DRAFTING A SCHEDULE OF DAMAGES: BETTER READ THIS: WORKS OF FICTION ARE NEVER GOING TO HELP

When drafting a Schedule of Damages it is wise to remember that it may well come under close scrutiny. The temptation to “draft high” is always present; however it can cause irredeemable harm.  Everyone who drafts schedules should read the judgment of Mr Justice Langstaff in F and S -v- TH [2016] EWHC 1605 (QB).

There is also always a danger that a schedule which is a “fiction” could lead to the entire action being found to be fundamentally dishonest.

“The thrust of Mr Fewtrell’s cross examination was that the schedule was a fiction. I have little doubt that is the case. Indeed, the point was recognised on behalf of both Claimants…”

“F said that the figures were not his. The difficulty for him is that the claim is his. The documentation was verified with a statement of truth. I must take it that the schedule was prepared on his instructions and in accordance with them, and put forward with his authority. I had no evidence it was not.”

KEY POINTS

  • The Schedules in this case claiming loss of earnings were essentially a “fiction”.
  • The Schedules were supported by a statement of truth and the claimants could not argue that the figures were not their figures.
  • The exaggeration of the claim played a part in the court’s rejection of the claimants’ applications under Section 33 of the Limitation Act 1980.

THE CASE

The claimants were bringing an action for sexual abuse, alleging they had been abused by a (now deceased) cleric.  The judge was considering the claimants application under Section 33 of the Limitation Act 1980.  The claimants were giving evidence.

THE JUDGE’S COMMENTS ON THE SCHEDULES

The defendant did not (indeed could not) challenge the evidence in relation to the alleged abuse. It concentrated upon the claimants’

  1. However, though the claim concerns sexual abuse, the claim is one for compensation. He put forward a schedule of special damage which initially came to a total of £353,704.60. It was revised in an updated schedule in 2015 to amount to £437,777.90. This included a past loss of earnings just short of £250,000. This was claimed on the basis that if he had not been abused he would in all probability have had a gross income which corresponded with average UK earnings. In support of this the schedule set out the average earnings for each tax year since the Claimant commenced employment, and set against it the income he had actually earned in that year. It claimed the balance. No documentation was provided to vouch any of the figures in respect of any of the income earned (save tax records in respect of one year only in the case of F). It became evident in cross examination that F could not sustain these figures. For instance, it was said that he earned £3,000.53 in the tax year 1985/1986. No document supports this. The fact that the figure descends to pence demonstrates the spurious accuracy being asserted. Between 1993-4 and 1994-5 the income earned was precisely the same in each year (£9,984). This is highly unlikely, particularly if the amounts have to be recollected from memory. Many years are simply labelled “USA” as if no income were forthcoming for the Claimant whilst he was in the USA during the year in question. The income attributed to 2000-1 (£11,700) was less than that which the Claimant had earned in 1996-7, which again was improbable particularly since the consistent evidence of the Claimant was that he had always kept himself busy in work.
  2. The thrust of Mr Fewtrell’s cross examination was that the schedule was a fiction. I have little doubt that is the case. Indeed, the point was recognised on behalf of both Claimants by Ms Gumbel QC who, on the morning after the cross examination in respect of the schedule of special damage in respect of F had concluded withdrew any reliance upon the detail of the schedule. Instead of a claim for over £400,000 in respect of F, and a similar calculation, which I suspect would have been exposed in the same way in respect of S, and which came to a total of over £800,000, she invited me to make the assumption that the abuse established must have been responsible for at least some damage to the ability of the Claimant to earn an income, and invited me to assess this as £25,000 in respect of the first Claimant, and £40,000 in respect of the second, for both past and future loss of earnings. She submitted those were more realistic figures than the figures which those assisting the Claimant had attempted to produce.
  3. F said that the figures were not his. The difficulty for him is that the claim is his. The documentation was verified with a statement of truth. I must take it that the schedule was prepared on his instructions and in accordance with them, and put forward with his authority. I had no evidence it was not.
  4. I cannot ignore the deliberate putting forward of a claim which was grossly inflated, if indeed there was a claim at all, on a basis which was spurious, as though it were true, and doing so in not just one but, in effect, two schedules prepared a couple of years apart. It gives me no confidence in the honesty and reliability of the claim as a whole.

THE CONSEQUENCES

The unreliability of the Schedules was one of the reasons the judge rejected the application under Section 33.

  1. In the light of this evidence, coupled with my view as to the unreliability of the schedule of damage as advanced, I would have found myself unable to award any financial losses directly arising from the abuse, if it occurred. There was no evidence sufficient to discharge the burden, resting on S, to show that he had probably suffered a real loss of income.

 

87… Further, if the claim had been advanced, there are the particular difficulties as to making any award for the financial losses claimed to which I have already pointed, as well as great difficulty assessing general damages for pain, suffering and loss of amenity. This would involve extracting the uncertain contribution made by any such abuse as might have occurred from other factors operating independently upon the mental state of the Claimants. Such are the problems of assessment, and of disentangling a tortious cause from one that involves no breach of duty, that a fair trial of those issues would in my view no longer be possible. Nearer the time it may have been.

 

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