Qaisar Mehmood (by his Litigation friend Mrs Asma Islam pending determination by the court) v Harry Mayor

Hearing date: 25 March 2024

APPROVED JUDGMENT

This is the judgment in respect of the Claimant's application dated 5 May 2021 for retrospective approval of an interim payment of £10,000 made on 13 August 2019 and for a further interim payment in the sum of £75,000. It is supported by the witness statements of Andrew McGowan dated 21 October 2021 and of Ellie Marriott dated 4 and 14 March 2024. There is no witness evidence in response from the Defendant.

Factual and procedural background

The claim is for damages for personal injury caused by a road traffic accident on 10 January 2019 when the Claimant was riding a motorcycle in a collision with the Defendant's vehicle. The Claimant suffered a significant brain injury classified as being in the Moderate to Severe range of the Mayo classification, the most severe category in that classification system, and a number of orthopaedic, soft tissue and related injuries. The Claimant is now aged 46. Prior to the accident the Claimant ran a restaurant and take away business. The Claimant brings this claim by a Litigation Friend, as it is claimed that he lacks capacity. The issue of capacity is disputed, and although this issue was originally to have been determined at a trial of capacity before Master Dagnall on 18 and 19 May 2022, it was adjourned, and Master Dagnall ordered that the trial on the preliminary issue of capacity be adjourned to the trial judge to be determined at trial.

Although Deputy Master Fine had ordered on 9 November 2021 that the Claimant's interim payment application was adjourned to be listed for hearing after the determination of the issue of capacity, Master Dagnall's order changed the circumstances in respect of which Deputy Master Fine's order was made, and in any event in so far as necessary I vary that order to enable the interim payment application to proceed.

By an Amended Defence dated 11 November 2021 the Claimant's lack of capacity was disputed, and a plea of fundamental dishonesty is made under section 57 of the Criminal Justice and Courts Act 2015, (“s. 57”) relying on medical and surveillance evidence. Primary liability is admitted, and the claim proceeds in respect of contributory negligence, causation and quantum, without prejudice to the plea under s.57.

The purpose for which the requested interim payment is intended to be used is for rehabilitation and additional treatment recommended by a number of the Claimant's medical experts and also by Dr Isaac, the Defendant's expert in neuropsychiatry. Since the interim payment application was issued both parties have obtained further reports from medical experts in the fields of orthopaedics neurology, neuropsychiatry, neuropsychology and reports in helmet expertise. The Claimant has also obtained reports from experts in neurorehabilitation and neuroradiology.

The issues in the application

The approach to application for interim payments pursuant to CPR 25.7 is outlined in the case of Cobham Hire Services v Eeles[2009] EWCA Civ 204. The Claimant contends that on general damages alone this is a case with a value exceeding £200,000, and that both limbs of the two-stage test set out in Eeles by Smith LJ at [43] to [45] are easily satisfied.

This is an unusual application, in that the Defendant does not contend that either of the two limbs of Eeles are not satisfied, but rather that the Claimant has not satisfied the pre-condition needed to enable the court to make an order for an interim payment set out in CPR 25.7(1)(a), namely that “ the Defendant against whom the order is sought has admitted liability to pay damages or some other sum of money to the Claimant.” The Defendant relies on its Amended Defence which sets out the provisions of s. 57 and avers that the Claimant has been fundamentally dishonest in relation to his primary claim (at paragraphs 4 and 5).

S.57 (1) – (3) states:

(1) This section applies where, in proceedings on a claim for damages in respect of personal injury (“the primary claim”) __—

(a) the court finds that the claimant is entitled to damages in respect of the claim, but

(b) on an application by the defendant for the dismissal of the claim, the court is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the primary claim or a related claim.

(2) The court must dismiss the primary claim, unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed.

(3) The duty to dismiss includes the dismissal of any element of the primary claim in respect of which the claimant has not been dishonest.

The Amended Defence seeks dismissal of the claim pursuant to s. 57, relying on medical evidence and surveillance evidence set out at Paragraphs 5–16. The Defendant accordingly submits that it has not admitted liability to pay damages or sum other sum of money to the Claimant. In the Amended Defence at paragraph 18 the Defendant relies upon the judgment in LOCOG v Sinfield[2018] EWHC 51 (QB), where Julian Knowles J stated at [63]:

“In my judgment, a claimant should be found to be fundamentally dishonest within the meaning of s 57(1)(b) if the defendant proves on a balance of probabilities that the claimant has acted dishonestly in relation to the primary claim and/or a related claim (as defined in s 57(8)), and that he has thus substantially affected the presentation of his case, either in respects of liability or quantum, in a way which potentially adversely affected the defendant in a significant way, judged in the context of the particular facts and circumstances of the litigation.”

In its opposition to the application the Defendant also relies on CPR 25.7(4):

“The court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment.”

The Defendant therefore submits that the court is unable to order any sum by way of interim payment either pursuant to CPR 25.7(1)(a) or 25.7(4).

Leading Counsel for the Claimant submitted at the hearing that there was a good explanation for the surveillance footage that shows the Claimant going to work at the restaurant he/his company owns, namely that the Claimant is shown carrying out mundane tasks, such as taking orders, serving and taking payment from customers, cooking, dealing with delivery drivers and so on, whereas prior to the accident the Claimant was in charge of the administration of the business and others would carry out the practical tasks involved in running the restaurant. There is no evidence that the Claimant has gone back to his previous business activities and the difficulties that the Claimant suffers as a result of his injuries, in particular his brain injury, are supported by the medical evidence. The recommended rehabilitation and treatment would be to the benefit of both parties, as if the Claimant benefits from it his long-term prognosis may improve and his future loss would be less. The Claimant also relies on the case of Salwin v Shahed[2022] EWHC 1440 (QB). The judge was faced with a situation where there was almost completely opposing medical and care evidence in respect of the claimant's future requirements following a severe traumatic brain injury. The claimant's medical evidence supported a finding by the claimant's case manager that he required a continuing high level of case management, input from a variety of therapists and round the clock support, whereas the defendant's evidence showed that the claimant was able to undertake personal care, travel and access the community independently and carry out a variety of domestic tasks, and a care expert supported the conclusion that the claimant was close to living independently with only limited support. In the face of that very conflicting evidence the judge concluding that there was a risk of an excessively high award if the calculation of the interim payment was based on the claimant's assumption as to his needs, but if the claimant's medical evidence was correct, he would suffer prejudice if he was not able to fund appropriate care and therapeutic input. The judge adopted a cautious approach and allowed for a further interim payment application in a year's time when better evidence might be available.

The Claimant relies on this authority to illustrate that the court may often be faced in an interim payment application with a situation where each party may be financially prejudiced whatever the amount of the payment, and the court is able to weigh up the relative prejudice to each party and come to a conclusion. It was submitted that here the amount sought is a modest financial element in the context of the importance of obtaining such a payment to the Claimant, to allow for rehabilitation and therapies recommended by the medical advisors.

Discussion

All experts have reviewed the surveillance evidence, and I summarise their conclusions in relation to that evidence below, and any parts of their reports prior to seeing that evidence that are relevant to the Defendant's allegations of dishonesty.

The joint statement of the neuropsychologists has very recently become available, and the experts confirm that they have both seen the same material. Both Dr Ford (Claimant's expert) and Professor Powell (Defendant's expert) have considerable experience in assessing people with different cultural backgrounds and/or those for whom English is a second language....