Summers v Fairclough Homes Ltd

JurisdictionEngland & Wales
JudgeLORD CLARKE
Judgment Date27 June 2012
Neutral Citation[2012] UKSC 26
Date27 June 2012
CourtSupreme Court
Fairclough Homes Limited
(Appellant)
and
Summers
(Respondent)

[2012] UKSC 26

before

Lord Hope, Deputy President

Lord Kerr

Lord Clarke

Lord Dyson

Lord Reed

THE SUPREME COURT

Trinity Term

On appeal from: [2010] EWCA Civ 1300

Appellant

William Norris QC

James Todd

Sadie Crapper

(Instructed by Berrymans Lace Mawer LLP)

Respondent

Craig Sephton QC

Hugh Davies

(Instructed by SAS Daniels LLP)

Heard on 18 and 19 April 2012

LORD CLARKE, DELIVERING THE JUDGMENT OF THE COURT

Introduction
1

This is the judgment of the Supreme Court. The principal issues in this appeal are whether a civil court ("the court") has power to strike out a statement of case as an abuse of process after a trial at which the court has held that the defendant is liable in damages to the claimant in an ascertained sum and, if so, in what circumstances such a power should be exercised. The driving force behind the appeal is the defendant's liability insurers, who say that fraudulent claims of the kind found to exist here are rife and should in principle be struck out as an abuse of the court's process under CPR 3.4(2) or under the inherent jurisdiction of the court.

The facts and judgment at first instance
2

The claimant was born on 16 June 1976. On 13 May 2003, while employed by the defendant, he was injured in an accident at work. He fell from a stacker truck and suffered both a fractured scaphoid bone in his right hand and a comminuted fracture of his left calcaneum, or heel bone. On 28 October 2003, the defendant admitted liability through its insurers. On 10 May 2006 the claimant issued a claim form which alleged breach of duty or negligence on the part of the defendant but did not contain detailed particulars of quantum. On 7 July 2006 the defendant applied for permission to withdraw the admission of liability after seeing medical records which appeared to cast doubt on the claimant's account of the accident. In March 2007 the defendant served an amended defence on liability. On 28 August 2007, after trial, His Honour Judge Tetlow ("the judge") gave judgment for the claimant on liability, with damages to be assessed. He made an interim award of £2,000 on account of costs. The defendant subsequently made a voluntary interim payment of £10,000 on account of damages.

3

On 4 October 2007 the defendant for the first time obtained images of the claimant by means of undercover surveillance. Until then the defendant's case had not been based upon abuse of process. On 5 October 2007 the claimant signed a witness statement which included the assertion that he was not able to stand for more than 10 to 15 minutes. The defendant continued to subject the claimant to undercover surveillance, the last such surveillance being on 25 September 2008. On 17 November 2008 the parties' orthopaedic experts met and prepared a joint statement without either expert seeing the surveillance videos. On 9 December 2008 the claimant served his first schedule of loss. It was in the sum of £838,616.

4

On 23 December 2008 the defendant disclosed the surveillance evidence to the claimant and served a re-amended defence alleging that the claimant's claim was grossly and dishonestly exaggerated and asserting that it should be struck out in its entirety. Detailed particulars of the dishonesty were given. The defendant also served a counter-schedule setting out a secondary case on quantum. On 29 January 2009 the claimant made a Part 36 offer to settle for £190,200. On 9 February 2009 the orthopaedic experts, who had by now seen the surveillance material, met again and prepared a second joint statement. In May 2009 the Department of Work and Pensions ("DWP") disclosed surveillance showing the claimant apparently working without difficulty in 2009. On 29 June 2009 the claimant served a second schedule of loss valuing the claim at £250,923. He made a Part 36 offer to settle for £150,000. On 22 July 2009 the trial of quantum was adjourned because of the DWP disclosure. On 24 November 2009 the claimant's solicitors invited the defendant to attend a joint settlement meeting but the defendant declined to do so. On 14 December 2009 the claimant served a third schedule of loss in almost the same sum as the second schedule. The claim was put at £251,481. All the claimant's pleadings and schedules of loss were supported by statements of truth.

5

That claim was maintained at the trial which took place between 25 and 27 January 2010. In the light of the joint statement, neither of the orthopaedic experts was called to give oral evidence and the surveillance evidence was not challenged. Indeed, the principal, if not the only, witness to give oral evidence was the claimant. There was however a good deal of written medical evidence before the judge, together with extracts from the claimant's wife's diary which appeared to show him working and playing football. On 23 February 2010 the judge handed down a 27 page judgment which analysed the facts and the issues in considerable detail and with impressive clarity.

6

The critical findings of facts are set out in paras 54 to 61 as follows:

"54. Having rehearsed the evidence at some length it is time to come to some conclusions. Firstly as to the nature and extent of the disability caused by the injury. There is no doubt that the Claimant suffered a fracture of the right scaphoid and a serious ankle fracture which required at least two operations for an arthrodesis. The schedule of loss prepared on 9 th December 2008 and signed with a statement of truth by the Claimant maintained the Claimant was at that date still in constant pain taking pain killers, needing to use crutches outside and to wear an ankle brace at all times. Standing and sitting was limited due to pain; he was still suffering psychiatrically from the effects of the accident. He had not worked since the accident and was unlikely to do so for the foreseeable future. In the light of the surveillance evidence the subsequent two schedules opted for a sum of £30,000 instead of the original £47,500 put forward for general damages. Further the loss of earnings in the second schedule of the 19th June 2009 ran up to 13 th October 2008 only, in effect accepting that the orthopaedic experts' conclusion as to the Claimant's fitness for work was correct. That said the Claimant by his evidence does not accept that that is correct and that position was maintained from the witness box.

55. I am prepared to accept that the Claimant's ankle injury was sufficiently serious as to require the first arthrodesis; further that the first operation failed necessitating the second one. Although I accept in the light of subsequent events that the second operation also failed to create complete fusion, the result of that second operation was to render the Claimant asymptomatic to all intents and purposes as is disclosed by the surveillance videos from October 2007 onwards. I can accept as Messrs O'Connor and Hodgkinson conclude that the Claimant would not be fit for heavy work and would find walking over uneven ground uncomfortable but those are the only outstanding disabilities. I can also accept their conclusion that the Claimant would have been weight bearing without crutches within six months of the second operation i.e. by March 2007. Since the Claimant was clearly fit for work in early October 2007 I conclude that the Claimant was fit for work some months earlier than that and capable of getting a job including a job as a site supervisor as he had pre-accident, that not being heavy work. I conclude that the time when the Claimant was fit and should have got back to work as being at the end of June 2007. I accept that he would not have been able to work before then. There is no evidence that the ankle even though not properly fused was likely to give rise to problems in the future.

56. Although the Claimant was not fit for work between the date of the accident and the end of June 2007, in my judgment, I do not conclude he was in that period as housebound and incapable of activity as the Claimant maintains. The recorded incident of June 2003 of the Claimant, upset at being told that the effects of the injury might be permanent, going out to the pub to drown his sorrows demonstrates greater agility than the Claimant maintains and sounds more probable than the Claimant's now explanation that it all happened at home. It is rather similar to the Claimant's curious denial of having been convicted of an offence.

57. I have also concluded that the psychiatric problems alluded to by the psychiatrist were genuine initially and were materially contributed to by the effects of the accident. I agree with the conclusion of Dr Wood with which Dr Thomas does not appear to disagree that such problems had settled to all intents and purposes by about June 2007. It is interesting that that conclusion was come to in ignorance of what the surveillance evidence showed. That ties in nicely with my conclusion as to when the Claimant was able to resume and should have resumed work.

58. Those conclusions must mean that I reject what the Claimant said to his treating doctors and the medical experts as to ongoing symptoms in and after March 2007. I do so because;

  • (a) What is seen on the video tapes is absolutely inconsistent with such disabilities; it is also absolutely inconsistent with what is contained in the DWP application form.

  • (b) The Claimant's explanation that when he was being filmed he was taking strong pain killers in order to force himself with the object of getting back into work is just not credible in particular when he is seen on two separate occasions going to and from two separate medical experts' consulting rooms without crutches when leaving and returning home and with crutches when entering and leaving the doctors premises.

  • (c) The Claimant's wife's diary belies any such protestation of ongoing symptoms.

59. The evidence before me is...

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