Lindsay v Wood

On 1^st March of this year, I gave a judgment after a three day hearing for assessment of damages and the central issue I was asked to decide was the question of where the claimant would live in the future. There was a significant difference between the cost in terms of damages per annum to his remaining in the United Kingdom, which is where he was at the time of trial looked after by a carer, which was assessed by me at £100,000 a year, or his joining his wife who, by the time of trial, had gone back to her native Australia with their child, which in round terms which I assessed at £29,500.

I heard evidence from the claimant’s carer and from his wife and from an expert in Australian immigration law on this issue, and with the agreement of all parties, the question I was asked to decide is whether there was a chance capable of measurement that he would succeed in what was then his stated intention, albeit he did not give evidence himself, of re-joining his wife and son on a permanent basis in Australia, exercising his rights as a spouse to do so and the focus was then on the hurdles that he would have had to cross over to achieve that stated aim.

It was, therefore, implicit, indeed explicit in the case as it was then being presented, that his marriage which he had after all contracted after he was injured and which had produced a son, was subsisting and it was proven clearly that, if he wanted it to subsist, he would have to join his wife in Australia as she had no desire or intention to return to live in the UK.

The claimant argued notwithstanding his desire to get to Australia that he had no prospect of getting there because of the state of the law of that country and the two hurdles of the health requirement and the character requirement that he would have to surmount. The defence argued that he had a good prospect and my assessment was that he had a chance but it was not a high one, and I assessed it as 20 per cent. It was agreed that that would be reflected in the damages by a formula that the parties were happy to agree on and, having made that declaratory judgment and other decisions about the levels of damages in certain areas, I left it to the parties to put that into effect. There is no perfected judgment here, albeit that all issues were effectively resolved.

It was a question, therefore, for the parties to calculate a lump sum that flowed from that indicative judgment. It was a question of the claimant investigating whether an order including periodical payments was preferable to a conventional lump sum, and there was also a need to agree a form of words to reflect the undertaking that Mr Kent had offered in the trial in response to a renewed application by the defence to run the direct payments argument (if I can so call it) which I had addressed at the outset.

By early April of this year, the lump sum figures had been, as I understand it, agreed as figures. They in fact result in a conventional award just over £4 million, reflecting the judgment I had given and in mid-April the claimant was advised by a financial adviser that a lump sum would be preferable to periodical payments on all heads of damage. The matter then drifted a little and an appointment was sought to get the final order agreed and the defendants asked to vacate it hoping to agree. By mid June there was, in all essentials, and for all intents and purposes, agreement. It only therefore remained for the court to consider whether periodical payments notwithstanding the preference of the claimant, should be the form for all or part of the damages and then for the order to be drawn and perfected.

On 6^th July the claimant telephoned his solicitors and, paraphrasing what happened, he told the solicitor that he and his wife had come to an agreement that they would divorce, that he was not so keen on life in Australia as he had been. He did not think the service position there was so good, and he preferred life in the United Kingdom. The solicitors contacted the claimant’s wife and the upshot of those enquiries was that the claimant had indicated that he intended to divorce her. She had been taken by surprise and was shocked by this, but was ultimately in agreement with it.

I say no more about that because it may be necessary to consider precisely what happened and why it happened if this matter goes further. As to the position of the law on this application, which is merely an application to be permitted to re-open this case at a hearing as to whether this area of the assessment of damages should be set aside and reviewed, the law is not controversial. That there is an existing jurisdiction, sometimes call the Barrell jurisdiction from the case of Re Barrell Enterprises [1973] 1 WLR 19 is beyond doubt. There is a very extensive and helpful review of it by Rix LJ sitting at first instance in Noga [2001] 3 All ER 513. In that case and the previous and subsequent cases, different epithets or descriptions have been used as to the circumstances in which this jurisdiction should be exercised. There is no doubt that the circumstances must be exceptional, that the reasons for exercising must be strong, and that it is a power that will be very rarely exercised.

The most recent decision is Robinson v Bird [2003] EWCA (Civ) 1820 where May LJ summarised the position in this way:

“Once a judgment has been handed down or given, there are obvious reasons why the court should hesitate long and hard before making a material alteration to it. These reasons have been rehearsed in the cases to which I have referred and I need not elaborate them further. The cases also acknowledge that there may very occasionally be circumstances in which a judge not only can, but should make a material alteration in the interests of justice. There may for instance be a palpable error in the judgment and an alteration would save the parties the expense of an appeal. On the other hand, reopening contentious matters or permitting one or more of the parties to add to their case or make a new case should rarely be allowed. Any attempt to do this is likely to receive summary rejection in most cases. It will only very rarely be appropriate for parties to attempt to do so. This necessarily means that the court would only be persuaded to do so in exceptional circumstances, but that expression by itself is no more than a relatively uninformative label. It is not profitable to debate what it means in isolation from the facts of a particular case.”

No court has attempted to list the circumstances which might be “exceptional” for the purposes of such an application and I very much doubt whether any court, however high or wise, could be persuaded to take that task on. What is argued here is that the claimant wants to change his case, and on his behalf Mr Kent QC accepts that a claimant of full capacity in these circumstances would not and should not be allowed to do so on the familiar principle that a case is tried once not twice, and there is only one occasion of access to the courts for that purpose.

The problem here, he says, and the reason why his application should be allowed is that this claimant is not of full capacity. He is a patient and therefore the court must surround him with its protection and concern in circumstances where it would not extend such concern to an ordinary litigant. There was a contested or disputed hearing before I tried this case before Stanley Burnton J as to whether this claimant was a patient and Mr Edwards rightly reminds me of that; there was conflicting expert evidence and it was not a clear-cut case by any means, which is indeed why the application was necessary. The aspect of the claimant’s personality which, in the end, persuaded Stanley Burnton J to make him a patient, was his impetuosity and resultant inability to manage the kind of sums of money to which he would have access if successful in his claim.

This claimant is intellectually intact, has normal processes of cognition and understanding, and his altered personality is the problem; it is the problem that causes the need for care, and it is the problem that enables Mr Kent, in my judgment, to seek to invoke the court’s protection to the extent that he does that is the exceptional circumstance or strong reason for taking this most unusual of courses.

Not without hesitation, I have reached the view that he ought to be allowed to do so. The arguments that Mr Edwards persuasively deploys about the claimant’s ability to understand the proposed agenda for the first trial, may be advanced at the proposed hearing to re-open the case and may or may not be assisted by evidence that is forthcoming on that occasion. I would want to look very closely at those reasons. The difference that a revising of this aspect of the claim makes is not inconsiderable, estimated in round figures by Mr Kent, and I have no reason to disagree with this, at some £395,000. The court would want to know and to satisfy itself that mere financial benefit is not the reason for this change of position by the claimant, among other things, but I say no more about it than that.

Mr Edwards’ arguments are intellectually powerful, may even in the end be forensically successful, but the necessarily imperfect exercise of assessing a chance is what I did and was invited to do and if it is truly the case that events have followed that assessment, which are not contrived that are genuine and which render that assessment certainly wrong, and wrong by a factor that can be measured, then the interests of justice are offended, in my view, by the original decision being allowed to stand.

As Mr Kent put it in argument, events can justify such applications. If a claimant had died the week following the judgment, one would have expected the defendant to have made such an application. If the Australian immigration rules had been swiftly amended to permit automatic and unconditional entry to spouses of Australian nationals, that too would, I suspect, almost certainly have been the subject of an application by the defendants, the outcome of which one would not like to predict but which would have at least justified giving them the chance of re-opening this aspect of the case.

That is the position as I see it I face today. I think the claimant should be given the opportunity to persuade the court to reconsider its assessment of the case in this particular area and to that extent this application succeeds.