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A roundup of recent court decisions raising issues relating to aftercare services, vicarious liability in the context of sexual abuse, criticisms levied at experts in a recent high value case, Part 36 offers, the principles in Denton, and permission for another to drive a vehicle.
Experts come under the spotlight once again
Scarcliffe v Brampton Valley Group Ltd [29.06.23]
Mr Justice Cotter delivered his judgment in June 2023 in the case of Scarcliffe v Brampton Valley Group Ltd in which the instructed experts came in for some considerable criticism.
The claimant was injured during the course of his employment as a tree surgeon. The claimant’s case was that as a result of the incident he suffered with chronic pain in the lumbar region which was disabling and lifechanging. He was unable to work and unable to assist with childcare or household tasks. He also needed significant care himself.
The defendant’s case was that the fractures were stable and the claimant would have developed chronic pain in any event due to a combination of his psychological vulnerability and the progression of his degenerative spine.
As with Muyepa v Ministry of Defence [2022], the expert that came in for the most criticism was the claimant’s care expert. The judge stated: “Worryingly, it is not the first time that I have had very real concerns about the approach to care evidence in a high value claim”. He went on to say: “The analysis of the complex issues in this case was not sufficiently thorough and matters which obviously required further investigation had not been followed up”.
This is another example of Mr Justice Cotter stating in very clear terms his dissatisfaction with the approach taken by experts, particularly care experts, in high value cases. Here, in our view, there was a lack of attention to detail by the experts compounded by a lack of forensic analysis on the part of the claimant’s legal team when assessing the expert evidence.
Contact: Mark Walsh
Related item: Expert evidence comes under the spotlight in the High Court
Clarification on Part 36 rules offered by the High Court and permission to leapfrog to the Supreme Court
CCC (by her Mother and Litigation Friend MMM) v Sheffield Teaching Hospitals NHS Foundation Trust [13.07.23]
On 13 July 2023, the High Court held that a claimant must beat both the lump sum and a periodical payment element at trial to be awarded Part 36 advantages.
This was a clinical negligence claim where there was an admitted failure to prevent the claimant (aged eight at trial) sustaining severe chronic partial hypoxic ischaemia before and during her birth, causing cerebral palsy. Mr Justice Ritchie awarded a gross lump sum of £6,866,615 with an indexed Periodical Payment Order (PPO) of £394,940.
The claimant had previously made a combined Part 36 offer of a gross lump sum of £7,000,000 with an indexed PPO of £360,000 two months prior to trial. She had therefore beaten her offered indexed PPO but failed to beat the lump sum offered. The claimant argued she had beaten her own Part 36 offer on the basis of the PPO being capitalised into a lump sum. She applied for an Order under Part 36.17 for indemnity costs, additional damages and interest.
Mr Justice Ritchie rejected the argument that the claimant had beaten her offer. The claimant had made a combined offer to settle all heads of losses which could only be accepted as a whole.
In our view, the intention of the Part 36 rules has always been to encourage good practice and create an incentive for early settlement together with the bite of sanctions. This decision is very much in keeping with those guiding principles.
Interestingly, the claimant has subsequently been granted permission to challenge Croke v Wiseman [1982] in term of ‘lost years’ in the Supreme Court. The outcome could potentially overturn the current restriction on children’s right to claim for future losses.
Contacts: Avinder Sidhu and Stephanie Cuthbert
Related item: Beating the odds: High Court clarification on lump sum and PPO Part 36 offers
Council found not vicariously liable for abuse by foster carer
DJ v Barnsley Metropolitan Borough Council & AG [18.07.23]
This case concerned whether a local authority can be vicariously liable for the wrongdoing of foster carers who are in some way related to the claimant.
DJ had come to the attention of the defendant local authority in early 1974 following concerns of parental neglect. In late December 1979, DJ met his maternal aunt and uncle (the G family) and at the beginning of 1980, he went to live with them at the age of nine.
He underwent regular monitoring by social workers and the G family received boarding out payments. He remained with the family until his late teens, during which time he was sexually abused by Mr G.
Lambert J considered whether the G family’s care for the claimant was integral to the business of the defendant or whether it was sufficiently distinct from the activity of the defendant to avoid the imposition of vicarious liability.
She found that the G family were carrying out their own activity distinct from the statutory obligations of the local authority. They raised their nephew in the interest of the family – not the local authority. The fact that the claimant and the G family were strangers until December 1979 did not interfere with the purpose of the arrangement. Therefore, the defendant was not vicariously liable for the sexual abuse perpetrated by Mr G and the appeal was dismissed.
Contacts: Nichola Johnston, Helen Snowball and Andrea Ward
Related item: Vicarious liability in the context of foster care
Denton principles explored in recent Court of Appeal default judgment case
FXF v (1) English Karate Federation Ltd (2) David Jonathan Donovan (sued in his representative capacity on behalf of the Ishinryu Karate Association an unincorporated association) [26.07.23]
The Court of Appeal has confirmed that the three stage test set out in Denton v TH White Ltd [2014] (Denton) applies in applications to set aside default judgments.
The claimant sought damages for personal injury for alleged serious sexual abuse by her karate coach between 2008 and 2014.
After an order for alternative service of the proceedings had been made, the parties agreed extensions of time for the filing of the second defendant’s (IKA's) defence. When time ran out, no defence was filed and the claimant obtained default judgment on 22 September 2020.
On 17 November 2020, the IKA issued an application to set aside the default judgment which was granted.
The claimant appealed on the grounds that, following Gentry v Miller [2016], the IKA’s application should be treated as an application for relief from sanctions, and that after consideration of the express requirements of CPR 13.3, the Denton tests should have come into play, but the master had failed to apply them.
The appeal was dismissed. The court held that the test in Denton did apply to applications to overturn default judgment, and that the circumstances of a case and the overriding objective were directly relevant at the third stage of the Denton analysis. It held that the IKA had a real prospect of successfully defending the claim, and while it had not applied to set aside promptly, that had not inconvenienced other court users.
Contacts: Sophie Drinkwater and James Shrimpton
Related item: Denton principles do apply to applications to set aside default judgment
Supreme Court rules in significant case on ‘ordinary residence’ and ‘after-care services’
R (on the application of Worcestershire County Council) v Secretary of State for Health and Social Care [10.08.23]
The Supreme Court held that the duty to provide aftercare services automatically comes to an end if the person is again detained under Section 3.
In March 2014, JG was detained in hospital under the Act (the first detention). In April 2014, JG was moved to a residential placement. In July 2014, she was discharged and released to a care home in Swindon for aftercare services which were funded by Worcestershire County Council (Worcestershire). In February 2015, Worcestershire moved JG to a second care home in Swindon. The placement was also funded by Worcestershire.
In June 2015, JG was detained in hospital under the Act (the second detention). In November 2015, she was discharged but she remained an in-patient because she lacked decision-making capacity. In August 2017, JG was discharged and was in need of aftercare services.
The Court held that JG was an ordinarily resident in Swindon and the duty to provide aftercare services fell to Swindon under Section 117 of the Act.
This judgment will likely result in reduced numbers of disputes between public bodies. It will also assist with clarifying the ‘Who Pays’ government guidance, which has been incredibly useful, but will now need updating.
Contacts: Yasmin Brown and Andrea Ward
Related item: Supreme Court clarifies who should pay for ‘after-care’ services
The issue of whether permission has been granted – a high bar indeed
Aviva Insurance Ltd v McCoist & another [05.09.23]
A recent case in the Scottish Court of Session considered the issue of whether permission was granted to another to drive a vehicle subsequently involved in a collision with a pedestrian.
Argyll McCoist was gifted with an Audi A1 from his father in January 2016. The car was for Argyll’s sole use, although Mr McCoist remained the owner and registered keeper. It was initially insured with Argyll as the policyholder, however, this was subsequently cancelled by the insurer due to a speeding violation.
Mr McCoist Senior claimed that he expressly forbade his son from driving the car in July 2016. Nevertheless, the car remained on the road and driven by Argyll despite being uninsured.
On 3 December 2016, Argyll was involved in a collision with a pedestrian. The injured pedestrian obtained decree against Argyll for the sum of £200,000 in damages plus interest and expenses, an action which Aviva Insurance Ltd, the pursuers, became involved in due to their interest under Sections 145 and 151(2) of the Road Traffic Act 1988. The pursuers subsequently moved to recover the sum paid out from both defenders by virtue of Section 151(8). Argyll consented to the decree, and the case proceeded against Mr McCoist Senior.
The Court found that the vehicle owner had not granted permission to the driver, absolving him from liability to repay insurers for the compensatory damages they had paid to the injured pedestrian. The Court interpreted Section 151 (8) of the Road Traffic Act 1988 quite narrowly meaning that insurers will require strong evidence of express permission to succeed with an argument under this clause.
Contacts: Tim Lennox and Adam Dalgleish
Related item: Looking under the bonnet at permission
United Kingdom