McFarlane v EE Caledonia Ltd

POST JUDGMENT DISCUSSION

MR. HAMILTON: May it please, your Lordships. Do your Lordships have Core Bundle 1, which sets out at pages 2 and 3 the relief which we claim?

LORD JUSTICE GIBSON: Page?

MR. HAMILTON: Page 2 of the bundle. It is page 2 of the notice of appeal, as well; and this is the order we seek with one exception, which is that we are also going to ask for liberty to apply in relation to the maintenance of the plaintiff, in the circumstances that I will explain; but we respectfully submit that the Order that should be made is:

"(1) the judgment and order of Mrs. Justice Smith be set aside;

(2) the preliminary issue be answered in terms whereby it is adjudged that the Defendant did NOT owe the Plaintiff a duty to exercise reasonable care to avoid causing the Plaintiff's psychiatric injuries;

(3) the Plaintiff's claim be dismissed and judgment be entered thereon for the Defendant; [we Say that follows, because this is the only duty, and if there is no duty there could be no claim.]

(4) the Defendant's costs of and occasioned by this Appeal and of and occasioned by the trial of the preliminary issue below and of the proceedings as a whole be paid by the Plaintiff, such costs to be taxed forthwith, if not agreed, and paid within 28 days of such taxation or agreement."

So that we would add simply "including the cost of the respondent's notice." That was put in although I do not imagine that is going to be a major item. In relation to the liberty to apply, the position is that I am told that my friend is instructed to impose it. I will therefore develop the point shortly.

LORD JUSTICE GIBSON: To oppose?

MR. HAMILTON: My application for liberty to apply.

LORD JUSTICE GIBSON: Yes, we had it.

MR. HAMILTON: An Order. And this is the Order that we seek, that if the defendants' cost are not paid in 28 days of agreement the defendants are at liberty to apply at the Order that:

"(1) the Plaintiff should give full information of any identity of anyone maintaining him as to the costs of this action.

(2) any persons maintaining the plaintiff in this action come to court to show cause why they should not pay the Defendant's costs."

The form of order comes from Singh v The Observer which is before your Lordships which came before a Court of Appeal. That included Stuart-Smith LJ, although the law was not reviewed on the appeal.

As far as the facts of the matter are concerned.

The law has recently followed in Lonrho Plc v Fayed (No 5), the decision of this court last week.

MR. HAMILTON: I am grateful, my Lord. I am afraid we had failed to observe that. In essence, so far as the facts are concerned, the position is that Mr. McFarlane plainly is not legally aided. He plainly has no funds to support the action himself. He said in the last sentence of his statement that he was unemployed and had no prospects whatsoever of ever being employed again. Secondly, there was an argument in The Times on 14 January 1992 which says, I think your Lordships have this, under the heading:

"Alpha date A TEST claim for damages arising from the Piper Alpha disaster, brought by a man who was on the firefighting vessel Tharos, succeeded last week in being granted a High Court hearing date. The explosion and fire on the North Sea oil platform four years ago killed 167 people. The test case is being brought by Frank McFarlane, of Alloa, who is claiming damages for stress disorder against Occidental (now E.E. (Caledonian) Limited). Four other cases are awaiting the outcome.

The cases are supported by the pioneering Quantum Claims Specialists Ltd., the Aberdeen company formed by Frank Lefevre, a solicitor, as a specialist damages recovery service that operates on a 'no-win no-fee' basis. The government has changed the law to allow 'no-win no-fee' actions in England and Wales and a draft order implementing the legislation expected soon."

So far as we know that has not been implemented. So there is some evidence from the press that the quantum claim specialist company of Mr. Lefevre have been supporting and maintaining the litigation.

The Order we are asking for is not of course that your Lordships should make an Order because that would require that Mr. Lefevre and his company should have an opportunity of being heard. It may be, of course, that as in Singh when the facts were investigated it emerges that there is no basis. But what we respectfully submit is that it is appropriate that where somebody has been maintained, and your Lordship should know that an action was started in the United States, there was an injunction to restrain that it was resisted by Mr. McFarlane and then of course there has been this action. There has been considerable costs incurred by somebody who prima facie, at any rate, has not got the means to do so. Therefore there is a prima facie case of maintenance; and if the cost are not paid then we would respectfully submit that justice requires that we should be able to investigate as to the issue of maintenance, and if appropriate obtain an Order that the maintainer pays the costs on the basis of the law as stated in Singh. As my Lord, Lord Justice Stuart-Smith has kindly pointed, supported in Lonrho Plc v Fayed (No 5).

So we have put in the Order that should have liberty to apply to the High Court, because it would be appear to be more appropriate that an application should be made to the High Court than to the Court of Appeal. Your Lordships have the any power to make any Order that the trial judge could have made. So on those facts-—.

LORD JUSTICE GIBSON: I am not familiar with it. I am looking at Singh now. At 757 at paragraph 3 that is the rule, is it? That there is power to order the litigant to disclose the maintainer's name?

MR. HAMILTON: Yes, my Lord, that is, in effect, one of our draft orders and two one can see between G and H:

"If this topic is a nettle, then in my judgment it should be grasped. It would, in my judgment, be unjust that the Observer, in all the circumstances of this case, should not be able to know who is behind this litigation, and, if so advised, to ask them to come to court to show cause why they should not pay the Observer's costs."

LORD JUSTICE GIBSON: Was that at the conclusion of the case after judgment? I am not familiar.

MR. HAMILTON: It was a case concluded on failure to supply security. There were a series of orders for security for costs that were not complied with. The action was struck out in the interlocutory stages.

LORD JUSTICE GIBSON: The basis for your application is the apparent lack of funds of the plaintiff, and for what it is worth the newspaper article.

MR. HAMILTON: Yes, that is the factual basis. The law is in Singh.

MR. WILKINSON: My Lord, so far as the Order that is sought is concerned I have no observations to make so far as it is amended to include the costs of the respondent's notice. My Lord, so far as the application for liberty to apply is concerned, my Lord, so far as paragraph 1 is concerned there is no doubt as to the background of this situation. I represent Mr. McFarlane. My learned friend knows the basis on which Mr. McFarlane has pursued this action. There is no need for the Court to make any Order in the terms of paragraph 1. I am surprised that it is ventilated for that reason. I know not why it is suggested.

LORD JUSTICE GIBSON: What is not in issue is that the identified company is in fact maintaining him.

MR. WILKINSON: My Lord, as I am instructed that is so. I think my learned friend and his instructing solicitors-—.

LORD JUSTICE GIBSON: I am not doubting it. I want to be sure what it is that you are conceding.

MR. WILKINSON: That is my understanding, it may be wrong. I do not represent Mr. Lefevre or his company. Subsequently, if the second part —I have really no locus so far as the matter is concerned, to advance any submissions on his behalf. It would be, in my respectful submission, very different from the Lonrho, Observer situation whereby hidden figures behind which are hidden persons maintaining actions should be identified and should pay cost.

LORD JUSTICE GIBSON: I do not on the principal findings of the fact, that the maintainer is—-

MR. WILKINSON: I put the position from Mr. McFarlane's point of view. I have not had the opportunity of looking at Singh. I was told it was going to be referred to this morning. I raise those points in answer to—-

LORD JUSTICE GIBSON: You do not have any instructions to concede on the quantum claims they are maintaining, so the court could proceed, what it might be able to do in the case of that?

MR. WILKINSON: My Lord, I do not have any instructions.

LORD JUSTICE GIBSON: Mr. Hamilton, what do you ask us to do in the light of what Mr. Wilkinson has told us?

MR. HAMILTON: We would invite your Lordship to give the liberty to apply. First of all, it is said that we know fully the identity of the person maintaining the cost of this action. Well, there have been suspicions. There is no...