|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Matthews (a patient) v Metal Improvements Co Inc  EWCA Civ 215 (14 March 2007)
Cite as:  EWCA Civ 215
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WREXHAM COUNTY COURT
Deputy District Judge Dowding
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LLOYD
MR JUSTICE STANLEY BURNTON
| DAN MATTHEWS (a patient) who sues by his Receiver and Litigation Friend
ANDREW JAMES PACE
Claimant / Respondent
|- and -
|METAL IMPROVEMENTS CO INC.
||Defendant / Appellant
WordWave International Ltd
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Gerard McDermott QC (instructed by Morgan Cole) for the Appellant Defendant
Hearing date : 26 February 2007
Crown Copyright ©
Stanley Burnton J :
I am concerned that he has developed rapidly enlarging lymphadenopathy, which may herald disease transformation.
If transformation has indeed occurred, then combination chemotherapy would normally be recommended. The prognosis for transformed disease would be much poorer, of the order of maximally 25% at 5 years.
The relevant provisions of the CPR
36.20 (1) This rule applies where at trial a claimant –
(a) fails to better a Part 36 payment;
(b) fails to obtain a judgment which is more advantageous than a defendant's Part 36 offer or
(2) Unless it considers it unjust to do so, the court will order the claimant to pay any costs incurred by the defendant after the latest date on which the payment or offer could have been accepted without needing the permission of the court.
(Rule 36.11 sets out the time for acceptance of a defendant's Part 36 offer or Part 36 payment)
The hearing before the Deputy District Judge
2. …. First of all, Mr. [Nowland] refers me to the issue of the life expectancy. Now it is quite clear from the evidence that it is only very recently in the last few weeks that it has become apparent that sadly the Claimant's condition is such that his life expectancy is drastically reduced. So whilst I fully accept that there was an issue raised at a much earlier stage the evidence would appear to have been that there was no real reason to believe that the Claimant's life expectancy was adversely affected. So I am not persuaded by that point that there should be any reason to exercise any discretion in favour of the Defendant rather than the Claimant.
4. The more difficult question is the expert evidence on the issue of recovery and therefore the proper order for contingency amount, and I accept what Mr. Main tells me that it was the lack of contingency provision which lead to him advising against accepting the offer at the time it was made. The evidence is by no means unequivocal. There is a reference to the balance of probabilities, which Mr. Nolan rightly points out could be fifty-one percent or eight percent or anything else. I think as a matter of common sense and given this Claimant's particular difficulties and the likely difficulty of engaging with the Cognitive Behavioural Therapy, which is not the most straightforward of therapies at the best of times, I think it is reasonable to say that a contingency should have been sought and should have been provided.
5. Taking all that into account the question is whether it would be unjust to order payment of costs by the Claimant to the Defendant twenty-one days after the payment into the Court, or alternatively as a second stream, as it were, whether I should simply order the Claimant's costs up to twenty-one days after payment in together with costs of today and make no order for costs thereafter.
6. This is clearly a difficult matter. The Claimant has significant difficulties and whatever those representing him have advised the Court's approval would have to be sought. I take the view that, as indicated, it is proper now to be seeking to accept the payment in. I equally take the view that the reasons for not accepting it were proper and valid. In those circumstances I do not think that it prejudices the Defendant if I exercise my discretion in favour of the Claimant. So the Claimant should have his costs in the usual way.
The submissions before us
The first question for this court is not whether it would have made the order which the judge made. The first question is whether this court is satisfied that the basis upon which the judge reached the conclusion that he did has been shown to be flawed. It is only if that question is answered in the affirmative that this court can properly interfere with the exercise of the judge of the discretion entrusted to him. It is only then that this court will go on to consider what order it will make in the exercise of its own discretion.