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It sometimes seems that the law goes through more phases more quickly than our teenage offspring; the Court of Justice of the European Union has recently determined a rash of cases on the interpretation of the Montreal Convention, and now the courts of England and Wales are considering a glut of Spanish penalty interest cases. A couple of weeks ago Her Honour Judge Walden-Smith decided Woodward v Mapfre, unreported, 14th October 2022, and now Lambert J has given judgment in Sedgwick v Mapfre  EWHC 2704 (KB). Interestingly each independently came to the same conclusion; the incidence of Spanish penalty interest is a matter of procedural law, and as a matter of discretion in each case the Claimant was awarded a significant sum in respect of it. We anticipate being able to bring you more on the topic in the months to come. In the meantime, in this week’s Dekagram we consider two matters of civil procedure of interest to practitioners generally. First, the denouement in Evans v R&V Allgemeine Verischerung, in which the Claimant argued for the imposition of an indemnity costs order; and secondly, the decision in AXX v Zajac, in which Master McCloud relied on no less an authority than French miserablist Victor Hugo. We litigators live by his observation that ‘adversity makes men, and prosperity makes monsters’, of course.
Vulnerable Defendants: Evans v R&V Allgemeine Verischerung AG  EWHC 2688 (KB)
On 22nd September 2020, the Claimant was on a motorcycling holiday in the Black Forest in Germany. He collided with a car driven by Mr. Gunther, who was insured by the defendant, approaching in the opposite direction. The Claimant attempted to brake hard and turn left to avoid a collision. Despite this action, there was a collision between the two vehicles.
In an earlier judgment on liability, HHJ Howells held that the Claimant succeeded in his claim and that judgment ought to be entered for the claimant for 100% of the value of the claim. There was no dispute that the Defendant should pay the Claimant’s costs. It was also accepted that from 7th July 2021 (the date of expiry of a relevant Part 36 Offer), those costs should be on an indemnity basis.
However, the Claimant went further and invited the court to order that the defendant pay the costs of the whole action on the indemnity basis.
The making of a costs order on an indemnity basis occurs only where conduct or circumstances are ‘out of the norm’ (Exclesior Commercial and Industrial Holdings Ltd v Salisbury Hammer Aspden & Johnson  EWCA Civ). Accordingly, indemnity costs are not to be awarded simply because a party has lost or has pursued the case to trial which was, on the face of it, weak. It is also wrong to consider this discretion with the benefit of hindsight.
HHJ Howells dismissed the Claimant’s application for costs to be assessed on the indemnity basis for the following reasons:
Failure to engage with the Rehabilitation Code. Rehabilitation was sought by the Claimant in accordance with the code. The Defendant refused to engage. However, the Rehabilitation Code is an entirely voluntary code which is in place between insurers and public authorities such as the NHS and claimant representatives in England and Wales. There is nothing to indicate that it should apply to overseas insurers.
This means that there is probably less of an impetus for a foreign insurer to work collaboratively pre-litigation for the rehabilitation purposes. Accordingly, a refusal by a foreign insurer to do so is insufficient to say that indemnity costs follow.
Failure to engage with ADR. The Claimant contended that Defendant failed to respond to their offers of ADR in March and June 2021. There was a renewed attempt in February 2022 to engage the Defendant, to which the Defendant stated that ADR was premature.
HHJ Howells noted that it should not be necessary to wait for finalised joint reports from experts before litigation risks could be evaluated. However, she was not satisfied that such conduct was ‘out of the norm’. The Defendant’s failure to negotiate until it was too late to be effective, while regrettable and not to be condoned, was not conduct which justified the imposition of an indemnity costs order.
Failure to cooperate in narrowing the issues in dispute. The Claimant asserted that the Defendant failed to agree issue of German law. However, HHJ Howells held that the Defendant’s decision to obtain their expert evidence was a reasonable one; it was an area where the court was assisted by the expert evidence on both sides. Further, the accident reconstruction experts remained apart in their evidence; each party was entitled to challenge and test the other side’s evidence. The Defendant’s conduct was not ideal; but it did not fall outside the range of reasonable conduct.
Failure to prepare for trial/comply with rules and practice directions. The Claimant set out a ‘litany’ of failures from the Defendant. These mostly concerned issues pertaining to the Defendant’s experts during the trial. In response, the Defendants averred that the matters had no materiality overall to how the case and trial was run. HHJ Howells accepted that court time was spent dealing with extraneous issues, but they were not ‘exceptional’ or ‘out of the norm’.
Pursuing a hopeless case. The Claimant noted that the Defendant’s own reconstruction evidence contradicted its own factual witnesses; and their witnesses were unable to be called due to a failure of comply with a practice direction. While having sympathy with the Claimant’s position, HHJ Howells again averred this was not so out of the norm. Indeed, the Defendant’s case could not be said to be bound to fail.
Failure to respond to a Part 36 Offer. There is no obligation within the rules for a Defendant to respond to the offer. Given that the failure to accept resulted in the Claimant accruing indemnity costs from the appropriate date, HHJ Howells felt that a ‘double indemnity costs order’ could not be awarded for failing to respond to the Part 36 Offer.
There are two points to be drawn from this case. First, the judgment of HHJ Howells indicates that an overseas insurer is not bound to comply with the Rehabilitation Code. It is a domestic code, and any failure to comply voluntarily with the Code cannot be deemed ‘out of the norm’ such that indemnity costs follow. Second, the judgment is a reminder of the high bar required for a court to award indemnity costs for the whole of the action. Indeed, the Claimant’s well-judged Part 36 offer was more successful in ensuring that they gained the benefit of an indemnity costs from 7th July 2021.
Anyone who wishes to learn more about Part 36 offers, and when best to serve or respond to such offers should look no further than this talk by Sarah Prager and Robert Horner on ‘How to make the most of your Part 36 Offer’.
About the Author
Anirudh Mandagere has a broad practice across all areas of chambers’ specialisms, acting for both claimants and defendants, and is an enthusiastic and valued member of the travel team. Before joining 1CL Anirudh worked as a judicial assistant at the Court of Appeal and taught law at the London School of Economics.
Vulnerable Witnesses: CPR PD1A Implemented
Master McCloud has recently provided the first judgment of the higher courts considering the provisions of the new Practice Direction on vulnerable witnesses, Practice Direction 1A, which came into force in April 2021. In this respect the civil justice system has lagged well behind the criminal and family courts, which regularly implement special measures to deal with vulnerable witnesses. The opening paragraphs of the Practice Direction read:
1. The overriding objective requires that, in order to deal with a case justly, the court should ensure, so far as practicable, that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence. The parties are required to help the court to further the overriding objective at all stages of civil proceedings.
2. Vulnerability of a party or witness may impede participation and also diminish the quality of evidence. The court should take all proportionate measures to address these issues in every case.
3. A person should be considered as vulnerable when a factor – which could be personal or situational, permanent or temporary – may adversely affect their participation in proceedings or the giving of evidence.
The Claimant in AXX v Zajac  EWHC 2463 (KB) seeks damages in respect of a road traffic accident as a result of which, he says, he has sustained brain damage. The Defendant denies that the Claimant sustained a traumatic brain injury in the course of the accident and this question, together with the extent of any such damage, is therefore in issue between the parties. When the matter came before Master McCloud on the Claimant’s application for a split trial she noted that the Claimant suffers from a number of mental health conditions, as a result of which he refuses to take the antipsychotic medication prescribed to him, or to be examined by medicolegal experts, and in particular the experts nominated by the Defendant. Whether or not those conditions are due to the alleged brain injury is in dispute.
The Claimant’s representatives submitted that it was appropriate for the Master to order a split trial, with the preliminary issue of the causation of the Claimant’s mental condition to be dealt with before moving on to the extent of any such injury. The Defendant resisted the application. In giving judgment on the issue Master McCloud provided guidance as to the implementation of Practice Direction 1A, and in doing so captured all our hearts by stating:
I will confine this set of reasons almost wholly to the matters relating to “vulnerability” and the new CPR provisions on that subject so as to, I hope, provide something of a worked example (good, bad, or merely respectably amateur is for others to judge but I call to mind a character in Les Miserables to the effect that “I am not totally useless. I can be used as a bad example.”).
We can all call to mind a number of judges who could use a dose of her dry wit and humility.
The relevance of the vulnerability provisions was that in order to engage more fully with proceedings it was said that the Claimant would require the support of a case manager who could advocate for more suitable medical intervention, following which it was hoped that the Claimant would be willing to take the medication prescribed to him and would engage with the medicolegal experts nominated by both parties. It was therefore desirable for the court to order a split trial so that if causation were established, the Claimant could obtain an interim payment in order to engage more appropriate medical intervention, put appropriate medical evidence before the court, and move the litigation forward.
Counsel for the Claimant argued that to enable causation to be resolved would improve the prospects of enabling the Claimant to ‘place his evidence before the court’ by engaging with the experts at quantum stage, and by enabling prognosis to be clearer if and when he is able to be medicated and it is known whether the medication improves his condition. I had a letter from a care expert Dr Holloway confirming that he cannot provide an opinion on long term needs due to the fact Mr AXX is not medicated and the position might vary considerably based on the outcome of such treatment.
The Defendant submitted that a split trial would lead to increased delay and costs, and might not have the desired effect; whether causation was tried as a preliminary issue or not, sooner or later the court would have to grapple with the issue of prognosis.
In considering these submissions the judge worked through the Practice Direction as follows:
1 Is the Claimant vulnerable? Both parties agreed that he was.
2 What is the likely impact of his vulnerability, with reference to the matters set out in the Practice Direction? It does or may impair his ability to (a) understand the proceedings and his role in them, (b) express himself throughout the hearing, (c) put his evidence before the court, (d) respond to or comply with any request of the court, or to do so in a timely manner, (e) instruct representatives and (f) attend any hearing.
3 How should those matters be dealt with? The Claimant has a litigation friend, dealing with (e), and the trial can be listed remotely, dealing with (f). It was not intended that he would give evidence, rendering (b) otiose. But (c) remained a significant concern – the Claimant could not put medicolegal evidence before the court because his mental condition did not allow him to engage properly with the medicolegal experts.
On this point the court concluded:
the expert evidence available on quantum if we went to trial now on all issues would be very much less than the most helpful it could be. It is true that, if the Claimant can be treated with medication with the benefit of paid-for case management and other steps, it may still remain the case that he is no better, or not materially so at the end of it if his condition is intractable. However, the court’s duty is to attempt to mitigate against the effects of his vulnerability, and it seems to me that the proposal to split causation from quantum here maximises the likelihood of him (i) being better able to engage with experts and (ii) ensuring his prognosis, good or bad, is made as clear as practicable.
The Claimant’s application for a split trial was therefore granted.
The court concluded:
It will be apparent that the approach I have taken sees the new provisions as a part of the wider duty of the Court to ensure hearings, and the management of cases, are fair and to have regard to and apply equalities duties and the principles of Article 6 of the Convention. Whilst I have taken a ‘structured’ approach to applying the listed criteria and categories of vulnerability, this is on the footing that the Practice Direction is a useful reasoning tool but is neither an exhaustive set of provisions nor intended to be construed narrowly as if a statute. Hence my reading of the provision as to enabling a person to put his evidence before the court is a purposive one and not a narrow one.
It is I think generally known that an innovation introduced by myself many years ago suitable for some cases is the ‘disability adaptations appointment’ appropriate to complex cases with disabilities which need to be accommodated, by which, away from the argument and heat of a contentious hearing, the parties can attend before the court on what amounts to a ‘mention’ to discuss in a non-judgmental way how to plan a trial and what adaptations need to be made. In my judgment where especially vulnerable litigants are involved, consideration of disability adaptations may become relevant to the application of the vulnerability guidance in PD1A and the two are complementary.
I should not leave this subject without referring to the fact known to all judges but possibly sometimes less so to lawyers, that the Equal Treatment Bench Book provides clear guidance on ensuring fair hearings. The guidance is for judges and is not ‘law’ but attempts to set out a collective view of the committee of editors as to acceptable or even best practice. It will be noted from that publication available from the Judiciary website that there is a wealth of information across a wide range of areas which can give rise to vulnerability, from issues of disability and health such as deafness or depression, to social circumstances or being part of stigmatised groups such as the “trans” community, being victims of abuse or violence such as in harassment or domestic abuse cases, or having literacy difficulties.
It is interesting that this is the first higher court judgment relating to PD1A; it may be, of course, that this is due to the fact that most court users are not vulnerable. On the other hand, it might be a reflection of the fact that historically civil practitioners have been far less knowledgeable about party and witness vulnerability than our brethren in the criminal and family courts. The civil courts have tended to sort parties into capacitous and non-capacitous categories, without regard to vulnerability falling short of incapacity. Last year’s Practice Direction was intended to move us on from that position, but does not appear to have had much discernable effect in practice. It is to be hoped that we as practitioners and judges as arbiters will follow Master McCloud’s lead in regarding the treatment of vulnerable parties and witnesses as forming part of the effective administration of justice and the provision of a fair hearing. To this end, the Practice Direction is a useful structured reasoning tool and an important resource, as is the Equal Treatment Bench Book, which also contains useful guidance regarding the treatment of litigants in person.
About the Author
Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at Deka Chambers, Matthew Chapman KC and Jack Harding, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. Last year she was named Best Lawyers’ Travel Lawyer of the Year 2020/2021 and the Lawyer Monthly Women in Law Awards 2020: Personal Injury, and she was a member of the Consultative Group of Experts to the UNWTO Committee for the Development of an International Code for the Protection of Tourists, and is a member of the Admiralty Court Users’ Committee. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases.