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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 (11 May 2004) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2004/576.html Cite as: [2004] WLR 3002, [2004] EWCA Civ 576, [2004] 1 WLR 3002, (2005) 81 BMLR 108, [2004] 3 Costs LR 393, [2004] 4 All ER 920, [2004] CP Rep 34 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM (1) Milton Keynes County Court
(2) Newcastle upon Tyne County Court
(1) His Honour Judge Charles Harris QC
(2) Mr Recorder Thomas QC
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE LAWS
and
LORD JUSTICE DYSON
____________________
(1) HALSEY |
Appellant/ Claimant |
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- and - |
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MILTON KEYNES GENERAL NHS TRUST |
Respondent/Defendant |
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(2) STEEL |
Claimant |
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and |
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JOY |
Appellant/ First Defendant |
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and |
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HALLIDAY |
Respondent/Second Defendant |
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Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Christopher Purchas QC and Mr Huw Lloyd (instructed by Messrs Barlow Lyde and Gilbert) for the Milton Keynes General NHS Trust (Respondent)
Mr Charles Foster (instructed by Messrs Crutes Law Firm) for Joy (Appellant)
Mr Christopher Purchas QC and Mr Howard Elgot (instructed by Messrs Ricksons) for Halliday (Respondent)
The Claimant (Steel) did not appear and was not represented
Lord Lester of Herne Hill QC for The Law Society as an Interested Party
Mr Michel Kallipetis QC and Mr Philip Bartle QC for The ADR Group as an Interested Party
____________________
Crown Copyright ©
Lord Justice Dyson:
General encouragement of the use of ADR
"The encouragement of greater use of mediation, and other forms of alternative dispute resolution, is one of the options considered by the NHSLA, who are responsible for handling clinical negligence claims against the NHS. The NHSLA is working with the Legal Services Commission to develop a joint strategy for promoting greater use of mediation as an alternative to litigation in clinical negligence disputes.
Since May 2000 the NHSLA has been requiring solicitors representing NHS bodies in such claims to offer mediation in appropriate cases, and to provide clear reasons to the authority if a case is considered inappropriate."
"The hallmark of ADR procedures, and perhaps the key to their effectiveness in individual cases, is that they are processes voluntarily entered into by the parties in dispute with outcomes, if the parties so wish, which are non-binding. Consequently the court cannot direct that such methods be used but may merely encourage and facilitate."
The costs issue
"Skilled mediators are now able to achieve results satisfactory to both parties in many cases which are quite beyond the power of lawyers and courts to achieve. This court has knowledge of cases where intense feelings have arisen, for instance in relation to clinical negligence claims. But when the parties are brought together on neutral soil with a skilled mediator to help them resolve their differences, it may very well be that the mediator is able to achieve a result by which the parties shake hands at the end and feel that they have gone away having settled the dispute on terms with which they are happy to live. A mediator may be able to provide solutions which are beyond the powers of the court to provide."
"The Working Party believes that there are many cases within the range of Commercial Court work which do not lend themselves to ADR procedures. The most obvious kind is where the parties wish the court to determine issues of law or construction which may be essential to the future trading relations of the parties, as under an on-going long term contract, or where the issues are generally important for those participating in a particular trade or market. There may also be issues which involve allegations of fraud or other commercially disreputable conduct against an individual or group which most probably could not be successfully mediated."
Other examples falling within this category are cases where a party wants the court to resolve a point of law which arises from time to time, and it is considered that a binding precedent would be useful; or cases where injunctive or other relief is essential to protect the position of a party. But in our view, most cases are not by their very nature unsuitable for ADR.
"The fact that a party believes that he has a watertight case again is no justification for refusing mediation. That is the frame of mind of so many litigants."
In our judgment, this statement should be qualified. The fact that a party unreasonably believes that his case is watertight is no justification for refusing mediation. But the fact that a party reasonably believes that he has a watertight case may well be sufficient justification for a refusal to mediate.
"If mediation can have no real prospect of success, a party may, with impunity, refuse to proceed to mediation on this ground. But refusal is a high risk course to take, for if the Court finds that there was a real prospect, the party refusing to proceed to mediation may, as I have said, be severely penalized. Further, the hurdle in the way of a party refusing to proceed to mediation on this ground is high, for in making this objective assessment of the prospects of mediation, the starting point must surely be the fact that the mediation process itself can and often does bring about a more sensible and more conciliatory attitude on the part of the parties than might otherwise be expected to prevail before the mediation, and may produce a recognition of the strengths and weaknesses by each party of his own case and of that of his opponent, and a willingness to accept the give and take essential to a successful mediation. What appears to be incapable of mediation before the mediation process begins often proves capable of satisfactory resolution later."
"The parties shall by consider whether the case is capable of resolution by ADR. If any party considers that the case is unsuitable for resolution by ADR, that party shall be prepared to justify that decision at the conclusion of the trial, should the judge consider that such means of resolution were appropriate, when he is considering the appropriate costs order to make.
The party considering the case unsuitable for ADR shall, not less than 28 days before the commencement of the trial, file with the court a witness statement without prejudice save as to costs, giving reasons upon which they rely for saying that the case was unsuitable."
Public bodies
"As I have said, however, the most important feature to my mind is the formal pledge given on behalf of the government and its various departments to use ADR in appropriate cases. The government did not abide by that pledge in this case. I am not in a position to form any real view of whether a mediation would or would not have succeeded. It may well have done, but in my judgment a failure to abide by the formal pledge given on the part of government, coupled with the fact that……, justifies a decision that the defendant should not recover any further costs from the claimant."
HALSEY v MILTON KEYNES GENERAL NHS TRUST
The facts
"We should perhaps point out that our clients would have agreed to limit their entire claim in this matter to the costs of the representation of the inquest. Indeed they would have been prepared to limit the preparation and attendance to £5000. No doubt your clients will bear this in mind when we issue proceedings against them following the inquest. The family have been forced to issue proceedings simply because of your clients refusal to meet the costs of the attendance".
"1(a) airway obstruction;
1(b) introduction of nasogastric nutrition into airway and lungs;
2 chronic renal failure; old myocardial infarct; chronic obstructive pulmonary disease and fractured ribs".
"You will see from the correspondence that I have at every juncture sought to meet, negotiate and mediate this claim with the least amount of cost to the NHS. Unfortunately all such attempts have been rejected. I want you to have this correspondence in mind when the final bill payable by the NHS for legal costs is in the region of £100,000."
"As there is no negligence, the Trust will not be settling this claim. In view of this, I do not believe it is appropriate to meet with you and discuss this claim or refer this case to mediation as the Trust's stance will not change in this respect. Therefore, any such meeting or mediation will be unnecessary waste of both costs and resources".
"We must make it clear to you at this stage that it was never our intention to issue proceedings since this was quite obviously a case that could have been resolved by mediation".
"Despite the fact that we have issued proceedings in this matter we are anxious to avoid unnecessary costs being incurred. We would therefore invite you to consider referring this case to mediation so that we can perhaps resolve it to the satisfaction of our client without unnecessary costs being incurred".
"I have as yet been provided with no evidence that it would be an effective use of NHS resources to go to mediation on this small value claim, where liability is in dispute. What your costs are, are obviously a matter for you and your client, the Trust costs on this claim, even to trial will only be low".
"We are certain agreement could be reached whereby further unnecessary costs would be avoided".
"In respect of your request that we clarify why "mediation is not a cost effective use of NHS resources on such a low cost claim", (a) it has little chance of success and (b) the costs of mediation would be as great, if not greater for such a low value claim than attending trial. … if you do not intend to consider a "drop hands" agreement, then I look forward to receiving your indexed trial bundle and summary in order that we may consider and amend/agree them".
"I think that the question for me to decide is was the defendant's attitude to ADR a reasonable one, or not a reasonable one or to use the words of Lightman J, were they justified in taking the view that mediation was not appropriate because it had no realistic prospect of success? Having considered and been taken through much of this correspondence, although, as I say, notably not the correspondence preceding the letter to the Health Secretary in 2000, it seems reasonably clear to me that although there are a number of tactical observations to the effect that the claimant would like ADR, it remains perfectly clear that this is not a case which they were disposed to compromise on any terms which could possibly be reasonable to the defendants. The Defendants took the view, legitimately as I have found, that this was a case in which there simply was no negligence. It is significant that I have been told that on 4th March of this year, fairly shortly before trial, an offer was made by the defendant to the claimant that the matter should be settled on the basis that both parties simply walked away from the litigation and neither paid their costs, but that did not attract the advisors to the claimant or the claimant herself. She started off asking for £12,000, towards the end was offering to accept £7,500 and funeral expenses. It seems perfectly clear that it would only have been by the payment of some significant, albeit modest by the standards of this type of litigation, sum of money that the defendants would have been able to buy off the claim, whether by ADR or in any other way. I do not think that the CPR is designed to make parties which have a good defence settle claims which they do not wish to settle, when they ultimately end up winning and are vindicated in the view that they have taken, I do not think it proper, at least not in a run of the mill case, to say that they should then suffer by being denied their costs. This was a perfectly straightforward case of a kind which the defendants were justified in defending and justified in saying that they did not want to pay any money to the claimant in respect of. The claimant was only prepared to settle on the basis that she was going to be paid some money, and therefore there was not much point in talking to any greater extent than they did. It is to be observed that the correspondence from the defendant was both full and reasonable."
The costs issue
STEEL v JOY AND HALLIDAY
The causation issue
"He aggravated the pre-existing problems producing an exacerbation of these which would have lasted for in the order of 3 to 6 months. Thereafter persistence of symptoms primarily relates to his pre-existing problem that started after the injury on the 15th December 1996".
"So what it comes to, in very simple terms, is that as a result of the first accident, the claimant's already existing problems were accelerated by a period of years, in the order of 7 to 10 years. In the second accident, two and a quarter years later, Mr Gibson makes it clear that there was an exacerbation of 3 to 6 months by reason of the second accident, and we understand (and when I say "we understand" this is raised by me in argument with Counsel today), we understand that really what he is meaning by the 3 to 6 months aggravation from the second accident is that there was a flare-up of conditions for that limited period of time as a result of the second accident. He says in the report and the correspondence I have referred to that effectively, if the first accident had not happened, then the second accident would have had the same effect as the first accident if the first accident had not already occurred. However, save for the 3 to 6 months aggravation, the second accident did not in fact affect the claimant's existing medical condition which had already been arrived at by then as a result of his pre-existing condition and the first accident".
"In my judgment in the present case the defendant should be taken to have injured a motor-car that was already in certain respects (that is in respect of the need for respraying) injured; with the result that to the extent of that need or injury the damage claimed did not flow from the defendant's wrongdoing. It may no doubt be unfortunate for the plaintiffs that the collisions took place in the order in which they did."
"The question as I see it is this: what extra burden in the matter of respraying was put upon the plaintiff company by the second collision? To my mind the answer must be: None, for the earlier collision had already imposed the burden of respraying upon them."
"Once one leaves behind, as for the reasons I have given one should, the dogmas of novus actus and eggshell skulls, there is nothing in the way of a sensible finding that while the second defendants obviously (and exclusively) caused the right-eye blindness, thereafter each tort had its part to play in the claimant's suffering."
"Here, the question what the position would have been if the second tort had not been committed is highly material: the second defendants are not to be held responsible for damage the whole of which had already been inflicted on the claimant by the first defendants."
"That is the argument, and it is formidable. But it must not be allowed to succeed, because it produces manifest injustice. The supervening event has not made the plaintiff less lame nor less disabled nor less deprived of amenities. It has not shortened the period over which he will be suffering. It has made him more lame, more disabled, more deprived of amenities. He should not have less damages through being worse off than might have been expected.
The nature of the injustice becomes apparent if the supervening event is treated as a tort (as indeed it was) and if one envisages the plaintiff suing the robbers who shot him. They would be entitled, as the saying is, to "take the plaintiff as they find him." (Performance Cars Ltd v Abraham [1962] 1 QB 33.) They have not injured and disabled a previously fit and able-bodied man. They have only made an already lame and disabled man more lame and more disabled."
"These cases exemplify the general rule that a wrongdoer must take the plaintiff (or his property) as he finds him: that may be to his advantage or disadvantage. In the present case the robber is not responsible or liable for the damage caused by the respondent: he would only have to pay for additional loss to the appellant by reason of his now having an artificial limb instead of a stiff leg."
The costs issue
"To dispose of all issues as between defendants/claimant, our clients offer to mediate the issues in this case. We have no trial date yet but the trial window envisages a trial within the first three weeks of July. Mediation should take place as soon as possible and certainly by early June.
This letter is being copied to the claimant's solicitors on an equal invitation.
We have also taken the step of asking the ADR Group to liase with all parties with a view to proposing potentially suitable mediators and agreeing a date for mediation if the parties agree mediation. Please let us know immediately if you have any objection to seeking a mediator through the ADR Group.
In the event that any party refuses this offer of mediation, this letter will be drawn to the attention of the trial judge and you will note that this is an open offer to mediate the case. We shall ask the judge to make a ruling as to costs in the event that any party refuses a mediation. We believe that this case is eminently capable of being resolved by mediation".
"After giving very careful thought to the proposal, our insurance principals have come to the conclusion that this would not be an appropriate case for mediation. The issue between the defendants is one of law and therefore is requiring of a decision of the court. In such circumstances we cannot see there is any benefit to either side in mediation.
So as to make our position perfectly clear, our insurance principals would have no objection to mediation taking place between yourself and the claimant with a view to resolving the claimant's claim".
"If your clients persist in refusing to mediate this case, then we will have no option but to place this and our earlier correspondence before the court. When the court comes to consider the question of costs and conduct in particular in refusing mediation."
"Well I am going to come to the same final view in relation to this case as it now arises before me. The possibility of alternative dispute resolution was raised fairly late in the day here as far as the chronology of this case was concerned. That is not to say that simply because it is raised late on means that it is of no consequence, far in fact from it, but it is a factor in the equation. But here, where the issue that has arisen is the one that I identified earlier today, which Mr Elgot goes as far as to describe as quite exceptional, using the language that arises in that case of Hurst v Leeming, it seems to me that alternative dispute resolution would have been likely to achieve very little. I do accept Mr Foster's general point, although it is not of application I think in the facts of this particular case, that alternative dispute resolution brings to bear a different set of "tools" than formal litigation in open court such as this, and who knows what alternative dispute resolution can achieve in some cases. However here in this case, when Mr Elgot poses for me the question what could alternative dispute resolution really have achieved at this particular late stage of the litigation as far as this particular topic was concerned, I must say I wonder really what could have been achieved."