England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
READING DISTRICT REGISTRY
(MR N WILKINSON QC)

		Royal Courts of Justice Strand London WC2 Thursday, 26th July 2001

1. LORD JUSTICE PILL: This is an application made on behalf of Baldev Singh Khangura who is a defendant and now appellant in a personal injuries action. The claimant, John Marcus Oppenheim, sustained injury in a road accident in 1994. Liability for the consequences was admitted on 18th July 1997. On 5th February 2000, the claimant obtained judgment in the sum of £187,877.74.
2. The defendant sought and was refused permission to appeal by the trial judge. However, following first a written and then an oral application permission to appeal on all the grounds claimed in relation to damages was granted on 10th July 2000. The appeal was listed for hearing on 8th May 2001. Shortly before that date, on 24th April the defendant's legal advisors became aware that the claimant had undergone treatment for a back injury prior to the road traffic accident. That was in the context that, in a medical report of September 1996, a consultant orthopaedic surgeon had stated that the claimant had "no history of any previous trouble with his right shoulder or low back". There were other similar statements. Damages, which included a substantial sum for future loss of earnings, were awarded on that basis that prior to the relevant accident the claimant had a sound back and the symptoms which were found on subsequent examination to exist, were the result of the accident and the defendant was responsible for damages caused by them.
3. The hearing of the appeal was adjourned for good reason and directions were given. It is now due to be heard in November. The present application has two limbs. The first is that the defendant seeks the payment into Court of a substantial part of the sum of damages awarded. The second is that the claimant should be required to disclose further documents.
4. On behalf of the defendant, Mr Chippandall submits that first the Court has jurisdiction to make an order that the claimant pays money into Court and, second, that the power should be exercised in the circumstances. He submits that there is substantial evidence that the claimant was less than frank with his legal advisors and with the Court. Had the defendants known of the allegedly pre-existing back condition, the award of damages would be lower but in any event if they had known at the conclusion of the trial they would have requested a stay. In the event, no stay was requested at the conclusion of the trial notwithstanding that an appeal was being considered. Moreover, no application for a stay was made when permission to appeal was granted.
5. Mr Yell for the claimant accepts that the Court does have power under the CPR to make an order for payment into Court. Under the heading, The Court's General Powers of Management, CPR 3.1 it is stated in paragraph (3):

"When the court makes an order, it may

(a) make it subject to conditions, including a condition to pay a sum of money into court; and

(b) specify the consequence of failure to comply with the order or a condition."

6. There is also a power under paragraph (2)(m) to:

"Take any other step or make any other order for the purpose of managing the case and furthering the overriding objective."

7. Mr Chippandall submits that the defendants are in circumstances entitled to that protection. He submits they have a strongly arguable case that the damages should be reduced substantially; the claimant has misled the Court and in the interests of the overriding objective he should be required to pay into Court a substantial sum. Mr Chippandall accepts that the appropriate sanction for non-compliance with such an order would be to prevent the claimant from defending the appeal.
8. I do not propose to set out the arguments in any fuller detail. Mr Chippandall has said all that could be said on behalf of the defendant and the points are set out in the skeleton arguments which he has submitted. He points out that it is clear from the skeleton argument of Mr Yell disclosed recently, that the claimant is in possession of funds. Reference is made not only to the claimant's previous lack of frankness but to the other financial demands upon him which may involve the expenditure of money and the dissipation of such part of the damages as he still has. Comment must of course be made that had Mr Oppenheim spent the entire sum of money when it was paid to him, then he could not have been criticised for that.
9. I am in no doubt that the power should not be exercised in the present circumstances. I understand the sense of grievance of the defendants, and no doubt his insurers, the claimant having allegedly misled the Court and they not knowing of the alleged misleading until after they had paid over the sum due. However, since the sanction if an order is not complied with would inevitably be the deprival of the claimant's opportunity to defend the appeal, then in my judgment it would not be in accordance with the overriding objective to make the order requested. On the claimant's behalf, Mr Yell submits that the appeal is arguable from the claimant's point of view as well and he states that the defendant should take nothing for granted.
10. In my judgment it would be a rare circumstance in a personal injury action when a stay has not been requested at the time, and even where additional matters such as the present arise and come to the knowledge of the defendant later, that the Court should exercise its powers under CPR 3.1(3). This is not in my judgment such a case.
11. The defendant also seeks disclosure of documents. A list is provided in a letter dated 11th May 2001. It appears to me that it is more in the nature of interrogatories than of a request for documents. There are assumptions in the list as to the claimant's conduct which he does not accept. In my judgment, the most the defendant can expect to obtain from the Court, and I would order it, is an order under CPR 31(10) that a disclosure statement be made. 31(10) sets out the procedure for standard disclosure, subparagraph (5) states that this list must include a disclosure statement, and paragraph (6) defines what a disclosure statement is. A list of documents has presumably been provided. As to whether a fresh list must be typed out is not the important matter. What should be done by the claimant is to make a fresh disclosure statement which makes it clear that the list of documents which has been submitted, or is now to be submitted if a fresh one is required, is a sufficient list.
12. I can well see that the matters raised in the list which the defendant is seeking may be relevant matters. There is an issue as to what the claimant was able to do before the relevant accident. He has submitted in evidence of the trial that he had a very broad range of activities including, for example, working on his yacht in Majorca (subject to specialist work), undertaking repair work on his motor car and undertaking garden activity.
13. It is relevant, as Mr Yell accepts, for the Appeal Court, and if there is a rehearing for the Court rehearing the matter, to be able to make a comparison between what the claimant was able to do before the relevant accident (with the disability it is claimed he then had) and what he is able to do after the relevant accident. Any documents which are relevant to that issue are disclosable, as Mr Yell has accepted. That could relate to pre-accident documents and post-accident document.
14. Mr Chippandall seeks to keep alive the possibility that there may even be post-trial fresh relevant documents. It is quite impossible for this Court without investigating the merits of the whole case to know whether that is so or not. I would not be prepared to exclude the possibility that post-trial documents could be relevant. What is relevant depends on the professional and scrupulous assessment of the case by Mr Oppenheim and his legal advisors which will of course be the subject of scrutiny if the matter proceeds to a rehearing either in this Court or by way of a fresh trial. If matters were to emerge, by reason of the defendant's enquiries or for other reasons, that the list had not been a sufficient list, that too would be the subject of consideration by the trial Court.
15. Accordingly, I would refuse the applications subject to the requirement for a fresh disclosure statement identifying the appropriate list under CPR 31(10). I would hear counsel further, although I hope not much more detail is required, as to the undertaking which the claimaint is sensibly and properly prepared to give.
16. MR JUSTICE RIMER: I agree.
(Application for permission to appeal dismissed)