Kerry Underwood

SMALL CLAIMS – UNREASONABLENESS AND COSTS

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I am currently on my Personal Injury Reforms lecture tour, to check available dates and book a place on a course please click here.

 

In Dammermann v Lanyon Bowdler LLP [2017] EWCA Civ 269

 

the Court of Appeal had a rare opportunity to consider CPR 27.14(2)(g) which allows the court to order “such further costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably”.

 

Once the personal injury small claims limit is increased to £5,000.00 for road traffic matters, this is likely to be the single most important civil procedure rule as far as costs in personal injury work are concerned.

 

I deal with this extensively in my new book Personal Injury Small Claims, Portals and Fixed Costs, which runs to 1,300 pages over three volumes and costs £80.00 and can be ordered from Amazon here.

 

Here Mr Dammermann had defaulted on a mortgage and the bank appointment receivers to sell the property and those receivers instructed solicitors who sold the property and delivered a bill to the receivers and that became part of Mr Dammermann’s overall liability under the terms of the mortgage.

 

Mr Dammermann brought proceedings against Lanyon Bowdler LLP, the solicitors, challenging the amount of their fees.

 

His claim was dismissed at first instance on the basis that there was no contractual or agency relationship between Mr Dammermann and the firm of solicitors.

 

No order for costs was made at that first instance hearing.

 

Mr Dammermann appealed and that appeal was dismissed but the judge on appeal ordered Mr Dammermann to pay costs.

 

Generally, there can be no order for costs on an appeal from a small claims track matter, wherever it ends up, be it the Court of Appeal of Supreme Court or whatever.

 

Thus the application for costs could only succeed if CPR 27.14(2)(g) was satisfied.

 

The appeal judge said this:

 

“I am satisfied he has acted unreasonably. I was not aware until just a moment ago, that an offer had been paid of £1,000.00 to seek to mollify his concerns in any way in respect of this bill. I would have thought that was a very generous offer that should have been accepted, but leaving that to one side, he has persisted in an argument, notwithstanding – and I agree with the submission made by Ms Tildesley – that it is entirely clear on the basis of this skeleton argument, very clearly argued and presented by Mr Millington, an argument which I noted is dated 16th October 2015 and probably would have been in the hands of Mr Dammerman six or seven weeks ago, that he could have backed off this appeal, not proceed with it, and matters probably would have rested there. He has not done so. It is obvious from that skeleton argument that he was barking up the wrong tree, he had confused himself, he was applying principles of general agency law which could not apply and did not apply, if he had even read those authorities, which are referred to in the skeleton argument and the extracts therein. In those circumstances, I do take the view he has behaved unreasonably, and in those circumstances, I do continue therefore with the assessment of these costs. I am not going to repeat myself in respect of what I have hitherto said in the course of this summary assessment.”

 

CPR 27.14(3) states:

 

“A party’s rejection of an offer in settlement will not of itself constitute unreasonable behaviour under paragraph 2(g) but the court may take it into consideration when it is applying the unreasonableness test”.

 

Mr Dammermann was granted leave to appeal to the Court of Appeal and made three substantive points:

 

  1. the unreasonableness of his behaviour must be seen in the light of the fact that the very same judge had granted him permission to appeal on the basis of the case that he went on to argue at the full appeal hearing;

 

  1. the point of law was somewhat obscure, as the mortgage deed indicates that the receivers were his agents but, as the judge found, the solicitors were not;

 

  1. the judge was wrong to take his rejection of the £1,000.00 offer into account and that, had he been allowed to by the judge, he would have told the judge of his counter-offer to settle at a higher figure, which Lanyon Bowdler had in turn refused.

 

The Court of Appeal agreed with Mr Dammermann that it was not an entirely straightforward point of law as case law demonstrated.

 

The Court of Appeal said that the point on which Mr Dammermann lost was the somewhat intricate point rising from a legal document which was artificial or contrived and apt to give a false impression and also pointed out that the judge himself took 12 paragraphs of his judgment to explain the legal position.

 

The Court of Appeal also considered Mr Dammermann’s point that the very same judge who ordered him to pay costs for behaving unreasonably was the judge who had given him leave to appeal in the first place.

 

In relation to the offer of £1,000.00, or rather its rejection, the Court of Appeal did not accept that the judge was in error as he did not base his decision on unreasonable behaviour on this point, but he was entitled by CPR 27.14(3) to take it into account and in the view of the Court of Appeal he was justified in so doing.

 

The fact that Mr Dammerman was prepared to settle for a substantially higher figure was irrelevant. The court had decided that the offer made to him was “a very generous offer that should have been accepted.”

 

Here the Court of Appeal redetermined the matter itself and held that it was not possible to hold that Mr Dammermann had behaved unreasonably in pursuing his appeal.

 

The court then had this to say about the offer:

 

“the rejection of the £1,000.00 settlement offer is the only remaining factor that might be supportive of a finding of unreasonableness, but that, on its own, is incapable of satisfying the test in Part 27.14(2)(g).”

 

That appears to be a correct statement of the law given the wording of CPR 27.14(3):

 

“A party’s rejection of an offer in settlement will not of itself constitute unreasonable behaviour under paragraph 2(g) but the court may take it into consideration when it is applying the unreasonableness test.”

 

That leaves open the question of what on earth that rule means. It is not well worded. I had assumed that it meant that a rejection of an offer may be unreasonable so as to satisfy the test, but does not of itself constitute unreasonable behaviour.

 

Thus a party who is offered say £9,000.00 and goes to court and gets £1,000.00 is more likely to be found to have behaved unreasonably than a party who rejected on offer of £1,100.00 and went to court and got £1,000.00.

 

What the Court of Appeal appear to be saying is that the rejection of an offer, however unreasonable, cannot without other unrelated factors, be capable of constituting unreasonable behaviour.

 

It should be noted that Part 36 has no application in the small claims track and therefore the issue of whether the rejection of an offer can ever constitute unreasonable behaviour is a very important one.

 

If the answer is no, then it appears that any party in a small claims track matter is free to carry on without costs consequences, however objectively unreasonable their behaviour is in rejecting an offer.

 

Indeed it appears that a party could reject an offer to settle the whole claim and still not be at risk on cost.

 

That cannot be right.

 

This needs urgent clarification prior to the influx of 750, 000 road traffic small claims a year from 1 October 2018.

Written by kerryunderwood

May 23, 2017 at 8:54 am

Posted in Uncategorized

COST BUDGETING: USING PRECEDENT R TO PLAY A PROCEDURAL GAME

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In Findcharm Ltd v Churchill Group Ltd (2017) EWHC1109 (TCC) Mr Justice Coulson sent out a clear warning against the use of Precedent R as tactics in a cost budgeting exercise.

 

Mr Justice Coulson made his remarks at the end of a Case Management Conference. He accepted that in recent times, judges were spending more time than they used to on dealing with costs budgeting disputes but that recently steps had been taken to try and make that process more efficient for the court. He referred in particular to the introduction of Precedent R which required each party to comment on the costs budget of the other. This has the effect of saving time because the parties are obliged to adopt a realistic attitude towards the budget of the other side and has assisted in identifying the areas of dispute between the parties on costs.

 

However, the judge went on criticise some parties who seem to treat cost budgeting as a form of a game where they are seeking to obtain a tactical advantage over the other side. One example was where one party offered very low figures in the Precedent R in the hope that the court may look at the two different sets of figures put forward by the parties and calculate a figure somewhere in between the two. In this particular case, the judge found that that had happened here.

 

The case was brought by the claimant who operated a restaurant within the defendant’s hotel. There was a gas explosion at the hotel which closed the restaurant for approximately 4 months and the claimant sought to recover its expenses arising out of the explosion which totalled £820,000.00 plus interest. The single largest item was a claim for loss of profit as a result of the business interruption.

 

The defendant’s defence consisted of their denials and non-admissions of a kind which is completely against the spirit of the Civil Procedural Rules and harks back to a bygone age of pleading such defences. Despite the fact that the explosion happened in the defendant’s hotel, they did not even admit the cause of the explosion.

 

Following initial exchanges between the parties, the claimant put forward a cost budget in the total sum of £244,676.30. This figure assumed that there will be no need for expert evidence to deal with the cause of the explosion and assumed a single joint expert in accountancy to deal with the loss of profit claim. The judge had ordered during the Case Management Conference that unless the defendant, within 21 days, pleaded a positive defence on the cause of the explosion then they will be taken to admit the claimant’s case on that issue. For the purposes of cost budgeting the judge proceeded on the basis that no expert evidence on that topic would be required. He also ordered that a single joint expert in accountancy was indeed appropriate.

 

The defendant’s cost budget totalled £79,371.23. The judge was unhappy with the budget as, for example, it allowed nothing for experts to deal with the issue of the cause of the fire even though the defendant, during the CMC, was arguing that causation was an issue and an expert was necessary. It had an estimate of a sum of less than £7,000.00 for the preparation of a High Court trial which, on any interpretation, was unrealistically low. As the figure for the overall budget was clearly low the claimant had agreed it and therefore the court approved the budget figure for the defendant.

 

Through the Precedent R the defendant had offered only £46,900.00 in respect of the claimant’s estimated costs and when added to the costs already incurred by the claimant, came to a total of less than £90,000.00.

 

The judge was unhappy with the defendant’s Precedent R because it was totally unrealistic and had been designed to put as low a figure as possible on each and every stage of the process without justification. In the judge’s view it was an abuse of the costs budgeting process.

 

Particular examples of the amounts offered by the defendant in the Precedent R include disclosure where the claimant’s estimate was just below £30,000.00 which the judge believed was reasonable for a claim of this type whereas the defendant’s offer was £10,600.00.

 

In relation to witness statements the claimant’s estimate was £40,235.00 for the preparation of three witness statements and considering two statements to be provided by the defendant, all of which the judge believed was reasonable. The defendant had only offered £5,300.00 for all of that work. The judge said that was incredible in a case of this nature where all of the background and circumstances of the explosion had to be explained and where there was a large claim for loss of profits which would need to be underpinned by detailed factual evidence.

 

In relation to expert’s reports the claimant estimated £28,648.00 which again was not excessive bearing in mind the fees charged by forensic accountants. The defendant put forward £16,000.00 based upon an expert’s fee of £13,500.00 but it was not based on any estimate from a proposed expert and in the judge’s experience it was completely out of step with what a forensic expert accountant would charge for in this type of work.

 

Finally, the claimant allowed £69,765.00 for trial preparation and again the judge believed that in the circumstances of the claim that was not unreasonable. The sum offered by the defendant was £10,000.00 which the judge saw no justification for whatsoever.

 

As a result, the judge concluded that the cost budget of the claimant would be allowed in full as it was both proportionate and reasonable.

 

The judge was understandably critical of the Precedent R filed on behalf of the defendant and levelled that criticism at the defendant’s solicitors, Kennedys and in particular their costs department.

Written by kerryunderwood

May 17, 2017 at 9:02 am

Posted in Uncategorized

FIXED COSTS, COSTS OF BUDGETING AND CASE SETTLING

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I am currently on my Personal Injury Reforms lecture tour, to check available dates and book a place on a course please click here.

 

A case enters the portal and then exits and is likely to be allocated to the multi-track due to complexity and the number of experts and consequently budgets are drawn.

 

However the matters settles before allocation and therefore has not actually been allocated to the multi-track, and therefore the provisions of Qadar v Esure [2016] EWCA Civ 1109, now enshrined in rule 8.1 of the Civil Procedure (Amendment) Rules 2017, do not apply.

 

That case and that rule states that fixed costs apply to any ex-portal claim unless and until it is allocated to the multi-track.

 

On the face of it there is no entitlement to any additional costs for preparing the budget.

 

Obviously one of the benefits of a fixed costs case is that the parties do not need to prepare a budget, but in these circumstances the parties will be in the position of incurring the costs of preparing a budget, but recovering only fixed costs.

 

The successful party may argue that the escape clause should apply, but it may well be that the additional costs incurred would not lead to the claimant achieving more than 20% of the fixed costs figure, which is what needs to be done to get anything extra at all and to avoid being punished in costs.

 

It is of course extremely sensible in a complex matter to draw up a budget early on in the case as part of planning the case generally as well as being prepared for the first CMC before which the costs budgets will have to be served. It is all the more frustrating for the solicitor who carefully plans their case in advance to lose out on costs of preparing the budget.

 

The answer is an amendment to the Civil Procedure Rules to provide for the payment of a fixed fee for Costs Budgeting work in such a scenario, that is where the court would require budgets to be drawn and filed in an ex-portal claim which ends up not being allocated.

 

I am grateful to Mr Idris Dawjee of Parmar & Co Solicitors for bringing this to my attention.

Written by kerryunderwood

May 12, 2017 at 9:01 am

Posted in Uncategorized

PART 36 AND FIXED COSTS

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This article first appeared on the Practical Law Dispute Resolution Blog on 27 April 2017.

 

I deal with this subject in my forthcoming lecture tour – click here for information and my new three volume book Personal Injury Small Claims, Portals and Fixed Costs which can be purchased from Amazon here.

 

Practitioners will be familiar with the basic concept of Part 36 and the consequences that flow from that rule.

 

Here I look at costs, rather than additional damages and enhanced interest on damages and costs.

 

A successful claimant who fails to beat a defendant’s Part 36 offer forfeits costs from the date of expiry of the period for accepting that offer and has to pay the defendant’s costs for that period, generally on the standard basis.

 

A claimant who matches or beats its own Part 36 offer, and where judgment is entered, is entitled to indemnity costs from the date of expiry of the time for accepting the offer.
There remains the issue of whether late acceptance by a defendant results in the claimant getting indemnity costs for the period between expiry and acceptance.

 

However the interplay with fixed costs has already been the subject of a Court of Appeal decision.  

 

In Broadhurst v Tan and Taylor v Smith [2016] EWCA Civ 94 (23 February 2016)

 

the Court of Appeal held that a claimant who matches or beats its own Part 36 offer in a fixed costs case gets indemnity costs, as well as the other enhancements such as a 10% increase in damages and additional interest etc., arguably in addition to fixed costs.

 

The Master of the Rolls said that although this appeal concerned the version of Part 36 which applied before 6 April 2015 “the provisions applicable to this appeal remains substantially the same” and therefore this is the law in relation to post 6 April 2015 Part 36 offers.

 

It was accepted that there was a tension between CPR 45.29B dealing with fixed costs and CPR 36.14A. The former states that the only costs to be awarded in a Section III A cases are fixed costs, whereas the latter says that, in such cases, rule 36.14 will apply subject only to the modifications stated in rule 36.14A, and following, and none of those modifications affects rule 36.14(3).

 

The counterview, rejected by the Court of Appeal, was that although rule 36.14(3) applies in a fixed costs case, there is no difference between profit costs assessed on the indemnity basis and the fixed costs provided in Table 6B of rule 45.29C, that is they remain fixed come what May.

 

It was common ground that under CPR 45.29J the court had a general discretion to allow additional costs in exceptional circumstances – the so-called escape clause.

 

It was also common ground that the matching or beating of a claimant’s Part 36 offer would not of itself bring the matter within the escape clause.

 

As to the practical application of this rule the Court of Appeal, at paragraph 31, said:-

 

“Where a claimant makes a successful Part 36 offer in a section IIIA case, he will be awarded fixed costs to the last staging point provided by rule 45.29C and Table 6B. He will then be awarded costs to be assessed on the indemnity basis in addition from the date that the offer became effective. This does not require any apportionment. It will, however, lead to a generous outcome for the claimant. I do not regard this outcome as so surprising or so unfair to the defendant that it requires the court to equate fixed costs with costs assessed on the indemnity basis… a generous outcome in such circumstances is consistent with rule 36.14(3) as a whole and its policy of providing claimants with generous incentives to make offers, and defendants with countervailing incentives to accept them.”

 

Provisional Assessment

 

CPR 47.15(5) provides:-

 

“(5) In proceedings which do not go beyond provisional assessment, the maximum amount the court will award to any party as costs of the assessment (other than the costs of drafting the bill of costs) is £1,500 together with any VAT thereon and any court fees paid by that party.”

 

Provisional assessment is a form of Detailed Assessment.

 

CPR 47.20(4) imports the provisions of Part 36 into the costs of Detailed Assessment with the appropriate change in terminology, for example CPR 47.20(4)(a) provides that “claimant” refers to “receiving party” and “defendant” refers to “paying party”.

 

In Lowin v W Portsmouth and Co Ltd [2016] EWHC 2301 (QB), 20 June 2016

 

the Queen’s Bench Division of the High Court held that where a receiving party matched or beat its own Part 36 offer in provisional assessment proceedings it was entitled to costs on the indemnity basis under CPR 36.17(4), which overrode the cap of £1,500.00 plus VAT and court fees contained in CPR 47.15(5).

 

The paying party had submitted that there is a difference in principle between fixed costs as dealt with in Broadhurst v Tan and capped costs, in that fixed costs, are just that: fixed and therefore, unless costs on the indemnity basis could exceed fixed costs, an order for indemnity costs would be meaningless, and indeed arguably as far as costs are concerned, a claimant’s Part 36 offer would be meaningless.

 

However with capped costs it is possible for costs on the standard basis to be say, £750.00 but, say £1,250.00 on the indemnity basis and therefore an indemnity costs order would still mean something in practice and would still incentivize a receiving party to make a Part 36 offer.

 

Thus the argument was that where the costs cap applied, indemnity costs could be assessed and awarded but would be subject to the cap – see Nizami v Butt [2006] EWHC 159 (QB).

 

Here the High Court rejected that approach.

 

CPR 47.20(4) considered how Part 36 should apply to Part 47 and it applies to the costs of a detailed assessment, with modifications.

 

There was a conflict between CPR 47.15(5) and Part 36 because CPR 47.15(5) potentially derogated from the entitlement to costs on an indemnity basis under Part 36.

 

The court said that the correct view was that taken by the Court of Appeal in Broadhurst, namely that CPR 36.14 continued to have “full force and effect”.

 

Had the draftsman of the Rules Committee wished Part 36 to be modified so that the cap would remain then that would have been stated.

 

The High Court further stated that the dislodging of the cap would incentivize parties to accept reasonable costs offers because if they did not do so they would be at risk of substantial uncapped costs under Part 36.

 

Intellectual Property Enterprise Court

 

In Phonographic Performance Ltd v Raymond Hagan [2016] EWHC 3076 (IPEC)

 

the Intellectual Property Enterprise Court, part of the new Business and Property Courts, held that the fixed costs scheme in that court is displaced when a claimant matches or beats its own Part 36 offer and thus the court can award indemnity costs, as well as additional damages and interest on damages etc.

 

This decision is consistent with the decision of the Court of Appeal in Broadhurst, and with the decision of the High Court in Lowin v W Portsmouth and Co Ltd.

 

My proposals for change

 

If the current Part 36 system is retained then the parties are still in the position of not knowing what the costs will be and the apparatus of detailed assessment needs to be maintained.

 

I propose that rather than maintain the existing system, where the claimant escapes fixed costs if s/he matches or beats its own Part 36 offer, and where a defendant gets costs from the date of expiry of its Part 36 offer if the claimant fails to beat it, there be introduced a new system of calculating Part 36 penalties/rewards.

 

This would consist of a percentage add-on/deduction to Fixed Recoverable Costs depending upon the stages passed between expiry and acceptance etc.

 

For example a claimant makes a Part 36 offer pre-issue and the defendant accepts within that stage.

There is no penalty/reward in costs.

 

A claimant makes a Part 36 offer pre-issue and that is accepted by the defendant post-issue but pre-allocation.

 

The defendant pays an additional 10% costs.

 

The claimant makes a Part 36 offer pre-issue and the defendant accepts post-allocation, that is two stages later.

 

The defendant pays an additional 20% costs.

 

The claimant makes an offer pre-issue and matches or beats it at trial. The defendant has caused three unnecessary stages and pays 30% additional costs.

 

Thus there is the 10% penalty/reward for each stage passed when the defendant does not accept the offer.

 

The same works in reverse.

 

A defendant makes a pre-issue Part 36 offer which the claimant accepts post-issue but pre-allocation and thus has caused one further stage to be engaged. The claimant suffers a 10% reduction in costs and so on and so on.

 

This is proportionate. The penalty/reward depends upon the stages effectively wasted.

 

It gives a strong incentive to parties to settle where appropriate, but at any given stage they know to the penny how much the costs will be on late acceptance.

 

Certainty is one of the great prizes of fixed costs.

Written by kerryunderwood

May 4, 2017 at 8:56 am

Posted in Uncategorized

EXTENDED FIXED COSTS PILOT SCHEME

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Last month I completed an 8 day trek in the Sahara Desert to raise money for the Lord’s Taverners cricket charity for disadvantaged children. Please go here if you would like to make a donation.

 

HHJ Waksman QC, of the London Mercantile Court, has revealed details of a two-year pilot scheme in relation to an extended fixed costs regime.

 

It is proposed that the pilot scheme run in the Mercantile Court in London and in Manchester in the Chancery Division and Technology and Construction Court as well as the Mercantile Court.

 

It is intended that the pilot start within the next three months.

 

Its purpose is to see how an extended fixed costs regime would work in practice and also the see what appetite there is for the scheme amongst lawyers as participation in the pilot will be voluntary.

 

It will involve “robust and rigorous” case management with a quicker and shorter procedure.

 

The scheme will include scale costs for each phase of the litigation, but these will be caps rather than fixed costs and the recoverable costs will be subject to an overall cap, similar to the regime in the Intellectual Property Enterprise Court.

It is expected that the pilot will cover claims with a value of up to £250,000.00.

Written by kerryunderwood

May 3, 2017 at 8:58 am

Posted in Uncategorized

ELECTRONIC FILING: SERVICE LEVELS

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Earlier this month I completed an 8 day trek in the Sahara Desert to raise money for the Lord’s Taverners cricket charity for disadvantaged children. Please go here if you would like to make a donation.

 

From 25 April 2017 the use of the Courts Electronic Filing (CE-File) system has been compulsory for all professional users in the Rolls Building courts in London.

 

The Courts Charter for the Rolls Building has been revised to refer to CE-File. The charter sets out the following service levels for accepting documents submitted using CE-File:

 

  • All originating processes, applications, acknowledgments of service and defence will be accepted not more that ninety minutes from the time the document is submitted during working hours.

 

  • Any other document submitted, including consent orders, will be accepted not more than three hours from the time the document is submitted.

 

  • Office copy requests will be accepted within 48 hours.

 

  • The court will process applications and orders accepted via CE-File within five working days, although it appears that the court will prioritise matters marked as urgent upon submission.

 

For these purposes, working hours are 10:00 to 16:30, Monday to Friday, excluding national holidays. For anything filed outside these hours, the time for the court to respond will start from the commencement of the next working day.

 

Practice Direction 51O has been revised with effect from 25 April 2017, and that there will be specific provisions relating to some insolvency processes.

 

Further guidance is provided in Gov.uk: CE-File system information and support advice and Practice note, Electronic working in the UK courts.

 

Written by kerryunderwood

April 28, 2017 at 9:20 am

Posted in Uncategorized

CICA CLAIMS AND COURT CLAIMS

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I deal with this in my Personal Injury Reforms Course which can be booked here.

Earlier this month I completed an 8 day trek in the Sahara Desert to raise money for the Lord’s Taverners cricket charity for disadvantaged children. Please go here if you would like to make a donation.

 

In VG v CICA [2017] UKUT 0049 (AAC)

 

the Upper Tribunal (Administrative Appeals Chamber), exercising its judicial review jurisdiction ,declined to interfere with the decision of the First-tier Tribunal (Social Entitlement Chamber) confirming an award of £500.00 under the Criminal Injuries Compensation Scheme, having offset £10,000.00 received in settlement of a High Court action.

 

Here, the applicant’s son was murdered and the murderer was a resident in a care home run by an NHS Trust and when sentencing the murderer the judge said that the systems in place at the care home were wholly inadequate.

 

The murderer’s non-compliance with his medication played a very significant part in the commission of the offence according to the trial judge, and the care home had failed to monitor this or to carry out searches of the murderer’s room – he had a history of knives being found in his possession.
The applicant sued the NHS Trust in the High Court and sought damages for negligence and under the Human Rights Act and settled the whole claim in the sum of £10,000.00.

 

The applicant then applied to the CICA who assessed compensation at £10,500.00, but offset the £10,000.00 received in the civil action, leaving a balance of £500.00.

 

The applicant appealed on the basis that the High Court compensation was for breach of the duty under Article 2, to put in place an appropriate legal and administrative framework and that liability for damages did not require the loss to be the death itself and therefore the Article 2 duty existed independently of any criminal liability or responsibility for the death.

 

For example it could include an inadequate investigation. Thus the applicant argued that he had not received compensation in respect of a criminal injury.

 

The CICA argued that the scheme is one of last resort and that if the applicant succeeded it would result in double recovery.

 

It argued that the damages were paid in respect of the death and not for some abstract breach of Article 2 and without the loss – that is the death – there would have been no liability.

 

The purpose of a payment of damages in a human rights claim is to place a claimant, in so far as possible, in the same position as if their Convention rights had not been infringed.

 

The tribunal accepted that in an appropriate case damages could be awarded without the breach being linked to a death, notwithstanding the authority’s arguments to the contrary.

 

However it held that that was not the case here, where it could not be said that the settlement between the Trust and the applicant was independent of K’s death.

 

It was occasioned by K’s death and therefore there was a causal link between K’s death and the claims and allegations against the Trust.

 

The tribunal said:

 

“25. Notwithstanding how the law might be applied to the facts of any other case, in this particular case the High Court claim form of 10th January 2012 was never amended, the Trust’s offer of 15th May 2014 referred to “settlement of the whole of her claim”, the Notice of Acceptance of 5th June 2014 went into no further detail, counsel’s note of 6th April 2016 does not assist the applicant (for the reasons that I have explained) and I am in no doubt that the First-tier Tribunal was correct to decide that the agreed compensation from the Trust had been paid in respect of the criminal injury to which the award under the 2012 Scheme relates.”

 

 

Written by kerryunderwood

April 26, 2017 at 7:33 am

Posted in Uncategorized

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