Certainly the decision in Montgomery v Lanarkshire Health Board has clarified the law and brought it in line with what clearly has been the pragmatic approach of the NHSLA for some time. In many respects the decision directly reflects, enshrines and applies the established guidance given to doctors by the General Medical Council.

The question in practitioners’ minds will be whether the Montgomery case will encourage more litigation when the principle focus in the case is on the consent issues. For the reasons set out below I think the Supreme Court’s decision will embolden clinical negligence to pursue many more consent cases.

It was only in December 2013 at a seminar on Bile Duct surgery in London that a senior lawyer at Irwin Mitchell boldly stated that very few cases were ever successful when the claim was based solely on “consent issues.” That was certainly true as many lawyers, solicitors and/or counsel, were not at all keen to pursue cases where the sole issue was “consent to treatment”.

As an experienced practitioner I was one who was always keen to carefully analyse the facts and intrigued by the idea of the “enquiring patient” who seemed long ago to have acquired some special status in this area of law. It is instructive to note that this was considered in the case of Pearce v United Bristol NHS Healthcare Trust, (1999) 48 BMLR 118 in which Lord Woolf observed:

“If patients make clear they have particular concerns about certain kinds of risk, you should make sure they are informed about these risks, even if they are small or rare. You should always answer questions honestly”. 

I had a recent amputation case where the Defendant NHS Trust expressly admitted breach of duty because the hospital doctors failed to advise the Claimant of the risks associated surgery on diseased knee joint and failed to point out that there was the option of conservative treatment which would not pose any of the same risks. The case settled in 2014 for £1.25 million.

Montgomery gives primacy to the principle of unfettered patient autonomy thus vindicating Lord Scarman in the celebrated but retrogressive case of Sidaway v Board of Governors of the Bethlem Royal Hospital [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][1985] AC 871.

The new duty which doctors must apply is one to “take reasonable care to ensure that a patient is aware of the material risks of injury that are inherent in treatment”, and “of any reasonable alternative or variant treatment”.

The test of materiality is “whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it”.

In light of Montgomery the important questions now to be considered in a typical clinical negligence case are as follows:

1. Does the patient, and where appropriate the parents, know about the material risks of the treatment proposed?

i)In particular what sort of risks would a reasonable patient in the patient claimant’s position want to know?

ii)In particular what sort of risks would this particular patient want to know?
This makes the position of the enquiring patient in this internet age when so much medical information is available at the click of the mouse.

2. Has the patient been told about the reasonable alternatives for treatment?

3. Has reasonable care been taken to ensure that the patient actually understands all of the information provided to the patient by allowing time for reasonable questions to be asked by the patient, and where appropriate the parents?

4.Do any of the exceptions to the duty to disclose risk apply on the facts of the particular case?

This includes the situation where the patient did not want to know about the risks and the so-called “therapeutic exception”, where disclosures to the patient would be detrimental to the patient’s health.

All of the above seeks to empower patients and is a welcome development. It is also interesting to note that the Supreme Court has chosen to adopt the late Lord Bingham’s approach to the development of the law by “keeping in step” with other jurisdictions and in particular North America and Australia.

[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

In this article we seek to address the possible ways that litigants can avoid being Mitchelled. To date, we have identified 7 possible ways this can achieved which, with a little irony, we have called the seven pillars of wisdom (‘Wisdom hath builded her house, she hath hewn out her seven pillars’ (Proverbs 9:1), subsequently the title of T.E. Lawrence’s book ‘The Seven Pillars of Wisdom’).

The decision in Mitchell should not have come as a surprise. The extra-judicial comments of Lord Dyson MR in the 18th Implementation Lecture provided a clear indication of the approach the Court of Appeal would take when asked to rule on the matter. The court saw this as an opportunity to change the mind-set of litigation and shift attention away from the micro to the macro. In doing this, reducing satellite litigation was a core aim. The situation bears resemblance to the comments of T.E. Lawrence that:

 ‘Some Englishmen, of whom Kitchener was chief, believed that a rebellion of Arabs against Turks would enable England, while fighting Germany, simultaneously to defeat Turkey. Their knowledge of the nature and power and country of the Arabic-speaking peoples made them think that the issue of such a rebellion would be happy: and indicated its character and method. So they allowed it to begin.’

While the Arab Revolt may ultimately have contributed to driving the Ottoman Turks out, and therefore bringing an end to the First World War, Mitchell’s ability to reduce satellite litigation, and therefore change the mindset of litigation, has not been quite so successful. This conclusion is borne out below as the wealth of case law suggests: (a) that litigants continue to challenge orders imposed upon them by the court; and (b) the decisions of the court are not always as clear as the one in Mitchell leading to uncertainty.

Before considering the main means of avoiding being Mitchelled it is worth highlighting the advice given by Lord Dyson MR in Mitchell itself as this is the starting point for any application:

‘We hope that it may be useful to give some guidance as to how the new approach should be applied in practice. It will usually be appropriate to start by considering the nature of the non-compliance with the relevant rule, practice direction or court order. If this can properly be regarded as trivial, the court will usually grant relief provided that an application is made promptly. The principle “ de minimis non curat lex ” (the law is not concerned with trivial things) applies here as it applies in most areas of the law. Thus, the court will usually grant relief if there has been no more than an insignificant failure to comply with an order: for example, where there has been a failure of form rather than substance; or where the party has narrowly missed the deadline imposed by the order, but has otherwise fully complied with its terms. We acknowledge that even the question of whether a default is insignificant may give rise to dispute and therefore to contested applications. But that possibility cannot be entirely excluded from any regime which does not impose rigid rules from which no departure, however minor, is permitted.

If the non-compliance cannot be characterised as trivial, then the burden is on the defaulting party to persuade the court to grant relief. The court will want to consider why the default occurred. If there is a good reason for it, the court will be likely to decide that relief should be granted. For example, if the reason why a document was not filed with the court was that the party or his solicitor suffered from a debilitating illness or was involved in an accident, then, depending on the circumstances, that may constitute a good reason. Later developments in the course of the litigation process are likely to be a good reason if they show that the period for compliance originally imposed was unreasonable, although the period seemed to be reasonable at the time and could not realistically have been the subject of an appeal. But mere overlooking a deadline, whether on account of overwork or otherwise, is unlikely to be a good reason. We understand that solicitors may be under pressure and have too much work. It may be that this is what occurred in the present case. But that will rarely be a good reason. Solicitors cannot take on too much work and expect to be able to persuade a court that this is a good reason for their failure to meet deadlines. They should either delegate the work to others in their firm or, if they are unable to do this, they should not take on the work at all. This may seem harsh especially at a time when some solicitors are facing serious financial pressures. But the need to comply with rules, practice directions and court orders is essential if litigation is to be conducted in an efficient manner. If departures are tolerated, then the relaxed approach to civil litigation which the Jackson reforms were intended to change will continue. We should add that applications for an extension of time made before time has expired will be looked upon more favourably than applications for relief from sanction made after the event.’

1. Argue that the non-compliance was trivial

Unfortunately, it seems that in this instance trivial means trivial. The express guidance given in Mitchell regarding what could be seen as trivial was, ‘the court will usually grant relief if there has been no more than an insignificant failure to comply with an order: for example, where there has been a failure of form rather than substance; or where the party has narrowly missed the deadline imposed by the order, but has otherwise fully complied with its terms’. It is clear from the subsequent cases that trivial is by far the most common means of challenge. Despite the inconsistency in places, litigants would be well advised to remember the court is likely to take a hard line and work from there.

Forstater v Python (Monty) Pictures [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][2013] EWHC 3759 (Ch)

This was a matter where the claimant and a second claimant sought a success fee but the correct form (N251) had not been completed. Despite the form not having been completed it was clear from the correspondence that the second claimant was acting under a CFA and this had been brought to the defendant’s attention. The fact that the N251 had not been used had no discernible impact on the case. As such, the uplift was granted on all costs after the defendant was aware but not those before. Although the judgment was drafted before Mitchell was handed down (but delivered after), Norris J did not feel the need to alter his judgment as in Mitchell terms the non-compliance would have been trivial.

Chambers v Buckinghamshire Healthcare NHS Trust (2013) (QB)

The claimant brought a clinical negligence claim against the defendant. The defendant failed to comply with the case management directions regarding exchange of witness statements despite being granted two extensions. This lead to the claimant making a debarring application and the defendant made a cross application for relief from sanction.

The court took a strict approach to the case and said following Mitchell relief from sanction under CPR r.3.9 could not be granted. The defendant had conceded that the failure could not be considered trivial and, despite the fact that the trial period was unaffected, the claimant had been deprived a greater time for ADR.

Adlington v ELS International Lawyers LLP (In Administration) [2013] EWHC B29 (QB)

This was a group litigation (involving over 130 claimants) brought against the defendant for negligent advice when purchasing property in Spain. A group of eight claimants had failed to meet the order requiring individual Particulars of Claim to be signed and served as they were not present in the country when service was required. The order was made pursuant to an unless order which imposed dismissal for non-compliance.

Although the judge was critical of the solicitor conducting the case he said that the starting point for assessing the application for relief was the nature of the non-compliance. The judge noted that the vast majority of claimants had complied with the order and that those who did not were on holiday abroad. This, according to the judge, was trivial breach. The deadline was only narrowly missed and there was no adverse consequences to the defendant nor was there any impact on the efficient conduct of the litigation.

Adlington is open to criticism and may not survive the Court of Appeal’s next decision on this matter. There is no doubt that the judge appears to have stretched the meaning of trivial especially in light of Lord Dyson’s criticism of the decision in Raayan al Iraq Co. Ltd. v Trans Victory Marine Inc. [2013] EWHC 2969 in Mitchell. In that case Andrew Smith J granted a retrospective extension of time when particulars were served two days late. The decision also appears to be at odds with Associated Electrical Industries v Alstom (see below).

MA Lloyd & Sons (t/a KPM Marine) v PPC International (t/a Professional Powercraft) [2014] EWHC 41 (QB)

The defendant applied for an extension of time in which to comply with an order for the service of a witness statement. As part of the action the claimant argued that the defendant was legally extinct and had no entitlement to litigate in England. The claimant was ordered to file and serve a witness statement by the 25th October 2013 addressing the questions of fact and a skeleton argument addressing the questions of law relating to their contention. By December 2013 the claimant was yet to file a witness statement resulting in the defendant making an application to the court. A revised timetable was agreed between the parties and the claimant made a statement asserting that they were unable to comply with the order because the registry for companies in Brunei (where the defendant was incorporated) would not release the required documents with certain documents from the defendant.

Turner J held that the claimant was precluded by from calling at trial any intended witness in respect of the issues identified in the order. The burden in respect of the allegations made against the defendant fell on the claimant. Turner J said in light of Mitchell the court is compelled to take a robust approach to the late service of witness statements. The delay of three months was serious and the breach was not trivial. As such, the claimant was barred from making any reference to the defendant’s entitlement to litigate in England. The case is perhaps best summed up by the following passage of Turner’s judgment:

 ‘This case provides yet another example of a litigant treating an order of the court as if compliance were an optional indulgence.’

Lakatamia Shipping v Nobu Su [2014] EWHC 275 (Comm)

The defendant applied for relief from sanction imposed due to failure to comply with an unless order. The defendant disclosed their disclosure list 46 minutes late. Paragraph D19.2 of the Commercial Court Guide states that in the absence of any specific provision in an order, the latest time for compliance was 16.30 on the relevant day. The defendant thought the deadline was 17.00 and the list was not ready until 16.40; they offered to exchange lists at 16.45 but the claimant solicitors argued that the exchange was out of time and that they would get back to them. When they failed to do so, the defendant served their list at 17.16.

In allowing the appeal, Hamblen J said this was a case in which delay could be measured in minutes, not hours, and that this took the case within the de minimis principle outlined in Mitchell. Given the circumstance of the breach, and the value of the dispute ($45 million), it was considered trivial.

Chartwell Estate Agents v Fergies Properties SA (unreported February 2014)

The applicant had made repeated requests of the respondent for disclosure, stating that it would apply for specific discovery if they did not provide full disclosure. The respondent refused those requests, disagreeing with the documents’ relevance and their effect on the preparation of witness statements. As such, the applicant informed the respondent that it was not going to be ready to simultaneously exchange witness statements on the relevant date and the exchange did not take place. The respondent stated that although it would have been ready to exchange, it had not finalised its own statements because of the applicant’s stated position. The respondent later offered disclosure without seeking to determine the issue of the documents’ relevance, but refused to consent to an extension of time for serving the witness statements, contending that that was a matter for the court to consider. Several weeks after the ordered exchange date permission was sought to serve the witness statements out of time.

Allowing the application, the court held an important factor was that there was nothing to prevent the trial window being maintained which differentiated it from Durrant v Cheif Constable of Avon and Somerset (see below) and MA Lloyd where the defaults had affected the trial dates. Having taken issue with the respondent’s disclosure, the applicant’s failure to apply for specific discovery and for an extension of time for serving the witness statements was not considered trivial in the Mitchell sense. Most importantly, the instant case concerned a simultaneous exchange of statements, rather than sequential service as in MA Lloyd and the respondent was not ready to exchange on time, meaning there was default on both sides. This meant that refusing relief through a robust application of r.3.9 would have effectively ended the claim which the court believed to be too severe a consequence and an unjust result when considered against the history of the case.

The decision in Chartwell Estate is interesting but it is far from clear that the Court of Appeal will approve it. Some may view the decision as a disappointing climb down from the strict approach in Mitchell and the subsequent decisions in Durrant and MA Lloyd. The most important factor to be taken from the case is that the trial window was not affected and, as the exchange was sequential, both parties were in default. The judge’s comments that refusing relief would be too severe a consequence in the individual case can be directly contrasted against the comments of Andrew Smith J in Associated Electrical Industries v Alstom (see below).

Associated Electrical Industries v Alstom [2014] EWHC 430 (Comm)

The claimant in the case was late in serving its Particulars of Claim and the defendant applied to the court for a strike out. The substantive dispute concerned the payment of liabilities following an award of damages for a successful mesothelioma claim. On the day which particulars were due the defendant’s solicitors requested an extension citing a delay by the court in informing that an Acknowledgement of Service was filed, the fact that some papers (which were over 50 years old) were still being located and adverse whether caused by Jude’s storm. The particulars were served 15 days late.

Andrew Smith J granted the application and the case was struck out. In doing so he recognised that if his decision was only what was fair and just between the parties he would not strike out the claim. However, Smith J said he must strike a balance between the parties to the litigation and others who may use the court system and be effected by the decision. This was so despite the delay causing no prejudice to the defendant nor did it affect the court timetable.

The decision in Alstom is interesting because  the court recognised that the strike out would be disproportionate on a micro level and that the decision would likely lead to more litigation as the claimant would re-serve. What appears to have guided the court is the extra-judicial comments of Lord Dyson MR in the 18th Implementation Lecture on the Jackson Reforms that ‘[d]oing justice in each set of proceedings is to ensure that proceedings are dealt with justly and at a proportionate cost. Justice in the individual case is now only achievable through the proper application of the CPR consistently with the overriding objective.’ However, such a strict approach seems to be at odds with Lord Dyson’s additional statement that the changes are not designed to be a series of tripwires.

Clarke v Barclays Bank [2014] EWHC 505 (Ch)

The Claimant sought to rely upon additional expert evidence as the original expert was no longer able to continue with the case. The claimant did not disclose this information and allowed the trial window to be fixed. The claimant did not disclose the fact that the original expert had retired until he had already instructed the second expert. The claimant was given permission to rely on the report and the defendant appealed.

Hollington QC (sitting as a Deputy High Court Judge) allowed the appeal. The court said that the claimant’s failure to disclose the information within a reasonable time could not be overlooked as the court’s directions envisaged a sequential exchange of expert evidence and that the experts would meet to narrow the issues. The court accepted that the withdrawal of the original expert was beyond the claimant’s control and had the information been disclosed promptly the court would have taken a sympathetic view to any direction application. The court was compelled to view the claimant’s strategy as one of delay whereby they sought to obtain the best outcome through arranged mediation which never took place. It was also noted that the defendant would suffer serious prejudice if the second report was allowed as the trial would have to be adjourned to allow for a response.

Hollington QC makes some interesting comments in relation to the decision of Andrew Smith J in Alstom:

‘I think I should make it clear, however, that my agreement with the above passage [paragraph 47] in his Judgment should not be taken as agreement with what follows it. I would respectfully doubt whether the learned Judge then went on, in the following section of his Judgment, to apply correctly what the Court of Appeal had said about the result in his earlier Raayan al Iraq decision. In Mitchell, the Court of Appeal significantly did not say that his earlier decision had been wrongly decided, only that it disapproved of his reasoning. In its later decision in Thevarajah v Riordan, in my judgment it is clear that Richards LJ was not saying that Raayan al Iraq had been wrongly decided: all he was doing, consciously obiter and without argument, was echoing the Mitchell judgment, i.e. it was the reasoning alone that the Court of Appeal disapproved. So, whilst I agree with the passage of his Judgment cited above, that is not to be taken as agreement with what follows. In my judgment, there is no reason to doubt Raayan al Iraq was rightly decided on the facts. It was a case where it would bring the law into disrepute with right-thinking users if the courts were to enforce procedural discipline by striking out the claim. My understanding of Mitchell is that the court should strive to be a tough but wise, not an officious or pointlessly strict, disciplinarian’.

Although the above is obiter, there is a lot of sense if the pragmatic approach adopted by the judge.

2. Argue there is a good reason for non-compliance

What constitutes a good reason is limited and the courts have been slow in providing a stock of acceptable situations. Given that this is ultimately a question of fact limited solely to the case at hand it is not surprising that no more than rough guidance can be given. Starting with Mitchell, the court explained that ‘[i]f there is a good reason for it, the court will be likely to decide that relief should be granted. For example, if the reason why a document was not filed with the court was that the party or his solicitor suffered from a debilitating illness or was involved in an accident, then, depending on the circumstances, that may constitute a good reason’.

An interesting point that has yet to be considered in detail by the court is what constitutes a good reason as the litigation process develops. Consider the following example: The litigation process is well underway and one party seeks to disclose additional expert evidence. This is refused on hearing as it is deemed unnecessary; were the application granted it would in no way impact on the trial date. However, at trial the opposing party’s expert alters their opinion to bring it into direct contrast with the expert who’s report was not allowed. Would this constitute a good reason?

Durrant v Chief Constable of Avon and Somerset Constabulary [2013] EWCA Civ 1624

The claimant in this action brought a claim against the police alleging, among other things, race discrimination and false imprisonment. Witness statements were ordered to be exchanged by January 2013 but the defendant failed to comply. The court set a subsequent date for exchange on the 12th March 2013 with the sanction that the defendant would not be able to rely on any witness evidence not served by that date. The trial was set for June 2013. The defendant failed to meet the court imposed deadline and made an application for relief from sanction. In support of the application the defendant’s solicitor stated that she underestimated the work involved. A further application was made five days before the trial for the admission of additional evidence. The judge allowed the application citing the fact that the officers were not themselves to blame and they would be prevented from refuting the claimant’s allegation if the application was not granted.

The Court of Appeal allowed the claimant’s appeal. The trial judge failed to give sufficient weight to the two new factors in CPR rule 3.9 and did not appreciate the new version of the rule required a less tolerant approach to breaches. In addition, the court said that the reasons for the late service provided by the defendant’s solicitor could not be considered a good reason for non-compliance.

Webb Resolutions v E-Surv [2014] EWHC 49 (QB)

The claimant sued the defendant in respect of losses alleged to have been incurred as a result of a negligent property valuation. The claim was settled and part of that settlement was that the defendant would pay the claimant’s costs. A detailed assessment of the costs took place but the defendant was not content with the outcome and asked the presiding judge for permission to appeal. He was refused.

After the initial refusal the defendant sought permission to appeal the decision on paper on the 29th July 2013 but this was refused by Haddon-Cave J. The defendant contended that the order was not received until the 10th October 2013. The defendant’s solicitors served an application for an extension of time in which to seek an oral hearing for their permission to appeal. The matter came before Blair J  on the 27th November 2013 who heard representations and extended the time and granted the permission to appeal. The claimant sought to challenge the decision of Blair J.

Giving the judgment of the court, Turner J stated that under CPR part 5 a party in default seeking an extension of time for a renewed application for permission to appeal will have to satisfy the same test as outlined in the decision in Mitchell. In following the guidance of Mitchell, Turner J did not believe that the reasons for delay given by the defendant – namely that the timescale was insufficient and that the defendant was not a legally trained client- constituted a good reason and therefore permission to appeal was set aside.

Samara v MBI Partners [2014] EWHC 563 (QB)

In this case, the Master declined to set aside a default judgment entered by the claimant. The defendant informed the claimant of their intention to set judgment aside however no action was taken in this regard for sixteen months until the claimant sought to enforce. The defendant obtained a injunction preventing enforcement and at the subsequent hearing argued that judgment should be set aside because there was a reasonable prospect of successfully defending the claim. In rejecting the application to set aside the Master concluded that the delay was excessive and in so holding was a decisive factor.

Silber J rejected the defendant’s appeal. In reaching his conclusion the judge explained that even though the Jackson Report and the Implementation Lectures do not refer specifically to CPR Part 13 the reforms have universal application across the CPR. As such, the Master was correct to reach the conclusion that the delay was excessive and that there was no good reason had been provided.

3. Argue that the other side have been just as bad in complying with orders

Previously, this may have been an area where some ground could be made however, it seems to have lost its influence following Mitchell. The point was raised in Chartwell Estate by Globe J in allowing the application; Globe J recognised that the breach by the claimant could not be seen in isolation as the defendant’s eventual offer to disclose could have been made much earlier. Despite this, it would be wrong to assume that the fact both parties were in breach was the driving force behind the decision.

The court again made passing reference to this head in Associated Electrical Industries v Alstom but Andrew Smith J dismissed its relevance in the following terms:

‘I have referred to most of the relevant considerations, but should mention another matter on which Mr Benzie relied: the tone adopted in correspondence by Clyde & Co when Pinsent Masons did not agree to an extension of time, citing in particular their response of 18 November 2013 to Alstom’s application, in which, for example, they described it as “frivolous and embarrassing”. The suggestion was that this aggravated AEI’s noncompliance. I doubt whether it is often useful on applications of this kind to assess the tone of inter-solicitor correspondence and I do not consider it important here’.

While arguments regarding the other side’s breach can still be raised it is unlikely they will be met enthusiastically by the courts.

4. Argue breach of form not substance

A breach of form rather than substance is fairly self explanatory in that the court is concerned with minor technical details. The decision in Forstater is a particularly good example of where a minor error was overlooked because it in no way altered the substantive issue in dispute. In that case, the failure to complete the correct form was technically non-compliance however, the defendant was clearly made aware of the CFA as a letter had been written highlighting its existence.

An example which is much harder to recognise is the decision in Adlington. The judge considered the failure to serve Particulars of Claim as a breach of form and not substance. It is difficult to accept that a failure to serve Particulars of Claim can be considered one of form as opposed to substance. The judge was clearly persuaded by the fact that such a small number of claimants had failed to comply and that it presented no hardship to the defendant. Although this may be true, it is better to see this as a trivial breach rather than one of form that leads to it being trivial.

5. Argue change of circumstances

Arguing a change of circumstances will bring the application within the remit of CPR r.3.1(7) as the party is seeking to vary or revoke the order as opposed to have it set aside.

Thevarajah v Riordan [2014] EWCA Civ 14

The dispute between the parties related to terms of an agreement for the appellant’s purchase of assets from the respondents. The asset in question was a pub. The appellant learnt that the respondent had agreed to gives shares in the pub to another person so sought a freezing injunction and issued proceedings. As part of the injunction, as it standard practice, the court ordered the respondent to disclose their assets and liabilities. When the matter was subsequently considered inter partes, the court provided greater particularisation of the disclosure obligation.

The appellant sought an unless order in light of the respondents’ disclosure and this was granted by the court. Further disclosure was provided by the respondent but the appellant maintained there had been a failure to comply with the unless order. The appellant sought declaration that the unless order had been breached and this was accepted in part by the court and a debarring order was made.

Before the trial could take place the respondents made a second application for relief of sanction which caused the trial window to be pushed back. In hearing the second application the court allowed relief from the unless order and aspects of the debarring order were set aside.

The Court of Appeal allowed the appeal and stated that the application under r.3.1(7) was in fact a second bite of the cherry and sought to set aside the provisions of the earlier refusal to grant relief under CPR r.3.9. To that end, to the court approved the decision in Tibbles v SIG [2012] EWCA Civ 518 and distanced itself from the pre-Jackson decision in Woodhouse v Consignia [2002] EWCA Civ 275. Having approved the Tibbles criteria the court stated that the respondents had ‘manifestly failed to satisfy those criteria’ and that a change in circumstance had not taken place.

What constitutes a change in circumstances is a question of fact and therefore it is not possible to provide any substantial guidance. What is clear though is that the court will not allow a party to use CPR r.3.1(7) as a surreptitious means of challenging an order under rule 3.9.

6. Argue that not seeking relief from a sanction

This is perhaps the most interesting point that can be raised in light of the broad definition of sanction taken in Mitchell. Almost all defaults contain an implicit sanction but some rules within the CPR contain an express sanction for failure to comply. The most common example of an express sanction would be failure to comply with an unless order.

Bank of Ireland v Philip Plank Partnership [2014] EWHC 284 (TCC)

The matter concerned the validity of a cost budget filed in accordance with the rules before a Case Management Conference. The claimant forgot to include a full statement of truth but was signed and dated. The claimant had used external providers to produce the budget and maintained they were informed it was ready to be signed. In light of this the defendant alleged that the claimant had failed to file and exchange a cost budget within the time scale prescribed.

The core provision which required addressing was whether the claimant failed to comply with the provision of rule 3.13 and therefore the sanction within 3.14 took effect and, as such, relief from sanction was required under rule 3.9. Stuart-Smith J rejected the defendant’s submission and concluded that the claimant did not need to apply for relief under rule 3.9. Stuart-Smith J summed up the logical fallacy of the defendant’s submission in the following terms (paragraphs 9-10):

‘CPR 3.14 provides for a sanction in the event that a party “fails to provide a budget” but does not include the additional words “complying in all respects with the formal requirements laid down by PD 3E” or any other words to similar effect. There is nothing in the rules or practice directions which requires any and every failure to comply with the formal requirements for budgets as rendering the budget a nullity, as opposed to being one which is subject to an irregularity. The logical consequence of the Defendant’s argument would be that any failure to comply with the form of Precedent H or PD 22 would render the filing of a budget a complete nullity. It would, presumably, apply if the prescribed form for verifying a costs budget had been followed generally but words had been omitted, mis-spelt or muddled up; or even if the order of the two sentences had been reversed.

Such a conclusion would, in my judgment, serve only to bring the rules of procedure and the law generally into disrepute. Fortunately, it is not required or even permitted by the terms of the rules to which I have referred. What has happened here is that the Claimant has filed and exchanged a costs budget on time; but the budget suffered from an irregularity.’

Karbhari v Ahmed [2013] 4042 (QB)

This was a case concerned with an application to serve an additional witness statement which was over seven months late. Turner J considered whether this amounted to an application for relief from sanction under CPR rule 3.9.

The provisions of CPR rule 32.10 provides that where the witness statement is not served within the time prescribed by the court the witness will not be able to give oral evidence unless the court gives permission. In interpreting the meaning of this, Turner J reasoned that in order to obtain the court’s permission under rule 32.10 the party must apply for relief under rule 3.9. Considering whether relief should be granted under 3.9 Turner J held that the breach was far from trivial and refused.

Although decision in Bank of Ireland and Karbhari are not directly at odds it does show a degree of inconsistency. The fact that Bank of Ireland concerned the validity of a document does lend itself to a less rigid interpretation of a sanction and broadly follows the principle that the court will look to substance and not form as is common in most areas of the law (e.g. interpreting trust documents).

7. Include flexibility with any order and during the litigation process

The Deputy Head of Civil Justice and the President of the Queen’s Bench Division have approved a new standard paragraph for the use in clinical negligence cases proceeding in the Royal Courts of Justice:

‘The parties may, by prior agreement in writing, extend the time for directions, in the Order dated [xxx], by up to 28 days and without the need to apply to Court. Beyond that 28 day period, any agreed extension of time must be submitted to the Court by email including a brief explanation of the reasons, confirmation that it will not prejudice any hearing date and with a draft Consent Order in word format. The Court will then consider whether a formal Application and Hearing is necessary’

Currently this matter is limited and the Civil Procedure Rule Committee is discussing whether the provision should be rolled out across the board through an amendment to the CPR and practice directions. Any change will require the consent of the Master of the Rolls.

The provision stops CPR r.32.10 and CPR r.35.13 from taking effect and prevents a judge being inundated with applications for minor variations in the litigation timetable. It is hard to see why this should not be universally applicable. If the parties are capable of agreeing to minor amendments, that in no way prejudice either party, it only serves to save both time and costs (including the court fee). A full hearing is not necessary, especially when the judge will most likely agree the extension. However, a note of caution: not all judges will agree to this being inserted into orders as a matter of routine. Turner J in MA Lloyd stated that the court has an active duty to manage cases and not to ‘rubber stamp their reciprocal procedural indulgences’. Hopefully, common sense will prevail and judicial intervention will be limited only to those cases where it is necessary.

The value of building in a second round of witness statements and expert reports was recognised by Turner J in Karbhari. Turner J recognised that there will be cases in which evidential developments occur after the initial exchange and if this was a realistic possibility it should be anticipated and therefore contained within orders. Altogether, this is a sensible proposition but if parties want to take advantage of it they would be advised to realise it promptly.

Conclusion

While the above shows that there are seven means by which being Mitchelled can be challenged, it is not the case that there are seven ways of avoiding being Mitchelled. There is in fact only one pillar of wisdom and that is to comply with the order.

Charles Feeny & Charles Austin

[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

There are currently many unresolved conflicts in the mental capacity sphere, which have implications for both Court of Protection and Community Care practice and personal injury litigation. The purpose of this talk is to highlight some of these tensions (as time permits) and provide food for thought for both the adult welfare and personal injury professional.

The law in this area is in a remarkable state of flux. In many instances, I can only signpost some of the imminent judicial resolutions or flag up some of the issues which are likely to fall for consideration in due course.

Capacity and its assessment 

Most if not all of you will be familiar with the relevant parts of the Mental Capacity Act 2005 and the accompanying Code of Practice, so I will take these briefly.

What does the Act mean by ‘lack of capacity’? Section2(1) of the Act states: “For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”

There are two stages to the assessment process (commonly referred to as the diagnostic and functional tests or components).

Firstly, a person asserting the incapacity of another must prove that P has an impairment of the mind or brain, or some sort of disturbance that affects the way their mind or brain works. If a person does not have such an impairment or disturbance of the mind or brain, they will not lack capacity under the Act.

Secondly, for a person to lack capacity to make a decision, the Act says: “P’s impairment or disturbance must affect his or her ability to make the specific decision when needed.”

Before making such an assessment, P must be given all practical and appropriate support to help them make the decision for themselves. Stage 2 only applies if all practical and appropriate support to help the person make the decision has failed.

For the purposes of the Act (see section 3(1)), a person is unable to make a decision if they cannot:

• Understand information about the decision to be made (the Act calls this ‘relevant information’);
• Retain that information in their mind;
• Use or weigh that information as part of the decision-making process; or
• Communicate their decision (by talking, using sign language or any other means).

Litigation capacity 

Although there have always been cases in which the assessment was more difficult than in others, until more recently the law in this area was relatively settled, practitioners taking Masterman-Lister v Jewell1 as both their start and end point.

However, the Supreme Court is currently seized of the Dunhill v Burgin litigation.2 In brief summary, the claimant suffered severe brain injury as the result of a road traffic accident on June 25, 1999. The nature and extent of her injuries were not fully explored or appreciated by her own advisers. Proceedings were issued, the claim having been limited to £50,000, and were the subject of a court door settlement in the sum of £12,500. Having first issued a professional negligence action against her former advisers, the claimant then sought to reopen the original litigation on the grounds that at all material times she had liked capacity conduct that litigation (so called Masterman-Lister proceedings).

The issue of the claimant’s capacity to litigate was tried by Silber J who delivered judgment on March 7, 2011. The parties were at odds regarding nature of the Court’s enquiry when looking retrospectively at a particular transaction and, therefore, defined the main issue as follows:

Whether in considering the issue of capacity historically rather than prospectively, should the court:
(a)Confineitselftoexaminingthedecisionsinfactrequiredoftheclaimantinthisaction; or(b) Expand its consideration to include decisions which might have been required if the litigation had been conducted differently. 

Giving judgment for the defendant, Silber J held that: “when the court is considering if the consent order might be set aside on grounds of lack of capacity, the fundamental question for the court when considering this issue of capacity historically, is confined to examining the decisions in fact required of the claimant in the action as drafted… It should not expand its considerations to include decisions which might have been required if the litigation had been conducted differently”.

On appeal, the Court of Appeal (Lord Justice Ward giving the only judgment) disagreed:

“In my judgment Silber J fell into error, perhaps misled by the narrow focus of the issues as they had been defined, in treating the relevant transaction as the actual compromise negotiated outside court leading to the consent order made on January 7, 2003. The proper question as settled by Masterman-Lister and Bailey, was whether the claimant had the necessary capacity to conduct the proceedings or, to put it another way, the capacity to litigate…Since the compromise is not a self- contained transaction but inseparably part of the proceedings, the question is not the narrow one of whether she had capacity to enter into that compromise but the broad one of whether she had the capacity to conduct those proceedings” (at [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][24]) and hypothetical issues (if the proceedings had been conducted differently) were to be taken into account (at [27]).”

In light of the Court of Appeal’s decision, a second question fell for consideration (as mooted by Chadwick LJ in Masterman-Lister supra at 1537 A-B [68]):

The Court having declared that the Claimant lacked capacity to enter into the compromise agreement of 7 January 2003 and the Defendant declining to ask this Court to approve the compromise retrospectively, does CPR Part 21.10 have any application where the Claimant brought a claim in contravention of CPR Part 21.2 so that in the eyes of the Defendant and the Court she appeared to be asserting that she was not under a disability?

This issue was tried before Mr Justice Bean on 3-4 October 2012. Prior to handing down his decision, the Supreme Court granted permission to appeal the Court of Appeal’s judgment. Accordingly, by consent the Court issued a leapfrog certificate and both appeals will be heard together on 3-5 February 2014.

Whatever the outcome, the Supreme Court’s ruling is likely to have significant implications on practice in both the civil courts and Court of Protection.

Deprivation of liberty, safety and best interests 

On 21-23 October 2013, the Supreme Court heard consolidated appeals in P v Cheshire West & Chester Council3 and P & Q v Surrey County Council4 concerning the Deprivation of Liberty Safeguards. Similarly, the Supreme Court’s decision here is likely to have significant implications for both mental capacity and personal injury practitioners alike. It is not possible here to provide a rehearsal of (or mini lecture on) the issues in these appeals, suffice to record that irrespective of whether or not somebody is cared for at public or private expense (or perhaps a combination of both) a balance must be struck between flexibility and certainty, so that the legality of any restrictions are appropriately scrutinised whilst promoting the best interests of disabled people.

I can, however, give two examples of cases in which both the Court of Protection and the civil courts have been seized of the same subject matter – with drastically different results.

In Sedge v Prime5, Court of Protection proceedings has preceded an application for an interim payment to establish an accommodation and care package within a personal injury claim. As part of a multidisciplinary assessment, it had been concluded that it was in P (or C)’s best interests for him to live in the community. Giving judgment in favour of the claimant, the Deputy Judge commented upon the earlier determination as follows6:

“I do not regard myself as in any way bound by that decision. At the same time I do not regard it as irrelevant. The fact that those experienced in caring for others and/or arranging such care unanimously concluded that it would be in the claimant’s best interests for him to be cared for in the community suggests that a considerable body of experienced opinion did not reject community care as a potential realistic option for the claimant. But the decision offers limited support for the claimant’s case since the test the court has to apply is different.”

Clearly an earlier best interests decision is relevant information as part of a subsequent decision in connection with a compensation claim, but is the latter assessment entirely unfettered? Are the injured party’s rights (and Court’s obligations) arising under Articles 5 and 8 not potentially engaged in each case? Equally, would respect for dignity in those who lack capacity to make decision regarding their own personal care arrangements not inform the assessment of what was reasonable by way of private expenditure?7

In Roult v North West SHA8, partial approval of settlement was made in a liability admitted birth injury claim on the basis that the claimant would be accommodated by his local authority in a ‘group home’.

This was news to the local authority. In ignorance of the proposals for the claimant’s care, the local authority (with the support of the Official Solicitor, who was in a similar state of darkness) pursued a welfare application in the Court of Protection owing to safeguarding concerns.

Ultimately, the Court of Protection concluded that it was in the claimant’s best interests (with the agreement of his new advisers in the clinical negligence proceedings) for him to live in his own property as part of a proposed supported living arrangement. As the terms of the partial settlement excluded any liability on the part of the defendant to meet such costs, the interested parties remain at loggerheads as to how the claimant’s future care needs should be met.

The weighing of risk versus personal autonomy is a common feature of Court of Protection and personal injury claims, particularly in borderline capacity cases. Although the aims are often very similar, practitioners in the latter discipline typically have little if any familiarity of representing clients in a welfare jurisdiction and vice versa. Having the benefit of some experience in both, I am firmly of the view that there is much gained by at least a rudimentary knowledge of the judicial approach in each jurisdiction.

Re MM [2009] FLR 443, Munby J (as he then was) observed as follows at [120]:

“A great judge once said, ‘all life is an experiment’, adding that ‘every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge’ (see Holmes J in Abrams v United States (1919) 250 US 616, at 624, 630). The fact is that all life involves risk, and the young, the elderly and the vulnerable, are exposed to additional risks and to risks they are less well equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else. Often it will be appropriate to do so, but not always. Physical health and safety can sometimes be bought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good – in particular to achieve the vital good of the elderly or vulnerable person’s happiness. What good is it making someone safer if it merely makes them miserable?”

Reading this passage in abstract, one might as readily assume the learned Judge to be talking about sexual relations and contact decisions in connection with a vulnerable adult (the actual subject matter the proceedings) as a decision whether or not to order the trial of a home or supported living placement (say, for example, where there is uncertainty as to how well the risks to the claimant, family members or professional carers might be managed in that environment).

Concerns expressed in the context of adult welfare proceedings are occasionally echoed by rehabilitation professionals working in the NHS and private sphere9:

“There are unfortunately too many brain-injured people who having been awarded generous personal injury settlements continue to lead impoverished lives with little self-determination or independence. They are not living their lives the way they wish to, but the way well-intentioned health professionals have determined they should live it. They may be ‘‘safe’’ but unfulfilled. They may be ‘‘stable’’ but their life has little meaningful activity.”

Using the example of a residence issue, in personal injury proceedings the tension is typically a financial one: the cost of success or failure will be borne (at least in part) by the tortfeasor. In Court of Protection proceedings, the focus will normally be on expressed wishes and respect for autonomy. For example, in P v M (Vulnerable Adult)10 and Re M (Best Interests – Deprivation of Liberty)11 the learned Judge in each case held that the risks (of potentially life-threatening consequences in each case) did not outweigh the benefit in each case of ordering P’s return home with a package of support, at least on a trial basis, thereby giving respect for family life and autonomy.

There are some capacity issues which throw up similar difficulties, irrespective of whether or not the vulnerable adult has a personal injury claim. Last summer, BABICM’s summer conference focused on all aspects of relationship following head injury12. In the recent case of AB v LM & Others13, the Court of Appeal has finally had an opportunity to grapple head on with issue of capacity to engage in sexual relations. Hopefully, the case will provide clarification, as the issue of capacity in this context is of practical significance and acute sensitivity for injured people and those fulfilling a supporting role (family, case managers, carers etc).

It is also a sphere of human activity where, as observed in the authorities, the State should tread carefully (safeguarding authorities and the Courts etc).

In conclusion, whilst there is some tension between best interests and reasonableness, the respective tests in each jurisdiction, it would surely be illogical and inconsistent if the reasoned approach of one judge dealing with a COP case (if not exactly the same subject matter, as in the case of Sedge) does not inform the approach of another judge dealing with similar issues in a private claim (and vice versa).

Loughlin v Singh and Others14

This case throws up a number of important issues and practice points for both the COP and PI practitioner:

Firstly, an important if subtle point is the judicial evaluation of expert evidence. On a number of occasions the Judge emphasises the extent to which the experts have15 (or have not16) made a detailed and careful review of the relevant material. Moreover, the Judge expressly attaches particular weight to one expert’s practical experience in cases of a similar nature17:

“Dr O’Driscoll is a consultant neuropsychiatrist with considerable experience, both in community based rehabilitation and in the clinical tertiary setting. He emphasised that neuropsychiatrists focussed mainly on the behavioural and emotional aspects of frontal lobe injury… Not only did he have expertise that comprehensively embraced all the issues as regards capacity, he had also considerable practical experience in working with cases, such as the present one, which were at the margin between capacity and incapacity. He had before him all the information, gathered over many years, about the claimant’s behaviour, and the assessments made by others.”

Secondly, the Judge – albeit with some reticence – took into account the views of other professionals who have been in close and frequent contact with the claimant. Such reserve is surprising. The importance of such evidence has been emphasised in a number of cases18. Moreover, it would fly in the face of the Mental Capacity Act 2005 not to take into account such evidence, as reflected in the Code19:

“The Act places a duty on the decision-maker to consult other people close to a person who lacks capacity, where practical and appropriate, on decisions affecting the person and what might be in the person’s best interests. This also applies to those involved in caring for the person and interested in the person’s welfare. Under section 4(7), the decision-maker has a duty to take into account the views of the following people, where it is practical and appropriate to do so:

• Anyone the person has previously named as someone they want to be consulted,
• Anyone involved in caring for the person,
• Anyone interested in their welfare (for example, family carers, other close
  relatives, or an advocate already working with the person),
• An attorney appointed by the person under a Lasting Power of Attorney, and
• A deputy appointed for that person by the Court of Protection.”

Thirdly, the Judge discounted past professional care and case management services by 20% on a broad brush basis. The precise jurisprudential basis is unclear20, but this is a cause of significant concern for both the lawyer and professional deputy assisting a claimant with acquired brain injury. It is imperative that all professionals supporting an injured person understand and, if appropriate, scrutinise paid care and case management roles21 and that all services are appropriately estimated.22

Fourthly, and finally for these purposes, a number of issues are raised in relation to disclosure of documentation before (and/or prepared in connection with) the Court of Protection proceedings.

Given the importance of the decisions under consideration, it is undoubtedly correct that all material which has a bearing on P’s capacity should be placed before the Court of Protection.23

This gives rise to the thorny question of “what disclosure might be made of reports made available to the Court of Protection for these purposes in subsequent civil proceedings?”24 – No doubt this issue will fall for further judicial consideration in due course.

MATTHEW STOCKWELL

St Johns Buildings Chambers

[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

Charles Feeny was recently published in the Tort Law Review. In his article Charles comments on the Supreme Court decision in Sienkiewicz v Grief UK Limited [2011] UKSC 11 and the Court of Appeal decision in Williams v University of Birmingham [2011] EWCA Civ 1242, and in doing explores the concepts of material increase in risk and the de minimis principle.