England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PORTSMOUTH COUNTY COURT
(HIS HONOUR JUDGE DIXON)

		Royal Courts of Justice Strand, London, WC2A 2LL
		11th December 2008

Lord Justice Jackson:

1. This litigation has not been marked by any lack of vigour on the part of the advocates at any stage in its history. I now come to the final matter which has been debated between the parties this morning, namely costs. It is common ground that the claimant-appellant, having succeeded on appeal, should recover her costs of the appeal. The issue between the parties which has been keenly debated is who should bear the costs below. The claimant maintains that as she is the ultimate victor she should have the costs below. The defendant maintains that the costs below should be awarded to the defendant.
2. Mr Waite, on behalf of the defendant, submits that the claimant has succeeded in this court on a basis which was not pleaded, which was not advanced below until a very late stage of the trial and, accordingly, the defendant should have its costs below.
3. Mr Porter, on behalf of the claimant, submits that the basis upon which the claimant has succeeded was one of the bases of her claim which was always apparent. Furthermore the defendant could have protected its position by making an offer. Instead the defendant failed to make any offer of settlement under Part 36 or otherwise. Mr Porter has put in some correspondence to illustrate that.
4. In order to deal with the current round of issues between the parties it is necessary to go back to the pleadings. The Particulars of Claim asserted in paragraph 2:

"In the course of her employment from April 2000 to June 2003 the claimant was habitually required to work at a keyboard."

5. The various allegations of negligence and breach of statutory duty which are pleaded in paragraph 5 of the Particulars of Claim are all unlimited in time except for allegation 12. The claimant's case, as presented at trial, was that the effective breaches of contract commenced in the summer of 2002 and continued through until June 2003 when the claimant ceased to be employed by the defendant. This court has held that the defendant was only in breach as from November 2002, and furthermore that the pain and suffering attributable to the defendant's breaches only commenced in January 2003. It seems to me that this finding, which goes some way towards, but not fully in accordance with, the claimant's case, is the sort of finding which is commonly made in a personal injuries action and clearly falls within the pleadings.
6. The next point made by Mr Porter on the pleadings is that the claimant's case was that she developed tenosynovitis as a result of the defendant's breaches. That diagnosis of tenosynovitis was rejected by the trial judge, and this court has held the judge was correct to do so. The claimant did not plead an alternative case of exacerbation of an underlying condition, and therefore the basis on which she has succeeded in this court is a novel one which was not properly raised below.
7. The medical reports which were exchanged before trial revealed a difference of opinion between the doctors. The claimant's doctor favoured a diagnosis of tenosynovitis. The defendant's doctor took the view that, at worst, the claimant's employment exacerbated an underlying condition. The defendant's doctor retreated somewhat from that in the course of his oral evidence.
8. The defendant's position at trial was that the claimant's problems were unrelated to her employment, and the claimant's primary case, maintained throughout the trial, was that the claimant had tenosynovitis as a result of her employment.
9. This court, having reversed in part the findings of the trial judge, has come to a position which is midway between the claimant's case below and the defendant's case below. The position adopted by this court does in fact reflect quite closely certain views expressed in the defendant's medical reports.
10. I do not accept the submission that the decision which has finally been reached of exacerbation goes beyond the claimant's pleadings or in any way took the defendant by surprise. When there are extreme positions adopted on medical issues in a personal injuries case it is not at all unusual for the trial court or this court on appeal to come down in favour of some intermediate position. Mr Waite protests that, at the very least, some informal notice should have been given that the claimant would argue by way of fallback position in favour of exacerbation. It seems to me, however, that quite sufficient notification of that kind was given in paragraph 11 of the claimant's opening note, where the claimant's counsel wrote:

"Mr Warwick believes that the work aggravated the claimant's symptoms rather than caused the underlying condition. This debate will need to be resolved. However, since when not working the claimant's unaggravated condition gave rise to minimal symptoms, the distinction may be of limited practical significance."

It should also be noted that the claimant's witness statement served before trial and relied upon at trial included quite a detailed account of the recurrence of her symptoms after her return to work in January 2003.

11. As the trial progressed, the strength of the claimant's case in respect of the period after January 2003 emerged more starkly. This was because of certain answers given by Mr Burton in cross-examination which have been set out in the judgment of this court at paragraph 47. Unsurprisingly, in closing submissions Mr Porter, for the claimant, placed greater emphasis upon the alternative case that there was liability in respect of the period post the end of 2002, and he placed reliance on the admissions made by Mr Burton in cross-examination and certain answers given by Mr Warwick, the defendant's medical expert, also in cross-examination.
12. Looking at this case in the round, it seems to me to have followed a pattern which is not unusual in personal injuries litigation. It does not seem to me that the defendant was at any stage taken by surprise. There was no application for an adjournment and there was no prejudice caused to the defendant by the procedural and pleading matters relied upon by Mr Waite. I, of course, accept that claimants must make their case clear and must make clear any fallback positions which they adopt. Nothing in this judgment is intended to suggest otherwise. In my view, however, that was done in this case.
13. The ultimate result of this litigation is that the claimant has succeeded on some of her heads of claim and has failed on others. The defendant could have protected itself by making an offer which would have exceeded the modest sum finally awarded by this court. The defendant did not make any offer of settlement -- the claimant had to go to trial, indeed had to come to this court in order to recover any damages whatsoever. It is unsurprising and not unusual that the claimant did not succeed on all of her alleged breaches of duty or allegations of negligence. Looking at all the circumstances of this case, I do not consider that any discount should be made from the normal order for costs. Therefore I would order that the defendant do pay the claimant's costs of this action both below and of the appeal in this court and that such costs should be assessed on the standard basis if not agreed.

Lord Justice Dyson:

14. I agree

Sir Anthony Clarke:

15. I also agree. I accept Mr Waite's submission that the defendant should not be taken by surprise in litigation. Parties should put their cards on the table. However, I agree with Jackson LJ that the defendant in this case was not taken by surprise at the trial by the point upon which the claimant has now succeeded. I also agree with Jackson LJ that this is not a case in which the court should make an issue-based order for costs. The way for the defendant to have protected itself was to make a modest Part 36 offer. It decided not to do so and the costs should follow what has now been held to be the event.
16. So then the order be that:

(1) The appeal be allowed in part;

(2) Paragraphs 1 and 2 of the order made by the judge on 4 January 2008 be set aside;

(3) There be judgment for the claimant in the sum of £2,915.90 inclusive of interest;

(4) The defendant to pay the claimant's costs of the action including any appeal to be subject to detailed assessment if not agreed.