IN THE CENTRAL LONDON COUNTY COURT Claim No.

8WD00336

13-14 Park Crescent

London
W1N 1HT

Tuesday, 18th December 2012

Before:

HIS HONOUR JUDGE SAGGERSON

Between:

S CHAUDHARI
Claimant
-v-

H FOSTER
Defendant

______________________

The Claimant did not appear and was not represented

Counsel for the Defendant: MR J. HAWKINS

______________________

JUDGMENT (APPROVED)

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 JUDGMENT
A
1. His Honour JUDGE SAGGERSON: This judgment is in respect of the trial of the
claimant’s claim for damages arising out of a road traffic accident on 3 rd February
2005. Liability is not in dispute, so this is a disposal hearing listed for three days,
commencing on 17th December 2011. The cause of the claimant’s rather complicated
constellation of injuries and medical problems is what is very much in issue and,
B therefore, so is the quantum of damages that should be awarded. That, of course, is
what I have to decide.

2. The competing contentions of the parties regarding special damage and future loss,
which fall to be assessed in addition to general damages for pain, suffering and loss of
amenity, are set out in the respective schedule and counter schedule in the trial
bundles. I also have to assess general damages for pain, suffering and loss of amenity.
C
3. This judgment should not be read without reference to the ruling I gave yesterday
morning (17 December) to the effect that this hearing would proceed notwithstanding
the absence of the claimant, her witnesses or any representation. In so proceeding, I
have admitted in evidence the claimant’s witness statements, of which there are two,
together with those of her father, mother and sister, all of which appear in the trial
D bundles and all of which I have read. I have also studied the following important
documents from the medical evidence. I have read reports from: Mr Grange, a
consultant orthopaedic surgeon; Dr Lloyd, a consultant psychiatrist; Dr Barry, a
consultant neurologist; Dr Lang, a consultant neuropsychologist; Dr Munglan, a
consultant in pain medicine; and Mr Ramsford, another consultant orthopaedic
surgeon; together with Dr Gill, another consultant psychiatrist. There is a joint
E medical expert’s statement affecting the medical specialists Grange, Ramsford and
Barry; and a joint psychiatric statement from Drs. Lloyd and Gill. I have not heard any
live evidence during the course of this hearing but I have heard submissions from
counsel Mr Hawkins for the defendant and I have read the skeleton argument that he
lodged before this hearing got underway.

4. The main issue for the court to determine is the extent of the injuries, whether physical
F or psychological suffered by the claimant as a result of this accident. The claimant’s
case in outline only is that she has suffered and continues to suffer a whole range of
symptoms which have been directly triggered by the accident and they include a
significant chronic pain in her lower back, neck and her legs. She complains of pain in
her knees and shaking and dizziness affecting her head, memory loss and tingling in
her face, particularly on her right cheek. She complains of episodes of tunnel vision
G when she stands from a seating position and claims her vision is otherwise seriously
affected by the seeing of stars and bright lights.

5. Her case is that these difficult and continuing symptoms have caused her the losses
that are set out in her most recent schedule which is at page 441 of bundle 1 in the
documents. In particular, the bulk of her losses are associated with her inability to
H work, so she alleges, as a result of the accident. Overall, there is no room for doubt
that on her own case, looking not only at her own factual evidence and that of the
witnesses whose statements I have read but also from the medical evidence, it is clear
that she has had a terrible time of it. Her life has been seriously compromised and she
says that this is all as a result of the accident for which the defendant has admitted
liability. That she has sustained injuries is undoubted and my short summary or

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 outline of them here is not intended to canvas or cover the considerable quantity of
A information which she herself and her witnesses have set out, all of which taken
together paints a very bleak picture of the claimant’s life over the very nearly eight
years, since the accident occurred.

6. It is worth noting, however, that this claimant has in her personal, domestic and
medical past serious problems which predate the accident by some years. The best way
B of accessing the many problems that she has had is to make reference, and I do so only
in passing for the purposes of this judgment, to the judgment in India of The Hon Mr
Justice Thackray, which begins at page 697 of bundle 2, which sets out in more detail
the probable cause of the many personal and emotional problems that the claimant had
suffered some years before this accident in February 2005. Just so that the important
headline of that judgment is at the forefront of this particular judgment, I simply note
that this claimant has suffered for many years from a pathological grief reaction as a
C result of the death of her baby daughter at the age of five months in 2000.

7. The defendant’s case in this case is that the accident that I am concerned with was
responsible for some injury but only for modest injuries. Based on the contents of the
medical reports that I have identified and the joint statements to which I have referred,
the material only supports the contention that the claimant has suffered whiplash
D injury, but not other symptoms about which she complains, that would have led her to
have modest orthopaedic problems related to her back and neck for a period of no
more than two years, and that the accident probably exacerbated pre-existing
depression that she sustained as a result of the pathological grief reaction to which I
have referred that could not have lasted for more than two years either. It is submitted
on behalf of the defendant that the evidence simply does not support any further or
E more serious symptoms as being caused by the accident. Rather, it is submitted this
claimant’s many difficult problems arise from other causes.

8. It is agreed that there was a whiplash injury. That is complicated by the agreement
that there is an exacerbation of the pre-existing depressive illness from which this
claimant was already suffering, but from the joint statements, it is also very clear that
her multiple symptoms about which she complains of severe neck, back and right leg
F pain, dizziness, a functional limp and a weakness in her lower limbs, visual loss and
other interference with her vision and, generally, the considerable level of disability
about which she complains are simply not explicable on orthopaedic or neurological
grounds. The orthopaedic experts defer to the psychiatrists and pain management
experts as regards any non-orthopaedic or neurological cause which may be related to
the accident or otherwise that might explain her symptoms.
G
9. Dr Barry, for example, notes that imaging of this claimant’s neck and lumbar spine has
shown some pre-existing degenerative changes and she states that these were probably
made symptomatic by the accident, but persisting severity and disability is unexplained
on a neurological basis. Mr Grange has noted that the degenerative changes that have
been identified were within normal limits for somebody of this claimant’s age. She is
H a lady now in her early mid-forties.

10. Suspicions about a possible spinal cord contusion have been allayed and it seems that
no such problem can be sustainably identified on the available medical evidence in this
case.

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 11. Just dealing in a little more detail with the psychiatrists, the joint report - this is the
A joint statement made by Drs Lloyd and Gill - concludes that the bulk of the claimant’s
psychiatric symptoms since the accident have been due to pre-existing grief reaction
and are not attributable to the accident, and there remains only one dispute between the
psychiatrists, which is whether the claimant in the initial aftermath of the accident
developed post traumatic stress disorder or not. I have not heard live evidence from
the psychiatrists on this issue because whatever one identifies was the cause of the
B exacerbation of this lady’s psychological, psychiatric and emotional problems, whether
one characterises it as triggered by post traumatic stress disorder or some other
recognisable psychiatric illness, does not really matter because there is agreement
between the psychiatrists as to the extent of the difficulties that this claimant has had
and there is agreement in respect of the length of time over which these psychological
symptoms could have been expected to last. The psychiatrists agree that the
C psychological or psychiatric symptoms that could be related to the accident would
have gradually improved over time from the date of the accident and they conclude
jointly that such attributable symptoms had probably resolved by between 18 and 24
months following this particular accident. They also go on to conclude that the court
may need to consider non-medical factors in an effort to account for the clinical picture
presented by this claimant and they further conclude that, by the time of their joint
statement, certainly, there was no adverse psychiatric prognosis which could
D reasonably be attributed to any psychiatric injuries which were sustained in the index
accident. It would, I agree, have been disproportionate to call either or both of the
psychiatrists on this very limited issue as to how one identifies the nature of the
claimant’s exacerbated psychiatric condition, given that really the only disagreement is
about the label one puts on it rather than the effects that it had on the claimant.

E 12. In this context, it should be noted that there is also a report from a pain management
specialist and this is to cover the possibility that the claimant has fallen victim to some
sort of chronic pain illness triggered by the accident, albeit that that chronic pain
illness may not be an illness the symptoms of which are attributable to any diagnosed
orthopaedic, neurological or psychiatric cause.

13. Because of the radical nature of the dispute on symptomology and injuries allegedly
F caused by the accident between the parties it is worth pausing to itemise a few other
important comments made by the various doctors in this case, doctors reporting for the
court both on the claimant’s behalf and on the defendant’s behalf, all of which, of
course, are designed to assist the court primarily in reaching the proper conclusion.

14. Mr Grange has noted that the considerable level of disability that she displays cannot
G be supported simply by the musculoskeletal injuries she suffered following the type of
accident she described to him, and Dr Lloyd said:

“I know of no physical syndrome which could account for the diversity of

her symptoms and I also note that the various experts who have seen her can
find no significant physical pathology. I do not think her current symptoms
H can now be attributed to the index accident and I consider that her persistent
symptomatic complaints are due to a chronic depressive disorder which is
attributable to her bereavement and her unresolved grief surrounding that
event.”

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 15. Dr Barry concludes that there is no neurological basis to her symptoms, and Dr Lang
A has said:

“I do not think it likely that there is any cognitive impairment present due to
brain injury.”

He further notes:
B “I do not think that there are any neuropsychological deficits preventing her
from working, living independently or managing her affairs.”

16. Dr Munglani, the pain specialist, has concluded:

“I think her current symptoms have very little to do with the index event
C from a pain medicine point of view.”

And he goes on from that point of view:

“I would not have expected any physical pain syndrome to last anything
more than three to six months post accident. The inconsistency in the
examination and variability in the way she spoke to me depended on the
D subject during the course of my examination. It does suggest to me that
probably psychological or psychiatric factors in this case may be far more
important than anything to do with the index event.”

And he concludes:

E “I do not think there is any significant pain syndrome that can account for
this lady’s behaviour.”

He goes on to note that the claimant went back to work the day after this accident and
it is clear from the claimant’s own evidence that she did that. Not only did she do that,
but she worked for the following week as well before taking a week off for the half-
term holiday, after which it seems she never went back to work and has not worked
F since.

17. I accept, of course, the contents of each of the medical joint statements subject to the
small disagreement between the psychiatrists that I have already referred to. It is on
the basis of that medical evidence that I will proceed.

G 18. In the face of what amounts to virtual unanimity amongst the doctors reporting to
assist both the parties and the court, I reject the untested evidence of the claimant and
her family as reflected in their witness statements as to the cause or what they think is
the likely cause of this claimant’s continuing serious problems. It may well be that the
claimant’s life has been turned upside down to the extent that it is claimed in that
evidence, but save to the extent that I state otherwise in what follows in this judgment
H and as determined by the medical experts, the proposition that these serious problems
have been related to this accident or caused by it for more than a relatively short period
of time is simply unsustainable.

19. Therefore, on the basis of the medical joint statements and the reports, parts of which I
have quoted, I turn immediately to the assessment of damages. In this regard, I have

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 paid heed to the 11th edition of the Judicial College Guidelines on Personal Injury
A Damages and there is no doubt that, so far as the whiplash injury is concerned, the
relevant section is chapter 6A(c), subsection 1, dealing with injuries where a full
recovery takes place within a period of about one to two years. The bracket that the
Judicial College sets out in its Guidelines is stated to be in the region of between
£3,100 and £5,600. It seems to me that the bracket here is undoubtedly the applicable
bracket, looking at the range that the Judicial College suggests, and parenthetically I
B observed that I am very well aware and very conscious of the fact that the Judicial
College is only setting out guidelines, but, nonetheless, the bracket seems to be entirely
appropriate in my judgment.

20. This claimant’s whiplash injuries on top of everything else that she was already plainly
suffering from both emotionally and psychological that had nothing to do with this
accident would have taken their toll on her as an individual perhaps to a greater extent
C than one might have expected in the case of someone who was not suffering from
these pre-existing difficult emotional problems, and the nature of the physical injuries
themselves, albeit for a relatively short duration, should not be underestimated either.
Accordingly, in my judgment, a proper figure to put on these whiplash injuries in this
particular claimant’s case falls towards the higher end of the bracket, albeit not at the
very highest end, and, accordingly, for the orthopaedic injuries, and I would award a
D sum of £4,500.

21. As to the psychological injuries, on the balance of probabilities, I do conclude that the
psychological injury suffered by the claimant is best described as it was by the
claimant’s expert as post traumatic stress disorder, although, as I have indicated, the
actual diagnosis does not have any effect on the cause of or amount of any heads of
E loss the claimant alleges. Neither does it make any difference to the effect on the
claimant’s quality of life. On balance, I am satisfied, doing the best I can on a dispute
that I have had to resolve only on paper, the diagnosis probably does reflect the
extreme unpleasantness and seriousness of the accident itself, which was a rear end
shunt but involved, so far as I can tell on the documentary evidence, a car literally
careering down a hill and hitting the back of the claimant’s car rather than the sort of
low velocity rear end shunt one often encounters in stationary traffic, for example, at
F traffic lights.

22. Having said that, and as I have indicated the actual diagnosis does not seem to me to
make any difference, the appropriate Judicial College bracket appears in chapter 4 at
section A(d) and one has to bear in mind in dealing with this bracket the length of the
period of the disability suffered by the claimant that is attributable to these problems
G and the extent to which her daily activities and sleep were affected. Well, rather like
the whiplash injuries, one has to take this claimant as one finds her and to have already
what were plainly serious and, it would appear, almost intractable emotional and
psychological problems before the accident attributable to her pathological grief, this
claimant is likely to have suffered to a greater extent even than other people not so
affected and, accordingly, given that the Judicial College’s bracket suggests a range of
H between £1,100 and £4,200, in my judgment the appropriate assessment of damages
for this area of the claimant’s claim... bearing in mind a degree of overlap in terms of
the loss of amenity element of this head of loss as between the psychological and
orthopaedic injuries, it nonetheless seems to me that the appropriate figure for
psychological problems here is one of £4,000.

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 23. So I turn to special damage and future loss. The defendant’s position is set out in a
A detailed counter schedule in response to two schedules put in evidence by the claimant.
The first is a special damage schedule verified by a statement of truth dated
28th August 2008 at a time when the claimant was represented by solicitors. The
second, which is a document which appears at page 441 of trial bundle 1, is an
unverified draft schedule of special damage and future loss, which I infer has been
drafted either by the claimant herself or by her sister, who has in the past assisted the
B claimant with this litigation, or by both of them working together. The main head of
loss is the claimed loss of earnings. The claimant was a school science teacher, a
supply teacher at the time of the accident, and having worked for a week and a day
immediately after the accident and then having taken the school half-term holiday, the
claimant has simply not worked again, whether as a supply teacher or otherwise.
Whatever the reasons for that, certainly after a period of between 18 months and two
C years, her failing to work or inability to work has got absolutely nothing to do with the
accident in this case. To put it another way, her absence from work is simply not
explicable by the symptoms which are attributable to this accident.

24. On the balance of probabilities, I come to the following conclusions so far as her loss
of earnings is concerned. In my judgment, on the basis of the medical evidence, the
claimant would have returned to work in September 2006 if her only difficulties were
D those difficulties which were attributable to the accident. That would have been an
absence attributable to the accident of about 18 months and I conclude that such
residual symptoms and problems, whether emotional, psychological or orthopaedic, as
she was experiencing would have been improving and subsiding by then. Reading her
own witness statement, it is obvious that she is not a lady to sit around doing nothing if
she can possibly avoid it and I conclude that she would have returned to work at the
E start of the new academic year in September 2006 as her accident related symptoms
continued by then to improve towards the end of the 18 month to 2 year period that
both these psychiatrists and the orthopaedic consultants considered to be the proper
period of accident related problems in this case.

25. I accept that it is likely that she would have continued as a supply teacher in her then
current job, had it not been for this accident, until the end of the academic year in the
F summer of 2005 and I do conclude that on the balance of probabilities, despite the
many problems in her life, she probably would have continued to work as a supply
teacher probably at or about the same level as she had done in the academic year up to
the accident in the following academic year; that is to say the academic year 2005 -
2006. I conclude that she is likely to have continued to work after the date of the
accident much in the same way as she had worked immediately before the accident.
G
26. There is information from HM Revenue and Customs, particularly at page 655 of
volume 2; this reveals that in the tax year 2004/2005, up to 5 th April 2005 (which of
course would be two months after the accident) she earned a total from two different
local authorities of £23,239 less tax, yielding a figure net of tax of £18,662.80. This
would have been over a period of ten months, I infer from the documents. So that
H would be £22,395.36 when grossed up to cover a full year. However, I also infer from
that document that national insurance has not been deducted. Neither am I able to
assess on any proper scientific basis precisely what expenses she would have incurred,
such as ordinary transport expenses to and from work and other incidental expenses

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 that all working people incur on a routine basis, which of course would have further
A reduced her headline net income.

27. So doing the best I can out of all this and making some allowance for these other
matters that are not obvious from the HMRC document, I conclude on the balance of
probabilities that her net loss per annum caused by the accident would have been
£15,000. The period of loss attributable to the accident I have concluded is 18 months,
B which would make her total net loss of earnings £22,500.

28. Looking at the claimant’s original 2008 schedule, the one that is verified with a
statement of truth, the claimant claims two hours a week as an allowance for gratuitous
family care, attention and assistance and I accept on the balance of probabilities, just
given the nature of the orthopaedic injuries themselves, that such a modest amount of
routine care and assistance is entirely reasonable and proportionate. By the time she
C returned to work, as I have concluded she would have done in September 2006, given
that that is a period of 18 months, I very much doubt that such gratuitous care and
assistance would have extended beyond that period of 18 months. The care and
assistance claim is set out at page 437 of bundle 1 and there are arithmetical errors in
the way that that claim has been calculated, but the two hours per week has been
verified and a rate undiscounted at £8 per hour is not unreasonable for the years 2005
D and 2006, although it has to be discounted for the element of gratuity. In all the
circumstances, on the balance of probabilities, I conclude that two hours a week for 18
months, which would be 78 weeks, at a discounted hourly rate of £6 per hour would
yield a total gratuitous domestic assistance claim of £936.

29. I turn to some of the other figures that have been put forward by the claimant. Nothing
further is particularised in the original October 2008 schedule but these figures to
E which I am now referring are figures that are set out in what I have referred to as the
draft schedule of special damage and future loss, as updated, I infer, by the claimant
and/or her sister, which is at page 441 of bundle 1. Of course, the claim by this stage
has become bloated. I do not need to deal with the significantly larger claims for loss
of earnings and loss of future earnings or the claim for loss of pension. Neither do I
need to deal with the claim for loss of future wage increases or the claimed loss for
F SIRA, which nobody who has been appearing before me knows what that is, but it is
obviously employment related in some way, given the configuration of this draft
schedule. I do not need to deal with any of those matters because I have already dealt
with loss of earnings and given my factual conclusions on causation no other claims on
medical evidence here are remotely arguable.

G 30. The claimant claims £43,400 for cancelled holidays. The logic of that claim, I am
afraid, has completely defeated me. It may well be that what the claimant had in mind
was a claim based on the fact that she would not be able to take annual holidays in the
future. That, if there had been a future element to this claim on the basis of the
medical evidence, may well have informed the figure for general damages for pain,
suffering and loss of amenity but I am at a loss to understand how cancelled holidays
H can figure in any award of damages. However, it hardly matters because it is a future
claim in any event and for the reasons I have already given, no future claim there is
sustainable.

31. Prescription charges - the same logic applies: it is a future claim; as is the cost of
disability aids and mobility assistance. These claims are predicated on the assumption

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 that the accident was the cause of long as opposed to relatively short-term physical and
A mental problems for this lady. The cost of treatment and travel expenses and a very
nearly quarter of a million pounds claim for future care all fall into the future loss
category and none of these claims is recoverable. Indeed, none of them is sustainable
on the basis of the factual conclusions on causation that I have reached.

32. There is also a claim for gym membership and extra utility bill costs. None of these
B are particularised. Indeed, whilst there is some attempt at particularisation in the
written evidence submitted by the claimant, none of it has (because of her absence)
been subject to any proper testing or examination and such particularisation as there is
is at best sparse and, accordingly I reject these claims. For the reasons given, the only
special damage that falls to be calculated and awarded relates to loss of earnings and
gratuitous care, the recoverable figures for which I have already given.
C 33. Accordingly, the total special damage claim here is a figure of £23,436. There is no
future loss. I will allow interest to be calculated on that figure. Given the procedural
ups and downs in this case, it seems to me a period of four years at the rate of 3
percent is a reasonable, adequate and proportionate figure to take, which would yield
£2,812.32. The total of general damages comes to £8,500. It seems to me that
allowing a reasonable and proportionate period of three years from the date
D proceedings were issued in respect of general damages is more than adequate, which
would come to £510. If one adds up all these figures, the grand total of damages I
award to this claimant inclusive of interest is £35,258.32. Of course, my arithmetical
calculations are subject to correction should it emerge that there have been errors in the
figures. Therefore, to that extent the claim succeeds and there will be judgment for the
claimant in the interest inclusive sum of £35,258.32.
E MR HAWKINS: Your honour, I agree the arithmetic as well.

THE JUDGE: I am very glad to hear that.

MR HAWKINS: There are a couple of matters to mention, firstly in terms of the form of
the order.
F
THE JUDGE: Yes.

MR HAWKINS: There is a CRU certificate, so I would be grateful if the order could spell
out the heads of loss in the usual way.

THE JUDGE: Yes. Well, I am going to ask you to draft the order and email it to the
G skeleton argument email address and then I will take a look at it.

MR HAWKINS: Your honour, I am grateful. What I was proposing to do is also in

respect of the loss of earnings, because the deductible benefit is incapacity benefit and
that falls to be deducted from the loss of earnings, to just spell out the periods of 18
months for which loss of earnings—
H
THE JUDGE: Certainly, yes.

MR HAWKINS: —is recoverable because that might aid matters because the CRU
certificate obviously goes on for much longer than that.

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 THE JUDGE: Yes.
A
MR HAWKINS: The next point that arises is one of costs. There have been Part 36 offers
—

THE JUDGE: Yes.

MR HAWKINS: —dating some time ago. The offer was originally put on 23 rd December
B 2008 of £35,000. Now, obviously, that would have included interest as of 2008 and
now we are some way down the line. It is only due to interest that the claimant has
gone above that, so I think I am bound to say that I would ask for the usual
consequences of it. If I can hand your honour a copy of—

THE JUDGE: Yes. Do you want to just walk up with it? Thank you.
C
MR HAWKINS: Your honour, I should have mentioned it does mention an interim
payment of £3,000. Just to make sure that there are no other interim payments that
have escaped mine and my instructing solicitor’s attention over the years, I was going
to ask for [inaudible] that I draw the order up to say that it be less any interim
payments made.
D THE JUDGE: Yes. Let me just have a look. Without interest we have: £8,500; £22,500;
£936.

[Pause]

That is £31,936.
E
MR HAWKINS: Yes. I think it is fair to say that there would have been some element of
interest which would have been included in the £35,000, but for present purposes what
would not have been included is the £510 interest on the general damages.

THE JUDGE: Why not?

F MR HAWKINS: Because those are only payable from the date of issue, so only a very
small amount of those would be covered.

THE JUDGE: Yes, indeed.

MR HAWKINS: So that would in itself be sufficient to bring it below the £35,000 mark.
G
THE JUDGE: So what order for costs do you ask me to make?

MR HAWKINS: I am asking for an order... I suppose it would have to be that the

defendant pay the claimant’s costs up to 21 days after 23rd December. I should add for
completeness that this offer was restated in May 2009, but I think the original Part 36...
It was restated on the basis that it would be costs-free at that point.
H
THE JUDGE: Is it going to make much difference if we simply take a date such as
1st February 2009 for the costs because we have got complications of bank holidays
following 23rd December 2008? Do you see what I mean? 21 days after
23rd December would bring us to mid-January, but then once we have added on at least

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 three bank holidays, is a couple of weeks at the end of January going to make a costs
A difference.

MR HAWKINS: I doubt it, your honour. I am just checking whether a new firm of
solicitors came on at that point, but I do not think they did.

THE JUDGE: Well, I will say 25th January and you can have permission to apply if I have
B acted on a misapprehension.

MR HAWKINS: That is fine, your honour, thank you.

THE JUDGE: Defendant’s costs up to and including 25th January 2009. Thereafter?

MR HAWKINS: Thereafter, I would ask that the claimant pay the defendant’s costs to be
C subject to detailed assessment if not agreed.

THE JUDGE: Yes. Well, both orders subject to detailed assessment if not agreed. I do not
suppose the claimant has ever been publicly funded, has she?

MR HAWKINS: I have not been told of it. I think the matter has been asked a couple of
times, but I am not aware.
D
Your honour, there are also some costs orders outstanding which have already been
made and only one has been assessed. There was one made in August last year, I
think, and that was assessed at £2,500. That, I am told, has not been paid. I would ask
that that be also set-off.

E THE JUDGE: What is the date of that order?

MR HAWKINS: It is 26th August 2011.

THE JUDGE: What was that about?

MR HAWKINS: That was an application before HHJ Baucher in this court regarding the
F claimant seeking to rely on further expert evidence.

THE JUDGE: Yes.

MR HAWKINS: Your honour, strictly, it is the defendant’s application that the claimant
should not be entitled to rely on that.
G THE JUDGE: Yes. Is that what was going up to the Court of Appeal?

MR HAWKINS: Indirectly. That was an order from HHJ Baucher refusing permission.
The claimant then sought to re-argue that, firstly, I think, in front of Judge Bailey in a
half hour pre-trial review; but then, secondly, in front of Judge Mitchell in a three hour
pre-trial review. Judge Mitchell refused to reopen the argument, saying there had been
H no change of circumstances, and it was that point that was argued in the High Court
and permission was refused and then, in turn, the Court of Appeal saw it. Well, the
High Court hearing is another costs order which was made, but that was to be assessed
at the end of... well, it was still to be assessed, so I do not think I can ask for anything
in relation to that.

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 THE JUDGE: No, but the costs order that you are having in this action, should it not
A reinforce the existence of pre-existing costs orders by saying that the claimant should
pay the defendant’s costs after 25th January 2009 in addition to such costs already
ordered against her perhaps?

MR HAWKINS: Indeed, your honour. I have no problem with that. What I was seeking
what was that the £2,500 be set off against the judgment sum that is ordered to be paid.
B
THE JUDGE: Yes. There should be a direct set-off of those costs and some form of order
needs to be made to ensure that no sum is handed over to the claimant until the costs
have been resolved, in case there is, as there may well be, a net liability on her part to
pay you rather than you paying her.

MR HAWKINS: I would be grateful for that order. I shall—

C
THE JUDGE: I have assumed throughout that there is an insurer underlying the defendant
here.

MR HAWKINS: Yes, your honour.

THE JUDGE: Which insurer is it?

D
MR HAWKINS: I believe it is Royal & Sun Alliance, yes.

THE JUDGE: I suppose I should exclude no possibility these days, but it does not seem to
me as though they are likely to go under in the near future.

E MR HAWKINS: Yes, your honour.

THE JUDGE: What about an order that the money be paid to your instructing solicitor’s
account to be held pending further order of the court?

MR HAWKINS: The judgment sum?

F THE JUDGE: Yes.

MR HAWKINS: Less the £2,500?

THE JUDGE: Yes.

MR HAWKINS: And any interim?

G
THE JUDGE: Yes. Your solicitors can hold it pending the assessment of costs and further
order of the court with permission to apply in respect of what should happen to that
sum. It seems to me when the time comes, whenever that may be, if it turns out that
there still is a net figure payable to the claimant, there is absolutely no reason why an
application by Plexus to release the funds to the claimant cannot simply be made by
H letter. If a copy of the order is sent with that letter, I think any judge will readily make
such an order without a hearing.

MR HAWKINS: Yes, your honour. I am grateful. I think the only other matter which
arises is that my instructing solicitor has been informed in other proceedings going on

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 in this court involving the claimant - she is in fact the defendant to a claim brought by
A one of her previous firms of solicitors, Kenneth Elliot & Rowe - there is an order from
HHJ May dated 1st August this year upon trial of a preliminary issue in that matter and
it refers to these proceedings. One of the orders made was that there would be no
consolidation of those proceedings with these. HHJ May ordered that at the
conclusion of the PI proceedings, which are these proceedings:

B “The judge who has heard and determined the issues at that trial will
consider:

(1) whether or not he or she ought also to try this action;

(2) what directions are needed in order to prepare for the trial should one be
necessary of such issues as remain in these proceedings following the
C conclusion of the PI proceedings; or

(3) any other matters, including, for instance, whether the remaining issues
could properly be determined by a costs master, which may be necessary
and/or appropriate in order to resolve the issues in this case.”

D Now, I think the difficulty that we have is that neither you nor I are aware of what
really the issues are. I think we can tell that it is something to do with a claim for costs
by the solicitors and, indeed, the finding on the preliminary issue seems to have been
that no conditional fee agreement was entered into between the parties. I think also
that order might also be subject to an order for permission to appeal in the Court of
Appeal, which I think was refused and is being renewed, but I am getting that from the
Court of Appeal website. I mention it simply because the message was passed on by
E those acting, I think, for Kenneth Elliot & Rowe Solicitors to my instructing solicitor
to raise it at the conclusion of this hearing, but your honour might think it appropriate
to arrange perhaps a telephone case management conference in these proceedings
when those acting in them can be present and make any submissions they need.

THE JUDGE: Yes. Can I take a copy of that for the court? Yes, I think in the
F circumstances we better hang on to the files in this case. We can get another printed
off the court computer. It does not seem to me as though I can make any orders of the
sort foreshadowed by HHJ May because, as you rightly point out, I have no idea what
the issues are in that case. I mean it sounds as if they are just suing for their costs. I
say “just suing for their costs”... I think your suggestion is probably a sensible one. If
I can take a copy of that order, I will have that case listed for a short hearing.
G MR HAWKINS: Should I refer to that in the order that I am drawing or just leave it to be
dealt with separately?

THE JUDGE: No, I should just leave that to be dealt with separately. So the court will
actually, although we do not actually like doing so, retain these two trial bundles rather
than give them back because who knows what is going to emerge in the concurrent
H proceedings? Thank you. As we now have a clerk, it may well be that the clerk will
give you his email address and you can send the draft order directly to him and he will
refer it to me when it is ready. Is there anything else?

MR HAWKINS: Nothing further, your honour. I am very grateful.

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 THE JUDGE: Well, thank you very much indeed.
A
[Hearing ends]

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