A roundup of recent court decisions raising issues relating to judicial discretion when considering Calderbank offers, the importance of experts remaining independent, building a strong evidential case, and the scale of expenses in low value claims.
Calderbank offers and judicial discretion
Mathieu v Hinds and Anor [23.06.22]
This judgment provides a useful reminder that a Calderbank offer does not provide the clear and unambiguous protection afforded by Part 36 which leaves matters in the hands of a judge when exercising their discretion. This is a wide ranging discretion where all factors will be taken into consideration.
In terms of background, the claimant’s claim was pleaded at £33,617,057. At trial (which commenced on 5 February 2022) the claimant was awarded damages of £3,178,741.64.
On 10 December 2021 the claimant made Calderbank offers of a) £10,950,000 with provisional damages in relation to epilepsy and dementia to be determined as a standalone issue, and b) £17,050,000 in full and final settlement. On 11 January 2022, the defendants made a Part 36 offer of £3,125,000 and a Calderbank offer of £3,550,000. On 13 and 19 January 2022, the claimant made further Calderbank offers of £8,050,000 and £7,250,000 in full and final settlement. On 5 February 2022, the defendants made a further Calderbank offer of £4,000,000.
The court noted that the defendants’ offers “were much closer to the final figure awarded by the court than any of the claimant’s” and that overall, there ought to be adverse costs consequences for the claimant. Taking a ‘broad-brush’ approach (under CPR 44.2(4)(c)), the judge reduced the claimant’s costs by 15% for the period up to 31 January 2022 and by 60% for the period from 1 February 2022.
The importance of experts remaining independent
Andrews & Others v Kronospan Ltd [07.03.22]
This case is a stark reminder of what can go wrong when expert witnesses do not fully understand their duties, and lawyers overstep the limits of their role when instructing them.
The defendant’s solicitors became aware of regular discussions (by phone and email) between the claimants’ solicitors and their expert. It was subsequently discovered that working drafts of the joint statement were being shared between the expert and the solicitors and that the solicitors had provided commentary on the drafts.
In response, the defendant made an application to revoke the claimants’ permission to rely on the evidence of the expert. Although the claimants’ solicitors accepted that their conduct had been inappropriate, they argued that to revoke permission would be “potentially disastrous” for the claimants, who had already paid their expert £255,000 in fees over the course of three years.
The High Court concluded that the “serious transgressions by the claimants’ solicitors and [the expert] are such that the court has no confidence in [his] ability to act in accordance with his obligations as an expert witness”. It was therefore appropriate to revoke the permission granted to the claimants to rely on the expert’s evidence.
Vindicating a position on quantum: the benefits of building a strong evidential case
Cossey v the Buccleuch Estate [27.07.22]
This Scottish case serves as a stark reminder of the importance of undertaking a holistic analysis of all available evidence when assessing medical causation.
On 12 August 2017, the pursuer fell into a manhole causing injury. She attended Accident & Emergency and x-rays confirmed that she had suffered no fractures.
In the following months, she re-attended hospital and her GP on a number of occasions however, despite being examined by various consultants of different disciplines and undergoing testing to ascertain the root cause of these ongoing complaints, no underlying causes could be identified.
At trial, the judge noted that not only was the pursuer not forthcoming at interview with the various medical experts, she in fact denied to them that she had any significant pre-existing conditions. Surveillance evidence also showed the pursuer going about her daily business “with no apparent difficulty”. This directly contradicted the account that she had provided to a number of experts and in court.
Ultimately, the judge found the pursuer to be an unreliable historian and concluded that any symptoms directly caused by the accident were minor in nature and resolved within a short timeframe. An award of damages of under £5,000 was made against a claim purported to be worth in excess of £100,000.
Related item: Causation, causation, causation
Low value settlements and the scale of expenses
David Motherwell v Covea Insurance PLC [29.04.22]
This Scottish case concerns an appeal regarding which scale of expenses should be applicable when a low value settlement is reached.
On 4 September 2020, the pursuer was a front seat passenger in a vehicle which was stationary at a roundabout. The defender’s insured was travelling behind the vehicle the pursuer was in and failed to stop, colliding with the rear of the vehicle.
The defender offered £2,800 in full and final settlement, which was rejected. The pursuer’s agent indicated that they would be willing to compromise and accept £4,000. A counter- proposal of £3,000 was subsequently made by the defender and rejected. Accordingly, an action was raised in the All-Scotland Personal Injury Court for £6,000 in August 2021.
An initial response was lodged together with a minute of tender (Part 36 Offer equivalent) for £3,500 on 24 August 2021 which was accepted shortly thereafter. However, the pursuer’s application to conclude the case was opposed in respect of expenses; with the pursuer was seeking expenses on the ordinary cause level and, with the defender arguing that the expenses should be restricted to the lower summary cause level. The sheriff found in favour of the defender, restricting the expenses to the summary cause scale.
The pursuer appealed the sheriff’s decision however, the appeal was refused on the basis that the sheriff was entitled to reach the conclusion he did, particularly having consideration to the pre-litigation correspondence in terms of the offers of settlement made. As such, the pursuer’s costs were restricted to the summary cause scale with the defenders being awarded expenses of the appeal process.
Contacts: Tim Lennox, Katie McKinnon
Related item: Spare No Expense!