VARYING JUDGMENT ENTERED BY CONSENT: CAUSATION, APPEALS AND “NEW” EVIDENCE

In Atkins -v- The Co-operative Group [2016] EWHC 80 (QB) Mr Justice Supperstone varied  a consent order giving judgment for the claimant on liability.  The appeal against the order was not made until six months after the judgment was entered. It is important to note that the judgment was varied to allow the defendant to argue, and adduce evidence, in relation to causation.

  • Judgment was entered for liability with damages to be assessed.
  • That judgment was varied  (10 months after it was entered) to read “judgment for the Claimant on breach of duty, with the issues of causation and quantum to be assessed.”

PRACTICE POINTS

  • This case really centres around the issue of what can be argued in relation to causation when judgment on liability is entered.
  • A defendant wanting to reserve the issues relating to causation, whilst not arguing breach, is best advised to expressly reserve its position in relation to causation.
  • See the two posts on the related topic:

  What can a defendant argue about damages if the claimant has judgment or the                   defence has been struck out?

 What can the defendant argue about damages after a default judgment 2: a clinical              negligence case.

THE CASE

  • The claimant’s claim was for pleural thickening and asbestosis caused by his exposure to asbestos dust in the course of  his employment with the defendant.
  • At a CMC on the 25th March 2015  judgment was entered for the claimant, with issues of causation and quantum to be assessed.
  • The defendant subsequently obtained evidence that suggested that the claimant did not, in fact, suffer from asbestosis.
  • The defendant’s application to adduce this evidence was dismissed.
  • The claimant, therefore, on the 19th August 2015 applied for an order that  the judgment entered on 25 March 2015 to be set aside and there to be substituted an order for “judgment to be entered on breach of duty, with causation and quantum to be assessed””
  • The defendant’s application was dismissed by the Master.
  • The claimant then, on the 19th August 2015, issued an application to appeal against the order of the 25th March 2015 and sought an extension of time for filing the appeal notice.
  • That application for an extension of time was allowed.  The judge was, therefore, hearing the substantive appeal.

THE ORIGINAL JUDGMENT

The judge held that the Master was entitled to enter judgment, by consent, in the terms he had.

THE GROUNDS OF APPEAL AND THE LEGAL PRINCIPLES

Grounds of Appeal
  1. The Defendant contends (1) that there has been a material change of circumstances since judgment was entered in that the radiological evidence has now been interpreted by an expert in cardiothoracic radiology, Dr Peebles, with a conclusion that the Claimant has not in fact developed asbestosis; and (2) it would be wholly artificial for the Claimant to be compensated on the basis that he has developed an asbestos related condition when this is not the case and where the Defendant’s arguments on causation, which will be addressed by Dr Limbrey, will necessarily be founded on the premise that he does not have asbestosis.
  2. Ms Foster observes that the Master did not make any determination of the merits of the issue of liability and the Defendant does not seek to appeal any findings of fact, none having been made.
The legal principles
  1. It is common ground that the court must seek to give effect to the overriding objective of doing justice, but the principles reflected in Ladd v Marshall [1954] 1 WLR 1489 remain relevant and they are matters which the court must consider in the exercise of its discretion, when deciding whether to admit fresh evidence (see White Book, Vol.1 at 52.11.2).
  2. The “special grounds” set out in Ladd v Marshall were: (1) the evidence could not have been obtained with reasonable diligence for use at the trial; (2) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; (3) the evidence must be such as is presumably to be believed; it must be apparently credible, though it need not be incontrovertible.
  3. Ms Foster submits that the real issue between the parties concerns the first condition. The second and third conditions are, she submits, plainly satisfied, and Mr Levene did not contend otherwise.
THE JUDGE’S DECISION: JUDGMENT SET ASIDE: NEW EVIDENCE ADMITTED
  1. Ms Foster submits that it was not until after judgment was entered on 25 March 2015 that the Defendant had the benefit of Dr Peebles’ report of 2 April 2015 dealing with the recent CT scan and the addendum report of Dr Limbrey dated 30 May 2015 in which, having considered the report of Dr Peebles and reviewed the outstanding lung function test results, she concluded that the Claimant has not developed asbestosis.
  2. Mr Levene submits that there is no new or unforeseen evidence. That the Claimant had recently undergone a CT scan was referred to by Dr Limbrey in her report of 3 February 2015, and the results of that scan were received by the Defendant’s solicitors sufficiently in advance of the judgment for them to be considered. Further Dr Peebles in his report confirms that the two CT scans show “no interval change” (para 3.8). Mr Levene submits that what the Defendant is seeking to do is to rely on the different opinion of Dr Peebles on evidence that was available at the time judgment was entered into. The Defendant had, Mr Levene submits, ample opportunity over a two-year period since the letter before claim to obtain any medical evidence on which they wished to rely.
  3. I do not accept this submission. In my view the evidence which the Defendant seeks to adduce could not have been obtained with reasonable diligence by 25 March 2015. It is both the analysis of the recent CT scan by Dr Peebles and the pulmonary function test results that have led Dr Limbrey to the conclusion that she has now reached.
  4. Further, I agree with Ms Foster that there are practical difficulties that would arise from not admitting this new evidence. It cannot be appropriate for Dr Limbrey to be required to express her opinion on the false assumption that the Claimant does in fact have asbestosis; nor can it be appropriate for the court to proceed in circumstances where the Claimant’s medical expert, who is not a radiologist, has not had the benefit of considering the evidence as a whole. The prognosis of the Claimant’s condition and the issue of the Claimant’s life expectancy will depend on whether he has developed DPT and/or asbestosis.
  5. Mr Levene submits that it would be unjust for paragraph 2 of the order, relating to the interim payment, to be varied in the terms the Defendant seeks. The Claimant is elderly and in ill-health and, Mr Levene contends, it would be unfair for him to have to worry that he may have to repay the monies that he has received. However the Defendant does not seek repayment at the present time. If at the conclusion of the trial an issue arises as to whether the interim payment should be repaid it will fall for determination by the trial judge, having regard to all material circumstances.
Conclusion
  1. For the reasons I have given this appeal is allowed and paragraphs 1 and 2 of the order made by Master Gidden on 25 March 2015 shall be varied. I substitute the following order:
i) There shall be judgment for the Claimant on breach of duty, with the issues of causation and quantum to be assessed.
ii) The issue of whether the interim payment made pursuant to the order dated 25 March 2015 should be repaid in part or in whole shall be reserved and addressed at the conclusion of the trial on causation and quantum.”

 

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