The Dekagram: 30th May 2023

Articles, News | Tue 30th May, 2023

Regular readers will already be aware of the team’s concerns about the enthusiastic embrace amongst some judges (cough – Sir Geoffrey Vos MR – cough) of artificial intelligence in a legal context. Naturally the use of intelligence of any variety in the courts of England and Wales is always to be welcomed, but we’ve all seen Terminator, we know the inevitable consequences of relying on Skynet to behave ethically. So it gives us no pleasure to report on the case of a Manhattan lawyer representing a claimant in a Montreal Convention claim who rashly relied on the AI chatbot ChatGPT to write his submissions for him. This the chatbot dutifully did, finding no fewer than six precedents in support of the claim. Exercising the scrupulous care one would expect, the lawyer sternly asked his AI assistant whether the cases were accurately sourced, and it assiduously assured him that they were. On closer inspection on the part of the lawyers for the airline, however, it turns out that they were all completely fabricated. The lawyer in question, it goes without saying, is appalled to find that he’s unintentionally misled the court, and the judge is reported to be unhappy about it, too. A timely reminder perhaps that lawyers are professionals and not merely programmable automata?

The Return of the Retained EU Law Bill

Readers who have kept one finger on the bradycardic pulse of Parliamentary business may have noticed that the Retained EU Law (Revoke and Reform) Bill is back, has undergone its own R&R, and it has now entered the ‘Ping Pong’ phase.

Much water has flowed since last I wrote about the Bill. Most notably, the Government has decided to abandon the ‘zero up’ approach of revoking everything unless marked for safety, in favour of specifically designating legislation bound for the chop. The published list of legislation which is going by the end of the year, running to 587 items, can be found here. Few elegies will be written for the loss of the Provision of Confidential Statistical Information to the Statistical Office of the European Communities (Restriction on Disclosure) Regulations 1991 (S.I.1991/2779) – ‘Oh weep for the PoCSISOEC(RoD)Rs 91, they are dead!’. Indeed this initial tidy up appears to be entirely non-contentious, with the focus being on retained law which is already obsolete and in many cases has been for some time. The fiery promise of the Brexit bonfire remains only in the now embarrassed metaphor of the sunset, which lingers blushingly in the title to Clause 1.

A much smaller change by comparison, but still of note, the Government has also acceded to a minor amendment proposed by former Deputy President of the Supreme Court, Lord Hope of Craighead, to what is now Clause 6 on the role of courts. Previously, the Bill had mandated senior courts to accept a reference made by a lower court on retained EU law, if it considered that it was relevant and was of general public importance. By agreement, the Bill will now allow the higher courts a discretion to refuse such, with all ‘must’s turning to ‘may’s – the logic being that there may be situations where after a reference is made the matter has in the meantime been decided, or there might be clashes between references pending at the same time. Interestingly, Lord Hope indicated that the current President of the UKSC, Lord Reed, was grateful for the Government conceding the amendment.

Otherwise, with the exception of some tweaks to the REUL Dashboard, the Commons has rejected the remainder of the Lords’ amendments in the first round of ‘Ping Pong’. There had been some successes in the House of Lords on other amendments championed by Lord Hope on behalf of the cross-benchers. A number of the amendments which had garnered cross-party support were in the domain of constitutional checks and balances: there appears to be concern about considerable legislative powers being appropriated by the Government, with less scrutiny by Parliament than many representatives would like to see – in particular the amount of power the Bill still gives Ministers to effect significant law-making by way of secondary legislation.

Though interesting for constitutional lawyers (as ever the last seven years have been) practitioners reading this bulletin may also note that a proposed amendment to what is now Clause 2 has also failed before the Commons. Clause 2 revokes section 4 of the EU (Withdrawal) Act 2018, the section by which general rights, powers, liabilities, obligations, restrictions, remedies and procedures of EU law were retained after Brexit to operate alongside the actual retained pieces of legislation. Concerned with the same problems of the zero-up approach – the risk of the Government not knowing exactly what was being deleted – the turbulent barons and priests had proposed a mechanism by which Ministers would identify the right, power, liability (etc.) that they were revoking and allow the legislative bodies of the UK to vote on it. No such luck.

No amendments have succeeded in relation to Clause 3 revoking the supremacy of retained EU law and therefore restructuring the hierarchy of legislation operating in the UK from the beginning of 2024. This continues to represent a problem for legal certainty as entities subject to the laws of the UK who have been required, and will need, to make decisions in situations where there are potentially conflicting sources of legislation, are no longer safe in the understanding that one ‘trumps’ the other.

The Bill will now pong (or ping, depending on where you start the rally) back from the Commons to the Lords for further consideration and new proposals, once everyone is back from half term next week.

About the Author

Tom Yarrow was called in 2018. Before joining chambers Tom was a civil servant working in various government departments, including as a policy advisor on the UK-EU Withdrawal Agreement at the Department for Exiting the European Union. During pupillage he worked with the Government Legal Department, practising in public law in the fields of public international law, justice and security, human rights and immigration. He has regularly appeared in judicial review proceedings for the Secretary of State for the Home Department, and as a member of the Attorney General’s ‘junior junior’ scheme, he is able to take instructions directly from government clients. He now practises in all of chambers’ practice areas and is an enthusiastic and valued member of the travel team.

Infant settlements and Part 36 offers

The interplay between the costs provisions contained within CPR Part 36, on the one hand, and the infant settlement approval rules, on the other, has troubled practitioners and the courts with some regularity since the inception of Part 36. The latest instalment of the court’s consideration of the issue, IEH v Powell [2023] EWHC 1037 (KB), was heard by Senior Master Fontaine at the back end of last year, and judgment handed down on 28^th April 2023.

The Claimant was eight years’ old when he was involved in a road traffic accident which left him with a traumatic brain injury and a fracture to his right femur. The Defendant admitted liability for the accident, and in due course judgment was entered in favour of the Claimant and directions given for the determination of the value of the claim. The Claimant served some medical evidence and obtained permission to serve more, together with witness statements, by 11^th March 2022. It was anticipated that thereafter insurers for the Defendant would consider whether or not to obtain their own expert evidence, but in the event this did not occur.

The reason for this was that on 20^th November 2020 the Defendant made a Part 36 offer to settle the claim. In response, on 4^th December 2020 the Claimant’s emailed requesting that the offer be kept open until 11^th March 2022 to give sufficient time to establish the Claimant’s likely prognosis and the value of the claim. On 8^th December 2020 the Defendant’s solicitors responded to say that they “ do not have instructions to leave the offer open, nor to withdraw it after it expires “. In the event, the Claimant accepted the offer on 29^th July 2022.

At the infant settlement approval hearing the Claimant submitted that the usual Part 36 consequences should not flow. This submission was based on CPR Part 36.13(6). The relevant rules read:

CPR Part 36.13

(4) Where—

(a) a Part 36 offer which was made less than 21 days before the start of a trial is accepted; or

(b) a Part 36 offer which relates to the whole of the claim is accepted after expiry of the relevant period; or

(c) subject to paragraph (2), a Part 36 offer which does not relate to the whole of the claim is accepted at any time,

the liability for costs must be determined by the court unless the parties have agreed the costs.

(5) Where paragraph (4)(b) applies but the parties cannot agree the liability for costs, the court must, unless it considers it unjust to do so, order that—

(a) the claimant be awarded costs up to the date on which the relevant period expired; and

(b) the offeree do pay the offeror’s costs for the period from the date of expiry of the relevant period to the date of acceptance.

(6) In considering whether it would be unjust to make the orders specified in paragraph (5), the court must take into account all the circumstances of the case including the matters listed in rule 36.17(5).

CPR Part 36.17

(5) In considering whether it would be unjust to make the orders referred to in paragraphs (3) and (4), the court must take into account all the circumstances of the case including—

(a) the terms of any Part 36 offer;

(b) the stage in the proceedings when any Part 36 offer was made, including in particular how long before the trial started the offer was made;

(c) the information available to the parties at the time when the Part 36 offer was made;

(d) the conduct of the parties with regard to the giving of or refusal to give information for the purposes of enabling the offer to be made or evaluated; and

(e) whether the offer was a genuine attempt to settle the proceedings.

The Claimant placed particular emphasis on the following factors:

a) He was a child at the time the offer was remained, and remained so at the time of acceptance and approval. The medicolegal experts agreed that at the time they first examined him it was possible that not all of the consequences of the brain injury were apparent;

b) The fact that the effect of a brain injury in a child may not manifest until adolescence is not a normal risk of litigation and therefore took the claim outside the norm;

c) The court would not have approved the proposed settlement had the offer been accepted in time, since there was no definitive prognosis;

d) The Claimant’s legal representatives had acted timeously in obtaining leading counsel’s advice, information from the school, and medicolegal evidence, at all times;

e) The Claimant was at school in Morocco, and this, together with the pandemic, made it more difficult to assess his academic record;

f) They had therefore acted reasonably in waiting to obtain updated medical and other evidence until after the time for acceptance of the offer had expired;

g) They also kept the Defendant informed of the reason for the delay in accepting the offer.

The Defendant, on the other hand, reminded the court that the mere fact that a claimant is a child does not take a case outside the norm. There is not one rule for adults and another for children and/or patients. Furthermore, the medicolegal experts in IEH had stated that prognosis could be considered at age 13, 16 and 18, and the Claimant was almost 13 when the offer was made, and not yet 16 when it was accepted. It was or ought to have been clear that he was doing much better than expected even before the offer was made.

The Senior Master considered the arguments and held:

The circumstances that are relevant to the consideration as to whether it would be unjust to make the order specified in rule 36.13 (5) in this case, are, in my judgment as follows:

i)  the fact that the Claimant is a child;

ii)  whether the litigation friend had sufficient evidence to enable an informed decision to be made in respect of the offer in November/December 2020;

iii)  the particular factual circumstances relating to the Claimant, namely the fact that he lived and was being educated in Morocco, the effect of the pandemic and the necessity for appointment of a new litigation friend;

iv)  whether the approach that the Claimant’s solicitors took in responding to the offer was reasonable;

v)  the Claimant’s conduct in the litigation;

vi)  the fact that the Part 36 costs regime is intended to encourage settlement and discourage disputes on costs.

The fact that the Claimant was a child was relevant but not determinative; it had particular relevance in this case because as a result it was not possible to reach a finalised prognosis as regards his brain injury for some years after it had occurred:

That is sufficient in my view to take the case “ out of the norm “ (as referred to in Downing , White Book Vol. I Note 36.17.5). It also, in my view, would point strongly in favour of injustice if the usual order as to costs were applied. This is because it is not the Claimant’s fault that he sustained the accident when a child, and has to wait to pass through puberty before the long term effects of his injury can be assessed with more certainty, nor is it “a normal contingency of litigation”.

The fact that the court would probably not have approved any settlement until after updated medical evidence had been obtained was also a powerful factor taking the case outside the norm.

For all of these reasons the Senior Master concluded that it would be unjust to make the usual Part 36 orders.

Comment

This decision will be of some comfort to practitioners representing claimants, particularly those with acquired brain injuries, but also any claimants whose prognosis is unclear at the time an offer is made and in respect of whom court approval of any settlement must be sought. There is always risk involved in not accepting an apparently reasonable offer, of course, but if prognosis is unclear it may be negligent to do so, placing claimants’ representatives in a difficult position. Where this is the case, it is of paramount importance that the defendant is informed of the difficulty and of the steps being taken to ascertain prognosis; that advice from counsel is sought as confirmation of the reasonableness of the proposed delay; and that the required additional medicolegal and other evidence is obtained timeously and the case reviewed as soon as possible.

John Foy KC acted for the successful Claimant in this case, instructed by Bolt Burden Kemp LLP.

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, Jack Harding, Dominique Smith, Tom Yarrow and Henk Soede, 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. 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. She was appointed a KC in March 2023.