Summary of Recent Cases – Civil Procedure

Where the long-term outcome for a 10-year-old claimant was uncertain and speculative, the assessment of damages was to be completed on a staged basis

Jamie-Rae Cook (By her litigation friend & Mother Karen Cook) v (1) David Andrew Cook (2) Elizabeth Harriet Walker (2011), QBD, 28/06/11

It was the normal rule, and desirable practice, that all outstanding issues between the parties should, where possible, be resolved at a single hearing and the principle of the public interest in the finality of litigation remained crucial. Further, a judge should not be tempted to invent rules to make up for perceived deficiencies in statutory provision. Although the court had the power to postpone some issues for later resolution, that was to be regarded as a rare or exceptional course requiring some tangible reason to justify it. While from the point of view of a defendant or an insurer there were obvious disadvantages in postponing the resolution of quantum issues, there could be circumstances in which a long-term postponement might be necessary in the interests of justice, where, for example, the nature of the damage was clear but quantification could not yet be meaningfully assessed. The instant case was a complicated one in which the long-term outcomes for C were uncertain and speculative. In order to do justice in accordance with the overriding objective it was plainly right to make an order where the assessment of damages was to be staged.

The Claimant who was awarded a lump sum and periodical payments was entitled to treat the lump sum award as provisional and had the right to vary his periodical payments if he went on to develop a syrinx

Alexander Kotula v (1) EDF Energy Networks (EPN) Plc (2)Morrison Utility Services Ltd (3) Birth Utilities Ltd, QBD, 17/06/11

It was impossible to say that the prospect of developing syringomyelia in the Claimant’s case was fanciful. A measurable proportion of those who developed a syrinx would have serious consequences. It would be relatively easy to establish what flowed from the development of a syrinx in a given patient and decide whether or not it was serious. If a claimant sought further damages or variations on an indistinct factual ground he could be placed on a significant costs risk by the use of CPR Part 36. It was desirable for there to be finality in awards as that was of benefit to insurers, the court system and also to claimants. However, that had to be set against the potential inadequacy of an award in a small but measurable group of patients who went on to develop syringomyelia. It was precisely that kind of rare but highly damaging contingency which Parliament must be taken to have had in mind when permitting damages awards to be provisional and permitting the variation of periodical payments.

The word “proceedings” in CPR 36.10 was to be given a wide meaning so as to include steps taken prior to the issue of proceedings

(1) Katie Thompson (2) Sophie Thompson (By their Father & Litigation Friend Christopher Thompson & Maureen Williams (Administrators of the Estate of Tracy Anne Williams, Deceased) v Susan Bruce, QBD, 28/06/11

The claimants, who were minors, brought proceedings under CPR Pt 8 to determine their entitlement to costs following acceptance of a pre-action offer of damages from the defendant. It was held that on a purposive construction, the word "proceedings" in r.36.10 was to be given a wide meaning so as to include steps taken prior to the issue of proceedings. That meant that "proceedings" in r.36.10 had a different meaning to that which it bore in rule 36.3 where it clearly meant post-issue proceedings. If "costs of the proceedings" in r.36.10 were to be interpreted as post-issue proceedings, it would mean that pre-issue costs would not be recoverable. This could not have been Parliament’s intention.

August 1, 2011 В· Editorial Team В· Comments Closed
Posted in: Cases