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Cite as: [2008] EWHC 3311 (QB)

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IN THE HIGH COURT OF JUSTICE No. 7CB01145
QUEEN'S BENCH DIVISION
[2008] EWHC 3311 (QB)

Royal Courts of Justice
Friday, 28th November 2008

Before:

HIS HONOUR JUDGE SEYMOUR QC

BETWEEN:

MARTINE WIDLAKE Claimant

- and -

BAA LIMITED Defendant

_________

Transcribed by BEVERLEY F. NUNNERY & CO
Official Shorthand Writers and Tape Transcribers
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_________

MR. G. SIMS (instructed by Ward Gethin, King's Lynn) appeared on behalf of the Claimant.

MR. A. GLASSBROOK (instructed by Vizards Wyeth) appeared on behalf of the Defendant.

_________

JUDGMENT
(As approved by Judge)

1 JUDGE SEYMOUR QC:
2
3 1. This trial has been concerned with the assessment of damages to which the
4 claimant, Ms. Martine Widlake, was entitled as a result of minor injuries
5 sustained in a relatively insignificant accident. She slipped going down some
6 stairs at Stansted Airport. Liability was never in issue. The injuries which
7 Ms. Widlake suffered, I have found, were relatively minor and resolved
8 themselves within a matter of weeks. Indeed, the contention on her part was
9 that only one of the symptoms of which she had complained following this
10 accident continued for more than a matter of weeks and that related to a
11 problem in her lower back. Her case was that she suffered significant pain in
12 her lower back as a result of the accident.
13
14 2. I have found in my judgment that Ms. Widlake deliberately concealed from
15 her first medical expert, Ms. Porter, the fact that she had a history of low back
16 pain. I have also found that she deliberately concealed that history from her
17 subsequent medical expert, Mr. Macfarlane, in the hope of increasing the
18 amount of the compensation which she would recover in respect of her injuries
19 in her accident, which in fact took place on 12th July 2004.
20
21 3. There were really two aspects to the claim of Ms. Widlake in relation to the
22 consequences of her accident, so far as her back was concerned. One was this
23 deliberate concealment from those whom she consulted, and upon whose
24 evidence initially it appeared that she wished to rely, of her previous medical
25 history. The other aspect was what the consequences of the injuries for her
26 back had actually been, given that she had a previous history, and I have found
27 that in fact the suggestion of any significant pain in the back for more than a
28 few weeks after the accident is not well founded.
29
30 4. Damages I assessed at the sum of £5,522.38 and, together with interest agreed
31 by counsel, the amount for which Ms. Widlake has obtained judgment is
32 £5,877.71.
33
34 5. On 2nd July of this year an amount of £4,500 was paid into court on behalf of
35 the defendant, pursuant to the provisions of part 36 of the Civil Procedure
36 Rules. Obviously Ms. Widlake has succeeded in obtaining judgment for a sum
37 in excess of that. However, I have been urged by Mr. Alex Glassbrook, who
38 appeared on behalf of the defendant, to consider whether it was appropriate in
39 the circumstances of this case for Ms. Widlake to recover her costs of the
40 action. Mr. Glassbrook made three alternative submissions as to the
41 appropriate order as to costs. The first was that Ms. Widlake should pay the
42 defendant's costs, the second was that there should be no order as to costs and
43 the third was that the defendant should pay a proportion of the claimant"s

1 costs. Mr. Glassbrook has properly reminded me of the provisions of part 44.3
2 of the Civil Procedure Rules, of which, for present purposes, the material
3 provisions are these:
4
5 "(1) The court has discretion as to:
6
7 (a) whether costs are payable by one party to another;
8
9 (b) the amount of those costs; and
10
11 (c) when they are to be paid.
12
13 (2) If the court decides to make an order about costs:
14
15 (a) the general rule is that the unsuccessful party will be
16 ordered to pay the costs of the successful party; but
17
18 (b) the court may make a different order .....
19
20 (4) In deciding what order (if any) to make about costs, the court
21 must have regard to all the circumstances, including:
22
23 (a) the conduct of all the parties;
24
25 (b) whether a party has succeeded on part of his case, even if
26 he has not been wholly successful; and
27
28 (c) any payment into court or admissible offer to settle made
29 by a party which is drawn to the court's attention, and which is
30 not an offer to which costs consequences under Part 36 apply.
31
32 (5) The conduct of the parties includes:
33
34 (a) conduct before, as well as during, the proceedings and in
35 particular the extent to which the parties followed any relevant
36 pre-action protocol;
37
38 (b) whether it was reasonable for a party to raise, pursue or
39 contest a particular allegation or issue;
40
41 (c) the manner in which a party has pursued or defended his
42 case or a particular allegation or issue; and
43

1 (d) whether a claimant who has succeeded in his claim, in
2 whole or in part, exaggerated his claim."
3
4 6. In accordance with the usual practice, a schedule of damages was prepared on
5 behalf of Ms. Widlake. There were in fact three schedules of loss. The first
6 two versions, dated respectively 6th June 2007 and 16th August 2007, included
7 a claim for special damages calculated at £163,087.60.
8
9 7. In the third schedule of loss, which was served about three weeks before the
10 commencement of the trial, on 17th October this year, the special damages
11 claim was reduced to £21,294.25. How this came about is really this, that the
12 first two schedules of loss were based on the premise that Ms. Widlake had
13 suffered permanent and disabling damage to her back as a result of falling
14 down the stairs at Stansted Airport and that she would suffer loss for the
15 remainder of her working life. The third schedule of loss was very much
16 reduced because what had happened, notwithstanding the attempt, as I have
17 found, to mislead Mr. Macfarlane as to her previous medical history
18 concerning low back pain, was that Mr. Macfarlane, by perusal of the relevant
19 records, which were made available to him, had ascertained that in fact Ms.
20 Widlake did have a previous relevant history, and on that basis had come to
21 the conclusion, accepting at face value her complaints of pain in her back, that
22 the consequence of the injury when she fell down the stairs at Stansted Airport
23 was that, in effect, her pre-existing back condition had been brought forward
24 by five years in terms of the consequences for her of suffering from that
25 condition and therefore the period which was relevant to the calculation of the
26 special damages claim was not the rest of Ms. Widlake's working life but five
27 years.
28
29 8. The position adopted on behalf of the defendant to the claim of Ms. Widlake
30 was set out in the first counter-schedule, and repeated in a second
31 counter-schedule, in this way,
32
33 "The defendant will therefore compensate the claimant for:
34
35 (a) the temporary aggravation of a pre-existing lower back problem
36 for 12 months, i.e. to July 2005; and
37
38 (b) for soft tissue injuries that resolved mostly within a fortnight of
39 the accident and in relation to the right leg and bruising to the thoracic
40 area by six to eight weeks post-accident".
41
42 The first counter-schedule was served in May 2008.
43

1 9. In effect I have accepted the position adopted by the defendant in the
2 counter-schedule as to what it is that Ms. Widlake is entitled to compensation
3 for. Where the defendant has not been successful is in evaluating what the
4 consequences in financial terms would amount to. The payment into court, as
5 I have said, was £4,500 and my award, inclusive of interest, is £5,877.71.
6
7 10. Mr. Glassbrook, in support of his submissions, has drawn to my attention a
8 number of relatively recent decisions of the Court of Appeal. The first in point
9 of time is that in Malloy v Shell UK Limited (Neutral Citation No. 2001
10 EWCA Civ. 1272). In this case, and indeed in the other case, to which I shall
11 refer in a moment, the issue was very similar to the issue in the present case,
12 that is to say, what had happened at the trial was that the judge had found that
13 the claimant had exaggerated the consequences of the accident in which he or
14 she had been injured but that the judge had gone on to assess damages in a sum
15 in excess of the amount which had been paid into court on behalf of the
16 defendant, and therefore in each of these cases the question which the court
17 had to consider was what should be the costs consequences of the exaggeration
18 of the claim in circumstances in which the amount of the payment into court
19 was inadequate? In Malloy v Shell UK Limited the only substantive judgment
20 was that of Laws L.J. At paragraph 18 what Laws L.J. said was this,
21
22 "The judge was obliged by part 44.3(5) [as I have said] to consider the
23 whole of the parties" conduct. It does appear that he may have considered
24 the respondent's conduct only after the date of the part 36 payment. If
25 that is so, he fell into error. At least since the particulars of claim were
26 filed on 20th September 1999, and until he was found out, the
27 respondent's approach to this action has been nothing short of a cynical
28 and dishonest abuse of the court's process. For my part, I entertain
29 considerable qualms as to whether, faced with manipulation of the civil
30 justice system on so grand a scale, the court should, once it knows the
31 facts, entertain the case at all save to make the dishonest claimant pay the
32 defendant's costs. However, all that is sought here is an order for 100 per
33 cent of the appellant's costs instead of 75 per cent, the costs in question
34 being only those incurred after the date of the part 36 payment. The
35 appeal certainly cannot be resisted on that basis. I would allow it and
36 make the order sought".
37
38 11. The second decision to which my attention was drawn by Mr. Glassbrook was
39 that of the Court of Appeal in Painting v University of Oxford (Neutral
40 Citation No. 2005 EWCA Civ. 161). In that case, the leading judgment was
41 that of Maurice Kay L.J. In the course of his judgment, Kay L.J. referred to
42 the decision in Malloy v Shell UK Limited, and then he said this:
43

1 "21. However, when one turns to Mr. Waters" other points the picture
2 moves substantially in his direction. To the question: who was the real
3 winner in this litigation? there is, in my judgment, only one answer. The
4 two-day hearing was concerned overwhelmingly with the issue of
5 exaggeration, and the University won on that issue. Mr. Farmer"s
6 submission that that was only one issue, the other issue being the
7 quantification of the claim, is not persuasive. Quite simply, that second
8 issue was hardly an issue at all once the Recorder had found the
9 exaggeration and the cut-off date. It is true that that cut-off date was later
10 than the one advanced on behalf of the University, but, viewed
11 objectively, the totality of the judgment was overwhelmingly favourable
12 to the University. It was in real terms the winner. Moreover, the costs
13 incurred after the reduction of the money in court were expended almost
14 entirely on the preparation for and conduct of a trial in which the central
15 issue was that of exaggeration.
16
17 22. There are two additional points which seem to me to have called
18 for the affording of considerable weight by the Recorder, whereas the
19 transcript does not suggest that he afforded them any weight at all. The
20 first is the strong likelihood that, but for exaggeration, the claim would
21 have been settled at an early stage and with modest costs. The second is
22 that at no stage did Mrs. Painting manifest any willingness to negotiate or
23 to put forward a counter-proposal to the Pt 36 payment. No one can
24 compel a claimant to take such steps. However to contest and lose an
25 issue of exaggeration without having made ever a counter-proposal is a
26 matter of some significance in this kind of litigation. It must not be
27 assumed that beating a Pt 36 payment is conclusive. It is a factor and will
28 often be conclusive, but one has to have regard to all the circumstances of
29 the case.
30
31 23. It is with reluctance that I find myself interfering with an
32 exercise of judicial discretion on costs, but I cannot avoid the conclusion
33 that in the particular circumstances of this case the Recorder's order fell
34 outside the generous ambit to which I have referred. I would set aside his
35 order and in its place order, as Mr. Waters suggests, that the University
36 pay Mrs. Painting's costs down to February 25, 2004, and that she pay its
37 costs thereafter. Even that is not ungenerous to her, because it leaves the
38 University with the bills in relation to, for example, the video surveillance
39 recording and at least one medical examination and report which were
40 founded upon her lack of candour. However, I am taking a broad view
41 which I consider accords with the justice of the case."
42

1 12. It is indeed a feature of this case that Ms. Widlake did not make any
2 counterproposals to the part 36 payment, and indeed she made no attempt,
3 I am told, to negotiate at all in relation to the settlement of the claim,
4 notwithstanding that liability was never in issue.
5
6 13. It is plain, in my judgment, that the real winner of the trial before me was the
7 defendant. The issues were whether Ms. Widlake suffered the back pain of
8 which she complains to the extent to which she complained, and whether, as a
9 result of suffering from such back pain, she had been disabled in the way that
10 she complained and had the consequences of her low back pain brought
11 forward for the period of five years, which I have mentioned. Ms. Widlake"s
12 case, in my judgment, is a rather more serious case than it appears that either
13 of the cases of Malloy or Painting were, because in Ms. Widlake's case, it is
14 plain, on the evidence, and I have found, that Ms. Widlake set out first of all to
15 mislead her own medical experts. So it was not a case in which she was
16 complaining merely of symptoms which were exaggerated. She deliberately
17 withheld from her own medical experts material information as to her previous
18 medical history. This case, in my judgment, is material because it amounts to
19 an attempt -- taking the words of Laws L.J. in Malloy -- to manipulate the civil
20 justice system. Not only that, but Ms. Widlake, in my judgment, who plainly
21 knew at all material times what the effects upon her back of falling down the
22 stairs had been, exaggerated them grossly in order to project a case of having
23 suffered symptoms which, even on her latest revised case, were being brought
24 forward by some five years but which in fact, on my findings, as I have
25 explained in my judgment, amounted to very little and resolved itself almost
26 certainly within a few weeks of the date of the accident.
27
28 14. Although the figures in this case have been smaller than the figures which the
29 Court of Appeal had to consider in the case of Malloy, and indeed smaller than
30 the figures which the Court of Appeal had to consider in the case of Painting,
31 the approach, in my judgment, has been to seek, so far as Ms. Widlake is
32 concerned, to manipulate the civil justice system on a grand scale, and
33 although it appears that there has not so far been any decision -- certainly my
34 attention has not been drawn to any decision -- in which the suggestion of
35 Laws L.J. in Malloy has been adopted, in this case it seems to me that it is
36 appropriate to adopt that suggestion and the consequence of setting out, as
37 I find, to abuse the court's process, in the cynical and dishonest fashion which
38 I have found Ms. Widlake did, should have the consequence, notwithstanding
39 that she has recovered damages in excess of the amount which was paid into
40 court on behalf of the defendant, that contrary to her recovering her costs she
41 should pay the costs of the defendant.
42
43 _________

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