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Oriel Chambers Journal

What is domestic abuse ? Covid pandemic update

Sunday, October 25, 2020

What is Domestic Abuse

Melissa Vaughan is a member of Oriel Chambers, Family Team providing help and support

Since the Covid-19 pandemic there has been a surge of cases with many victims feeling that they are trapped in their home and not in a position to escape their abuser.

The Office for National Statistics, in 2019, published the following statistics:

  • Almost one in three women will experience domestic abuse in their lifetime
  • Two women a week are killed by a current or former partner in England and Wales alone
  • In the year ending March 2019, an estimated 1.6 million women and 786,000 men experienced domestic abuse.

Here, Melissa provides advice on what steps you can take if you are facing an abusive partner and what legal options are available to you.

If you would like any further assistance in any of the topics arising from this article please do not hesitate to contact our clerks at

Melissa Vaughan examines what support networks and legal options are available for those who are in an abusive relationship. Domestic abuse can destroy families and lives and it is important that everyone knows who to turn to for legal assistance. Here, at Oriel Chambers we have many barristers who accept public access work – they are all here to help.

What is domestic abuse?

Domestic abuse is defined as being any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse. This can encompass the following types of abuse:

  • Emotional
  • Physical
  • Psychological
  • Financial
  • Sexual

What are your options?
For those experiencing abuse, it is so important to be aware of your options to secure safety and protection. At Oriel Chambers, we understand that taking the first step towards dealing with domestic abuse and protecting yourself can be incredibly daunting but it is important that you take steps to protect yourself and family. If you are in imminent danger or at risk of harm, it is imperative that you contact the police to ensure your immediate safety.

Our public access barristers can also provide you with advice regarding your options, which include urgent applications to Court for a non- molestation order and/or an occupation order. We can also put you in touch with local trusted solicitors if we can not represent you on a direct access basis.

What is a non molestation order?
A non molestation order can prohibit the perpetrator from behaving in certain ways towards you and contacting you.

What is an occupation order?
An occupation order can regulate the occupation of the family home and exclude the perpetrator from occupying or entering the property.

Both of these orders can be applied for with notice to the perpetrator, or in the most serious of cases, without notice to them.

Legal Assistance
Often, the biggest question on someone’s mind is how will they afford legal representation? At Oriel Chambers, we have public access barristers who offer reasonable and competitive rates. Contact for further information. Often instructing a public access barrister can be cheaper than having solicitors on board. Not everyone will be suitable but our barristers will make an assessment and will advise accordingly.

Legal Aid
Legal aid may be available to you, which will help you pay for legal advice and representation in court. In order to qualify for legal aid you will have to demonstrate to the legal aid agency that you cannot afford to pay for the legal representation yourself and your case is so serious that there are merits in making a court application.

Proving to the legal aid agency that you cannot afford to pay for legal representation yourself does not just concern your income. They will also look at any capital that you may have, including any equity held in your home if you own a property. This does often result in people not being eligible for legal aid.

The Law Society has called on the government to provide more help and support for victims for domestic abuse. The need has never been higher.

If you are eligible for legal aid, you may not be able to instruct our barristers directly. If this is the case, our clerks at Oriel Chambers will put you in touch with a reputable solicitor who will assist.

If you are directly impacted by legal aid barriers or other financial barriers and you are not in a position to pay for legal advice, you can apply for protection without a lawyer. This will be daunting for many, however, it is possible for the Court to put protective measures in place such as screens and separate waiting rooms.

If you are experiencing domestic abuse, do not suffer in silence. You are not alone. Here at Oriel Chambers we are here to support you. Please contact Chambers to arrange a confidential conference with one of our highly experienced barristers.

Important contacts
In an emergency situation, please contact the police. If you call the police but are unable to talk and you are calling from a mobile phone dial ‘55’. This will mean that the call will still be put through to the police and they will be notified that you are in a situation which makes talking or whispering difficult.

For further help and support contact the following:

For a confidential conference with a public access barrister about any of the issues raised, please contact

identify a unknown person against whom judgment can be obtained

Friday, April 19, 2019

Some years ago, a friend of mine overheard a county court usher ask “will persons unknown please come to the reception area ?”  Like all the best anecdotes, this one peters out before the practicalities of the matter came to be considered.  For both claimants and defendants in road traffic claims, however, the practicalities of claims involving unnamed drivers are not so easy to ignore.  The innocent claimant risks being left in a position where he or she cannot proceed with a claim because it is impossible to identify a named person against whom judgment can be obtained, in order to trigger the liability of the other vehicle’s insurer to satisfy that judgment, pursuant to section 151, Road Traffic Act 1988, leaving the claimant to the tender mercies of the MIB Untraced Drivers Agreement.  Insurers, on the other hand, fear that permitting a claimant to succeed without identifying the at-fault driver will open the floodgates to a torrent of staged accidents.

These issues came into sharp focus before the Court of Appeal in Cameron v Hussain, Liverpool Victoria Inusrance Company Limited [2017] EWCA Civ 366.  The Claimant alleged injury as a result of her vehicle being struck by a Nissan Micra.  The Micra’s driver promptly absconded (presumably at a speed unknown to most Micra drivers).  The First Defendant, registered keeper of the Micra, refused to identify the driver.  When the Second Defendant denied that it was liable to satisfy any judgment entered against the First Defendant, on the grounds that there was no evidence that he had been the at-fault driver, the Claimant sought to add as an additional defendant “the person unknown driving vehicle registration number Y598 SPS who collided with vehicle registration number KG03 ZJZ on 26 May 2013”.  The majority of the Court of Appeal, in permitting the Claimant’s appeal against the dismissal of this joinder application, essentially decided that the headaches for the Claimant, if she were not permitted to sue the unnamed driver, outweighed the problems for the Second Defendant, in dealing with such a claim.  Now, the Supreme Court’s decision in the case, sub nom Cameron v Hussain and Liverpool Victoria Insurance Company Limited [2019] UKSC 6, has rejected the Court of Appeal’s reasoning as emphatically as it has reversed its decision.

The policy issues on which the Court of Appeal’s decision turned are mostly conspicuous in Lord Sumption’s judgment by their near-complete absence.  The practical difficulties for a claimant in obtaining a judgment which an insurer is bound to satisfy when the at-fault driver cannot be named were touched on only in passing.  The possibility of an alternative claim under the Untraced Drivers’ Agreement, a matter discussed at length by the Court of Appeal, also  received little consideration, except insofar as it was considered a viable alternative to circumventing the usual principles of service to permit an action against an unnamed driver which the insurer would then be liable to satisfy.  (In an early entry for judicial maintenance-of-straight-face-of-the-year award, Lord Sumption commented that “for reasons which remain unclear, in spite of her counsel’s attempt to explain them”, the Claimant had elected not to proceed under the Untraced Drivers Agreement, despite having noted in the preceding paragraph that the MIB’s liability for a claimant’s costs under the agreement was limited.)  Other matters considered important by the Court of Appeal’s majority, such as whether an insurer should bear the economic risk as to the existence or non-existence of the insured or named drivers; the possibility of the insured allowing uninsured persons to drive the vehicle; and the possibility of uninsured persons driving the vehicle without the insured’s consent, were not mentioned at all by the Supreme Court.  In distinct contrast to the majority of the Court of Appeal, the Supreme Court touched on the context of road traffic litigation in the present case only, for the most part, to disregard it.

Instead, Lord Sumption departed from what he considered first principles with regard to the requirement to name a party to proceedings:

“The general rule remains that proceedings may not be brought against unnamed parties.  This is implicit in the limited exceptions contemplated by the Rules”.


Having set out no authority in support of this general rule, His Lordship accepted that the Civil Procedure Rules “neither expressly authorise nor expressly prohibit exceptions to the general rule that actions against unnamed parties are permissible only against trespassers”.  Yet he cited numerous parts of them which he seemed to consider to reinforce the general rule, such as the absence of  the practice direction, envisaged by CPR 8.2A, to set circumstances in which a claim form could be issued without naming a defendant, and the existence of specific rules in the CPR (e.g.  CPR 55.3(4) in possession proceedings), and in statue, permitting claims against unnamed defendants, but only in specific circumstances.  He noted the requirement in PD 7A para 4.1 “that a claim form must be headed with the title of the proceedings, which ‘should state’, among other things, the ‘full name of each party’ ”, though he accepted that whether an unknown person could be sued was a matter of substantive law, which could not be affected one way or another by a practice direction.

Lord Sumption accepted that a wider general jurisdiction to permit proceedings against an unknown person was opened up by Bloomsbury Publishing Group Plc v News Group Newspapers Limited [2003] EWHC (Ch) 1205 (on which the majority of the Court of Appeal had relied).  However, whilst seeming to accept that a court did have a jurisdiction to permit an unknown person to be sued (whether or not on the basis of PD 7A para 4.1, His Lordship noted that the issue of this discretion had not been considered by the Supreme Court or the House of Lords.

Thus fortified, His Lordship identified the crucial question as being the basis of this jurisdiction, and in what (“if any”) circumstances it could be exercised on that basis against persons who could not be named:

“In approaching this question, it is necessary to distinguish between two kinds of case in which the defendant cannot be named, to which different considerations apply.  The first category comprises anonymous defendants who are identifiable but whose names are unknown.  Squatters occupying a property are, for example, identifiable by their location, although they cannot be named.  The second category comprises defendants, such as most hit and run drivers, who are not only anonymous but cannot even be identified.  The distinction is that in the first category the defendant is described in a way that makes it possible in principle to locate or communicate with him and to know without further inquiry whether he is the same as the person described in the claim form, whereas in the second category it is not.”


The Supreme Court’s approach appears to rest on an intimate connection between whether it is permissible to sue someone, and whether it is likely to be possible to serve him or her, in particular via the alternative service provisions in CPR 6.15:  Subject to any statutory provision to the contrary, Lord Sumption considered it

“an essential requirement for any form of alternative service that the mode of service should be such as can reasonably be expected to bring the proceedings to the attention of the defendant”.


Lord Sumption described it as a fundamental principle of justice that a person cannot be made subject to the jurisdiction of the court without having such notice of the proceedings as will enable him to be hear, a principle he described as “perhaps self-evident”.

His Lordship went on to note that service is, in general, the point at which a defendant is subjected to a court’s jurisdiction.  He repeated Lord Woolf’s comments in Access to Justice: Final Report to the effect that the object of the more extensive means of service permitted by the CPR was to enable the court to be “satisfied that the method used had put the recipient in a position to ascertain the contents of proceedings”.  He noted that alternative service, pursuant to CPR 6.15, was itself a method of service, and that service was defined in the CPR glossary as “steps required by rules of court to bring documents used in court proceedings to a person’s attention.”  He quoted Abela and others v Baadarani and another [2013] UKSC 44, SC to the effect that “the whole purpose of service is to inform the defendant of the contents of the claim form and the nature of the claimant’s case”.

Lord Sumption did reflect on whether the compulsory insurance regime created by the Road Traffic Act 1988 required an exception to the usual principles of service, but rejected this, on several grounds.  He described the 1988 Act’s scheme is expressly based on the principle that as a general rule there is no direct liability on the insurer, except for its liability to meet a judgment against the motorist once it has been obtained.  He considered that the MIB’s compensation provisions are intended to fill any gaps in this scheme.  He emphasised that service on an insurer permitted via CPR 6.15, even where the insurance policy permitted the insurer to accept service on the driver’s behalf, would not constitute service on the driver, who (His Lordship considered) was entitled to be heard in his own right, notwithstanding the insurer’s involvement in proceedings.  In his view,  “it is plain that alternative service on the insurer could not be expected to reach the driver of the Micra.  It would be tantamount to no service at all, and should not therefore have been ordered unless the circumstances were such that it would be appropriate to dispense with service altogether”.  The policy considerations made explicit by the majority of the Court of Appeal (along with perhaps its implicit assumption that the insurer, rather than the unnamed driver, was the party which really needed to be informed of proceedings) does nto seem to have affected Lord Sumption’s consideration of more general principles.

Lord Sumption also considered the circumstances in which service could be dispensed with pursuant to CPR 6.16.  Whilst at pains not to rule out such service on an unnamed driver, and whilst expressly stating that he did not wish to limit courts’ discretion in this regard, he suggested that these would be limited to situations in which the unnamed driver was already aware of proceedings, in particular due to a previous attempt at service, or in which he or she was trying to conceal his or her identity to evade service.  Lord Sumption found it hard to envisage any circumstances in which it could be right to dispense with service of the claim form in circumstances where there was no reason to believe that the defendant was aware that proceedings had been or were likely to be brought (such a situation not being easy to envisage when an unnamed driver is involved).

The Court of Appeal’s decision to permit alternative service of the claim on the unnamed driver, pursuant to CPR 6.15, does not appear to have been subject to appeal in the Supreme Court (although this is perhaps unsurprising as reversing the permission given to join the unnamed driver would have left no valid proceedings to be served on him or her).  Notwithstanding this, Lord Sumption complained that the Court of Appeal appeared to have had no regard to what he considered the principles underlying CPR 6.15, and service more generally, when permitting alternative service.

Lord Sumption sought to avoid complete elision of the question of whether a party should be permitted to sue an unknown person with the question of whether this person could in fact be served.  In his view, a description such as “ ‘The person unknown driving vehicle registration number Y598 SPS who collided with vehicle registration number KG03 ZJZ on 26 May 2013’, does not identify anyone.  It does not enable one to know whether any particular person is the one referred to.  The impossibility of service in such a case is due not just to the fact that the defendant cannot be found but to the fact that it is not known who the defendant is.  The problem is conceptual, and not just practical”.  Elsewhere, His Lordship commented that “the legitimacy of issuing or amending a claim form so as to sue an unnamed defendant can properly be tested by asking whether it is conceptually (not just practically) possible to serve it”.

Comparison, however, between the position of an unnamed driver, and an unnamed occupier of land, may suggest that Lord Sumption’s distinction between cases in which the potential defendant is “described in a way that makes it possible….  to know without further inquiry whether he is the same as the person described in the claim form” may be difficult to apply.  If a person is no longer in occupation of land, it is hard to see how it is any easier to know without further enquiry whether that person is the person identified in proceedings as the occupier of land at some particular (past) point in time, than it would be to ascertain whether someone had been the driver of a vehicle at some particular point in time.  Or to apply another of Lord Sumption’s considerations, is the unnamed occupier really any more “identifiable” than the unnamed driver, when in both cases he or she is being identified in relation to his or her actions at a particular point in time ?  While it might be said that an occupier of land is identified by status rather than action, this seems no more of a status than the status of someone as driver of a car at some particular point in time.

Lord Sumption’s approach might be considered as necessary fudge in order to preserve the intellectual coherence of the historic (and very useful) rules permitting service on squatters and the like (and his judgment illustrated how, following Bloomsbury, these principles have been expanded at common law to include a host of hard-to-identify groups of people).  If, however, the categories set out in it are considered to be of general application, this suggests that the other aspect of his test, whether the potential defendant is “described in a way that makes it possible in principle to locate or communicate with him” is the more important (or perhaps more workable) principle to be drawn from his judgment.  Taken together with the lengthy discussion of the principles underlying CPR 6.15 and service more generally, it is hard to escape the conclusion that the practical possibility of whether proceedings can be served on an unnamed driver – in practical, rather than conceptual, terms – is at the very least likely to be a major consideration in a judge’s exercise of his or her discretion.

The Supreme Court’s judgment rules out the approach taken by the unfortunate Ms Cameron in (it would seem) most cases involving unnamed drivers, and perhaps points to a cottage industry for defendant solicitors in seeking to strike out claims permitted in reliance on the Court of Appeal’s decision.  However, is the claimant who sufferes loss at the hands of an unnamed driver left with no recourse, but an application under the Untraced Drivers Agreement ?  The Supreme Court’s decision leaves open a number of alternatives.

Firstly, it would in theory be possible to describe in proceedings the driver of the at-fault vehicle at the time of an accident “in a way that makes it possible in principle to locate or communicate with him and to know without further inquiry whether he is the same as the person described in the claim form”, satisfying Lord Sumption’s test for an action against an unnamed driver.  It is not easy to envisage circumstances in which this could apply.  The average innocent claimant is unlikely to know anything about the unnamed driver beyond the details of the vehicle he or she was driving.  Evidence linking the unnamed driver with a particular address, or otherwise sufficing to enable alternative service pursuant to CPR 6.15, may swing the balance, but such evidence is unlikely to arise in the vast majority of cases.

Secondly, if sufficient evidence can be adduced to suggest that a particular person was driving the at-fault vehicle at the time of an accident, a claimant might take his or her chances with convincing the trial judge of this.  Again, this would depend on the evidence in a particular case.  It is particularly hard to say to what extent a judge would be likely to infer from matters such as possession of the vehicle generally around the time of an accident, or a defendant’s refusal to respond to or get involved in proceedings, that this person was driving.  It is perhaps instructive that, although the First Defendant was registered keeper of the notorious Micra in Cameron, and although he was prosecuted under section 172 of the 1988 Act for failing to identify its driver at the time of an offence, no-one seems even to have considered mounting a case on the basis that it could be inferred from his conduct that he was likely to have been the at-fault driver.

Thirdly, if the owner of a vehicle denies involvement in an accident, and alleges that some other unidentified person (who would not have been covered by any insurance applying to the vehicle) was driving, the claimant may sue the keeper for permitting use of the vehicle without insurance, pursuant to Mnk v Warbey [1935] KB 75.  However, if the owner does not respond to a claim at all, a court may not readily infer that some uninsured person was driving.  The principle, perhaps perversely, will apply only if the driver was not in fact covered by insurance, requiring the terms of any insurance covering the vehicle to be considered carefully.  And, from the point of view of securing any actual compensation for a claimant, it should also be remembered that an insurer’s duty pursuant to s 151(5) of the 1988 Act does not include satisfying any judgment entered against someone liable for permitting the use of an uninsured vehicle (Savin v Havard [2016] EWCA Civ 1202).

Finally, nothing in the Supreme Court’s decision affected a claimant’s right to sue an insurer directly, pursuant to the European Communities (Rights against Insurers) Regulations 2002 (and Lord Sumption’s judgment seemed at times to be almost consciously avoiding reference to the Regulations).  It is, however, an open question whether “the insured person” for the purposes of the 2002 Regulations must be someone capable of being identified, there being an argument in these circumstances that, without identifying the insured person specifically, it is usually impossible to know whether he or she was in fact insured under the relevant policy of insurance.  While it might seem anomalous that a claimant could sue an insurer in respect of an unnamed person under the 2002 Regulations in circumstances where, following Cameron, he or she could no longer sue that unnamed person at common law, Lord Sumption’s stress on the general requirements to name parties in proceedings, and to effect service in such a way that a party is likely to be made aware of them, may suggest that the 2002 Regulations can and should be interpreted without reference to the Supreme Court’s decision.

Chris Middleton 

Howlett the dogs out ?

Tuesday, December 12, 2017

Guidance from the Court of Appeal on pleading and practice in fundamental dishonesty cases

Chris Middleton @


Article - Howlett the dogs out ? Article – Howlett the dogs out ? (160 KB)

Since its introduction in 2013, the concept of fundamental dishonesty in personal injury claims has, in many ways, resembled an elephant. Firstly, it can often seem like something whose presence in the room is being studiously ignored, particularly when that room is a court room and defendant practitioners are trying to persuade a judge of its presence. Secondly, it is something which is not always easy to describe, but is usually fairly easy to recognise. This second feature of fundamental dishonesty is something which may lie behind the guidance provided by the Court of Appeal in, its first consideration of he FD issue, the case of Howlett and Howlett v Davies and Ageas Insurance Ltd [2017] EWCA Civ 1696.

Given the trial judge’s findings, “the facts” may not be the most apt way to describe the background in this case. Briefly, the Claimants alleged that they had been passengers in the First Defendant’s car, when she collided with a parked vehicle, and that they had suffered injury as a result. The Second Defendant, the First Defendant’s RTA insurer, begged to differ. It filed a Defence which “did not accept the index accident occurred as alleged, or at all”, and which variously put the Claimants to strict proof that an accident had occurred involving them as alleged, and denied that it had, and, in the alternative, pleaded that any accident had occurred at a low velocity, with injury as a result being unlikely and / or unforeseeable. For good measure, the Defence required the Claimants to prove their claim against the following “background” factors:

a) the damage to the vehicle with which the First Defendant allegedly collided was de minimus

b) 3 months prior to the index accident, both Claimants alleged that they were injured in another RTA, when they were travelling as passengers in the First Defendant’s vehicle, and the First Defendant was the at-fault driver, something which the Second Defendant pleaded was “beyond coincidence and, instead, is indicative of a staged/contrived accident and injury”, corroborated by the Second Claimant failing to disclose this earlier accident to the medico-legal expert in the present case

c) the First Defendant’s involvement in at least 4 road traffic accidents between 2011 and 2013 was also averred to be “beyond coincidence”

d) the First Defendant failed to “fully” co-operate with the Second Defendant’s investigations

e) the Claimants and the First Defendant gave an “unlikely / uncorroborated journey purpose” and “inconsistent / unlikely accounts as to injury”

f) it was said to have been unlikely that the vehicle the First Defendant collided with was obscured at the accident locus

g) neither any witnesses, nor the emergency services, got involved

h) the Claimants failed to undertake physiotherapy which had been recommended

i) “The Claimants instructed geographically remote solicitors either before or at the same time as they sought medical advice.”

While the Defence expressly did “not assert a positive case of fraud at this stage”, it did invite the Court to “reduce any damages payable to the Claimants to nil together with appropriate costs orders therein”, in the event that it found “any elements of fraud to this claim”.

The Second Defendant’s Defence seems to have been a classic example of the sort of thing discussed in the sadly never-published textbook, Middleton on Hinting at Fraud. Or to put it another way: if fraud was not pleaded, it seems as near as damnit. It is also the sort of “hybrid” defence heavily criticised by Davis LJ in Hussain v Amin [2012] EWCA Civ 1456, para 18:

“the pleaded defence went much further…. setting out a number of matters which, it was alleged, raised ‘significant concerns’ as to whether or not this had been a staged accident requiring further investigation. Possibly, although I have my reservations, such a pleading could be justified as an initial holding defence. But it is a case pleaded on insinuation, not allegation. If the second defendant considered that it had sufficient material to justify a plea that the claim was based on a collision which was a sham or a fraud, it behoved it properly and in ample time before trial so to plead in clear and unequivocal terms and with proper particulars.

Either way, in the view of the trial judge, the Defence suggested “in the clearest possible terms” that the Claimants had been dishonest.

The case proceeded to trial, with the Claimants applying unsuccessfully at the outset to strike out the Second Defendant’s Defence. The district judge dismissed both claims after trial. He did not mince his words (at para 109):

“The claim is dismissed because I do not believe the evidence of Mr and Mrs Howlett or any evidence that was sought to pray in aid of that case from Ms Davies can be relied on. In support of the description of the circumstances of the day in question, 27 March 2013, I have been told so many contrasting stories about the circumstances surrounding the accident, what led up to the accident, the accident itself, what happened after it, and then the evidence that was given by Mr and Mrs Howlett to the medical professionals (or rather not given to them) and then the misleading statements that have been made in documents that have been supplied to this court as the evidence-in-chief of the various witnesses, the reports that were made to their own solicitors about what happened in accidents, and in the oral evidence that has been given to me, that I am afraid that there is not one part of the stories explained to me by Mr and Mrs Howlett that gives me any confidence that the accident as described by them and Ms Davies on 27 March 2013 happened as described or at all. Consequently I find that no injury was suffered by them as a result of any accident and any claim they make in respect of damages must of course fail in addition.”

The judge also commented that it had been clear from the “get go”. He felt that the Claimants had clearly been cross-examined “to the effect” that they had been dishonest. In his view, the Second Defendant’s case has been put “fairly and squarely and so that the [Howletts] might understand and answer that case being made against them”. “Every opportunity” had, in his view, been given to the Claimants to “defend themselves”, and to make their case as they saw fit. He had, he thought, made it “perfectly plain from the get go” that he was considering findings of dishonesty. Oddly, though, the judge expressly declined to use the word “fraud” in describing the Claimant’s conduct in his judgment, holding that the had neither “right [nor] the power to use it”.

After both Claimants’ appeals to a circuit judge were dismissed, the First Claimant alone appealed to the Court of Appeal.

The central issue considered by the Court of Appeal was whether a trial judge could find “fundamental dishonesty” without fraud having been alleged in terms in the insurer’s defence. (No particular distinction seems to have been drawn in their judgment between pleading fraud, and pleading fundamental dishonesty, and I will make no such distinction in this aricle.) The Court’s judgment went on to consider the interaction of this “pleading point”, and the conduct of the defence at trial.

While acknowledging that statements of case are crucial to the identification of the issues between the parties and what falls to be decided by the Court, Newey LJ (in a judgment with which Beatson and Lewison LJJ agreed) held that “the mere fact that the opposing party has not alleged dishonesty in his pleadings will not necessarily bar a judge from finding a witness to have been lying” (para 31). This passage might raise questions about why the “mere fact” was referred to (and what other factors might justify a defendant being debarred from arguing fundamental dishonesty, apart from failing to plead it). The use of the words “not necessarily” might also imply that there are at least some circumstances in which a failure to plead fundamental dishonesty would prevent it from being raised.

The overall tenor of the Court of Appeal’s judgment, however, tends to suggest that the phrase “not necessarily” was being used in the same sense that Eric Morecambe used it, when he informed “Mr Andrew Preview” that he was playing all the right notes, but not necessarily in the right order. This is most apparent in para 32:

“I do not think an insurer need necessarily have alleged in its defence that the claim was “fundamentally dishonest” for one-way costs shifting to be displaced on that ground. Where findings properly made in the trial judge’s judgment on the substantive claim warrant the conclusion that it was “fundamentally dishonest”, an insurer can, I think, invoke CPR 44.16(1) regardless of whether there was any reference to fundamental dishonesty in its pleadings.”

This passage then shifts attention to what must be done, or what must occur, for the judge’s findings to be made “properly”, in the absence of a pleading of fundamental dishonesty.

A narrow interpretation might be that a defendant should obviously have the chance to raise fundamental dishonesty at the end of trial when the evidence justifying it has only arisen in the course of trial. Comments that “judges must regularly characterise witnesses as having been deliberately untruthful even where there has been no plea of fraud” (para 31), and that “the fact that a party has not alleged fraud in his pleading may not preclude him from suggesting to a witness in cross-examination that he is lying. That must, in fact, be a common occurrence” (para 39) would seem consistent with this approach.

The Court did not, however, limit the possibility of arguing fundamental dishonesty without a pleading to this situation (or indeed make any reference to a defendant making a late application to plead it, as it might have done in this context). And it is clear from the Second Defendant’s Defence that its concerns about the Claimants did not arise by happenstance during trial, but were readily apparent by around the time proceedings were issued, not least because (it would seem) of specific evidence it had gathered about the parties’ accident histories and the like, as well as inconsistencies in the evidence the Claimants had adduced to date.

In finding that the fundamental dishonesty argument had been permissible in this case, the first matter the Court relied on was the Defence. While it was noted to “eschew ‘a positive case of fraud at this stage’”, the Court did note references to the Court potentially finding elements of fraud, the Second Defendant’s stated refusal to accept that the accident happened (and its subsequent denial that it had), references to credibility being in issue, the putting of the Claimants to “strict proof”, and the specific “background” matters pleaded (including the facts that were stated to be “beyond mere coincidence and, instead, … indicative of a staged/contrived accident and injury”.) “In my view”, said Newey LJ (in para 33)

this pleading gave the Howletts sufficient notice of the points that Ageas intended to raise at the trial and the possibility that the judge would arrive at the conclusions he ultimately did. The Howletts cannot, in the circumstances, fairly suggest that they were ambushed.”

The Court of Appeal does not, therefore, seem to have concluded that fundamental dishonesty may be raised in any case, no matter how it was pleaded. Its decision placed considerable emphasis on the actual contents of the Defence in the present case, which seem to have left no-one in any doubt that the Claimants’ honesty was being called into question, and which removed any scope for them to argue that they had been “ambushed”. The Court, it seems, agreed with the trial judge that the suggestion of dishonesty had been made in “the clearest possible terms” in the Defence. It does not, therefore, seem safe to rely on Howlett as authority that nothing beyond a plain vanilla put-to-proof needs pleaded if a defendant wishes to raise fundamental dishonesty, though the decision leaves tremendous scope for argument (and discretion to an individual judge) about how much needs to be pleaded to avoided a claimant legitimately complaining that he or she has been “ambushed”.

In argument, the Court was referred to Kearsley v Klarfeld [2005] EWCA Civ 1510, in which it had considered the question of whether a fraud pleading was required in an LVI case. In judgment, the following was cited from para 48 of Kearsley (per Brooke LJ):

“So long as a defendant follows the rules set out in CPR 16.5 (as this defendant did in [paragraphs 3 and 4 of the defence]) there is no need for a substantive plea of fraud or fabrication.”

Newey LJ commented that it was not – he “gathered” – unusual for insurers to file defences comparable to the Defence filed by the Second Defendant in LVI cases. However, as acknowledged by the Court, the Defence filed in fact went some way beyond the usual sort of put-to-proof pleading that Kearsley envisages in an LVI case.

Where reliance on the decision in Kearsley may be easier to understand becomes apparent in para 31:

“it seems to me that where an insurer in a case such as the present one, following the guidance given in Kearsley v Klarfeld [in para 45], has denied a claim without putting forward a substantive case of fraud but setting out “the facts from which they would be inviting the judge to draw the inference that the plaintiff had not in fact suffered the injuries he asserted”, it must be open to the trial judge, assuming that the relevant points have been adequately explored during the oral evidence, to state in his judgment not just that the claimant has not proved his case but that, having regard to matters pleaded in the defence, he has concluded (say) that the alleged accident did not happen or that the claimant was not present. The key question in such a case would be whether the claimant had been given adequate warning of, and a proper opportunity to deal with, the possibility of such a conclusion and the matters leading the judge to it rather than whether the insurer had positively alleged fraud in its defence.

The common thread between Kearsley and Howlett therefore seems to be the absence of any requirement for a specific pleading of fraud in personal injury cases where the claimant’s dishonesty arises as an issue, so long as the defendant’s pleaded case gives sufficient warning of the case that it will (or perhaps may) ultimately run.

When the terms of the Defence pleaded by the Second Defendant are considered, the Court of Appeal – with some support from the guidance in Kearsley about pleading the facts from which the judge would be invited to infer that no injury had occurred – appears to have to endorsed exactly the sort of “hybrid” defence which was criticised so strongly in Hussain v Amin. If anything, the Defence in the present case seems to have gone somewhat beyond what was pleaded in Hussain, containing not just a list of “concerns” in the “background” section, but also express comments that some of these these “concerns” were indicative of a staged accident, or a bogus claim for injury, and specific denials which seem to go beyond the put-to-proof elements elsewhere in the Defence, and indeed logically are hard to interpret except as at least suggestions of fraud.

It is hard to avoid the conclusion that, while the Court of Appeal cited the relevant passages from Hussain v Amin (without comment), its decision substantially, if not completely, undermines what was said in that case about “hybrid” defences. This impression is reinforced by the extensive references to the Jackson reforms, and the circumstances in which QOCS and fundamental dishonesty arose, at the very beginning of Newey LJ’s judgment. It is also reinforced by the Court’s explicit endorsements of the Second Defendant’s arguments that a hesitant approach to pleading fraud is justified by insurers lacking direct knowledge of the relevant events, and by the professional obligations of legal representatives alleging fraud. In contrast to the rather more purist approach taken pre-Jackson in Hussain, the decision in Howlett may reflect the rather more “economical” approach which is expected in all litigation, post-Jackson.

As is apparent from para 31 as cited above, the other element relied upon by the Court of Appeal in finding that the finding of fundamental dishonesty had been legitimately made was the conduct of the Second Defendant’s claim at trial. Having discussed some venerable case law in relation to the general obligation on a defendant to put its case in crosss-examination, Newey LJ then considered the question of “whether the honesty of the Howletts’ evidence and case was adequately explored during the oral evidence” (para 38). Despite the absence of any transcript of the cross-examination, the Court was satisfied that it had been, on the basis of the judge’s comments on the matter. The Court also seems (in para 39) to have accepted the Second Defendant’s submission that it was not necessary to use any particular verbal formulation in cross-examination (as, it seems, its counsel was not), so long as clear in context challenging Cs’ veracity

“ where a witness’ honesty is to be challenged, it will always be best if that is explicitly put to the witness…. But what ultimately matters is that the witness has had fair notice of a challenge to his or her honesty and an opportunity to deal with it. It may be that in a particular context a cross-examination which does not use the words “dishonest” or “lying” will give a witness fair warning. That will be a matter for the trial judge to decide”.

Bearing in mind how trials involving issues of dishonesty often pan out, with lengthy and detailed consideration of the veracity and consistency of reams of written and oral evidence being the rule rather than the exception, it is perhaps unsurprising that the Court of Appeal seems to have taken an even more informal (or lenient) approach to how cross-examination should be undertaken than it took to how defences should be pleaded.

In any case, the issue received less consideration in the Court’s judgment, which might itself reflect greater importance being attached to the foundations for the case being set out in a defence, than to what questions are asked at trial, in making sure that any “ambush” of claimants with issues of dishonesty is avoided. So long as the issues are apparent from the defence, in good time before trial, it will probably be difficult to argue that dishonesty has not been put if questions are asked on the basis of the issues raised in the defence, even if not every question is framed in terms of the claimant telling lies.

The Court touched only briefly on the appropriate test for a judge considering if fundamental dishonesty has been established. Reference was made to the now well-known, and widely-accepted, test in para 44 and 45 of Gosling v Screwfix Limited and Teilo (unreported, 29th April 2014, Cambridge County Court, HHJ Moloney QC:

“It appears to me that this phrase in the rules has to be interpreted purposively and contextually in the light of the context. This is, of course, the determination of whether the claimant is ‘deserving’, as Jackson LJ put it, of the protection (from the costs liability that would otherwise fall on him) extended, for reasons of social policy, by the QOCS rules. It appears to me that when one looks at the matter in that way, one sees that what the rules are doing is distinguishing between two levels of dishonesty: dishonesty in relation to the claim which is not fundamental so as to expose such a claimant to costs liability, and dishonesty which is fundamental, so as to give rise to costs liability.

The corollary term to ‘fundamental’ would be a word with some such meaning as ‘incidental’ or ‘collateral’. Thus, a claimant should not be exposed to costs liability merely because he is shown to have been dishonest as to some collateral matter or perhaps as to some minor, self-contained head of damage. If, on the other hand, the dishonesty went to the root of either the whole of his claim or a substantial part of his claim, then it appears to me that it would be a fundamentally dishonest claim: a claim which depended as to a substantial or important part of itself upon dishonesty.”

Newey LJ’s only comment was to agree with the view of the First Claimant’s counsel that this definition was “common sense” (para 17).

No consideration was given to what conduct may come within the scope of fundamental dishonesty, for example, whether exaggeration is sufficient or fabrication is required, or whether the dishonesty must relate to the substance of a party’s evidence, or may relate to broader aspects of the conduct of a case. Nor did the Court consider any issues about the procedure to be adopted in determining issues of fundamental dishonesty. These issues, which have been the subject of numerous decisions at first instance and on appeal to circuit judges, must await the attention of the senior courts on another occasion.

At first blush, the decision in Howlett seems a considerable fillip to defendants raising fundamental dishonesty issues in personal injury claims, as it seems to remove any obligation to plead fraud (with all the procedural and costs consequences of doing so) before raising fundamental dishonesty. However, it is clear from the facts of the case that the trial judge’s approach was upheld on the basis of a defence which went a long way beyond a simple putting-to-proof, and which, at the very least, provided a clear signpost towards the findings of dishonesty that the Court was going to be invited to make, and the specific facts which the Second Defendant was going to use as the basis for its invitation. The Court’s decision also leaves very open the question of what exactly must be pleaded to avoid “ambushing” a claimant, and indeed the option remains open to a judge to interpret this quite strictly if he or she is so inclined.

If anything, the decision in Howlett reinforces the importance for defendants of pleading clear, detailed defences, setting out unequivocally everything within their knowledge which they will be relying upon to support a fundamental dishonesty argument (quite apart from the advantages of such defences in any case, in scaring away the more nervous claimants, and in making clear the defendant’s case when interlocutory orders and the like are being considered). Proper consideration should still be given to pleading fraud (and / or fundamental dishonesty) where the evidence available to the defendant justifies it, or at the very least the sort of “hybrid” defence which Howlett appears to have brought back into favour. Perhaps Middleton on Hinting at Fraud is due a trip to the publisher’s after all.


Wednesday, August 23, 2017


Chris Middleton


Of the many things which mystify me when dealing with whiplash cases in county courts, one of the most mystifying is how often claimants with ongoing symptoms (often years post-accident) declare themselves “content” to rely on the usual 3 / 6 / 9 / 12 month prognosis contained in their medical reports. The explicit (if not quite coherent) premise of the current “reform” proposals for whiplash cases contained in the Civil Liability Bill is that these people (and just about anyone else with soft tissue injuries following a road accident) are being overcompensated.

However, and much as this may come as a surprise to lawyers in the field (and everyone else), medical studies suggest that between 30 and 50 per cent of patients who suffer whiplash injuries can go on to suffer chronic symptoms of the same type . Does this suggest that a sizeable number of claimants in fact being undercompensated, by a failure to recognise the chronic nature of their injuries, and formulate their claims accordingly ? Against the background of the reform proposals, recent medical developments in relation to chronic pain provide a timely opportunity to consider this issue further.

Central sensitisation:”no thing” rather than “nothing”

Anyone who has dealt with personal injury claims for any length of time is likely to have experience with evidence from “pain experts”, very often instructed by a claimant to try and avoid checkmate when the defendant has wheeled out an orthopod to conclude that only the first 15 minutes (or 20, if s/he is feeling generous) of the claimant’s ongoing symptoms can be attributed to the index accident, rather than the on-the-verge-of-falling apart degenerative spine of which the 23 year old claimant was completely unaware. But in the absence of one of the more clearly understood and demonstrable neurololgical conditions, such as complex regional pain syndrome, judges and lawyers alike can approach such evidence with scepticism. Frequently, in my experience, this is because it is simply very difficult to understand what the expert’s reasoning is, and how s/he links an apparently trivial trauma to a substantial and ongoing condition.

The theory behind central sensitisation is that chronic pain arises from enhanced excitability of the neurons within the central nervous system in response to peripheral nociceptor stimulation . Or in other words, the patient’s central nervous system perceives pain, in a manner out of proportion to the severity of the initial pain-producing stimulus to the peripheral nervous system. Doctors have variously referred to this as the central nervous system’s volume control being turned up too loud, as the body’s warning system becoming hyperactive , or as the “wind-up” phenomenon .

If this premise is accepted, chronic pain could arise in the absence of any, or any significant tissue damage to any apparently relevant body part. Or to put it another way, “[c]linical experience and extensive research suggests it is futile to look for a ‘thing’ in WAD [whiplash associated disorder] which is ‘broken’ to explain chronic symptoms” . The absence of such a “thing”, however, makes it difficult to point to a distinct organic cause for central sensitisation , and harder still to devise a definitive clinical test for it (although it has been theorised that brain changes arising from central sensitisation may be apparent on MRI, PET, and magnetoencephalography scans ).

Inevitably, then, no definitive checklist of clinical signs or symptoms for the presence of central sensitisation exists . Potential diagnosis is therefore based on the following clinical criteria :

1. Pain that is disproportionate to the injury
2. A widespread distribution beyond the injury
3. The use of the Central Sensitisation Inventory questionnaire .

A survey of clinicians has suggested that the following may be characteristic of central sensitisation:

Subjective features:

• Disproportionate, non-mechanical, unpredictable pattern of pain provocation in response to multiple / non-specific aggravating / easing factors.

• Pain persisting beyond expected tissue healing / pathological recovery times.
• Pain disproportionate to the nature and extent of injury or pathology.
• Widespread, non-anatomical distribution of pain.
• History of failed interventions (medical / surgical / therapeutic).
• Strong association with maladaptive psychosocial factors (e.g. negative emotions, poor self-efficacy, maladaptive beliefs, and pain behaviours, altered family / work / social life,
medical conflict).
• Lack of responsitivity to NSAIDs and / or more responsive to anti-epileptics (e.g. Lyrica) / anti-depressants (e.g. Amitriptyline) medication.
• Reports of spontaneous (i.e. stimulus independent) pain and / or paroxysmal pain (i.e. sudden recurrences and intensification of pain).
• Pain in association with high levels of functional disability.
• More constant / unremitting pain.
• Night pain / disturbed sleep. • Pain in association with other dysesthesias (e.g. burning, coldness, crawling). • Hyperpathia or pain of high severity and irritability (i.e. easily provoked, taking a long time to settle).

Clinical features:

• Disproportionate, inconsistent, non-mechanical / non-anatomical pattern of pain provocation in response to movement / mechanical testing.
• Positive findings of hyperalgesia (i.e. increased sensitivity to pain), and / or allodynia (i.e. pain responses triggered by normally non-painful stimuli), and / or hyperpathia within the distribution of pain.
• Diffuse / non-anatomical areas of pain / tenderness on palpation.
• Positive identification of various psychosocial factors (e.g. catastrophisation, fear-avoidance behaviour, distress).

It is worth noting that has been associated not just with whiplash, but with chronic low back and neck pain generally, chronic tension headaches, migraines, rheumatoid arthritis, osteoarthritis of the knee, endometriosis, post-surgical pain, fibromyalgia, irritable bowel syndrome and chronic fatigue syndrome .

From clinic to court room: central sensitisation in legal practice

The mind of a personal injury lawyer representing claimants will, on learning of the concept of central sensitisation, inevitably turn to the eggshell skull rule. The “eggshell central nervous system” posited by the concept of central sensitisation does seem to fit well within the principle that “if it was reasonable to foresee some injury, however slight, to the claimant …. then the defendant is answerable for the full extent of the injury which the claimant may sustain owing to some peculiar susceptibility” , even if the consequences of a relatively trivial initial injury seem out of all proportion, and even if the pathological means by which this has happened are not easy to understand, even for the doctors who specialise in this area.

The mind of a personal injury lawyer representing defendants is not, however, likely to see a case of potential central sensitisation in such simple terms. The absence of a clear medical explanation for what causes central sensitisation presents a defendant with one obvious rhetorical device to use against it. The sheer breadth and vagueness of the clinical signs and symptoms for the condition may provide another, particularly when so many of them seem to be the sorts of things which, in other cases, are often considered signs of false, exaggerated or otherwise “non-organic” injuries (as identified, for example, on Waddell’s checklist). A further problem, as illustrated perhaps by both the signs and symptoms checklist, and by the other conditions associated with central sensitisation, is that the people most likely to suffer from it may well be the sorts of people with long-standing histories of chronic and other medical conditions (and medical records of telephone directory-thickness), who often seem to attract the greatest scepticism when they bring cases of chronic pain, both for reasons of personal presentation, and because of the real causation issues their medical histories can create.

In these circumstances, getting the correct expert medical evidence – from someone who understands the concepts, can apply the diagnostic criteria in a thorough manner, and (perhaps most importantly) comes across as knowing what s/he is talking about – will be of crucial importance for both sides. As in so many other areas, an expert who ploughs dogmatically towards the same condition in every case is unlikely to be as convincing as one who considers the evidence and demonstrates a logical conclusion, particularly if the concept gains traction and the same experts come repeatedly to judge’s attention . Care must be taken to instruct an expert from the correct discipline, bearing in mind just how many disciplines self-styled pain experts can arise from. Much of the research cited in this article has been conducted by consultant orthopaedic surgeons with an interest in chronic pain. This does not, however, mean that every consultant orthopod is likely to be able to deal convincingly with the issues arising from central sensitisation.

It will vital for the expert – and the lawyers – to take proper account of the claimant’s medical history. In particular, it is worth remembering that, even if central sensitisation has been considered a central feature of chronic pain conditions generally (regardless of cause) , the initial cause for the pain giving rise to central sensitisation must still be identified by the expert. In doing so, it is important not to overlook the obvious. If a claimant really does appear to have some pre-existing condition which might be thought to give rise either to the pain suffered, this needs to be taken into account, regardless of whether the subsequent symptoms are magnified by central sensitisation or not (even if central sensitisation might be considered to have amplified whatever percentage or period of symptoms can be attributed to the index accident).

It is also useful to remember that cases of potential central stimulation are no more immune to exaggeration, malingering or downright fakery than any other case involving alleged chronic injury. Lawyers on both sides need to be aware of the multiple weapons in the arsenal which can be used to gather evidence in relation to this – from database checks and having a nose round a claimant’s social media, to cold-calling, surveillance and big data analysis.

A further important factor to consider when obtaining expert evidence is at what stage it should be obtained, and how the case should be managed as a consequence. Although it is well-recognised that, the longer pain persists following a whiplash injury, the more chance there is of chronic symptoms arising, the converse of this is that there is always a certain proportion of patients who will recover even from symptoms which have lasted several years. Accordingly, it is difficult to identify a clear point at which lawyers should be looking at their clients and deciding that pain is present of such chronicity that it is appropriate to begin investigating whether central sensitisation or some other explanation for that chronic pain is present. Again, this may be something best considered in context, for example by keeping informed about any treatment the claimant may be having outside the context of legal proceedings, and the opinions of treating professionals about the potential causes of chronic symptoms.

Conclusions: central sensitisation and “the death of whiplash” ?

If there is one fact worth remembering from this article, it is that 30 and 50 per cent of patients who suffer whiplash injuries can go on to suffer chronic symptoms of the same type. If it is correct that plausible medico-legal evidence may be available to establish a plausible causal link between these chronic symptoms, and the index accident, it may be worth claimant lawyers revising their business models to build in consideration of the potential for chronic injury in every case. In practice, this is likely to mean medical evidence being obtained much longer after instruction than has become the norm , and much more consideration being given to the client’s instructions about the path his or her injuries has taken, and the treatment being provided for it

It is inevitable that, in a legal system where the “overriding objective” seems increasingly to be reinterpreted as a requirement for pile ‘em high, sell ‘em cheap litigation, that cases are being pressed through faster and faster, and with less and less consideration. The whole structure of the portal system, with its interim payment incentives and evidence-lite provisions, has also encouraged a form of speedy justice where speed is perhaps given more emphasis than justice. Ironically, however, in light of its stated intentions, the Civil Liability Bill may be about to change this incentive system dramatically. If a combination of fixed tariff damages for injuries lasting less than 2 years, and a small claims limit bumped up to £5,000.00 is about to make low value whiplash litigation uneconomic for most solicitors, the possibility of scooping out at least a substantial number of cases which would otherwise have disappeared down that particular plug hole may make a new approach to low value personal injury litigation worthwhile for both solicitor and claimant.

Ref 2
R Stace and S Gwilym, “Whiplash associated disorder: a review of current concepts” Bone and Joint, vol 4, issue 1, February 2015
Ref 3

Stace and Gwilym, ibid.


Thursday, April 27, 2017

Chris Middleton

Personal injury practitioners will be aware that there has been an explosion in the use of rehabilitation (in most cases, physiotherapy) in low value personal injury claims over the past few years. From being a rare feature of low end PI, physio has become almost the default position, even for injuries where recovery is measured in weeks rather than months or years. Only a cynic of the deepest die could possibly suggest that this is anything in the least to do with inflating the value of claims (now that the damages recovered affects the costs recoverable, in CFA and fixed costs cases), or that it could be in the slightest way related to the money which can be made by rehabilitation agencies with financial relationships to solicitors or insurers. Even after setting such unworthy attitudes aside, the cost of rehabilitation is of increasing concern to insurers. This article looks at the scope for challenging such claims, in the context of the Rehabilitation Code.


The purposes of the Code

According to its introduction, the Code

“promotes the collaborative use of rehabilitation and early intervention in the compensation process. The Code’s purpose is to help the injured claimant make the best and quickest possible medical, social, vocational and psychological recovery. This means ensuring that his or her need for rehabilitation is assessed and addressed as a priority, and that the process is pursued on a collaborative basis. Although the objectives of the Code apply whatever the clinical and social needs of the claimant, the best way to achieve them will vary depending on the nature of the injury and the claimant’s circumstances”.


For those who have not already taken the hint, section 1.1 states that

“The purpose of the personal injury claims process is to restore the individual as much as possible to the position they were in before the accident. The Code provides a framework for the claimant solicitor and compensator to work together to ensure that the claimant’s health, quality of life, independence and ability to work are restored before, or simultaneously with, the process of assessing compensation”.


And for those for whom the point really needs hammered home, section 1.2 proclaims that

“Although the Code is recognised by the relevant CPR Pre Action Protocols, achieving the aims are more important than strict adherence to its terms. Therefore, it is open to the parties to agree an alternative framework to achieve the early rehabilitation of the claimant”.


It therefore seems tolerably clear that the Code is designed to promote effective rehabilitation and recovery (bearing in mind in particular that its various provisions apply to high as well as low value cases), rather than as a stick to beat your opponent with. I have been unable to find any reported case suggesting that specific sanctions arise for failing to follow the Code (even though it a failure to do so would seem a relevant consideration in certain contexts e.g. when a court decides an application for an interim payment for rehabilitation). Para 4.2 of the Pre-Action Protocol for Personal Injury Claims says that the Code is “likely to be helpful” with identifying rehabilitation needs, but nothing stronger than that. Similarly, while para 6.7 of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accident enjoins the parties to consider the Rehabilitation Code “at all stages”, it does not create any explicit sanctions for failing to follow the Code (in contrast to the position with most infractions of the Protocol).

All this suggests that the importance of the Code should not be overstated, and that it should not be relied upon (alone) as a basis for saying what a judge can and cannot award in relation to rehabilitation costs. Nonetheless, the Code does seem to set out what is expected to be standard behaviour (if not a procedural straightjacket) in the relevant type of case. Breaches may therefore carry some weight when courts come to determine awards for rehab costs. Or to put it in less legalistic language: it might be the push a wobbly judge needs to disallow what the claimant is claiming.

The Code and lower value claims
In this article, I will focus on the provisions specifically set out in the Code for what it calls “lower value” claims – i.e. those worth up to £25,000.00. These are set out in sections 4 to 6 of the Code. Section 4.2 suggests that , as well as physiotherapy, the Code will apply to “psychological intervention or other services to alleviate problems caused by the injury” – useful, when the cost of psychotherapy such as CBT or EMDR is often far in excess of the cost of physiotherapy and the like.

However, the introduction recognises that consideration must be given to the merits of the individual case, even in lower-value cases. This may make it difficult for defendants to argue that the Code’s provision for lower value cases set out maxima, as well as minima, for what rehabilitation should consist of.

The independence of the provider
At first blush, section 4.6 and 4.7 indicate that it is strictly verboten for a solicitor (or an expert, or a medico-legal agency) to use his, her or its pet provider (or even someone more loosely connected with it) for rehab:

“The person or organisation that prepares the Triage and, if appropriate, Assessment and Discharge Reports and / or undertakes treatment should, save in exceptional circumstances, be entirely independent of the person or organisation that provided any medico-legal report to the claimant”

“The Triage and the preparation of any subsequent Assessment and Discharge Report and / or the provision of any treatment may be carried out or provided by a person or organisation having a direct or indirect business connection with the solicitor or compensator only if the other party agrees. The solicitor or compensator will be expected to reveal to the other party the existence and nature of such a business connection before instructing the connected organisation”.


Stepping back, however, neither the Code, nor the Protocols, provides any sanction for breaches of these rules. In relation to the position of an agency, section 4.6 refers to CPR 45.29, presumably the bar to recovering an expert’s fees, in soft tissue injury cases, when he or she is linked to an organisation providing treatment that he or she has recommended (see CPR 45.19(2B) and CPR 45.29I(2B)). But this underlines the lack of any sanction for a solicitor referring the claimant to its pet provider. It is particularly hard to see what, if anything, the requirement to disclose any connection to the provider is required to achieve (except perhaps to rub the defendant’s nose in it). In the absence of any apparent sanction, the best a defendant is likely to do when a solicitor fails to disclose a connection to a treatment provider is to nurture the seeds of judicial suspicion, when some other dubious element has already arisen in relation to a claim for rehab treatment.


Raising the need for rehabilitation and the CNF

Pursuant to section 2.3 and 2.4 of the Code, the claimant’s solicitor is obliged to communicate the claimant’s needs to the compensator as soon as practicable, and to provide sufficient information to make a well-informed decision about the need for rehabilitation assistance. Section 3.1 follows on from this by requiring the compensator to contact the claimant solicitor as soon as practicable to seek to work collaboratively on addressing the claimant’s needs.

In the context of lower value claims, the likelihood of these proceeding via the MoJ portal procedure is recognised, at least in soft-tissue injury cases (though it is unclear why a distinction is made in relation to these, as the various Protocols do not apply solely to soft-tissue injuries). Section 4.1 addresses this as follows:

“In all cases, the claimant’s solicitor should consider, with the claimant and / or the claimant’s family, whether there is a need for early rehabilitation. The results of that discussion should be recorded in section C of the electronic Claims Notification Form, which will be transmitted through the Ministry of Justice Claims Portal to commence the claim. That form requires details of any professional treatment recommendations, treatment already received (including name of provider) and ongoing rehabilitation needs”.


Section 4.2, meanwhile requires that,

“[I[n all cases, the claimant solicitor should communicate with the compensator as soon as practical about any rehabilitation needs, preferably by electronic means. The mechanism of completion and transmission of the Claims Notification Form should facilitate this process and should take place before any significant treatment has been commenced.”


Section 4.3 of the Code suggests that

“Where a claimant has decided not to take up a form of treatment that is readily available in favour of a more expensive option, the reasonableness of that decision may be a factor that is taken into account on the assessment of damages”.


These provisions are reinforced by para 6.7 of the RTA Protocol, under which the claimant must set out details of rehabilitation in the CNF, though again without providing any sanction for failing to do so.

In the absence of any express provision that damages for rehab must be disallowed solely because of a failure to set out rehab needs in the CNF, the strongest argument a defendant is likely to be able to run is that damages for rehab costs should be reduced when the failure to notify rehab needs has prevented a defendant from arranging rehab at a lower cost than that incurred by the claimant. Indeed, if the defendant can show that it was willing to fund rehab itself, it is strongly arguable that no damages should be awarded in respect of treatment costs at all (bearing in mind that the controversial – to put it mildly – requirement in Copley v Lawn [2009] EWCA Civ 580 for a defendant, who provides a claimant with a courtesy vehicle, to pay the claimant in damages the cost to it of providing this vehicle, does not apply – expressly at least – to other cases where a defendant funds provision of something to avoid the claimant having to pay for it him or herself).

However, the tensions between the central purpose of the Code, and the use a defendant is likely to wish to make of it, are plain on the face of section 4.1. If a claimant may include details of treatment already received, this suggests that no obligation arises – in every case, at least – to notify the defendant of prospective rehab needs, in order to allow the defendant to fund them. It is difficult to reconcile this with the suggestion in section 4.2 that rehabilitation needs should be communicated before treatment begins. The wording of section 4.3 is too equivocal to give rise to any clear or automatic effect on the damages awarded when rehab needs are not flagged up in the CNF, though it could be argued that the availability of less expensive treatment will be that much harder to establish if the claimant does not tell the defendant at the outset of his or her intention to have treatment.

As this argument will only arise where the claimant has failed to notify the defendant in advance of an intention to undertake physiotherapy, the defendant may also have difficulty persuading a court to disallow rehab costs on this basis, unless it can show (by analogy with the position re courtesy vehicles in Copley) that it could have funded rehabilitation, and perhaps also that it could have funded this for less than the claimant would have paid in his or her home area for treatment. Defendants running this argument would therefore be well advised to have admissible evidence showing who could have provided this treatment, how far from the claimant’s address it could have been provided, what the cost of it would have been, and that they would have paid for the treatment themselves. This evidence must also clearly show the position during the period following the accident, not on some random day months or years into the future.

It is worth remembering that, as with credit hire cases, this is at least arguably a point in mitigation, and that the defendant bears the burden of proving that the claimant could have obtained treatment more cheaply. (This issue applies notwithstanding the requirement in section 5.9 on the reporting agency to
“ensure that all invoices are within reasonable market rates”, or section 6.1’s comment that “the compensator will not be required to pay for treatment that is unreasonable in nature, content or cost”, as the defendant will bear at least a practical burden to show what was reasonable.) These principles will apply to any case where the defendant wishes to challenge the rate at which treatment has been charged, whether or not by reference to the provisions of the Code.

It should also be remembered that section 6.2 requires a defendant to respond within 15 days of disclosure of the triage report, setting out (i) the extent to which the recommendations have been accepted and rehabilitation treatment will be funded, and (ii) justifications for any refusal to meet the cost of recommended rehabilitation and (if appropriate) alternative recommendations. While a claimant who begins treatment, without awaiting this response, is expressly reminded about the risk of not recovering the costs of treatment as a result, the 15 day time limit at least implies how long a claimant is obliged to wait before pressing ahead. A defendant who is tardy in responding to a request for rehabilitation may therefore have difficulty persuading a court that damages for the costs should be limited, even if it can show that treatment could have in fact been provided to the claimant at a lower or no cost.

The specific steps envisaged by the Code, and recovering the costs of these

According to section 4.4 of the Code,

“Unless there is a medico-legal report containing full recommendations for rehabilitation, which both parties are happy to adopt, an initial Triage Report should be obtained to establish the type of treatment needed. In most cases, the Triage Report will be the only report required”.


Section 4.8 envisages that “the assessment agency will be asked to carry out the Triage Report in a way that is appropriate to the needs of the case, which will in most cases be a telephone interview within seven days of the referral being received by the agency”. The report is expected to be “very simple, usually just an email”. The Code envisages that (in section 4.4) that assessment and discharge reports may be required, but only where the parties agree this.

Counter-intuitively, perhaps, when it is not always easy to see how any sort of effective planning can be done for treatment when the claimant is not seen in person, the Code seems to envisage that he default position will be triage by telephone, rather than an assessment report in person. This, however, is likely to be to the defendant’s benefit, as the cost will usually be lower. The Code provides fairly strong support for an argument that an assessment and discharge report should not, in the standard lower-value case at least, be necessary (at least, without the defendant’s agreement in advance to them being produced). If the reports are not generally necessary, it seems to follow that assessment and discharge sessions – regularly charged at above the rate for a standard treatment session – are unnecessary as well.

The obligation to disclose rehabilitation reports
Contrary to the stance commonly taken by claimant solicitors, section 4.9 is unequivocal about the need to disclose reports:

“In all cases, the [triage report] should be published simultaneously or made available immediately by the instructing party to the other side. This applies also to treatment reports [and discharge reports] where the parties have agreed that they are required.”


The bar (in section 4.10) to using the triage report, or any other documents produced during the triage process, in litigation (which does not apply to any assessment or discharge reports – see section 5.7) does not detract from the disclosure requirement. Questionning whether it was necessary to obtain the report, and incur the cost of doing so, is arguably not using the report itself in litigation.

A useful by-product of the disclosure requirement is section 4.9’s recognition that “both parties will have the right to raise questions on the report(s), disclosing such correspondence to the other party”. A defendant, in other words, need not sit there like a lemon when the report is produced, but can ask the treatment provider to explain, for example, why any therapy is required, why a particular amount of therapy is required, or why some cheaper treatment is not sufficient, not least because the triage report should include (among other things) the type of intervention or treatment recommended, the likely cost and duration of treatment, and the expected outcome of such intervention or treatment (section 5.2). Another potential avenue for exploration is envisaged by section 4.11 – the extent of treatment necessary due to the index accident, rather than any other condition.

Indeed, nothing in the Code or the Protocols seems to prevent a defendant from adducing evidence from another provider to suggest, not just that therapy could have been provided at a lower cost, but also that a lesser amount or different type of therapy would have been reasonable.

Many defendants have chosen to concentrate their fire in rehab arguments on claimants’ (admittedly frequent) failure to disclose discharge reports. In the absence of such a report, it is frequently argued that there is insufficient evidence about the nature of the treatment provided (in particular, whether it was provided in person); who provided it (in particular, whether the person in question was HCPC-registered); what the extent and duration of treatment were; whether any treatment was in fact provided by the provider charging for it; and what the specific cost of the treatment to the claimant was, and that rehab charges should be disallowed as a consequence.

When a discharge report has been produced, it is difficult to see how the claimant can avoid disclosing it (pursuant to section 4.9). However, it has to be remembered that section 4.4 (and section 5.6) make a discharge report optional, and indeed something which should usually be provided only if the defendant agrees to it. It should also be borne in mind that the requirements set out in section 5.6 for the contents of any discharge report do not (apart from “[N]umber, type and length of treatment sessions / appointments attended or missed”) include many of the usual defendant requirements, as set out above (and that the other provisions of the Code do not impose any of these requirements either). Again, the primary purpose of the Code, as reflected in section 5.6, seems to be assessing the claimant’s progress, rather than laying out prescriptive requirements if damages are to be recovered for treatment (let alone setting out a ticklist which the defendant can use, if not complied with, to undermine the damages claim).

In light of these factors, and in light in particular of the absence of any express sanction for failing to disclose a discharge report, the Code seems to provide at best tangential support for an argument that such a failure should affect the recoverability of the overall rehabilitation fees (though, if a claimant does not disclose a report, it is easy to see how this would justify damages being denied for the cost of preparing such a report, or for a discharge appointment). This is not to say that the absence of a discharge report – where the defendant has asked for such a report to be prepared at the appropriate point in time – will never be relevant. Cases may arise where its absence will undermine a claim for rehab costs, but probably only in conjunction with other evidence in the case (for example, a failure to disclose other reports or details of treatment, an absence of other evidence post-dating the completion of treatment to show the extent and cost of treatment, and / or the notorious “pro forma invoice”, or other document charging for costs not yet incurred).

Other procedural steps when contesting rehabilitation claims
Defendants must remember that, in their enthusiasm to follow arguments arising from the Code, they must still meet the relevant procedural and evidential requirements if they are to do so effectively. In the context of lower value, quantum only disputes, this means complying with the relevant portal procedure.

All the ingenuity in the world in raising arguments will count for naught if the defendant fails to explain in its stage 2 response why it has reduced a claim for rehab costs (see para 7.41 of the RTA Protocol), if it fails to submit at stage 2 any necessary evidence in support of this, and if it fails to ensure that the relevant reasons and evidence are contained in the Court Proceedings Pack (see para.s 7.64 to 7.67). Rather than trying to squeeze a few shorthand comments into the response form, a document setting out in detail the defendant’s objections may be more persuasive (again, so long as the defendant makes sure that this document is submitted at stage 2 and included in the Court Proceedings Pack).

It is worth bearing in mind that the judges dealing with busy stage 3 lists are unlikely to display the same enthusiasm in determining detailed arguments about recovery of rehab costs as defendants may have for pursuing them. In the eyes of the senior courts, too, the stage 3 procedure is expressly designed to provide summary justice, rather than a microscopic means of evaluating relatively small disputes between parties over the value of cases (see, for example, Phillips v Willis [2016] EWCA Civ 401). A judge itching to get through a stage 3 list is unlikely to even allow an argument to be raised if every procedural i and t have not been respectively dotted and crossed during the the portal procedure. Even if this bridge can be crossed, he or she is unlikely to be interested in a panoply of standard arguments without relevance to the circumstances of the particular case. A sniper-like concentration on the best arguments on the specific evidence is likely to reap more rewards than the legal equivalent of a 21 gun salute.


In summary, the Rehabilitation Code is unlikely to provide the panacea defendants seek to the spiralling cost of treatment. However, sensibly deployed on a proper procedural basis, in conjunction with the other approaches considered in this article (and in conjunction too with some other issues which can arise with rehab costs, for example enforceability arguments when treatment is expressly provided on a credit basis), the Code may provide another useful weapon in the defendant’s armoury.

Chris Middleton

Snakes on a Plane: Can I use the Montreal Convention?

Tuesday, November 22, 2016

When Samuel L Jackson told his fellow passengers that he was fed up of the proliferation of snakes on the plane, he was probably more focused on survival than answering the slippery question of the appropriate defendant in an international personal injury claim.
For those of you who have not seen the seminal work in question, it concerns (as keen readers might already suspect) snakes, who have been let loose on a plane. The snakes go on to kill various passengers. For the purposes of our discussion, we will assume that the airline was storing the snakes, of their own volition, and that the escape was due to their negligence.
When we talk about personal injury claims arising during air travel, we are referring to Carriage by Air claims. Owing to the international nature of air travel it is important to have some degree of consistency across national boundaries when looking at questions of jurisdiction and liability. That need for consistency was initially addressed by the Warsaw Convention 1929.
The international framework has developed its own inconsistencies over the years, with some jurisdictions like England & Wales incorporating elements of the Warsaw Convention into domestic law, with others declining to ratify conventions after the Warsaw Convention. This has given rise to some countries being subject to a “Warsaw System” (a broad term for several differing domestic approaches who have a shared ancestor in the Warsaw Convention 1929). The response to this fragmentation of the applicable law is the Montreal Convention 1999.
It should be noted well that for reasons beyond the remit of this article the Montreal Convention has not superseded or displaced the Warsaw System. As such, should Mr Jackson be considering a personal injury claim as he scrubs snake venom out of his best leather jacket, his first question should be this: What convention system applies?

To keep an extremely complex and dense area of law as simple as possible, we will assume that we, as English and Welsh Lawyers, are keen to be faced with a case to which the Montreal Convention applies. The Montreal Convention protects passengers by introducing a two-tier system eliminating the previous requirement upon claimants to prove wilful neglect to obtain damages above a certain amount. We have now spoken to Mr Jackson, who informs us that the flight in question was a domestic flight, across the United States.

The Montreal Convention applies only to international carriage, and in order for it to apply, it must have been ratified by at least one nation involved in the international carriage applicable to the case. The United States is indeed a signatory to the Montreal Convention, but can a domestic flight ever be considered to come within the remit of “international carriage”?

The phrase “international carriage” refers to any carriage which, according to the agreement between the parties, the place of departure and the place of destination are situated either within the territories of two state parties or within the territory of a single state party if there is an agreed stop in place within the territory of another state even if that state is not a state party. By and large, therefore, international carriage can be taken to have its ordinary common-sense meaning, except in the occasional case where a domestic flight includes a stop in another country.

Therefore, the Montreal Convention would be of no application to Mr Jackson’s case. He would have to look to the US domestic laws in such a case.

Let us assume for a moment that in fact, Mr Jackson was travelling to the UK when he encountered reptilian complications. This allows Mr Jackson to ask his second question: Is either the place of departure or the place of destination a signatory to the Montreal Convention? We have here a classic case – one in which both member states are signatories to the Montreal Convention. He has therefore answered the second question in the affirmative.

Having overcome this second hurdle, it must be borne in mind that the Montreal Convention is not of blanket application. We must also answer the question of liability for the particular damage suffered. Fortunately, in the present case, this is a very simple criterion to satisfy – the Montreal Convention makes the carrier liable subject to just one condition: that the accident which caused death or injury took place on board the aircraft or during any of the operations of embarking or disembarking.

Another pitfall of which the Travel Lawyer should beware is the definition of “accident”. We are dealing with international law here, and as such there will always be elements which do not comfortably marry up with English common law concepts. The American case of Air France v. Saks 470 US 392 (1985) confirmed that an accident must be an unexpected, unusual, event or happening external to the passenger. The Claimant in that case suffered a loss of hearing in in her left ear as a result of the operation of the cabin pressurisation system. In holding that the Claimant’s injury was not an accident within the meaning of Article 17 of the Warsaw Convention, the Supreme Court distinguished between the use of the word “accident” to describe an event causing harm or loss and the use of the word to describe the occurrence of hurt or loss itself. The reasoning was approved by the House of Lords in KLM Royal Dutch Airlines v. Morris [2001] 3 All ER 126.

Bad food, bad toilets, and a lack of legroom are staples of air travel and one is unlikely to succeed in such a claim in any event. The greater anomaly comes when one considers, for example, a wet floor by the toilet. Is that so unusual or unexpected that a claim could be sustained for personal injury arising out of a fall? Such questions are unlikely to concern the cast of Snakes on a Plane in any event – it is difficult to conceive of a more unusual and unexpected event or happening during air travel.

In a similar vein, one should note that the limitation period for bringing an action under the Montreal Convention is a slightly more restrictive 2 years. There is no mechanism to dis-apply or extend the limitation period; nor is there any limitation stasis owing to a child’s lack of majority.

Finally, having found that his flight crosses through the correct jurisdictions to make the Montreal Convention effective; that his particular damage has good prospects of being deemed an “accident”; and that limitation has not yet expired, Mr Jackson must tell us where he wants to claim to be brought.

Article 33 of the Montreal Convention gives us a wide remit in this respect. The claim must be brought in the territory of one of the state parties either before the court of the domicile of the carrier or of its principal place of business or where it has a place of business through which the contract has been made or before the court at the place of destination. In cases such as this, where we are dealing with death or injury, the claimant has the additional option of bringing the claim in a country where he has his main residence and to or from which the carrier operated services for carrying passengers by air.

In conclusion, this is an extremely complex area of law. As I hope I have shown, even when we try to cut our way through the dense thicket of domestic and international law using a massively over-simplified scenario, we run into myriad problems and stand to face substantial difficulties without the exercise of both caution and haste. The best remedy to these problems, quite simply, is to be possessed of the wherewithal to avoid them in the first place – that is best achieved with comprehensive advice as early as possible, in combination with able and attentive claim management.

Costs warning on failure to mediate in package holiday claims

Monday, November 21, 2016

Master James recently slashed a £456,000 costs bill by limiting the amount the Claimant could recover to an estimated £40,000 in an unreported case brought against First Choice Holidays for problems with package holidays they supplied to Holiday Village Complex in Turkey back in 2009.

The basis of that decision centred on 152 out of 599 Claimants who had not suffered from any personal injury but brought claims for diminution of value, loss of enjoyment and out-of-pocket expenses.

The court capped the recoverable costs at the amount the Defendant would have paid to the ABTA scheme noting that the scheme would have been ‘perfectly adequate’ for those claimants without personal injuries. Master James went on to say:

“I find that it was neither reasonable nor proportionate to run up nearly half a million pounds in base costs of litigating those 152 matters, nor do I find that claiming them alongside the ill claimants’ damages in the group litigation was a reasonable and proportionate step. It certainly didn’t save any costs, quite the contrary as far as I can see.”

The ABTA arbitration scheme provides a route for alternative dispute resolution for complaints made against signatories to the scheme.

Those involved with litigation will need to consider the suitability of such alternative dispute resolution options as are available or face having the recoverable costs slashes as a penalty in accordance with the case of Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576.

The full article with details of the judgement was posted by Litigation Futures at this link.

For advice on Alternative Dispute Resolution in your case contact our travel team.
The full article with details of the judgement was posted by Litigation Futures at this link.
For advice on Alternative Dispute Resolution in your case contact our travel team.

Alex Orndal