Man Faces Contempt Proceedings After Dropping ‘False’ Compensation Claim Against Council
by Michael Mulcare, February 21st, 2012
The High Court has granted permission for a local authority to bring contempt of court proceedings against a man who claimed compensation for personal injury and who subsequently abandoned his claim.
The Claimant – Leon Wells – claimed that he had suffered a tear to his left knee when he fell down some steps near to his home, whilst out jogging on Boxing Day in 2006. He issued proceedings against the local authority – Caerphilly County Borough Council – alleging that the fall was caused by the two bottom steps being defective and in a state of disrepair, as they were broken and missing.
The local authority admitted liability but the matter proceeded to an assessment of damages hearing at Cardiff Civil Justice Centre in October 2011. Just as the hearing started, the Claimant abandoned the case.
The local authority alleged that the claim was false and applied to the High Court for permission to bring contempt of court proceedings against the Claimant.
The High Court subsequently granted permission on 15 February 2012 to bring contempt proceedings, stating that it was in the public interest for the Claimant to face a civil court hearing. The judge added: ‘The statement of facts said here to be false had in fact led to an admission of liability from the council, and would have led to a settlement of the claim if the suspicious circumstances had not occurred.’
The Claimant could face jail if found guilty of contempt of court.
Fernquest v Swansea City and Council [2011]
by Michael Mulcare, February 17th, 2012
This Court of Appeal case considers a local authority’s duty of care to a user of a park and ride scheme and whether it should have warned the Claimant of a known hazard at his destination.
Circumstances of the Claim
On 10th December 2008, the claimant – a Mr Fernquest – had driven from his home to a park and ride facility in Swansea. He parked his car and caught one of the buses to the city centre. The park and ride bus service was run by the local authority in partnership with a bus company, who operated the bus itself. The local authority were also the owner and occupier of the car park. On reaching a bus stop in the city centre, the Claimant got off the bus and slipped on an icy pavement near to the stop, breaking his wrist. The bus driver had warned the Claimant on his getting of the bus, but the Claimant had a degree of hearing loss and did not hear the warning.
The bus driver had previously seen another accident on the icy pavement that day. About 90 minutes before the Claimant’s accident happened, the bus driver had asked the local authority’s park and ride attendant to report the icy pavement to their Highways Department, which he did. However, due to the high level of calls the Highways Department were receiving due to the bad weather, no one was able to attend the scene prior to the accident, as they were responding to reports which had been given a higher priority.
At Trial
The Claimant had issued proceedings against the local authority alleging that:
i) They had failed “to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice” under s 41(1)(a) of the Highways Act 1980.
ii) They were negligent due to their role in the operation of the park and ride service.
Responding to the claim under s41(1)(a), the local authority gave evidence in support of its winter maintenance plan including:
- The precautionary gritting of some roads when the weather forecast warranted it, but not the precautionary gritting of footways.
- That before dawn, a highway inspector would assess some selected footways, such as those in main shopping areas, designated safe routes to schools and major transport interchanges. If necessary, they could order these areas to be gritted.
- On the overnight inspection before the Claimant’s accident, the city centre was noted to have been dry and ice-free. However, as the weather later changed, any reports of snow and ice on the roads or pavements were attended to as quickly as possible, depending on the availability and location of the highways crews and the priority attached to the complaint. Not all of the reports being received could be attended to.
Judgment
The Trial Judge found that the Claimant’s claim under s41 failed, as there had been no breach of its statutory duty. Commenting on its winter maintenance policy, the Judge stated that the local authority had a proper system in place to ensure that the important highways were gritted before the less important ones, with carriageways being given priority over footways. The Judge also found that the selective inspection of certain footways was also satisfactory and accepted that there would inevitably be a delay in responding to the numerous reports of icy pavements, when considering the available resources of staff and grit and the demands from the public.
Turning to the negligence claim, the Judge held that the authority had not been negligent in continuing to operate the park and ride service, despite the weather, as it was perfectly possible for pedestrians to be careful and avoid slipping.
However, the Judge concluded that in no way would it have been unfair, unjust or unreasonable to have expected the local authority to warn passengers of the ice near the city centre bus stop. By failing to warn passengers before they boarded the bus of the icy conditions, the authority had been negligent and in breach of the duty of care owed to the passengers.
The local authority was on notice of the danger presented by the ice close to the bus stop, following the message relayed to it by the bus driver. It had also known that it would not be able to deal with the ice promptly in its capacity as the highway authority and that the ice would therefore remain there, constituting a slipping hazard.
Given the relationship between the local authority, being the provider of the park and ride service and the Claimant, paying for that service, the local authority’s knowledge of firstly, the hazard and secondly, that the Claimant – unless warned – would have been unaware of that hazard, created such a proximity or neighbourhood between the parties that it gave rise to a duty of care. Further, the risk of injury had been plainly foreseeable.
On Appeal
The local authority appealed, submitting that the Judge had erred in his conclusion, going beyond any existing authority on the duty of care owed to passengers and had created an unwarranted extension of the ambit of a bus operator’s duty of care. There was no proximity between the parties as the bus journey was over and that in any event it was not fair, just and reasonable to impose such a duty.
On the facts, the Judge had erred in law. To hold bus companies liable to compensate passengers who, shortly after getting off, fell over near to bus stops, due to a hazard – such as ice– which they were aware of but failed to warn passengers of as they boarded, would create a considerable burden and extension of the law of negligence, which was difficult to justify.
The local authority was not the actual carrier, meaning that the relationship between it and the Claimant was more remote, making it harder to justify such a duty. Any duty that the bus company owed to the Claimant was discharged when the bus driver warned him as he got off.
The hazard in itself had not been a particularly unusual one and in fact, it had been one which the public could have been expected to have been aware of and to guard against on that particular day. It was noted that the Claimant had driven to the park and ride and as a road user it would have been obvious to him that there was a risk of ice.
This was one of those accidents that was nobody’s fault. The appeal was allowed.
Increase in compensation for mesothelioma claims?
by Michael Mulcare, February 16th, 2012
A recent High Court case ruling on damages for pain and suffering, may see elderly victims of mesothelioma entitled to increased compensation.
In this case, the 92 year old Claimant, Dennis Ball, was awarded £50,000 compensation for pain and suffering after he developed asbestos-related cancer following his work for the National Coal Board and its successor. The significance of this case is that the award is greater than the recommended figure of £35,000 found in the Judicial Studies Board Guidelines, where the duration of the pain and suffering is relatively short.
Previously, the JSB guidelines had reduced the lower bracket of recommended damages to allow for smaller awards in cases where the time the victim actually lived and suffered with their symptoms was less than average.
The Defendant – the Secretary of State for Energy and Climate Change – argued that at 92, the Claimant had only a short life expectancy and as such the amount of compensation he received should be reduced accordingly.
The Judgment stated that: ‘A person of any age who is informed that his or her life will be cut short by the effect of a harmful substance to which he or she has been wrongfully exposed is likely to suffer a good deal of distress…Even if a deceased’s death has in the event been relatively peaceful, he or she will have been fearful since being told of the diagnosis of mesothelioma that a painful and distressing end lies in store.’
This ruling paves the way for elderly sufferers to receive increased settlements to compensate them for the pain and distress the disease causes, regardless of their age or the amount of time they live following their diagnosis
Pedestrians and Highways
by Michael Mulcare, February 16th, 2012
DIONNE ARMSTRONG (BY HER MOTHER & LITIGATION FRIEND KAREN ARMSTRONG) v (1) KEEPMOAT HOMES LTD (2) NORTHUMBERLAND COUNTY COUNCIL (3) BLYTH VALLEY BOROUGH COUNCIL (2012)
Circumstances
The accident occurred in 2001, when the 12 year old Claimant tried to cross a dual carriageway. As she did so, she was struck by a car and suffered extensive head injuries.
Despit there being two safe routes to cross the dual carriageway, the Claimant had decided to walk across a grass area instead, close to an estate which had been constructed by the First Defendant – Keepmoat Homes Ltd – between a nature reserve and an arboretum. Alongside the edge of the road there was an area of dense scrub and trees which had a significant gap. The Claimant chose to walk through this gap and to cross the road at this point.
Claimant’s case
The claimant claimed damages against the Defendants for personal injury under both the Occupiers’ Liability Act 1957 and in negligence.
It was her case that firstly, Keepmoat Homes Ltd had created a danger by removing a fence and enlarging the gap; and that secondly, the Second and Third Defendant local authorities - Northumberland County Council and Blyth Valley Borough Council – had failed to take steps to prevent visitors to the adjoining land from accessing the dual carriageway by failing to fence off that gap.
Trial
Evidence was heard at trial that Keepmoat Homes Ltd had removed a fence that had been in place across the gap, so that they could put up an advertising sign. A witness gave evidence that they had contacted the local authority to inform them that the fence was missing.
Judgment
Despite the absence of any right of way, the Court held that on the evidence, there was a path from the local authority’s land to the edge of the road. At some point there had been a fence and later a gap in that fence through which any child or adult could pass.
It was beyond argument that the local authority should have known of the existence of the path and the ready access to it and accordingly, it was held that the local authority had constructive knowledge of the existence of the gap and the path.
There was no firm evidence that the fence had been removed by Keepmoat Homes Ltd and therefore they could not be found liable.
As the local authority had constructive knowledge of the path and had not put up any signs warning against its use, it must have impliedly consented to it being used by lawful visitors for the purposes of the Act.
There was no authority for the proposition that there was any duty either under the Act or at common law on the part of an occupier to prevent a visitor from leaving his land so as to prevent the visitor from coming into contact with a danger on neighbouring land. The danger in this case did not arise from the local authority’s land.
The test of liability was whether what the Claimant did had been impliedly assented to. Whilst the use of the path was assented to, what she did after she left the local authority’s land was neither expressly nor impliedly assented to and there was no breach of the Act. Neither did any other common law duty arise.
The accident had not arisen as a result of any breach of the common duty of care owed under the Act or a breach of any common law duty.
In short, the local authority was not liable either under the Occupiers’ Liability Act 1957, or at common law, for injuries caused to the Claimant who had crossed the carriageway from local authority land through the gap. The claim was dismissed
Were a Local Authority negligent after a child suffers severe brain injuries during a swimming lesson?
by Michael Mulcare, February 16th, 2012
Annie Woodland (by her Litigation Friend, Ian Woodland) v (1) Swimming Teachers’ Association (2) Beryl Stotford (3) Deborah Maxwell (4) Essex County Council (5) Basildon District Council [2011]
The Court was required to determine whether a school had a non delegable duty of care to its pupils, such that it was responsible for the actions of non employees who had dealings with its pupils during the course of a school day.
In 2000, the 10 year old Claimant was taking part in a swimming lesson, which had been arranged by her school at a swimming pool run by the Fifth Defendant – the District Council. The Second Defendant’s company – Direct Swimming Services – held the lesson which was also supervised by a lifeguard (the Third Defendant), who was an employee of that company. Essex County Council – the Fourth Defendant – was the relevant local education authority responsible for the school which the Claimant attended.
At some point during the lesson, when she was meant to have been swimming front crawl towards the shallow end, the Claimant was seen to be floating vertically in the water. By the time she was pulled from the pool and despite attempts to resuscitate her, she had suffered severe hypoxic brain injuries.
The Claimant alleged that the local authority was liable for the negligence of both the Second Defendant’s company and the lifeguard as it owed her a non-delegable duty of care. However, the Local Authority denied the existence of a non-delegable duty and submitted that their obligations were only to take such care as would be exercised by a reasonably careful parent and to take reasonable steps to ensure that independent contractors were reasonably competent to perform tasks in respect of pupils for which they were engaged.
Held: the school did not owe the Claimant a non-delegable duty of care and therefore was not liable for the alleged negligence of the non-employee lifeguard.
The Claimant’s claim that the Local Authority owed her a non-delegable duty of care was bound to fail and no Court could reasonably be persuaded on policy grounds to uphold such a duty. The adoption of a non-delegable duty was likely to constitute a wide expansion of liability.
The Claimant’s injury was sustained on premises away from the school, not under its direct control. To argue that the school should be responsible for any failure of the lifeguard to exercise due care would be to extend the duty it owed beyond that of a parent, as it was reasonable to suppose that a parent would entrust their child to a public swimming pool under the supervision of a reasonably and carefully chosen lifeguard. Any liability which might exist would be in respect of the extent of care the school had used when selecting the Second Defendant company for the task.
Rugby pitch safety judgment
by Robin Churchill, October 25th, 2011
The Court of Appeal rules on the extent of the duty of care to inspect a pitch before a game of rugby.
In SUTTON v SYSTON RUGBY FOOTBALL CLUB LTD (2011) the Court of Appeal gave a decision on whether a rugby club has a duty to inspect a pitch before a game or training session and the extent of the detail of that inspection.
Syston Rugby Club appealed against a decision that it was liable for personal injury sustained by Mr Sutton who had injured his knee when he fell on a broken cricket boundary marker during the course of a rugby training session organised by the club. The claimant maintained that one of the coaches (who had been present at the training session) should have inspected the pitch before the training session began and that there should have been a higher standard of inspection in relation to the ‘touch down’ ends of the pitch than for the rest of the pitch.
The Rugby Football Union risk assessment guidelines recommended that a check of the ground should be carried out to identify any foreign objects. The club had accepted that there should have been a general inspection of the pitch before the session but argued that such an inspection would only have been for obvious obstructions and would not have revealed the broken cricket marker as it did not protrude above the surface of the grass. The Court below had found for the Claimant and had imposed a higher standard of inspection in relation to the ‘touch down’ ends of the pitch than for the rest of the pitch. The club argued that an inspection of the pitch by quickly walking over it would have been sufficient to discharge its duty of care and that even if a more detailed inspection had taken place, it would not have revealed the broken cricket boundary marker.
The Court of Appeal held that it was obviously correct that there should have been an inspection of the pitch. It was appropriate that before a game or training session, a pitch was inspected and that an inspection of the pitch should have been conducted at a reasonable walking pace. This standard of inspection applied to the whole of a pitch rather than requiring a more careful degree of attention to be paid to the ‘touch down’ ends and it was unnecessarily complicated to require different standards of care for different parts of the pitch. Games of rugby were desirable activities within the Compensation Act 2006. The Court was of the view that it was important that standards were not laid down that were too difficult for ordinary coaches and match organisers to meet. The evidence was that even a reasonable inspection by walking over the pitch would not have revealed the broken cricket boundary marker. The appeal was therefore allowed.
Personal injury appeal dismissed
by Michael Mulcare, October 25th, 2011
HADLOW –v- PETERBOROUGH CITY COUNCIL (2011). In this Court of Appeal case, a local authority unsuccessfully appealed an award made to a teacher, who was injured whilst teaching in a secure facility for women. Although not in a school, this case is relevant to SEN classes and perhaps in other situations involving pupils with behavioural problems.
Circumstances
The Claimant was a 63-year-old woman, who worked with women who exhibited dangerous behaviour. As a result, they were resident in a secure facility operated by the local authority. The local authority’s policy clearly specified that staff members should not be alone with more than two women.
The Claimant was about to teach a class of three women in a locked classroom. The teaching assistant who she taught with was late, so she notified the co-ordinator and asked for another member of staff to sit in until the teaching assistant arrived. This was agreed and at the start of the class, two escorts brought the women into the locked classroom and then both left. The Claimant, who was not facing the escorts, did not realise that they had not stayed behind to help her until the door locked. As soon as she realised she was on her own, she got up out of her chair and tried to get to the door quickly to request an escort to stay, but tripped on her chair and injured herself.
First Instance
The judge held that the local authority was negligent in failing to provide the Claimant with another staff member. The Claimant had only been following the policy and her injury had been directly caused by her being left alone. It was immaterial that the injury was not a “conventional” one.
The local authority tried to argue that the accident was not reasonably foreseeable. If the Claimant had been attacked by the women, then those injuries would have been foreseeable. However, in this case they argued that her actions had broken the chain of causation.
Appeal
The local authority appealed against the decision to award the Claimant damages for personal injury on the basis that the accident was not reasonably foreseeable.
HELD:
The Court of Appeal ruled that although the Claimant’s accident had not happened in the most likely manner, namely an attack or the threat of an attack from the women she was teaching, it had occurred as a result of her – quite reasonably – taking action to remove the risk of being left alone and in trying to correct the local authority’s breach of duty in leaving her with the three women, contrary to its policy.
The risk of physical injury was indeed foreseeable and although it did not occur in the likely manner, the Claimant being injured could be sufficiently envisaged and was caused by the local authority’s breach of duty – they had created a risk of injury and the Claimant had acted appropriately. The judge had applied the correct test and was justified in his conclusion.
The appeal was dismissed.
Hufton v Somerset County Council
by Rebecca Piper, July 18th, 2011
During a spell of wet weather a 15 year old pupil (P) slipped and fell on the wet floor of her schools hall, injuring her knee. P brought a claim against the Local Authority on the grounds that the school staff had been negligent in allowing pupils to enter the hall from the outside in wet weather conditions, as this caused the floor to become wet.
The school did have a policy in place to cover such instances. Pupils were not allowed to enter the school hall from the outside on wet days, on such days a sign was placed by the fire doors of the hall, the purpose of which was to instruct the school prefects to prevent pupils from entering the hall.
The Court of First Instance held that it was not reasonable to expect the school to have a policy in place to monitor and remove water deposited in the school hall during the brief period between the time the rain began and putting the signs up. The Judge found that the schools procedures were reasonable and appropriate, P’s fall was an unfortunate accident and the school was not liable for the damages claimed.
P appealed against this decision on the basis that there had been no proper system in place for preventing the floor of the hall from becoming wet; nor if it did become wet, was there a proper system in place for clearing the water up.
The appeal was dismissed. The Court of Appeal agreed with the trial Judge and found that:
1. The school’s risk assessment was reasonable and identified appropriate control measures, which had been implemented.
2. There was no evidence to show that water gathering on the hall floor was a frequent problem or that a special system for mopping it up was required, therefore it was not reasonable to expect the school to have a policy in place for spotting and removing a small area of water during the brief period of time between it starting to rain and the wet weather signs being displayed.
3. The law did not require an occupier of premises to take measures which would absolutely prevent any accident from ever occurring; all that was required was the exercise of reasonable care.
Nield V Loveday (2011)
by Michael Mulcare, July 18th, 2011
(1) EDWARD NIELD (2) ACROMAS INSURANCE CO LTD
–v-
(1) GRAHAM LOVEDAY (2) SUSAN LOVEDAY (2011)
This is a cautionary case warning Claimant’s about the consequences of exaggerating their claim and then signing a Statement of Truth, especially where the Defendant has instructed surveillance agents!
Initial Claim
L1 was involved in a road traffic accident and brought a personal injury claim against the driver and first applicant (N). The second applicant – N’s insurer (A) – admitted liability. The claim continued on a quantum only basis.
L1 verified his claim and witness statement with statements of truth, claiming that the as a result of the accident, he had a painful soft tissue injury to his neck and lower back which prevented him from working or even driving. He often had to use a wheelchair as he could hardly walk and had great difficulty negotiating the stairs. His wife cared for him all of the time. He was frightened to go out and especially when he had to go in a car. His pastimes were affected as he could not go caravaning or work on cars and engines as he had done. He also claimed that he had gone back to his driving job on the day of the accident, following months of absence due to a hand injury and produced a letter from his employer in support. His wife – L2 – verified a statement supporting her husband’s claim.
N obtained surveillance evidence discrediting L1, proving that he was much more active and able than his claim suggested. When he saw this, L1 settled for substantially less than he had claimed, and agreed to pay N’s costs, which far outweighed the damages.
Contempt Proceedings
The applicants (N) applied the respondents (L1 and L2) to be committed for contempt of court, on the basis that L1′s claim was inflated and dishonest. During the proceedings, L2 admitted her contempt and said that she had known that parts of her statement were either not true or no longer true when she signed it. In contrast, L1 said that when he signed the statements he did not know what he was verifying.
HELD:
(1) L1 was guilty of contempt of court. The surveillance evidence proved him to be very far from the housebound invalid he had made out to be, showing him driving, walking unaided, climbing steps, going on a caravaning holiday and working on a vehicle. In fact, he had driven to and fromItalyon a holiday with L2, whereas his witness statement which said they had flown there, and that he had been pushed in a wheelchair through the airport. The letter from L1′s supposed employer was forged by him or L2. It was discovered that L1 had had many years of intermittent back problems, contrary to his witness statement which stated that they did not begin until two weeks after the accident. He had misled his solicitor who drafted his witness statement and it was clear that he knew exactly what his witness statement said – a draft of it was marked with many handwritten comments with information that only he could have known. Based on this, his assertion that he had not read what he signed was not true. L1’s solicitor had warned both of them in writing of the risks of signing something which they did not believe and that this could result in imprisonment for contempt. Although there was recent medical evidence stating that he was suffering from depression and post-traumatic stress disorder, that did not mean that he had not read the documents or lacked the capacity to know whether they were true. L1 must have known that his false claims were likely to interfere with the course of justice.
(2) L2 deserved some credit for admitting her contempt. She also had several good character references which helped. By contrast, L1 had not only refused to admit his contempt, he had even attempted to continue with his fabrications whilst giving oral evidence.
The court took into account a number of factors including L1’s previous good character, the considerable financial and personal toll the proceedings had taken on them both, and their respective health problems. It was not the most serious of contempts but they had both been explicitly warned by their solicitor that they risked imprisonment if they signed something they knew not to be true.
The Application was granted and L2 was given a six-month suspended sentence and L1 was given a nine-month sentence.
FOX –v- FOUNDATION PILING LTD [2011]
by Michael Mulcare, July 18th, 2011
This case considered the issue of conduct by one party, where there was evidence that they had exaggerated their claim and how that affected costs, where a Part 36 Offer had been made.
Background
The claimant (F) issued proceedings against his employer (P) for over £280,000 after he fell whilst carrying a heavy piece of equipment across a building site, injuring his back.
Liability had been agreed but not quantum, as evidence was obtained demonstrating that F was exaggerating his claim, namely that:
i) At the start of the claim P had obtained surveillance evidence which showed that a year after the accident, F was able to walk and was fully mobile without a limp.
ii) Although a medical expert had concluded that the accident had accelerated pre existing degenerative changes in his disc, F had exaggerated his injuries during examination.
Following an initial low net offer of £28,550.79 which was rejected and withdrawn, P made a slightly increased net offer of £31,702.53, which F accepted.
First Instance
The Court considered the issue of costs and held that from the expiry of the first offer, P was the successful party and that F should pay those costs. The judge stated that even if he was wrong about who the successful party was, F’s conduct alone justified his departing from the general rule under CPR Rule 44.3(2), that the losing party should pay the entire costs of the action, making F pay P’s costs from the first offer to date.
On Appeal
By the time F appealed against the order that he was to pay these significant costs, both parties were agreed that he was the successful party. The only issue was whether his conduct was enough to justify the departure from CPR Rule 44.3 (2).
Held:
1) Where one party made a Part 36 offer, but settled at a greater sum, Rule 36.14 had the effect of changing the court’s general discretion in respect of costs.
- Parties were free to make Calderbank offers outside of the Part 36 framework and where a party had done so and then achieved a better result, the court’s discretion was wider, though it might well be appropriate to order the party rejecting the Calderbank offer to pay all the costs since the date of its expiry.
- Where the Claimant recovered more than the Defendant had offered, but less than he had previously offered to accept, he was normally the successful party under Rule 44.3(2). The starting point then was that he should recover his costs.
- Next, should there be any adjustment to reflect the costs relating to any issue which the successful party had lost on? Should the unsuccessful party be compensated for costs it had incurred by reason of the successful party’s unreasonable conduct? In a personal injury action, the fact that the Claimant had won on some issues but lost on others was not normally a reason for depriving him of part of his costs.
- Despite the Claimant deliberately exaggerating his claim, this was not, in certain circumstances, a reason for depriving him of his costs. A Defendant with surveillance evidence was well able to protect his position by making a modest Part 36 offer. However, in other cases the fact that the successful party had failed on certain issues might constitute a good reason for awarding him only a specified proportion of his costs.
(2) Here, there was no justification for departing from the norm under Rule 44.3(2) and F was entitled to all his costs. The judge at first instance had incorrectly assumed that P was the successful party.
However, the main conduct issue was the exaggeration of his claim. The amount F recovered in damages was significantly less than his pleaded claim and this was due to the affect of both the surveillance evidence and the medical evidence. Despite this, the judge had expressly declined to make any finding that F was guilty of any misrepresentation, and in those circumstances the Court of Appeal court could not substitute such a finding. It was clear that from an early stage, P had evidence showing that F was exaggerating his claim, yet it had not made a realistic offer until late in proceedings.
(3) There was a continuous and mistaken tendency of first instance and occasionally Court of Appeal judges to undermine the CPR rule 44.3(2), creating great uncertainty amongst future litigants. The upcoming amendment to rule 36.14 will expectantly formulate a more clarified approach to this area of litigation.
The Appeal was allowed.
Tactics
From a tactical point of view, when Defendants are dealing with personal injury claims, where a Claimant has a strong case on liability but quantum is inflated, the Defendant’s remedy is to make a modest Part 36 offer as soon as possible. If not, then the Defendant may not gain any cost protection. This position could be changed by obtaining evidence proving that the Claimant is dishonest.