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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Parkin & Anor v Bromley Hospitals NHS Trust  EWCA Civ 478 (21 March 2002)
Cite as:  EWCA Civ 478
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Buckley)
Thursday, 21st March 2002
B e f o r e :
LORD JUSTICE LATHAM
SIR DENIS HENRY
|KERSTIN PARKIN||Respondent/First Claimant|
|MARK BARRINGTON PARKIN|
|- v -|
|BROMLEY HOSPITALS NHS TRUST||Defendant/Appellant|
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0207-421 4040
Fax No: 0207-831 8838
Official Shorthand Writers to the Court)
MR. J. GRACE Q.C. and MR. P. REES Q.C. (instructed by Messrs Bindmans, London, WC1) appeared on behalf of the Respondent/First Claimant.
Crown Copyright ©
"Upon the parties agreeing and the court approving the above agreements as to future losses acknowledging on the evidence currently before the court that the First Claimant has a normal life expectation and that the full life multiplier upon a 3% discount as at today's date is 26.2 years and that the first claimant is most appropriately cared for in her own home."
"(i) since service of the claimant's undated Schedule of Loss at 02.07.01 it is apparent that the pleaded claim has massively and unexpectedly increased from approximately £8.5 million to £13.5 million, and
(ii) further evidence has come to light since the Approval Order of 02.02.00,
(iii) the discount rate has been reduced by the Lord Chancellor from 3% to 2.5% thereby significantly increasing the whole life multiplier in this case."
"Mr Grace: My Lord, can I just for the avoidance of doubt, I think I just did, but can I just check -- on pages 5 and 6 of the draft order in respect of Mrs Parkin are there a total of three manuscript alterations?
Mr Justice Buckley: Two on page 5 and one on page 6, yes.
Mr Grace: Good. (Pause)
Mr Justice Buckley: Mr Grace, again just to avoid any possible future arguments, page 3 the first and upon(sic) paragraph.
Mr Grace: Yes.
Mr Justice Buckley: The reference to 'on the evidence currently before the court', that is intended, I take it, to refer only to life expectation.
Mr Grace: My Lord, this has been the subject of as much debate as any other point in the order and the effect of it is to apply to both, it qualifies both life expectation and that she is appropriately cared for in her own home.
Mr Justice Buckley: What is the effect of this, is it to re-open then the question of the appropriate regime?
Mr Grace: My Lord, no. It is intended that the position should remain as it is at the moment. That is to say, in other words the evidence as your Lordship is aware and was indeed conceded by the defendant, that it was more appropriate for her to be cared for in her own home.
Mr Justice Buckley: Yes.
Mr Grace: But one has to acknowledge that it may be that the defendant will seek to say on the adjourned hearing that in the light of events that may have happened in the intervening period, that is no longer appropriate. We very much hope and expect that will not be the case. We hope and expect that she will continue to be cared for and will be cared for successfully in her own home. But in the end on the basis that if we were to come back to court and the court were to find that everything was totally upside down as compared to what is now anticipated, then on the basis that the court does not act in vain, it would be somewhat fruitless to seek to argue that matters should remain as they are put to be as of now, 2nd February 2000.
So whilst the position is and remains that she will be and should be cared for at home, one has to acknowledge at least the possibility that something may happen in the intervening time. That is really all it is intended to cover. That was the defendant seeking that protection and, as I say, we had as much debate about that as we did about any other aspect of the case.
Mr Justice Buckley: Yes.
Mr Grace: I emphasise that it would require, obviously as far as we are concerned, not simply a rerun of Mr Blackshaw's arguments, and I am sure that my learned friend accepts that is the case.
Mr Owen: It may assist if I say at this stage, my learned friend has set out very clearly the nature of the discussion between us and why it is that that is incorporated.
My Lord, it is to cover the possibility -- one can of course not put it any higher than that -- that there may be a major change of circumstances which would have a direct bearing upon both of those limbs; the question of multiplier and the question of appropriate place for care. It is to ensure that the court would not be dealing with the situation divorced from the realities. My Lord, that is why it is there. It is to cover that possibility. (Pause)
Mr Justice Buckley: Yes, I am just wondering whether it is sufficient for both your purposes, that we leave that paragraph on the basis that the transcript of today can be obtained if necessary.
Mr Owen: Yes.
Mr. Justice Buckley: Or whether it would be more desirable to spell it out. As drafted, and I do not say this critically at all, it would just permit of argument as to precisely what was agreed. Certainly the introduction of the present evidence reference seems to open up the argument, which you both agree I think may be opened up but only in the event of developments and only on the basis of evidence as to future development, and not re-opening what has happened to date.
Mr Grace: Yes.
Mr Justice Buckley: The transcript I think will now make that plain.
Mr Owen: I hope so, my Lord. I sought to choose my words with care, and I indicated that they would only be reopened if there was evidence of a major change in circumstances.
Mr Justice Buckley: For my part I think probably what is on the transcript -- well, I delete 'probably'-- is clear enough.
Mr Grace: Yes. It may be if there is a change in circumstances the defendant might argue they were major and we might say they were minor, but we would have to deal with that as and when the factors arose, if they did."
"It is to cover the possibility -- one can of course not put it any higher than that-- that there may be a major change of circumstances which would have a direct bearing upon both of those limbs; the question of multiplier and the question of appropriate place for care."
"I accept that is strong comment, however actuarial data going back over a 100 years would need to be looked at with great care because it is well known and accepted and the evidence in this case illustrates how dramatically care regimes and the expertise involved have improved in recent years. Without further evidence I cannot judge how relevant actuarial or statistical evidence would be to the present case based, as it inevitably is, on past studies. I do not know the view of the medical profession on such evidence. All I need say is that whilst Professor Strauss' evidence would doubtless be extremely interesting it falls far short of persuading me that the court, or the defendant's advisers in hitherto accepting Dr Wade's evidence, can now be seen to have acted on a mistake or some wholly erroneous basis sufficient to bring the matter within the change of circumstance Mr Owen adverted to."
"The 'two factors' are clearly the immobility and gastrostomy feeding. Both those factors are expressly listed in Dr Wade's report. True Dr Wade in his concluding prognosis paragraph does not list them again, but to conclude that despite expressly describing those problems in the body of his report he has then somehow ignored them in arriving at his prognosis is, in my view, untenable.
I acknowledge that on its face Dr. Williams' report is strong evidence that Mrs Parkin's life expectancy should be regarded as reduced, but the fact remains that Dr Wade's report is to the contrary. Mr Havers cannot and does not suggest that Dr Wade has failed in some way in his duty to the court. He is a respected consultant and, indeed, the defendant was prepared until very recently to accept his report.
I am wholly unpersuaded that Dr Wade's report is now shown to be so 'unsupportable' that a 'major change in circumstances' has arisen. Manifestly all that has occurred is that the defendant's advisers have taken the opportunity to obtain further evidence, probably when they fully appreciated the likely size of, or increase in, the claim and have thus done what Mr Owen, in my judgment, clearly and fairly said they would not do when explaining his position."
"Thus it remains for me to exercise my discretion on the basis that the claim has increased very greatly and the defendant now wishes to make an issue of life expectancy having agreed it at the outset, and made plain at the time of the consent order that it would not seek to do so at the adjourned hearing.
I have to say, I find the defendant's attitude unattractive. It is an attempt to go back on their word in a case of the greatest sensitivity and one that has already caused untold distress to all concerned, particularly Mr Parkin. The possibility of an increase in the cost of the home regime was always apparent. In my view, it would be grossly unjust now to open a new issue, with all that that would involve, because the increase happens to be a very large one. I have considered all the circumstances relevant to the parties themselves, but I also feel that to allow a party to withdraw an agreement or concession in these circumstances would be calculated to disrupt the just and convenient administration of civil litigation.
I might have added that Mr Grace submitted, and I accept, that but for Mr Owen's clarification and reassurance in open court he would not and would not have been instructed or permitted to agree to the adjournment. As he put it 'as matters then stood evidentially the claimant was bound to succeed on the two major issues of home regime and life expectancy.' I accept that latter statement."
"I respectfully agree with the observations of Ralph Gibson LJ in Bird v Birds Eye Walls Ltd ... when he indicated that a defendant should be relieved of an admission and allowed to withdraw it or amend it 'if in all the circumstances it is just to do so having regard to the interests of both sides and to the extent to which either side may be injured by the change in front.'
In conformity with the approach of the court towards applications to amend the pleadings where no withdrawal of an admission is involved, I consider that the court should ordinarily allow an admission to be withdrawn if it can be done without injustice to the other party and if no question of bad faith or overreaching is involved."