Procedure

Procedure


CategoryArticles Author Sadie Crapper, Angela Rainey Date

This article was taken from the Personal Injury Newsletter – April 2015.

Section 57 of the Criminal Justice and Courts Act 2015 comes into force on 13 April 2015.

Section 57, which introduces the presumption of dismissal in personal injury claims where the claimant has been found to be fundamentally dishonest in relation to a primary or related claim, comes into force on 13 April 20151. The explanatory notes to the Bill for this Act confirm that this provision is designed to extend the power identified in Summers v Fairclough Homes Ltd2 beyond the very exceptional circumstances required there under for an abusive claim to be struck out at the end of trial. The reference to a ‘related claim’ makes it clear that the Shah v Ul-Haq3 style claimant, who dishonestly supports the fraudulent claim of another, will also stand to lose their own (honest) claim.

The provision is not straightforward as the power only exists on an application by the defendant, and those caught by its operation may still be able to preserve their claim if they persuade the court that they will suffer a substantial injustice if the claim is dismissed: thus the grievously injured claimant with significant care needs who would be left relying on limited local authority care provision (and draining the public purse, rather than the defendant insurer’s coffers) might avoid the otherwise draconian ramifications of their dishonesty.

Further, subsections 57(4) and (5) require the court to undertake a somewhat artificial and potentially lengthy exercise in assessing the damages which figure is then deducted from the costs which the court would otherwise have ordered the claimant to pay. This novel elision of damages with recoverable costs is presumably intended to tie the operation of s.57 into the QOCS regime but sits uneasily with CPR, rule 44.16 which permits the enforcement of any costs orders to their full extent, with the permission of the court, where the claim in which those orders are made is found on the balance of probabilities to be fundamentally dishonest. One anticipates that the powers that be hope that this will produce a positive result for the defendant in the majority of cases e.g.

  • C claims £50,000 but his honest claim is £20,000 and his costs on the honest claim are likely to be assessed at £20,000. D has spent £35,000 on its costs, £20,000 of which were caused by the claimant’s fundamentally dishonesty
  • In the current regime, absent a strike out for abuse of process and relevant offers, C would recover and D be liable to pay £20,000 damages + £20,000 costs = £40,000. D would recover £20,000 for its costs associated with C’s dishonesty but would still have a total net liability of £20,000.
  • If section 57 applies, D will pay nothing to C and will recover his costs (£35,000) minus the £20,000 damages C would otherwise have received so will receive £15,000.

If only all cases were as straightforward as this worked example and one suspects that the operation of these subsections may become fiendishly complicated if there are liability or quantum Part 36 offers at play.

No doubt section 57 will take some time to bed in and we will all be watching with bated breath to see the first cases under this section emerge in the fullness of time.

Court of Appeal gives welcome guidance on anonymity in approval proceedings: In JX MX (By her Mother & Litigation Friend AX MX) (Appellant) v Dartford & Gravesham NHS Trust (Respondent) (2) PIBA (3) Press Association (Interveners)4 a six-year-old girl suffered very severe injuries as a result of clinical negligence during her birth and would be a protected party and beneficiary throughout her life. Damages were agreed in the form of a ‘very significant’ lump sum settlement plus periodical payments. The Claimant sought the indefinite protection of her identity but this was refused at first instance.

Moore-Bick LJ, giving the lead judgment, considered in detail the matrimonial case of Scott v Scott,5 which elucidated the principle of open justice and its ‘paramount importance’, along with a number of more recent cases such as: Independent News and Media Ltd v A12 and JIH v News Group Newspapers Ltd.6 CPR, r.39.2, domestic statute and the ECHR (Articles 14, 6 and 8) were also considered.

In upholding the appeal, the Court of Appeal recognised that approval hearings were not outside the application of the principle of open justice and that the balancing test was, and remained, one of ‘necessity’. However, when dealing with an approval application, a court should recognise that it is dealing with essentially private (and often highly sensitive) information; therefore, an anonymity order should normally be made in favour of the claimant, without any need for a formal application (thus making it incumbent on any approving court to consider this step), unless it was judged unnecessary to do so.

The court gave detailed guidance at paragraph 35 of the judgment setting out clear principles to be applied:

  1.  the hearing and party names will be publicly listed unless an anonymity order has already been sought;
  2. the press have a right to attend hearings held in public;
  3. the press will be free to report the hearing, subject only the terms of any anonymity order made;
  4. the judge should invite submissions from the parties and the press before making an anonymity order;
  5. unless the judge is satisfied that it is not necessary to do so, he will make an anonymity order for the protection of a claimant and their family;
  6. reasons should be given where an anonymity order is considered unnecessary;
  7. a brief judgment on the application should be given and made available to the press

This article was written by Sadie Crapper and Angela Rainey.

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1 Criminal Justice and Courts Act 2015 (Commencement No. 1, Saving and Transitional Provisions) Order 2015
2 [2012] 1 WLR 2004
3 [2009] EWCA Civ 542; [2010] 1 WLR 616
4 [2015] EWCA Civ 96
5 [1913] A.C. 417
6 [2011] EWCA Civ 42


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