Procedural cases: an update

Settlement approval where capacity uncertain Coles v Perfect¹⁵ concerned approval of a settlement where lack of capacity had not been established. On 11th May 2008, when she was 14 years of age, the claimant suffered a head injury. The medical experts instructed on her behalf were undecided as to whether she had the capacity to litigate or to manage her property and affairs. It would have been an expensive exercise to have this issue determined by the court and such a determination would in any event have served no useful purpose since the damages could be quantified without such a determination and the claimant could be protected by placing her damages in a personal injury trust.

Notwithstanding this the claimant’s advisers were anxious to ensure that the settlement could not be impeached in the future as had happened in Dunhill v Burgin (No 2)¹⁶ where a settlement that had not been approved by the court was subsequently set aside because the claimant was shown to have been a protected party at the time he entered into the settlement (a discussion of this case appears in the March 2013 issue of our newsletter). Accordingly the claimant issued a Part 8 Claim seeking approval of the settlement. The defendant argued that unless the court tried the issue of whether the claimant had capacity and concluded that she had not, it had no jurisdiction to approve the settlement. The claimant submitted that the court had inherent jurisdiction to approve the settlement because, first, the court had inherent jurisdiction to do acts which it needs must have power to do to maintain its character as a court of justice and, secondly, it was an appropriate exercise of that power because it achieved finality in the litigation and protected both parties. Mr Justice Teare agreed with the submissions of the claimant and approved the settlement.

Having a claimant with borderline capacity or where capacity is in dispute is a common occurrence in personal injury litigation. Adopting this procedure, rather than having a lengthy and costly dispute about capacity is attractive. It is quick, relatively inexpensive and enables the parties to achieve finality if the settlement is approved.

Sanction for ignoring court’s timetable Dass v Dass¹⁷ was a decision of Haddon-Cave J on appeal from a decision of Master McCloud debarring a defendant from relying on expert medical evidence at the quantum stage of personal injury proceedings. A direction had been made for the service of any further medical reports to be filed and served by a certain date. The defendant sought to file and serve their medical evidence 2 years and 5 months late. The court held that this was properly construed, a relief from sanctions application. The defendant had failed to disclose its medical evidence in accordance with a court order and so CPR 35.13 triggers an automatic sanction that the expert report in question cannot be relied upon unless the court gives permission. The Judge went on to hold however that as this was an appeal the test the court was applying was whether the decision of Master McCloud was within or without the generous ambit of discretion allowed for a case management decision.

The Master had found that the defendant’s failure to comply with the timetable for disclosure was deliberate and done for tactical reasons (to enable them to carry out surveillance on the claimant). The Judge held that in such circumstances the Master was entitled to take a dim view of the conduct of the defendant and went on to say this:

“The court had made a court order; court orders are to be obeyed. If parties are unable to comply with court orders because of new developments, or for whatever reason, they must come back to the court and seek an extension of time or a fresh order. They cannot simply blithely ignore court orders as if they are a thing writ in water.”

Although this was not a case in which the new relief from sanctions test was being applied, it is another instance of the courts being prepared to be much tougher on parties who have failed to comply with orders.

Extending time for further application for damages in provisional damages case Ministry of Defence v Blythe¹⁸ arose from an order made in February 1990 under which the claimant received an immediate award of damages for pleural plaques (which was an actionable injury at the time). It was a provisional award, and provided the claimant with leave to apply for further damages within 20 years of the order if he developed one or more specified disease and liberty to apply for such time to be extended.

In August 2012 (some two years after the twenty year limit in the order) the claimant applied for a retrospective extension of time in which he could exercise the right to apply for further damages.

The defendant argued that the terms of the order simply embodied the contract reached between the party that if no application was made within 20 years the defendant was free from further liability. On that basis the defendant argued that there was no power to vary or set aside the consent order. The court was not persuaded by this argument, and found that the fact that there was liberty for the claimant to apply to extend the period in which he could apply for further damages (an application the defendant accepted they would not have opposed) meant there was never an intention to have the 20 year finality contended for by the defendant.