Simpson v Norfolk & Norwich University Hospital NHS Trust

JurisdictionEngland & Wales
JudgeLord Justice Moore-Bick,Dame Janet Smith D.B.E.,Lord Justice Maurice Kay
Judgment Date12 October 2011
Neutral Citation[2011] EWCA Civ 1149
Docket NumberCase No: B3/2010/0529
CourtCourt of Appeal (Civil Division)
Date12 October 2011

[2011] EWCA Civ 1149

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM CAMBRIDGE COUNTY COURT

(His Honour Judge Moloney Q.C.)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Maurice Kay

(Vice-President of the Court of Appeal, Civil Division)

Dame Janet Smith D.B.E.

and

Lord Justice Moore-Bick

Case No: B3/2010/0529

9BV00093

Between:
Jennifer Simpson (as assignee of Alan Catchpole)
Claimant/ Appellant
and
Norfolk & Norwich University Hospital Nhs Trust
Defendant/Respondent

Mr. Simon Redmayne (instructed by Godfrey Morgan Solicitors) for the appellant

Mr. Jeremy Morgan Q.C. (instructed by Kennedys Law LLP) for the respondent

Hearing date : 23 rd March 2011

Lord Justice Moore-Bick
1

This appeal raises two important questions relating to the assignment of choses in action. The first, which is of general significance, is whether it is possible to assign a cause of action in tort for damages for personal injury. The second, which arises only if the first question is answered in the affirmative, concerns the circumstances in which such an assignment will be held void for reasons of public policy.

2

The facts giving rise to the appeal can be described quite shortly. In the latter part of 2005 and the early part of 2006 Mr. Alan Catchpole underwent treatment as a patient at the Norfolk & Norwich University Hospital. He maintains that in the course of that treatment he developed an infection caused by methicillin resistant staphylococcus aureus ("MRSA") as a result of the hospital's negligent failure to exercise proper infection control. In January 2009 he started proceedings against the hospital in the Bury St Edmunds County Court claiming damages for personal injury in the sum of £5,000.

3

Mrs. Jennifer Simpson is the widow of Mr. John Simpson, who contracted an infection due to MRSA on an earlier occasion while a patient at the same hospital. Mr. Simpson unfortunately died of cancer. That had nothing to do with MRSA, but in the view of Mrs. Simpson the infection rendered his last days more difficult than would otherwise have been the case. After his death Mrs Simpson as his personal representative brought an action against the hospital claiming damages for personal injury. On his behalf she alleged that the infection had been caused by the hospital's failure to take all reasonable care to prevent the infection. In due course the claim was settled without any admission of liability on the part of the hospital. Nonetheless, Mrs. Simpson continues to feel strongly that the hospital has failed to implement what she considers to be proper infection control procedures and wishes to force it to confront its shortcomings.

4

On 26 th May 2009 Mr. Catchpole and Mrs. Simpson entered into a deed of assignment under which Mr. Catchpole purported to assign his claim against the hospital to Mrs. Simpson in consideration of the payment of £1. Although the statements of case do not yet properly reflect the capacity in which she sues, Mrs. Simpson has since been pursuing the proceedings in her own name and for her own benefit and the claim form has been amended to increase the amount claimed to £15,000.

5

On 21 st July 2009 the hospital applied to strike out the claim under CPR rule 3.4 on the grounds that Mrs. Simpson had no legitimate interest in the claim and that the assignment was therefore void as being contrary to public policy. District Judge Kirby allowed the application and struck out the claim. He held that a claim of this kind is incapable of assignment, applying the decision of the House of Lords in Trendtex Trading Corp. v Credit Suisse [1982] A.C. 679.

6

Mrs. Simpson appealed against that decision and as a result the matter came before His Honour Judge Moloney Q.C. The judge identified two points for consideration: whether a claim of this kind is inherently incapable of assignment, and if not, whether in this case Mrs. Simpson had a sufficient interest in Mr. Catchpole's claim to enable a valid assignment to her to be made. He held that the assignment was void because the claim was of a personal nature and incapable of assignment, but he also held that even if the claim was capable of assignment, Mrs. Simpson did not have an interest in it of a kind necessary to support a valid assignment. In reaching that conclusion the judge drew attention to various practical difficulties that he could foresee arising in relation to the conduct of the proceedings, as well as to concerns about allowing litigants to sell claims to unscrupulous purchasers or those who wished to pursue them for ulterior motives. He therefore dismissed the appeal, but gave Mr. Catchpole an opportunity to apply within a limited time to proceed with the action in his own name rather than have it struck out altogether.

7

Although most of the argument on the appeal was directed to the scope of the modern law relating to maintenance and champerty, the judge was right in my view to identify as the first question for decision whether Mr. Catchpole's claim against the hospital was capable of assignment at all. At one time it might have been doubtful whether a claim of this kind was properly to be regarded as a "legal thing in action" within the meaning of section 136 of the Law of Property Act 1925, since the expression "chose in action" was used principally to denote property of a kind that could be obtained only by legal proceedings. A right to receive maintenance under an order of the court is not, for example, a legal thing in action and for that reason is incapable of assignment: see Taylor (formerly Kraupl) v National Assistance Board [1956] P. 470. Whether a right to recover compensation for personal injury caused by negligence can properly be regarded as a form of property might at one time have been open to argument, but in my view the expression "legal thing in action" is wide enough to encompass such a claim and support for that conclusion can be found in the decision in Ord v Upton [2000] Ch. 352, to which I shall return in a moment. It is difficult to see why a claim for damage to property caused by negligence should not be regarded as a chose in action and capable of assignment and if that is so, I can see no reason in principle why a claim for damages for personal injury should not be regarded in the same way. Indeed, the reasons given in the authorities for not permitting the assignment of a bare cause of action, namely, that to do so would undermine the law on maintenance and champerty, tends to support the conclusion that a claim of that kind is to be regarded as a chose in action and inherently capable of assignment.

8

Section 136 of the Law of Property Act re-enacted with minor changes section 25(6) of the Judicature Act 1873. Despite the unrestricted terms of the earlier legislation, the Divisional Court (Lord Alverstone C.J., Darling and Channell JJ.) held in Torkington v Magee [1902] 2 K.B. 427 that the effect of the legislation was essentially procedural and that it did not render choses in action that had not previously been assignable in equity capable of assignment. It is clear that some choses in action are not capable of assignment: see Chitty on Contracts, 30 th ed, ch. 19 and Halsbury's Laws of England, 5 th ed. vol. 13, paragraphs 92 and following. These include choses in action that are considered to be essentially personal in nature: see Chitty paragraph 19–054 and Halsbury paragraph 100. The judge considered that a claim for damages for personal injury falls into that class and given the nature of such a claim I can well understand why he should have reached that conclusion. However, I am not persuaded that he was right to do so. The critical question for these purposes is whether the identity of the person to whom the obligation is owed is an essential aspect of it: see Tolhurst v Associated Portland Cement Manufacturers Ltd [1902] 2 K.B. 660 676–677. Thus in Peters v General Accident Fire & Life Assurance Corporation Ltd [1938] 2 All E.R. 267 a policy of motor insurance was held, not surprisingly, to be personal to the original policyholder and incapable of being assigned to a purchaser of the vehicle in respect of which it had been issued, since the identity of the insured was material to the risk undertaken by the insurer.

9

Although the right to recover damages for personal injury depends on proof of a wrongful act or omission causing harm to the person of the claimant, the obligation to pay compensation, which arises by operation of law, is not one that is personal in the sense that it depends upon the identity of the claimant. It is difficult to see, therefore, that the nature of the obligation itself can be affected by an assignment to a third party. It is true that various practical consequences and even inconveniences of the kind identified by the judge may result from the claim's being pursued by an assignee, but they are consequences of a kind that are inherent in any procedure under which an assignee can sue in his own name without joining the assignor. Complications relating to the provision of statements of truth, disclosure, set-off and counterclaim and other procedural matters to which the judge referred may arise whenever an assignee takes advantage of section 136 of the Law of Property Act 1925 to sue in his own name and do not of themselves provide grounds for holding that a chose in action of this kind is incapable of being assigned.

10

In Ord v Upton [2000] Ch. 352 the court had to consider whether a claim for damages for personal injury caused by negligence was transferred by operation of law to the claimant's trustee in bankruptcy. The claimant, Mr. Ord, had been treated by...

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