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This was the Appellant’s second appeal against an order that denied him permission to increase the value of his claim for damages for personal injury. The judgment also provides clarity as to the scope of CPR rule 16.3(7).
Ian acted for Mr Fleming, who had previously been acting in person, on a pro bono basis through Advocate. Advocate is the Bar’s national pro bono charity that provides free legal help for those who are unable to obtain legal aid and cannot afford to pay.
The issue at the heart of this case was whether the judge has properly exercised his discretion to refuse the application. Ian argued that the judge had failed properly to take into account material factors, namely, that the Claimant had already been granted permission to serve a second expert report from a consultant orthopaedic surgeon and an amended Schedule of Loss, and the consequences that would flow from the service of those documents.
Upon issue of the claim, the statement of value had been limited to £10,000. However, the Claimant’s application sought to increase the value of the claim closer to £500,000.
Andrews LJ gave the leading judgment of the Court. She observed as a result of the medical evidence “a straightforward whiplash injury had been transformed into a claim for permanent damage, with many attendant complexities.”
She went on to observe that “The nearest one gets to an acknowledgment by the DDJ of the seismic change brought about by [the] second report is the laconic remark that “there is an amendment to the prognosis” coupled with statements elsewhere in the judgment that the claim being formulated was a half a million pound claim and the recognition of how, in practical terms, that claim would have to be managed on the multi-track going forward.”
Andrews LJ summarised that:
“the crucial question is whether, when he made the decision to refuse the application, the DDJ properly took stock of the following facts: (a) that [the] addendum report had brought about a seismic change in the nature of this claim for personal injury, which could not have been advanced on the current basis without it; (b) in reality, once that evidence and the amended Schedule of Loss were admitted and permitted, as they already had been, the application to uplift the value was simply a means of regularising the way in which the claim was now being advanced; and (c) even if the application for permission to rely on [the] addendum report had been accompanied by an application to amend the pleadings and increase the value of the claim, the trial date would still have been lost if the applications succeeded.”
It was concluded that there was “nothing in the DDJ’s judgment to indicate that he took those crucial factors into account and weighed them in the balance.” Further, it was held that, “If he had properly taken those factors into account and weighed them in the balance with the prejudice to the Claimant of refusing the application, and the prejudice to the Defendant of allowing it, he could not have reached the conclusion that he did.”
The judgment of Andrews LJ has also provided welcome clarity on the scope of CPR rule 16.3(7), she observed that:
“That rule provides that the statement of value in the claim form does not limit the power of the court to give judgment for the amount which it finds the claimant is entitled to. It was argued in the courts below that the trial judge therefore had the power to award the Claimant damages in excess of £10,000 on the basis of the already admitted medical evidence, irrespective of whether the application to amend the value succeeded. But as Judge Lethem rightly held, that rule cannot be used as a bypass to circumnavigate the provisions of Rule 16.3 and 16.4.
Rule 16.3(7) simply means that the court is not prevented from giving judgment for a larger sum than specified in the claim form where that is justified by the evidence; it does not relieve the claimant of the obligation to plead all heads of loss claimed. For example, the trial judge might award more than £10,000 for pain, suffering or loss of amenity in a case where the evidence justified such an award, even if the claim had been capped at £10,000. The Claimant undoubtedly required the court’s permission to increase the value of his claim, by making the necessary amendments to his claim form and Particulars of Claim, though as Mr Denham submitted, that was the final step necessary to regularise what had already been permitted.”
This clarification confirms that, whilst rule 16.3(7) does not constrain a Court to award no more than the statement of value, it remains incumbent on a Claimant to apply to increase the statement of value where is apparent the existing valuation is insufficient.
Ian Denham is a personal injury practitioner with a particular expertise in matters involving serious and catastrophic injuries, wrongful deaths and accidents abroad. He has a particular interest in cases with an international element, including claims raising conflicts of law and jurisdictional issues.
To find out more about Ian, contact Paul Barton on +44 (0)207 427 4907.
News 9 Jan, 2024
Call: 2003
