Mitchell (Plaintiff) v Mulholland and Anr

JurisdictionEngland & Wales
JudgeLORD JUSTICE MEGAW
Judgment Date10 April 1973
Judgment citation (vLex)[1973] EWCA Civ J0410-1
Date10 April 1973
CourtCourt of Appeal (Civil Division)

[1973] EWCA Civ J0410-1

In The Supreme Court of Judicature

Court of Appeal

(Application by Plaintiff for Order for costs in the Order of the Court of Appeal dated 17th March, 1971.)

Before:

Lord Justice Edmund Davies,

Lord Justice Megaw and

Sir Seymour Karminski.

Mitchell
(Plaintiff)
(Applicant)
and
Mulholland and Anr.
(Respondents)
(Defendants)

MR M.T.B. UNDERBILL, Q.C., (instructed by Messrs, W.H. Thompson) appeared on behalf of the Applicant (Plaintiff).

MR J. STOCKER, Q.C. and MR H. HILL, (instructed by Messrs, Barlow, Lyde & Gilbert) appeared on behalf of the Respondents (Defendants).

1

LORD JUSTICE EDHUHD DAIES: In June, 1969, Mr. Justice Nield awarded the plaintiff £45,757 damage in respect of grave personal injuries sustained by him in 1965 when he was a passenger in a car negligently driven by an agent of Mr. Mulholland. The learned judge admitted the evidence of Mr. Previtt, an actuary, after an objection as to its admissibility had been token on behalf of the defendant. Be rejected the evidence of Mr. Dixie, an accountant, and Professor Day, an economist. He also refused to have regard to the prospects of inflation in assessing the damages and adopted the conventional method of multiplier and multiplicand in calculating the loss of future earnings. As the total damages awarded was less than the £50,000 paid into court, he ordered that the plaintiff should have the costs only up to the date of the payment in of that sum, and the defendant the coats thereafter.

2

In March, 1971, this court allowed the plaintiff's appeal on the ground of the Inadequacy of the total award of damages and increased them from £45,757 to £62,183, and ordered that he recover the costs of the trial and of the appeal. The court arrived at that conclusion after rejecting both the actuarial evidence and that relating to the prospects of inflation, and, while arriving at a different total, expressed its approval of the conventional method adopted by the learned trial judge.

3

The expert evidence rejected by this court had occupied something like three days of the trial before Mr. Justice Nield. Unfortunately, learned counsel failed to draw to the attention of the trial judge and this court the fact that costs of and occasioned by the calling of this export evidence had been specially reserved to the trial judge both in the making of theoriginal Order for Directions on the 6th February, 1868, and on the making of a subsequent Order in April, 1969. No special Order having been made to deal with the costs thus expressly reserved, the plaintiff now moves this court that there be added to its Order for costs in the plaintiff's favour the words, "including the costs of calling expert financial witnesses specially reserved by the Order of Master Harwood dated 6th February, 1968, and the Order of Master Bickford Smith dated 28th April, 1969."

4

It is common ground that the outcome of this application depends upon the impact on the particular facts of this case of the provision in Order 62, Rule 28 (2), that "There shall be allowed all such costs as were necessary or proper for the attainment of justice or for defending the rights of the party whose costs are being taxed." Commenting on similar wording in an earlier Order, Lord Justice Atkin said in Societe Anonyme Pecheries Ostendaises -v- Merchants' Marine Insurance Company (1928 1 K.B. p.75, at p.762). "It is a rule which is intended to give to the successful litigant a full indemnity for all costs reasonably incurred by him in relation to the action … That is the whole principle that the Taxing Master has got to apply." It is accordingly well established that the successful party will by no means necessarily recover all the costs occasioned by the presentation of his case see, for example, the cases cited under the note entitled "Unnecessary damages" to Order 62, Rule 28, in the Annual Practice Therefore, although the plaintiff ultimately recovered more than the sum paid in, and as a result of his appeal to this court increased from £17,570 to £18,550 the award in respect of future loss of earnings, it has to be borne In mind that both Mr. Justice Nield and this court arrived at those assessments after havinglargely rejected the evidence of the plaintiff's three financial experts. It is in these circumstances that the question arises as to whether the defendant should be ordered to pay the costs accordingly. No small item is at stake, for we are told that something between £6,500 and £8,000 is likely to be involved.

5

The avowed object of those presenting the case on behalf of the plaintiff was to induce the court to introduce a new method of assessing damages for personal injuries. With diffidence I quote a passage from the judgment I delivered In March, 1971 ( 1972 1 Q.B.p.72): "The plaintiff criticises the method hitherto adopted by the courts in two ways: (1) The conventional approach of fixing the multiplicand and the multiplier appropriate to the particular case should be replaced by an actuarial calculation. (2) Hitherto, the courts have wrongly excluded from their consideration the prospect of inflation. How dramatic an impact on the assessment of damages these contentions, if accepted, would have is vividly illustrated by the fact that when this appeal was opened the plaintiff's counsel claimed that he is entitled to recover, not the £47,757 awarded by the judge, but damages totalling between £95,735 and £98,735." Then a little later, at page 74: "For the plaintiff, Mr. Inskip would abandon the trial judge's method and would resort to multiplicand and multiplier merely in order to demonstrate, as he submits, the reasonableness of the new and superior method of assessment which he urges should now be adopted in all cases. The new method rests upon the evidence of an actuary, Mr. Previtt, a chartered accountant, Mr. Dixie, and an economist. Professor Day."

6

Although the plaintiff failed to induce acceptance by thecourt of cither the actuarial approach or the relevance of inflation prospects, Mr. Underhill seeks to recover the costs incurred by the calling of evidence on these matters on, as I think, two grounds which call for consideration. The first is based on the pre-trial correspondence between the parties' solicitors. Reliance is understandably placed upon inter alia the defendants' solicitors' letter of the 26th February, 1969 consenting to the Order for Directions providing for the calling of three expert witnesses on the issue of future financial loss, and another of 30th May, 1969 in which they expressed the view that "evidence will be a very necessary feature" on that issue. It will, however, be recalled that on a date midway between those two letters, namely, on 28th April, 1969, a further Order for Directions provided that "the costs of such witnesses be specially reserved to the trial Judge", which clearly indicated that those expert witnesses would in due course require to be particularly considered.

7

The other point taken by Mr. Underhill is that, in so far as Professor Day's evidence as to inflation was ruled inadmissible, this was solely on the ground that it lacked solidity, and that there is no rule that a party adducing such evidence must necessarily be deprived of the...

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