicitors, erroneously dated 9 th May 2014. It is accepted that it was received on 4 th February 2015 and should bear the date 3 rd February 2015. Esure stated: "With regard to liability, we have made our position abundantly clear. We accept primary liability. No further clarification is needed".
Subsequently, on 9 th November 2015 the claimant's solicitors sent a number of medical reports to Esure including one from a consultant neurologist dated 15 th May 2015. It did not, however, include anything from Mr. Worthington, a neuropsychologist, on the effects of the head injury. However, the report of the consultant neurologist, Mr. Corstone, did make plain the head injuries were severe. Prompted, no doubt, by that, a letter of 4 th December 2015 from Esure offered £100,000 which was said to be net of liability and in subsequent correspondence net of CRU. It is evident therefore that Esure appreciated, as indeed it seems to have done at the outset, that the claim potentially was for more than £25,000. Esure had not, however, at that stage appreciated that the claim would run into millions of pounds. Looking ahead to the proceedings when issued, a provisional schedule of damages served on 6 th February 2017 suggests a range of loss of somewhere between £3 million and £5 million, which could increase. That is based in substantial part upon the medical report of Mr. Worthington, the consultant neuropsychologist to whom I have referred. This was not a report which Esure had seen until the proceedings were served.
The proceedings were issued in August 2016. Dr. Worthington's report had been obtained earlier, and was dated 26 th May 2016. The claim was not served until later, on 28 th November 2016.
The defence pleaded amongst other matters that the claimant's injury was caused by his own criminal act, namely that he was acting at the time in the course of a joint criminal enterprise — in essence, as a drug-dealer jointly with the first defendant. It is said that it was reasonably foreseeable that the claimant would be subject to unusual or increased risks of harm as a result of that enterprise. Pleading that as a causation defence is consistent with the approach of the Court of Appeal in Joyce v O'Brien & Anor [2013] EWCA Civ. 546 where, at paragraph 29, Lord Justice Elias stated as follows:
"29. I would formulate the principle as follows: where the character of the joint criminal enterprise is such that it is foreseeable that a party or parties may be subject to unusual or increased risks of harm as a consequence of the activities of the parties in pursuance of their criminal objectives, and the risk materialises, the injury can properly be said to be caused by the criminal act of the claimant even if it results from the negligent or intentional act of another party to the illegal enterprise. I do not suggest that this necessarily exhausts situations where the ex turpi principle applies in joint enterprise cases, but I would expect it to cater for the overwhelming majority of cases."
The applicability of the ex turpi defence generally was considered by the Supreme Court in Patel v Mirza [2016] UKSC 42. The case is not directly relevant to joint enterprise cases, its significance merely being to depart from the previous approach commonly understood to represent the law as laid down in Tinsley v Milligan [1994] 1 AC, 340 and to introduce in its stead a rationale set out in paragraph 120 of the decision as follows:
"120. The essential rationale of the illegality doctrine is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system (or, possibly, certain aspects of public morality, the boundaries of which have never been made entirely clear and which do not arise for consideration in this case)."
Guidelines are then given as to how the harm to the public interest is to be assessed. If that is to apply in joint enterprise cases, it may be that the reasoning in cases such as Joyce v O'Brien will need to be revisited. However, as things stand Joyce v O'Brien is binding upon me as a decision of the Court of Appeal which has not been in terms reversed by the Supreme Court (nor am I suggesting that it should be).
I was referred to other authorities in this field concerning criminal joint enterprises and...
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...Purle QC, sitting as a Judge of the High Court, in his decision (in a case on facts to some extent analogous with the present case) in Blake v Croasdale [2017] EWHC 1336 (QB) at paragraph 28 of his judgment: a point which I would wholly endorse. 42 Moreover, whilst I can accept that the MHR......