Matthews v Metal Improvements
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,LORD JUSTICE MOSES |
| Judgment Date | 14 March 2007 |
| Neutral Citation | [2007] EWCA Civ 215,[2006] EWCA Civ 1502 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B3/2006/1006,Case No: B3/2006/1006 |
| Date | 14 March 2007 |
[2006] EWCA Civ 1502
Lord Justice Pilllord Justice Moses
B3/2006/1006
IN THE SUPREME COURT OF JUDICAT
IN THE COURT OF APPEAL (CIVIL DIVISI
ON APPEAL FROM CHESTER COUNTY COURT (HER HONOUR JUDGE DOWDI
Royal Courts of Justice
Strand
London, WC2
MR G MCDERMOTT QC (Instructed by Morgan Cole) Appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESEN
: This is an application for permission to appeal against an order of HHJ Dowding made on 20 April 2006. A claimant accepted a substantial payment into court long after it was made and an issue arose as to who should have the costs for the period between the 21 days from the payment in to the date when the payment out, with leave of the court, was made. CPR 36.20 applies where, at trial, a claimant fails to better a part 36 payment. Subparagraph 2 provides:
"Unless it considers it unjust to do so, the court will order the claimant to pay any costs incurred by the defendant, after the latest date on which the payment or offer could have been accepted without needing the permission of the court."
At the time the claimant, who was a patient, on advice, did not take the payment as legal advisers did not consider it appropriate. There was a real and genuine issue as to what contingency should be allowed in the assessment of the future loss. There was some question-mark over a life expectancy, but that had not become the subject of a specific limiting finding. However, by letter of 9 February 2006, the doctors jointly stated:
"It should be noted that this is a most unusual case. However, given the information available to us we believe the average life expectancy of patients like Mr Matthews would be approximately seven years."
There was an issue as to whether the disability would have lasted that long in any event, but this medical opinion was undoubtedly a new factor in the situation and one which led to the acceptance of the payment in.
Mr McDermott QC makes a renewed application, Smith LJ refusing permission on the papers, referring to the generous ambit of discretion which the judge had, and finding that the argument that the judge exceeded a generous ambit of discretion does not have reasonable prospects of success. Mr McDermott QC submits that, before this supervening event, the parties were each at risk. If the payment in was beaten, then the defendant would pay the costs, after the date of payment in. If the payment in was not beaten, then, in the ordinary way, the claimant would pay.
The new evidence, submits Mr McDermott, in the letter of 9 February, means that the claimant had to accept the sum in court. By the mischance of this somewhat unhappy diagnosis, those advising him were forced to recommend acceptance of the money. Both parties had been in good faith in their negotiations and Mr McDermott submits that in such a situation the risk of a contingency such as this arising, whether it be a limited life expectation, or in other cases it could be a more dramatic supervening event, the risk is on the claimant and not on the defendant. While it may be hard on any claimant, if such an event occurs and the money has to be taken, it cannot be said that it is unjust, which is the word used in the rules.
In her judgment the district judge states the test at paragraph 5. Paragraph 6:
"This is clearly a difficult matter. The Claimant has significant difficulties and whatever those representing him have advised the Court's approval would have to be sought. I take the view that, as indicated, it is proper now to be seeking to accept the payment in. I equally take the view that the reasons for not accepting it were proper and valid. In those circumstances I do not [consider] that it prejudices the Defendant if I exercise my discretion in favour of the Claimant."
Mr McDermott does not challenge that the reasons for not accepting the payment in at an earlier stage were proper and valid. There was an arguable case. Neither does he challenge that it was proper to take the payment in, but he submits that the district judge has been distracted from the wording of the rule which, if a claimant is to have the costs, requires a finding that it would be unjust to order otherwise.
The court has come to the conclusion that there are real prospects of that submission succeeding before a hearing of the court. Mr McDermott has accepted that the sum involved is not a large one, though it could go to five figures. A point of principle does, however, arise and it appears to me to be a general point of some interest. That is whether, when there is a genuine disagreement as to the adequacy of the payment in which ordinarily would be resolved by court proceedings, the principle should be that, in the case of a supervening event such as this one, the risk is upon the claimant so that there is no injustice in permitting the defendant to have the costs.
For those reasons I would grant permission to appeal.
: So would I.
Order: Application granted.
[2007] EWCA Civ 215
Lord Justice Chadwick
Lord Justice Lloyd and
Mr Justice Stanley Burnton
Case No: B3/2006/1006
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WREXHAM COUNTY COURT
Deputy District Judge Dowding
WX3/00410
Royal Courts of Justice
Strand, London, WC2A 2LL
Peter Main QC (instructed by Walker Smith Way) for the Respondent Claimant
Gerard McDermott QC (instructed by Morgan Cole) for the Appellant Defendant
Hearing date: 26 February 2007
Stanley Burnton J:
Introduction
This is an appeal by the Defendant against the order for costs made by Deputy District Judge Dowding on 20 April 2006 when she approved the settlement of the Claimant's claim and gave him permission to accept out of time in settlement of his claim the sum that had been paid into Court by the Defendant pursuant to CPR Part 36. The Deputy District Judge ordered the Defendant to pay the Claimant's costs of the claim, including his costs incurred after the expiration of the period of 21 days from the date of the payment into Court. The Defendant contends that it was entitled to an order that the Claimant pay its costs incurred after the expiration of that period. The appeal is brought with the permission of Pill and Moses LJJ.
The appeal raises a point of general application as to the normal incidence of costs where a claimant accepts a payment into court late as a result of new evidence or information indicating that the sum paid into court adequately reflects the value of his claim.
The facts
The Claimant, Dan Matthews, was born in June 1944, and is now aged 62. His claim arises out of his accident at work on 21 March 2000. He suffered a minor head injury, but sadly in consequence he developed a hysterical conversion disorder, now known as a dissociative disorder under the ICD10 categorisation of illnesses. It is a disabling but episodic condition. Because of it he is a patient within the meaning of CPR Part 21.
Following the accident, the Claimant, through his solicitors, asserted a claim against the Defendant, his employer, for substantial damages, alleging negligence and breach of statutory duty. By letter dated 16 November 2000 the Defendant's insurers admitted primary liability, subject to medical evidence of causation.
Coincidentally, in October 2001 the Claimant was diagnosed as suffering from “B” cell non-Hodgkin's lymphoma. The lymphoma has no causal connection with either his accident or his psychiatric condition.
The claim form was issued on 6 March 2003. The Particulars of Claim were served on 30 May 2003. In June 2003 the Defendant served its defence, denying liability and alleging contributory negligence.
In November 2003, Professor Dyer, the haematologist-oncologist retained on behalf of the Claimant, advised that the lymphoma was very indolent, and that he had a 70 per cent chance of a 10-year survival. As a prognosis in a case of cancer or lymphoma, that was very positive indeed.
In June 2004, Doctors Hay and Cutting, the consultant psychiatrists retained by the Claimant and the Defendant respectively, jointly advised that with continued treatment the Claimant's mental illness should remit in approximately 5 years from that date. On that basis, his lymphoma had relatively little relevance to the quantification of his claim.
In August 2004, the Claimant served his schedule of damages. It included figures for future loss based on a normal life expectancy. It was subsequently updated.
During a medical examination of the Claimant on 6 July 2005, a lymph node in the left supravascular fossa was found which had not been detected a month previously. On 2 August 2005 a biopsy was taken of the lymph node.
On 4 August 2005, the Defendant served an amended defence in which they admitted primary liability and alleged contributory negligence.
On 8 August 2005, pursuant to CPR Part 36 the Defendant made a payment into Court of the sum offered by them in settlement of the claim. The gross amount of the compensation payment offered...
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