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The Dekagram: 10th July 2023

Articles, News | Mon 10th Jul, 2023

This week we bring you news of two cases considering how and when to claim items of special damage (spoiler: claim them as such, and ideally prior to judgment). We were also interested to read an appeal judgment, in Merlin Entertainments Plc v Idziak [2023] EWHC 1597 (KB), in which Jacobs J reminds us all for the need for judges to give adequate reasons for their findings, having provided a handy review of the relevant authorities. He concluded:

[Counsel for the Claimant] said that justice can be a bit rough and ready in the county court, and drew a contrast with typical judgments from the Business and Property Court in the Rolls Building, where the appeal took place. However, the role of the courts, including on an appeal, is to apply the law and do justice as between the parties. I note that the case-law on the need for adequate reasons (see Section D above) has developed in the context of county court judgments.

A welcome reiteration of what the County Courts are for.

Schrödinger’s costs. Or: when are costs, not “costs”? 

In Hadley v Przybylo [2023] EWHC 1392 (KB) Master McCloud had to determine whether or not the cost of lawyers attending case management meetings with medical and other professionals, and costs of attending regular meetings with financial and court of protection deputies were costs that could be budgeted and (therefore) claimed on costs assessment. The issue arose in a case where the budget was over £1 million and the future cost of attending such meetings was over £50,000.

Master McCloud retuned to first principles, holding that the concept of “costs” in litigation means costs incurred in the progression of litigation, and asked whether these costs materially progressed the case. It was noted that something could materially progress the case even if it did not actually move the case forward – for example, costs incurred which lead to something not being pursued could still progress the litigation. 

The claimant’s argument was that these attendances progressed the drafting of the Schedule of Loss, and indeed were an integral part of that process. Master McCloud disagreed, holding that whilst occasional letters to case managers or deputies, or liaising with them for disclosure, statements or expert evidence would progress the claim, this was qualitatively different to regularly attending case management meetings. Doing so did not “progress” the case. As such, the costs of so-doing were not included in the budget.

In reaching this decision, Master McCloud did not find that attending such meetings was, in principle, unreasonable or disproportionate. The “costs” were disallowed on the more fundamental basis that they were not progressive of the case and were not litigation costs.

And this does not mean that it is necessarily impossible to recover these “costs”. Rather, the suggestion is that such “costs” “may arguably” be recoverable as damages.

The conclusion is that liaison with case managers and deputies is recoverable as costs where this progresses the case. But this does not extend to attending rehabilitation meetings, which would possibly be recoverable as damages instead.  

About the Author

Andrew Spencer was called to the Bar in 2004, and is listed in the Legal 500 as a Band 1 practitioner in travel law. He acted for the Claimant in the seminal case of Japp v Virgin Holidays Limited [2013] 11 WLUK 131, in which the Court of Appeal considered the time at which applicable local standards should be determined for the purposes of liability under Regulation 15(2) of the Package Travel Regulations; but he is equally comfortable acting for Claimants and Defendants in all travel related claims.

Especially Damaging: the Trial is not a Dress Rehearsal

The clue is in the name: just as General Damages refer to losses that are incapable of precise estimation, such as pain and suffering, Special Damages refer to losses that can be quantified, such as earnings lost in the period between an injury and trial, and to losses that require specific proof. Hence, going back to basics, in Lal v Reeder [2023] EWHC 1437 (KB), Mr Justice Ritchie dismissed an appeal by the Appellant Claimant for not coming up to proof.

The Decision at First Instance

The underlying action concerned a liability-admitted road traffic collision.

At the time of the collision, the Claimant (while also studying for a PhD) was working part time as an agency nurse and in addition working 23 hours per week in the cardiac critical care unit at the University Hospital in Birmingham. She sought damages for loss of earnings of £90,186, firstly for being off work for around eight months until May 2013 and then for being forced to give up work in September 2014.

The Claimant sought globally over £100,000 in damages but these were assessed at first instance at around £18,000 (inclusive of £8,500 for General Damages). The costs consequences of this assessment were disastrous for the Claimant.

As for loss of earnings, the trial judge awarded eight months of loss of earnings for the Claimant’s time away from her part-time work at the University Hospital after the accident but nothing for the Claimant’s asserted loss of agency work during that period.

The trial judge had noted the Claimant’s evidence to be unreliable and inconsistent. In particular the trial judge had inferred that the Claimant was asserting to her employers that she was unfit to work at a time when she was taking agency work. Nil was awarded as a result for any lost agency work.

The Appeal

The principal ground of appeal submitted that the Judge was wrong or irrational to fail to award the Claimant damages for past part-time loss of earnings as an agency nursing assistant for eight months after the accident. This irrational approach was compounded by the fact of an award having been made for lost earnings from other hospital work over the same period.

The pre-accident working pattern for agency work comprised eight shifts between May and December 2013, (so one per month on average although not evenly spread) and four shifts in August 2012. Those four August shift showed average earnings of around £280 per week so the pre-accident loss had been evidenced.

On this basis the appeal appeared cogent.

Mr Justice Ritchie made the interesting point that the Appellant was making a submission that would have been persuasive at first instance (that is, that there was a proper basis for finding a pre-accident pattern of earnings sufficient to found evidentially a post-accident loss), but that was distinct to arguing on appeal that the trial judge had been plainly wrong or irrational.

Mr Justice Ritchie noted it was the trial judge’s finding that the Claimant was unreliable and had failed to prove the loss. This finding would not be disturbed.

The point was also made that the Claimant had failed to set out in witness evidence what agency work she would have done but for the accident, and had failed to discharge the burden of proving her “but for the accident” earnings in this regard. It was noted that in the post-accident period the Claimant was very busy with completing her PhD, applying for entrance to medical school and with paid hospital work, and there was a gap in her evidence as to whether she had the headroom for any such agency work in any event.


There are some timely reminders for practitioners here:

  1. The judgment provides a useful recapitulation of the very high hurdle for an Appellant to challenge the first instance judge’s assessment of the credibility of a witness: assessment of credibility is quintessentially a matter for the trial judge.
  2. As Lady Justice Carr said in Walter Lily & Co Ltd v Clin [2021] EWCA Civ 136, [2021] 1 WLR 2753, “the trial is not a dress rehearsal. It is the first and last night of the show.” Persuasive submissions on the finer aspects of assessment of lost earnings that were not made at first instance cannot simply be reheated and refined on appeal where the legal test is different.
  3. Lost earnings are not proved simply by reference to some documented pre-accident pattern of earnings. That alone is not self-proving. The Claimant must discharge the burden of proof that but for the accident the injured party would have earned the sums contended for. This is especially the case for casual labour with a paucity of pre-accident documentary evidence: the witness statement becomes a key document for averring what employment the Claimant would factually have undertaken if returned to the pre-accident position. In the absence of such a factual case, the head of loss may likely fail entirely.

About the Author

John Schmitt was called in 2013 and now specialises in complex personal injury work. He is also experienced in representing families at inquests in a clinical negligence context and has done so through the AvMA pro-bono inquest service. Most recently he has represented a family at a four day jury inquest at the conclusion of which the deceased’s employer was ordered to produce a Prevention of Future Deaths report. He is described by the Legal 500 as having a ‘lovely manner about him’ but being ‘as sharp as a tack’.

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