Corbett v South Yorkshire Strategic Health Authority

LORD JUSTICE LAWS: This is the defendant’s appeal against the decision of HHJ Bullimore, sitting as a Deputy High Court Judge, made on 24 November 2006 when he refused the defendant’s application to adjourn what in the proceedings has been called “the indexation issue”. I shall explain what that means directly. Permission to appeal was given by the judge below.

The claim is an action for damages for clinical negligence. The claimant, John Corbett, was born on 31 March 1983. He suffers from cerebral palsy and has a mental age of about five. He is a patient of the Court of Protection. In April 2004, acting by his mother as litigation friend under the clinical negligence protocol, the claimant intimated a claim against the hospital authorities, seeking to hold them responsible for brain injury sustained by him at birth which was said to have led to his present and continuing condition. At length, proceedings were issued in August 2005. Liability was admitted the following month and thereafter substantial interim payments were made: £50,000 in October 2005, and £450,000 in December 2005.

The trial of the quantum of damages has been fixed for 18 December 2006, thus less than a fortnight off, though in fact there has been substantial agreement. All heads of loss, save for future care and case management, have been agreed in the total capital sum of £1,655,000. In addition the whole life multiplier has been agreed at 28.12. Thus only two issues remain, namely the cost of future care and case management, and the indexation issue. The latter arises in this way: if, as the claimant will submit, future loss by way of care and case management is to be compensated by an award of periodical payments, the court will have to decide how inflation, or theoretically deflation, in the cost of the relevant provision is to be measured for the purpose of fixing the periodical payments to be made as time goes by. Should it be by reference to the retail price index (“the RPI”) or to a different index such as the average earnings index (“the AEI”), the ASAT median (annual survey of hours and earnings, median earnings level), or the ASAG6115, which is the annual survey of hours and earnings, occupational earnings for care assistants of home carers. Care and case management costs have historically risen at a faster rate than the RPI and the claimant will seek to apply an index other than the RPI.

In order to understand the distinct issue which HHJ Bullimore had to decide and which falls for determination on this appeal, it is necessary to sketch in some background. The power to order that damages may take the form of periodical payments was conferred on the court by the Damages Act 1996 section 2 as now substituted by the Courts Act 2003. In Flora v Wakom (Heathrow) Ltd [2006] EWCA Civ 1103, this court had to decide how wide is the discretion to apply an index or measure other than the RPI. That was a question of statutory construction. It depended on the interrelationship between section 2(8) and 2(9) of the 1996 Act as substituted which, however, I need not cite. Brooke LJ, with whom Moore-Bick LJ and the President of the Family Division agreed, held that the discretion was wider rather than narrower and that, in enacting section 2, Parliament had not intended to depart from what has been described as the “hundred percent principle” of compensation (see paragraph 28 of the judgment) and the court should not consider questions of affordability in deciding what order to make (see paragraph 29).

The relevance of the Flora case for present purposes arises, however, because of the following passages in Brooke LJ’s judgment:

“32.

Mr Pooles expressed forensic concern about the prospect of trials at which a host of expensive expert witnesses would have to be called on each side while the court was exploring the merits, if any, of using an index other than RPI. He reminded us of what Stuart Smith LJ said in Warren v Northern General Hospital NHS Trust [2000] 1 WLR 1404 at para 13 about the undesirability of extensive evidence from accountants, actuaries or economists. This judicial comment was made, however, in a quite different context, in the period after Wells v Wells when people were waiting for the Lord Chancellor to use his statutory power to fix a discount rate for the calculation of lump sum awards.

“33.

We are now dealing with a different statutory provision and, if the experience of the past is any useful guide, it is likely that there will be a number of trials at which the expert evidence on each side can be thoroughly tested. A group of appeals will then be brought to this court to enable it to give definitive guidance in the light of the findings of fact made by a number of trial judges. The armies of experts will then be able to strike their tents and return to the offices or academic groves from which they came.

“34.

There was, in my judgment, considerable force in Mr Glancy’s submission that if the court were to adopt an approach to the interpretation of s 2(8) and 2(9) which was different to that which he advanced there would be a very real danger that this new statutory scheme would not have the beneficial effect identified by Lord Steyn in Wells v Wells but which would be rendered to a great extent a dead letter.”

The respondent, the claimant in the proceedings, drew particular attention to paragraph 33 and Brooke LJ’s contemplation of a number of trials and a group of appeals. The judgments in Flora were before Swift J when she heard and decided Thompstone [2006] EWHC 2904. In that case Swift J had to decide what was the appropriate measure an index to apply for the purpose of a periodical payments award. I should note at this stage some features of the judgment, which was delivered on 23 November 2006, as it happens the day before HHJ Bullimore’s decision in the present case. At paragraph 12 Swift J said:

“Although the issue of indexation is one which affects many high value personal injury claims, the parties were in agreement that I should approach this case on an individual (rather than a generic) basis and this I have done.”

The judge made it clear (see paragraph 50) that the claimant’s expert Dr Wass had invited her to consider not one but three measures as alternatives to the RPI. That deployment of options on behalf of the claimant was objected to by the defendant (see paragraph 51) but not, however, by the judge. The judge said:

“52.

My task is to decide what form of order will best meet the Claimant’s needs and, so far as section 2(8) and (9) is concerned, to determine what is appropriate, fair and reasonable. These matters do not lend themselves to determination by the burden of proof. Insofar as the Claimant does bear any burden, it seems to me that this is an evidential burden, ie an obligation to adduce evidence sufficient to establish a case that the RPI is an inappropriate measure of indexation and that there is at least one alternative, more appropriate, measure that the court might adopt in its stead. The response of the Claimant’s solicitors of 29 Jun 2006 set out his case in precisely those terms and he has called evidence in support of his assertions. Once the Claimant has discharged that evidential burden, it is in my view for the court to decide on the evidence before it what is appropriate, fair and reasonable.”

At length Swift J held (see paragraph 150) that, were a periodical payments order to be made, it would be appropriate, fair and reasonable to provide that the amount of the payments should vary by reference to the 7/5 percentile of ASAG6115 or any comparable group which might replace 6115 as the occupational group for carers. The judge granted the defendant permission to appeal to this court on the indexation issue. The appeal is, of course, outstanding.

On 24 November 2006 HHJ Bullimore had to deal with two applications by the defendant. One was for leave to adduce evidence at the forthcoming quantum trial from Mr Joe Monk who would speak -- I summarise very shortly-- to the cost to the NHS of adopting a measure other than the RPI. We are not concerned with that aspect of the proceedings before the judge below. The other application was to adjourn the hearing fixed for 18 December 2006 to await the outcome of the appeal in Thompstone. This present appeal, as I have indicated, is brought against the judge’s refusal to grant that adjournment, or rather it is asserted that he should have adjourned the indexation issue leaving the balance of outstanding matters for trial on 18 December.

Before dealing with the arguments, I should say that there is another case, de Haas, in which on 24 November 2006, the date of HHJ Bullimore’s decision in this case, Nelson J adjourned determination of the indexation issue to await the outcome of the appeal in Thompstone.

On 24 November HHJ Bullimore, having crisply set out the rival contentions on the question of an adjournment, concluded simply in this way:

“My view is that this case should be heard in December 2007 [he means 2006] and there is no reason not to go ahead.”

The appellant contends that this case is effectively identical to Thompstone and there is no sensible purpose in asking the trial judge to determine the indexation issue. It would involve expenditure and much cost and time. There would inevitably be an appeal in any event whichever side prevailed. If the indexation issue is adjourned, the trial judge can still decide the other matters, the cost of care and case management in today’s money; can award the claimant the agreed capital sum; and, it may be, make an award for the first year’s care and case management. All that can be done while the indexation issue hangs fire until Thompstone is decided.

This approach, urged by Mr Porter today and in a skeleton argument drafted by Mr Havers QC, has undoubtedly some superficial attraction. But there are matters which print the other way. First this was essentially a case management decision. Notwithstanding the plain importance of the indexation issue to the parties, and to NHS Trusts generally and indeed other defendants, and notwithstanding also the judge’s grant of permission (which I apprehend he made essentially to save time in this court) as is well known, this court is especially reluctant to interfere in case management decisions.

Secondly, it appears to me to be an oversimplification to say that the issues in this case and in Thompstone are the same or even virtually the same. There is a significantly higher multiplicand in this case, at least on the claimant’s best case. There is a varying multiplicand in Thompstone, in which the claimant was only seven at the time of trial. There is, in this case, a dispute as to the type and costs of the care required, whereas in Thompstone, as I understand it, the costs (presumably in today’s money) were agreed and approved by Swift J. One of the defendant’s expert witnesses -- and this is perhaps of particular importance -- is different here than in Thompstone, although the claimant’s experts are the same.

Thirdly, for what it is worth and I attach only modest importance to this, it appears that in de Haas the claimant desired the indexation issue to be adjourned and it was the defendant who resisted it. However that may be, Nelson J made his own case management decision in those proceedings. Next, it is fair to say that the defendant’s intention to seek an adjournment in this case was notified late, as I understand it, on 21 November 2006. Very considerable costs have been incurred for the hearing on 18 December and, although in part that would go ahead as a matter of substance, it may be there would be substantial cancellation fees. Mr Grace, for the respondent, would certainly so contend.

Next,, the parents of the claimant wish to have a first instance trial on the indexation issue and to give their evidence as to their son’s needs and wishes. With great respect to them, their desire to have a first instance trial cannot move the court very far. However, their evidence may potentially be material to the type of care required and thus to the indexation issue. Any appeal thereafter could encompass points that would be specific to the claimant’s case. Thompstone itself, I should add, was decided on an avowedly case-specific basis. I have already read paragraph 12 of Swift J’s judgment.

Lastly, I would make these observations: it is likely that any appeal in this case, after 18 December, can be conjoined in this court with Thompstone. In any event there will be virtue, as Brooke LJ foreshadowed in Flora, in having a number of first instance decisions which this court can then range across in giving definitive guidance at a later stage on how the indexation issue is to be approached. Mr Porter QC has urged us to give guidance, so far as we feel it possible, as to what kind of cases should be in the basket, so to speak, for the appeal and which should not. It seems to me that we cannot say definitively which cases should form part of the group to be appealed and which should await the appeal’s outcome. Thompstone will take its course. By the time it is ready for hearing, other cases will have come along and it will be clear at that stage which should and which should not be heard together. All we can say is that it is likely to be helpful to have a cross-section of cases, rather as Brooke LJ envisaged. The practicalities of costs and time will inevitably be significant. Judges will have to arrive at their own case management decisions in whatever are the circumstances they face in any particular piece of litigation. They will certainly with respect wish to have well in mind the practicalities of cost and time. They will also wish to have in mind the desirability that the Court of Appeal have a sensible number of cases in a group to be considered together.

More than this, it seems to me I cannot say without an illegitimate intrusion into the case management discretion of individual cases and, in any event, at the present stage we are, so to speak, in early days as regards this kind of litigation. There is nothing wrong with HHJ Bullimore’s decision. It was a proper case management decision. It is clear, as I have said more than once, that there will be other cases that will fall to be heard along with Thompstone.

For all those reasons I, for my part, would dismiss this appeal.

LORD JUSTICE LEVESON: I agree.