Roult v North West Strategic Health Authority
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hughes,Lady Justice Smith,Lord Justice Carnwath |
| Judgment Date | 20 May 2009 |
| Neutral Citation | [2009] EWCA Civ 444 |
| Docket Number | Case No: B3/2008/3000 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 May 2009 |
[2009] EWCA Civ 444
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
Mr Justice Christopher Clarke
Manchester Civil Justice Centre
1 Bridge Street West, Manchester M3 3FX
Lord Justice Carnwath
Lady Justice Smith and
Lord Justice Hughes
Case No: B3/2008/3000
7MA90593
Stephen Grime QC (instructed by Lonsdales) for the Claimant/Appellant
David Westcott QC (instructed by Hempsons ) for the Defendant/Respondent
Hearing date:5 May 2009
Lord Justice Hughes:
This is a claimant's interlocutory appeal in a personal injury case. The issue is the extent to which the claimant is bound by the terms of a prior settlement, approved by the Court. It is his contention that CPR 3.1(7) permits the court to revoke or vary the approval given, and that the judge was wrong to refuse to do so.
The claimant's action arises from a birth injury in which he was starved of oxygen leading to a particular form of cerebral palsy. Like many such cases his history inspires only acute sympathy for the effect on the lives of both him and his parents, who have acted as his carers throughout his life. He was born on 14 November 1987 and so is now 21. He is severely disabled because of lack of brain development. He functions very roughly at the age of 4 or a little more, and he exhibits a significant degree of disruptive and challenging behaviour. He is incapable of looking after himself, and for the purposes of litigation is, inevitably, a patient. Liability is not in issue. As always in such cases, the costs of his future care will constitute a very large element of his claim. How and where he might over the years be cared for, and by whom, are all matters which are critical to the calculation of his claim.
He has lived all his life with his parents. It is perhaps unsurprising that they have, as his full time carers, become over-protective of him. One consequence of that is, for example, that he has become manipulative, particularly of his mother. His behaviour is significantly worse when she is there to be manipulated by it. The details do not matter for present purposes but are uncomfortable. Moreover, his parents each have health difficulties of their own. Even without these factors it would be likely that the professional opinion of all who have been consulted would be that it would be better for him if he were to be cared for somewhere other than full time in the family home. That is the unanimous opinion in this case. That is a development which, for understandable reasons, his parents, and especially his father, have found very difficult to accept.
The claimant's action was begun in the Summer of 2005, when he was coming up to 18. Liability had already been conceded in correspondence. By the closing months of 2006, the trial of the quantum issue was imminent, being listed for January 2007. Two meetings between the lawyers on either side took place in September and December 2006. A partial settlement was achieved. The careful and full opinion of leading counsel for the claimant, written for the purposes of being put before the Judge so that he could consider whether to approve the settlement, set out the position. Until mid August 2006 the parents had felt unable to agree to any, even temporary, placement of the claimant in a residential school, notwithstanding the advantages which some socialisation was likely to bring. But then they did agree to it, and it was, by January 2007, expected that he would go to one or other such school for about two years until the end of the academic year in which he was 21. For the future after that, the parents had until about the same time resisted professional advice that the claimant's best interests lay in living in a small group home, with perhaps 2 or 3 other disabled people and a dedicated care team, provided by the Local Authority. The claim as to quantum had accordingly been set out by counsel in a detailed schedule which included claims based on the assumption that in the long term the claimant would be cared for in a home of his own, which would have to be bought, and in which he would need full time care staff. The costing of such a claim is complicated, but conventional, and the considerations applying to an award on such a basis are well known to the courts. However, by the time of the meetings, the position had changed. Counsel put it in this way in his opinion:
“Until as late as 15 August 2006, the family were adamant that they did not want Greg, when an adult and on finishing school, to go into a group home run by the local authority – they much preferred that Greg should go into his own home supported by an independent care team – indeed it is this option that has been costed for in the referred to Schedule. Nevertheless, as the family has gained greater insight into Greg's needs as an adult, they now recognise that a group home, whilst not an ideal solution in all respects, probably does give Greg the best chance of an enjoyable and fulfilling life with greater social interaction with other young men cared for, in the group home support network. So it was, that in readiness for the JSM.1 [first joint settlement meeting], I initially sought to argue on Greg's behalf the case against the group home whereas in fact by the time of JSM.1 and following a conference with Angela [mother] on 15 August 2006 it was recognised that the group home offered the best options for Greg and JSM.1 proceeded on that basis.”
Consistently with this approach, when he came to set out the various heads of claim, counsel said of the subheading “Accommodation”:
“The whole of this claim obviously fell, once the family decided the group home was the way forward.”
The Judge was presented with a separate draft schedule to the order in two parts, the first (Schedule 1) comprising heads of claim which had been settled and the second (Schedule 2) those which had yet to be quantified. The first part included accommodation, which was valued at nil, precisely because it was accepted that a Group Home would be reasonable, indeed the best, provision for the claimant's care. The second part included 'costs of future care' because the costs of a Group Home were thought to have a number of unresolved uncertainties about them. But it itself made clear the same basis of approach, because it listed for subsequent calculation the costs of a Local Authority Group Home. For all these reasons it was absolutely plain that the settlement was on the basis that care in such a Group Home was appropriate to the needs of the claimant. The Judge held that it had been made plain to him that the claimant would be proceeding to a Group Home and that
“nobody concerned can have supposed or understood that what was reserved for future consideration was the possible care costs associated with going into an individual home”
There is no appeal against that finding. The agreement was that the right approach to future care was that the claimant's needs were such as would be met by being looked after in a Local Authority Group Home and not in privately obtained accommodation on his own. In that, the agreement benefited the defendants, because the cost of privately obtained accommodation and constant solitary care would have been much greater. But the settlement also had advantages for the claimant. A trial was avoided, which would otherwise have been imminent, other items were negotiated as a package, and time was obtained for further investigation of the costs inherent in Group Home care, whereas it may well be that the evidence the claimant sought would not have been available if the trial had gone ahead immediately.
On what would have been the first day of the trial, the Judge gave his approval. Because it was a partial settlement it was not approval to a money judgment but rather to the terms of the agreement. The order took the form of (i) reciting that the agreement was approved, (ii) ordering that the Schedule 1 heads of loss be valued in the defined sum of £904,567, with interest to run until payment, and (iii) ordering that the Schedule 2 heads of loss be adjourned, that is to say for quantification by subsequent trial or further agreement.
That was on 22 January 200Procedurally the next step which occurred was that in May or June 2008 the claimant served a revised schedule of his outstanding claim. It sought damages for future care in privately obtained accommodation with privately engaged dedicated carers. The Defendants took exception to this because of the previous settlement and approval and it was they who sought referral back to the court of the issue whether the claimant could pursue such a claim. On 17 November 2008, Christopher Clarke J, who had given approval to the original partial settlement, was asked to determine as a preliminary issue whether it was open to him to do so.
What had happened was not put in evidence, and is less than wholly agreed. But it was common ground that in July 2007 the claimant moved into a Local Authority Group Home but was removed after a very short time, it would seem some few days, by his parents. Their view was and has since remained that the home was unsuitable and that such a home always will be. As I understand it, the defendants would say that it was insufficiently, if not scarcely, tried, and that such a view is wrong. Neither side sought to call any evidence. The application was put to the Judge on the basis that...
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