In a week dominated, for the team at 1CL at least, by excitement over the sudden appearance of snow (in Winter! Fancy!), it’s been nice to see a brace of High Court judges showing their caring side. The wonderfully named Peter MacDonald Eggers QC showed a bit of empathy for parties trying to extract disclosure from non-parties, and His Honour Judge Bird displayed a commendably realistic approach to claims for future care, with a particularly instructive approach to those Claimants who accept less care than they need because it’s all that’s available.

Disclosure, control and third parties: Various Airfinance Leasing Companies v Saudi Arabian Airlines Corporation [2021] EWHC 2904

Earlier this month the High Court handed down judgment in Various Airfinance Leasing Companies v Saudi Arabian Airlnies Corporation [2021] EWHC 2904, a case which neatly sets out the important differences between “control” of documents; “possession” of documents, and the court’s powers to make orders in respect of documents which are not in a party’s control.

The claimants sought an order for disclosure of data from the mobile phones of its non-executive chairman and a former employee.

The duty to disclose documents “is limited to documents which are or have been in (the party’s) control” (CPR 31.8). There is such “control” where the document is or was in that party’s physical possession; when the party has or has had a right to possession of the document; or when the party has or has had a right to inspect it or take copies.

Where a party has “control” of a document, the court may order disclosure, meaning stating whether the document exists or has existed. But this does not necessarily mean the party will be ordered to produce the document. If it no longer exists or is no longer in that party’s control, for example.

In this case, the question whether the telephone data was in the defendants’ control was a question of Saudi Arabian law. The answer, according to Saudi law, was “no”. This might well have been different had this been a question of English law: the non-executive chairman and former employee might owe fiduciary obligations to assist the defendants with disclosure.

The judge held that the court’s jurisdiction to order a party to use “best endeavours” to obtain documents from third parties depended on whether these documents were within the disclosing party’s “control”. If they were, then such an order might well be made. However, if the documents were not within that party’s “control”, there was no jurisdiction to make an order.

The court noted that there is a separate power to order disclosure from third parties under CPR 31.17 – although this would not assist unless the court had jurisdiction over those parties.

Where the relevant threshold criteria are met, orders for specific disclosure (or pre-action, or non-party disclosure) require the court to exercise a discretion. On the facts of the case, ordering disclosure would require sifting through the phone data and removing non-relevant personal and confidential data. Who would review this and carry out the sifting exercise? The judge was not convinced that the cost and practical problems associated with disclosure would justify the disclosure.

This case sets out a very useful reckoner of the structured way applications for disclosure should be approached.

About the Author

Andrew Spencer was called to the Bar in 2004, and is listed in the Legal 500 as a Band 1 practitioner in travel law. He acted for the Claimant in the seminal case of Japp v Virgin Holidays Limited [2013] 11 WLUK 131, in which the Court of Appeal considered the time at which applicable local standards should be determined for the purposes of liability under Regulation 15(2) of the Package Travel Regulations; but he is equally comfortable acting for Claimants and Defendants in all travel related claims.

Martin v Salford Royal NHS Foundation Trust: Future Care Claims

In Martin v Salford Royal NHS Foundation Trust [2021] EWHC (3058) QB, His Honour Judge Bird (sitting as a High Court Judge) was asked to decide a number of issues relevant to quantum following a liability trial which took place in June 2018: see [2018] EWHC 1824 (QB). HHJ Bird’s analysis of the future care award is of particular interest and the focus of this article is on that aspect of the judgment specifically.

Background

In May 2010, the Claimant, a psychiatric inpatient at the time, suffered a sub-trochanteric fracture of her right proximal femur whilst in the shower. The Claimant subsequently attended the Defendant Trust (“Defendant”) for treatment. Following the trial in 2018, it was established that the treatment received was negligent. As a result of that negligence, the Claimant is dependent on others for all aspects of her daily life – she requires an electric wheelchair to get around and relies on carers; she requires hoisting to move from her chair; and she has restricted movement in all limbs: [6].

The Claimant had an extensive psychiatric history which began before the Defendant’s negligence. From 2002, she was regularly admitted to hospital for mental health assessments under s.2 of the Mental Health Act 1983 (the Act”) and various treatment orders were made thereafter. The injuries suffered by the Claimant were suffered during a period when the Claimant had been subject to a hospital order under s.37 of the Act. The Claimant was discharged in January 2013 but remained subject to s.41 conditions: see [8] for details. Since the trial of the action, the Claimant was no longer subject to these conditions. However, at the time of the trial on quantum, the Claimant was in receipt of “after-care services” funded under the statutory duty set out at s.117 of the Act. This included a care package providing mental health support and physical care.

Issues

The parties were able to agree damages for pain, suffering and loss of amenity, past losses, the life multiplier and a number of future losses. One of the outstanding issues concerned a claim for a future care award. The issues in dispute were the extent of the Claimant’s care requirements and, more generally, the recoverability of an award for care where care was already being provided under non-means tested state funding.

Judgment

It was not disputed that the Claimant required support and care for the rest of her life and her needs fell into two broad categories:

(1) those resulting from her mental health needs, which did not arise from the Defendant’s negligence, and;

(2) those resulting from her physical injuries, which did arise from the Defendant’s negligence.

The Claimant’s s.117 care and support package addressed both categories of needs and she would have a continued right to access that care irrespective of any award of damages. As HHJ Bird was concerned only with losses that had arisen as a result of the Defendant’s negligence, he approached damages by reference to the second category only.

It was agreed that if the Claimant were to continue to rely on s.117 funding to meet her physical care needs, she would not be entitled to recover the cost of that care from the defendant, as this would amount to overcompensation: Crofton v NHS Litigation Authority [2007] EWCA Civ 71 and Tinsley v Manchester City Council & Ors [2017] EWCA Civ 1704. In Tinsley at [26] Longmore LJ held as follows: “It is, of course, the case that courts will seek to avoid double recovery by a claimant at the time they assess damages against a negligent tortfeasor. If therefore it is clear at trial that a claimant will seek to rely on a local authority’s provision of after-care services, he will not be able to recover the cost of providing such after-care services from the tortfeasor.”

The Defendant submitted that the Claimant would continue to receive s.117 funded care to cover her physical needs because (a) she was satisfied with her care; and (b) it would not be appropriate to separate out physical care and make private provision for it. The argument on (b) was premised on the point that the Claimant’s s.41 conditions required her to maintain the totality of the s.117 care package. It was submitted that the Claimant would (necessarily) continue to rely on s.117 funding so that the cost of future care should not be recoverable. The point was dealt with briefly, as the Claimant was no longer subject to the s.41 conditions at the date of trial. Further, the expert evidence was that the s.41 conditions allowed for flexibility and that the Ministry of Justice would have no interest in the identity of the care provider. Accordingly, HHJ Bird held that, even if the s.41 conditions had still been in play, he would have found that such conditions were not a bar to a new (possibly split) care package: [42].

HHJ Bird also found that the physical care regime provided pursuant to the s.117 package was not adequate: see [47]-[50]. In particular, there was an absence of real flexibility in the timing of care visits and an absence of overnight in-person support. The fact the Claimant was happy with the care provided did not mean that the court should find that she would continue to receive it: [54]. In any event, the Claimant’s evidence was that she thought the care was inadequate and that she only expressed satisfaction with the care because that was all that was available to her: [48].

Conclusion

It was concluded that, in principle, an award for future care should be made. HHJ Bird was not satisfied that the Claimant would accept the s.117 physical care provision as sufficient to meet her needs: [55]. Further, it was held that whilst it could not be discounted entirely, any possibility that the Claimant might continue to take advantage of s.117 provision for her physical care was not sufficient for the court to make any adjustment to the award: [56]. The decision is a helpful reminder of the approach the Courts will take when assessing the recoverability of such awards in scenarios where a claimant is already in receipt of state-funded physical care.

About the Author

Henk Soede was called to the Bar in 2019. Since April 2020, he has been instructed by solicitors for both Claimants and Defendants in cross border disputes, package travel and other related claims. He is eager to build on his experience in these areas​, but accepts briefs in all chambers’ areas of work.

…And Finally…

We were concerned to read that as a result of Covid-19 Cyprus is sitting on six million kilos of unsold halloumi, which the Cypriot government is now trying to offload via its foreign embassies. At first we wondered how the pandemic could possibly be to blame for this cheese mountain, but apparently demand both from exporters and domestic tourism has collapsed over the last year and a half. This has caused the team to muse on what other lakes and mountains might have formed as a result of lack of tourism – is there a Fondu Sea in the ski resorts of Switzerland? A Gouda Glut in Amsterdam? A Camembert Alp in France? We should be told. And if tourists have been staying at home and not eating halloumi, what have they been eating instead? We’re getting our Christmas stilton and cheddar order in quick, for fear of shortages.