Update: personal injury

The difficult issue of what constitutes 'knowledge' under the Limitation Act is one of the many significant developments since the previous Update, together with the application of the new Part 36 regime and whether costs incurred at an inquest are recoverable. It is likely that there will be other cases deciding similar issues as the law in these areas is further clarified.

In Roach & Matthews v The Home Office [2009] EWHC 312 (QB) Mr Justice Davis confirmed that costs relating to attendance at an inquest were in principle recoverable in subsequent civil proceedings.

Craig Roach and Anna Baker (daughter of Mrs Matthews) died in police custody. Solicitors acting for their parents attended both inquests and when the civil claims settled, both firms were held entitled to their inquest costs.

However, on appeal, the Home Office argued that costs in a prior action (i.e. the inquests) were never recoverable in subsequent proceedings. Among others, reference was made to Wright v Bennett [1948] 1 KB 601 in which costs disallowed in a lower court were sought in the Court of Appeal. Also, Department of Health & Social Security v Envoy Farmers Ltd [1976] 2 All ER 173, where there were separate proceedings before the Secretary of State during the course of a civil claim and Aiden Shipping Company Ltd v Interbulk Ltd [1986] AC 965 where in a claim made against charterers, it became necessary to institute similar proceedings against the sub-charterers. In all these cases, the courts held the costs of prior proceedings were not recoverable.

Mr Justice Davis considered these authorities were not comparable. For instance, in Wright the claimant already had the opportunity to claim costs in the lower court proceedings. No rule could be extrapolated which said inquest costs were not recoverable. The wording of section 51(1) of the Supreme Court Act 1981 which states 'the costs of and incidental to all proceedings'¦..shall be in the discretion of the court', was wide and 'inimicable' to such a rule.

Instead, Bowbelle [1997] 2 Lloyds Report 196 QBD was followed. This confirmed that inquest costs were capable of recovery in later civil proceedings. However, this did not mean the paying party had no protection. The prior decision of Gibsons Settlement Trusts, Re [1981] 1 Ch 179 set out criteria for costs judges to determine what were 'incidental' costs which could be applied in a way to ensure fairness between the parties. These were (1) 'proving of use and service in the action', (2) 'relevance to an issue' and (3) 'attributability to the [paying parties'] conduct'. In addition, the question of whether such costs were proportional would provide further protection.

While this decision appears to open the door to recovery of inquest costs, it is important to note that the sum claimed is still subject to the proportionality test. Cases involving fatalities can be complex requiring extensive work. Moreover, attendance at an inquest can be a costly exercise especially if it runs for many days and needs counsel's attendance. Therefore, while such costs are recoverable in principle, claimant solicitors should be prepared for a significant reduction if their inquest costs, relative to the damages and costs associated with the civil action itself, are high.

However, this aside and rather more fundamentally, this decision is likely to mean that those bereaved have less reason to be dissuaded from seeking legal assistance when facing very upsetting and daunting inquest proceedings.

Part 36 offers and exaggerated claims

The perils of exaggerating claims and turning down reasonable Part 36 offers were highlighted in Cunningham v Ast Express Ltd & ANR [2009] EWCA Civ 767.

The claimant (C) sustained a neck and back injury in an accident on 23 July 2003. An initial report (prepared after three months) confirmed C's neck had resolved within eight weeks and he was expected to make a good overall recovery within six months. Thereafter, virtually no case progress was made until mid 2006, when following a change of solicitor, a report from a different expert indicated the back problems were ongoing and that C was permanently incapable of doing heavy manual work.

Proceedings were not issued before expiry of limitation and despite the defendants (A) agreeing a 14-day extension, C had still failed to issue when this expired on 10 August 2006. On the same date, A offered £4,700 to settle but C never replied. Proceedings were eventually issued in February 2007 and C claimed £180,000 (excluding PSLA). A, having suspected this was exaggerated, commissioned video surveillance which showed C working as a window fitter seemingly quite agile.

Thereafter, C's expert (in a report dated 14 November 2007) retracted his earlier opinion of ongoing back problems; now saying these had resolved within two years. Despite this, C maintained claims for loss of earnings and earning capacity but dropped his care claim. At trial, he was only awarded £4,143.20.

As expected, the recorder awarded C his costs up to the date of expiry of the offer (31 August 2006) but ordered A to pay half of C's costs until 14 November 2007 and it was only after this that C was to pay A's costs. This was because he considered C was justified in not accepting A's offer until his expert changed his conclusions. In addition, C could not have felt he was at risk because there was no payment into court.

On appeal, the recorder was held to have erred. A was the winner from the date of expiry of the Part 36 offer so the general rule about who should pay costs thereafter applied. Moreover, Trustees of the Stokes Pension Fund v Western Power Distribution [2005] EWCA Civ 854 established that a clear and genuine offer, which was open for acceptance for 21 days where the defendant was good for the money was equivalent to a payment in.

If the recorder wished to depart from the usual order, he should have given further consideration to CPR 44.3 particularly noting the conduct of the parties. However, such exercise would only confirm the fairness of such an order as A's behaviour could not be faulted whereas C exaggerated his claim and delayed in issuing proceedings. While this decision is technically correct, the discretion afforded to courts particularly by CPR Part 44 should not be forgotten. If a claimant advances exaggerated and false claims they run the risk of further cost consequences. The decision of Carver v BAA Plc [2008] EWCA Civ 412, while clearly not applicable to the facts here, can also be seen as a move towards greater discretion.

In this case, the court held the main issue for consideration when deciding whether the Part 36 costs penalties should apply, is whether a claimant had obtained a more 'advantageous judgment' and not whether heshe had financially betteredan offer.

Limitation: 'knowledge'

In AB & Others v MOD [2009] EWHC 1225 (QC) the question of what constituted 'knowledge' (i.e. whether the 'significant injury' was attributable in whole or part to the alleged act or omission constituting negligence), for the purposes of sections 12 and 14 of the Limitation Act 1980 was determined as a preliminary issue.

Foskett J heard ten lead cases following injury from exposure to radiation arising from nuclear tests undertaken by the government in the 1950s. The defendant (M) contended, inter alia, that these actions were statute barred.

In some of these cases claims were made for multiple injuries. M argued the first such injury in time should be the relevant one for fixing the date of knowledge. In support, they cited KR & Others v Bryn Alyn Community Holding Ltd [2003] 1 QB 1441. Foskett J disagreed that this case established a fixed rule that the first injury always starts the clock running. Instead, the Limitation Act required careful examination of the individual facts in each case and there was no reason in principle why a subsequent injury could not be regarded as the 'injury in question'.

On the question of knowledge, Foskett J extracted some broad principles from various authorities including Halford v Brookes [1991] 1 WLR 443, Spargo v North Essex District Health Authority [1997] EWCA Civ 1232 (which itself had reviewed previous authorities) and Sniezak v Bundy (Letchworth) Ltd [2000] PIQR P213. Among others, it was found that certainty of knowledge was not required, but a mere suspicion (especially a vague and unsupported one) would be insufficient. Also, it was necessary to consider the claimant's own belief and if he was unsure of this and needed expert advice (whether it be medical, legal or other) to confirm it (and it was not unreasonable to seek such advice), then he would not be fixed with such knowledge. Foskett J confirmed this issue was one of fact for each case and when considering any relevant witness testimony it was important to assess this with reference to the surrounding circumstances.

In this case, Foskett J's 'preferred view' was that a report in 2007, which proved a link between radiation exposure and the injuries sustained, should constitute the date of knowledge, however this would have the effect of raising the 'threshold of appreciation' above that allowed by these authorities. Following the approach in these authorities, five of the lead cases were found statute barred. However, section 33 discretion was applied in their favour because, among others, it was possible to have a fair trial, there was a case to answer and some of the issues needed consideration to avoid injustice.

As observed by Foskett J, the authorities only provide general guidelines which means there can be uncertainty in determining the outcome in an individual case. However, section 33 remains a fall back if such claims are statute barred.

'Remote possibility' of injury

In Whippey v Jones [2009] EWCA Civ 452 the Court of Appeal confirmed that a 'remote possibility' of an injury was insufficient to show negligence.

The case centered around the actions of 'Hector', a two-year-old Great Dane owned by Mr Whippey (W) who, after being let off his leash, was found to have knocked into Mr Jones (J) while he was jogging causing him to lose his balance, fall down a slope and badly injure his ankle.

W was sued in negligence and under section 2 of the Animals Act 1971 (basically a strict liability section for dangerous animals or those likely to do something dangerous). The latter claim was unsuccessful so the discussion focused on negligence. After consideration of the facts, W was found negligent because he should have made more careful checks that no one else was around or likely to appear before letting Hector off the lead, such conduct falling below the standard of a reasonable dog handler.

The Court of Appeal considered this was not sufficient to establish negligence. It also had to be shown that W knew that injury would follow from his acts or omissions. In addition and as held in Bolton v Stone [1951] AC 850, there needed to be a 'sufficient probability' of injury such that it would lead a reasonable person to contemplate it. A 'remote possibility' was not enough. It was already found that Hector had not previously been known to jump on people but only barked at them albeit in a frightening manner. Therefore, W could not have anticipated injury from letting him off the leash.

While this decision appears to benefit animal owners, it should be noted that this case was only won because of Hector's unique personality traits. Each case will turn on its own facts. Also, animal owners should bear in mind that claimants have two lines of attack to sue in negligence and/or for statutory breach.