Leading Judgment per Andrews LJ, with whom Jackson LJ and Arnold LJ agreed.

What ought a court do when medical evidence is received late in the day which increases the claimed value of a claim from £10,000 to £500,000?  The Court of Appeal said that the answer is not to restrict a claimant to 2% of the claimed value, where no blame lies with a claimant for such medical evidence being received late.

 

Chronology

There is something of a lengthy chronology/ history to this case.  Even what is set out below is an abridged version.

The Claimant was involved in a car accident in July 2014.  The initial claim for damages (issued in August 2017) was limited to £10,000, supported by a medical report from a GP predicting recovery from soft tissue injuries to the neck, shoulder and back within six months. However, as symptoms did not so resolve, a supplemental report from the GP in September 2018 recommended seeking assistance from a consultant orthopaedic surgeon as to ongoing symptoms. 

A trial listed for January 2019 was adjourned for lack of available judges.

Possible permanent symptoms were identified in a report from the consultant orthopaedic surgeon in January 2020, though further testing was required to ascertain whether this was as a result of injury sustained in the accident.

A trial listed for October 2020 was adjourned owing to directions made as a result of the covid-19 pandemic.

An addendum report from the consultant orthopaedic surgeon was served in September 2020 setting out that the Claimant had permanent lordosis of the lumbar spine as a result of, or accelerated by, the accident.  This would have significant impact on the Claimant’s ability to work.

An updated Schedule of Loss was drafted in the same month also to include significant claims for past and future loss of earnings.  The value significantly increased from £10,000 to nearly £500,000. 

A Counter-Schedule rejected the new claims for loss of earnings on the basis that there was no evidence to support such heads of damage (permission to rely upon the addendum report having not yet been given, although it was shortly after the Counter-Schedule was served).

An Application to increase the value of the claim was made in November 2020 and heard on 6 January 2021; the adjourned trial was now listed for 14 January 2021.  The Application was dismissed by a Deputy District Judge.

An appeal of this decision was heard by a circuit judge in March 2022, which was refused.

The claim came before the Court of Appeal for a second appeal in November 2023.

Of note, in October 2018 the Claimant’s solicitors came off the record and so since that point the Claimant had been acting as a litigant in person, assisted by his uncle as McKenzie friend.  At the Court of Appeal, the Claimant was represented by counsel via ‘Advocate’.

The Substance of the Appeal – the Discretion of the DDJ

It was noted that the DDJ had to deal with the Application to increase the value in a busy county court list, and that an ex tempore judgment would not have the polish of a reserved judgment.

It was noted that the application was very late in the day – a week before trial and 6 ½ years after the accident.  It had been managed for 4 years on the fast track and 2 trial dates had already been lost.

Although both the DDJ and the Defendant were critical of the style of the drafting of Schedule of Loss, neither suggested that there was no factual or medical basis for the same.

The DDJ was, it appears, largely concerned with the loss of trial date and that the case would have to ‘start again’ if the value were increased.

The Court of Appeal accepted that the DDJ had regard to the loss of a claim of almost £500,000.  However, the judge did not set out, and so could not be said to have considered, the very great prejudice to the Claimant in restricting him to only 2% of the potential value of the claim.

The Decision

 

Andrews LJ considered that there is a high hurdle in disturbing case management decisions, and that litigants in person are obliged to follow court orders as much as any other litigant.

Whilst the frustration in the delay in getting the case to trial was understandable, the Claimant had complied with orders or been forgiven if late.

An argument raised by the Claimant that rule 16.3 (7) of the CPR – allowing the court to award more than the value specified on the Claim Form - did not relieve a claimant of the need to seek permission to increase the value of his claim.

However, there was no basis for the increased value of the claim for loss of earnings until the addendum report of the consultant orthopaedic surgeon was received.  Though the Claimant had clearly held the view that the claim was worth more than the original value before then, it could not be pleaded without medical evidence to support the claim. 

In fact, the Defendant had also been on notice of such a possibility since late 2018 following permission being given for further medical evidence as symptoms had not resolving in line with original expectations.

The Defendant itself had been critical of the Claimant being without medical evidence to support his updated Schedule in its Counter-Schedule of September 2020, with the Claimant only subsequently being given permission to rely on the addendum report.

Andrews LJ considered that the DDJ ought to have considered:

1. That the addendum report brought about a ‘seismic’ change in the nature of the claim.  The increased value could not have been advanced without it.
2. That once that report had been received with an increased Schedule of Loss, the Application was only regularising the position as the claim was now advanced.
3. That even if the Application were made at the earliest point it could have been made (on receipt of the Addendum report), then the result would have been the same – the trial date would have been lost.

The Court of Appeal found that the DDJ did not take these factors into account.  If he had properly weighed these factors, then he could not possibly have come to the conclusion that he did. 

Accordingly, the appeal was allowed.

Conclusion

 

Of course, each case falls on its own facts. 

In this case, the Claimant was not held responsible for the delays in obtaining the addendum report, despite the slow pace at which the claim progressed.  In such circumstances, though the loss of trial date and further delay were found to be ‘regrettable’, a claimant ought to be able to pursue what he/ she considers to be the full extent of loss, not artificially limited to a lower sum.

There will, though, be cases where responsibility for delay (and non-compliance with court orders) will lie at a claimant’s door.  The result in those circumstances may be different.