Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 89

PD1701/13

OPINION OF LADY CLARK OF CALTON

In the cause

DM

Pursuer;

against

LOTHIAN NHS BOARD

Defenders:

Pursuer:  McCaffrey;  Digby Brown LLP

Defenders:  Pugh;  CLO

7 July 2015

Summary
[1]        The pursuer raised an action claiming damages from the defenders for breach of statutory duty under the Health and Safety at Work Regulations 1999.  She averred that on or about 30 November 2010, while working in the course of her employment as an intensive care unit nurse, she slipped on a piece of ice causing her to fall and sustain loss and injury.  This included injury to the lateral facet of the patella and psychiatric injury, all as set out in averments in the pleadings.  Further averments were made about the consequences of the injury which included remedial operations, inability to progress her nursing career, retirement on medical grounds, loss of pension, disadvantage in the labour market, problems with accommodation and necessary adaptations required to her home.  There was also a services claim in terms of section 8 and section 9 of the Administration of Justice Act 1982.  The sum sued for was £500,000 sterling. 

[2]        During the preparation of the action a number of skilled persons were instructed by the pursuer’s agents to investigate and advise about her claim.  These included Mr Mark Blyth, consultant orthopaedic surgeon;  Dr Tim Rogers, consultant psychiatrist;  Ms Laura Clancy, HCPC registered occupational therapist;  Mr Gordon Cameron, vocational consultant and Dr John Pollock an actuarial consultant.  Various reports were prepared by these skilled persons. 

[3]        The defenders denied liability, averred contributory negligence on the part of the pursuer and that the sum sued for is excessive.  No substantive averments were made by the defenders about loss, injury or damage until May 2015.  Following investigations on behalf of the defender, including surveillance of the pursuer by an investigator, the defenders produced a minute of amendment.  In particular the defenders averred: 

“The extent of the pursuer’s disability, if any, is exaggerated.  She is malingering.  With regard to her averred conditions, the alleged episodes of dislocation, the instability and pain leading to surgery and the psychiatric symptoms from which the pursuer allegedly suffers, all depend on accurate self-reporting symptoms.  In any event, prior to the material accident the pursuer had a history of knee pain… the pursuer would be likely to have continued to suffer from knee pain.  In 2013, the pursuer required to undergo major abdominal surgery.  Post-surgery, she developed groin pain for which she required opiate analgesia.  With regard to her psychological position, she has an extensive psychiatric history dating back to around 1994.  The pursuer was receiving treatment for depression in November 2010.  On medical examination for the purposes of this action, the pursuer has indicated that her pain and current housing situation are the major contributing factors to her psychological position.  Since the material accident, the pursuer has, in any event, suffered further events including the death of her step‑father, marital dissatisfaction, a work disciplinary procedure relating to her husband, surgery in 2013 … and an assault in around April 2013.  The pursuer has likely developed opiate dependency.  Had the material accident not occurred, the pursuer would in any event have continued to suffer from episodes of depression in response to psychological stressors.  The pursuer is, given her true physical and psychological state, not unfit for employment as a nurse.  Further and in any event, the pursuer defaulted from physiotherapy after one appointment in around February 2011”. 

This minute of amendment and some evidential material, including the surveillance evidence and comments by the defenders’ experts following the surveillance report, were given to the pursuer’s agents during April and May 2015.  The proof date set down for eight days was due to commence on 30 June 2015.

[4]        Although the defenders had prepared a minute of amendment, no motion to amend was ever enrolled by the defenders.  It is a moot point which cannot now be answered as to whether or not the court would have allowed this minute of amendment a short time before the proof. 

[5]        The case was eventually settled following a pre‑trial meeting in May 2015.  The pursuer accepted a minute of tender from the defenders.  Said tender was for £25,000 sterling net of any liability that the defenders may have in terms of section 6 of the Social Security (Recovery of Benefits) Act 1997, together with expenses. 

The opposed motion
[6]        A motion was enrolled on behalf of the pursuer following the settlement of the action.  Part of that motion sought certification of five skilled persons in terms of Rule of Court 42.13(A)(2).  Said rule states: 

“(2) A motion under paragraph (1) may be granted only if the court is satisfied that -

(a) the person was a skilled person; and

(b) it was reasonable to employ the person”. 

[7]        The opposition by the defenders was based on Rule of Court 42.13(A)(2)(b) and limited to three skilled persons, Ms Laura Clancy, Mr Gordon Cameron and Dr John Pollock.  The defenders did not dispute that said persons were skilled persons.  The basis of the opposition as enrolled was that: 

“Certification of those witnesses is unreasonable as their instruction was brought about solely by the pursuer’s deliberate exaggeration of her claim, as more fully referred to in the minute of amendment for the defender and the supplementary reports of both Mr Lawson and Professor Chick, lodged in process”. 

Submissions by counsel for the defenders
[8]        Counsel for the defenders explained the opposition in oral submission.  He submitted that the issue of reasonableness for the purposes of Rule of Court 42.13(A)(2)(b) was to be judged as at the time the instruction was given and taking into account the actions of the solicitors and the litigant.  The action of the litigant in this case amounted to malingering and the court should so conclude.  But for the malingering of the pursuer, her solicitors, as agents, would not have instructed the said three skilled witnesses.  Counsel was careful to explain that he directed no criticism at the solicitors of the pursuer.  His criticism was directed at the pursuer.    

[9]        Counsel submitted that the defenders should not be liable in expenses for the substantial fees occasioned by instruction of three of the skilled persons to investigate and report in the circumstances of this case.  He invited the court to take a broad view of the realities of litigation.  As a result of the malingering of the pursuer, three skilled persons had been wrongly led to make reports which were taken into account and led to an overvaluation in the assessment of damages.  For example, the pursuer’s statement of valuation of claim in form 43.9 set out very substantial figures partly based on the opinion of the said skilled persons founded on false information from the pursuer.  Counsel noted that the valuation produced on behalf of the pursuer was in excess of £717,000 and subject to further increase on receipt of pension loss support and a report into accommodation costs.  Counsel accepted that the pursuer did not proceed with the report into accommodation costs but the pension loss report further increased the valuation to a sum in excess of £800,000. 

[10]      Counsel submitted that the settlement figure should be seen in context.  That settlement, a modest sum, was reached after the defenders had produced information to the pursuer’s agents about the surveillance of the pursuer and from the defenders’ experts, who suggested that the pursuer had deliberately given a false account of her condition and acted the part of a disabled person. 

[11]      Counsel readily accepted that in a case such as this where no evidence had been led before the court, the court could not make any assessment of credibility and reliability.  But the court could reach a conclusion by inference.  He submitted that if one looks at the history of the case taking into account the results of the surveillance evidence in the report dated 26 April 2015;  the opinion of the defenders’ experts including Mr Lawson who said in his report of 1 May 2015 that the pursuer has deliberately given a false account;  the response of the pursuer’s agents to the defenders’ minute of amendment in which a denial was deleted and an averment of not known and not admitted was inserted in response to the new averments of malingering by the pursuer;  the very modest settlement of £25,000 compared with a claim in excess of £800,000 in the statement of valuation, £500,00 on record and a revised valuation put forward by the pursuer in excess of £100,000 at the end of 2014.  These factors would entitle the court to conclude that the pursuer deliberately falsified her symptoms for financial compensation and led to the unnecessary instruction of skilled witness reports.  In such circumstances, the defenders should not be expected to bear the expenses which would flow from certification of the three skilled persons.

[12]      Counsel submitted that the court has discretion in awarding expenses to deal with this situation and to reflect disapproval.  Counsel prayed in aid the judgment of Lord Clarke of Stone-cum-Ebony JSC in Summers v Fairclough Homes Ltd [2012] UKSC 26 at paragraph 53 where he states: 

“As to costs, in the ordinary way one would expect the judge to penalise the dishonest and fraudulent claimant in costs.  It is entirely appropriate in a case of this kind to order the claimant to pay the costs of any part of the process which have been caused by his fraud or dishonesty and moreover to do so by making orders for costs on an indemnity basis.  Such cost orders may often be in substantial sums perhaps leaving the claimant out of pocket.  It seems to the Court that the prospect of such orders is likely to be a real deterrent.” 

Counsel submitted that the court should follow this approach and promote such a deterrent effect, by refusing the pursuer’s motion in respect of the three said skilled persons.  That would be justified because in all the circumstances it was not reasonable to employ said persons. 

Submissions by counsel for the pursuer
[13]      Counsel submitted that the defenders were inviting the court to entertain submissions which might never have been entertained at a proof because the record did not contain any such averments and the disputed averments might never have been allowed by the court.  Counsel explained that when the pursuer’s agents received the new allegations shortly before the proof, they required to have a consultation with the pursuer and counsel.  That was not possible immediately.  The draft response in answer was “not known and not admitted” as the pursuer’s agents had no instructions at that stage.  This is not a case where it is conceded that the pursuer was malingering and had deliberately lied in order to obtain compensation.  Indeed after consultation, the pursuer vigorously denied such allegations.  That denial is maintained. 

[14]      Counsel submitted that it was impossible for the court in the absence of an evidential hearing to come to the conclusion about a disputed fact that the pursuer in this case had deliberately falsified her symptoms for financial compensation.  That was a serious allegation and it is a disputed allegation.  The court has no way of resolving this without evidence.  The reports instructed by the defenders cannot be accepted as conclusive bearing in mind that the authors have not given evidence and they have not been subjected to cross‑examination.  Indeed in the papers there is contrary opinion from the expert psychiatrist Dr Tim Rogers instructed on behalf of the pursuer. 

[15]      This is a case in which the accident dates from 2010.  It appears that there was a complicated history relating to the pursuer’s condition from 2010 to 2014.  The surveillance report, which the defenders rely on to support false assertion by the pursuer, dates from 19 and 20 April 2015.  It is plain from the report by Dr Rogers that he considers that the pursuer suffered from psychiatric problems as late as February 2015 and he did not alter his views about that in the light of the surveillance report which he considered.  Before the surveillance report was brought to the attention of the pursuer’s agents, the pursuer was showing evidence of recovery.  She started part‑time work in February 2015.  This was a case in which there was an interrelationship between orthopaedic, psychological and psychiatric symptoms and problems which were not easy to disentangle.  The pursuer was retired from her employment on medical grounds following assessment by an independent assessor.  As a nurse she had a valuable pension and plainly the pension loss required to be calculated and assessed as did her suitability for alternative employment.  When the reports from the three disputed skilled persons were instructed, the issues were all relevant issues properly investigated and considered at the time of instruction.  The date of instruction ranged from August 2014 to January 2015. 

[16]      Counsel accepted that the tender which was accepted was very significantly below some of the figures put forward at the earlier stages of the litigation.  The evidence available to the pursuer’s agents in 2015 indicated that the pursuer was showing signs of recovery and had obtained new employment albeit on a part‑time basis.  The calculation of damages was only one issue for consideration.  This was a claim in which there was no admission of liability and an eight day proof was due to commence at the end of June.  A tender was lodged.  Without giving any details, counsel submitted that there were many reasons including concerns about the funding of litigation which may prompt settlement at a figure well below a full assessment of damages.  No inference of malingering and false claims can be drawn from the level of settlement in this case. 

Decision
[17]      This court has a very wide discretion in relation to expenses and is well able to reflect disapproval of the conduct of a party in litigation, be it fraudulent or otherwise, by refusing expenses, in whole or in part, to a party who has had success in a litigation.  In my opinion, however, counsel for the defenders made a bold submission on the motion roll.  He invited the court to condemn the successful pursuer to whom damages have been conceded and tendered and find that she deliberately falsified her symptoms for financial compensation and so penalise her in relation to her motion for expenses. 

[18]      I was invited by counsel for the defenders to bear in mind the realities of litigation and I do so.  The realities of litigation are that a hypothetical pursuer may have loss, injury and damage reasonably calculated at £800,000 in damages but the case may be worth nothing if liability is not proved or funding is withdrawn and the pursuer cannot proceed to proof.  In the pursuer’s case there are averments of a complicated history including some recent recovery by the pursuer, no admission of liability, averments of contributory negligence, no legal aid and a proof of eight days set down.  In such a case, I would not be surprised at any level of settlement by either the pursuer or the defender.  I would not be prepared to draw any inference from the level of settlement in this case on the basis of ex parte statements on the motion roll and reference to some reports. 

[19]      I am informed that the pursuer disputes the serious allegations made by the defenders and I note that these allegations were never incorporated into the pleadings in this case.  I have no way of resolving disputed facts of this nature.  The nature of the disputed facts means it would be necessary in my opinion to hear evidence at least from the pursuer, relevant experts and the surveillance witness, before a conclusion could be reached.  As no evidence was available to me to make any findings of fact, I am not persuaded by counsel for the defenders that I should decide on the basis of inference based on disputed written material about some aspects of the case.    

[20]      I merely observe that the court in Summers v Fairclough Homes Ltd made their decision and observations after the court at first instance had heard evidence and made findings in fact. 

[21]      In the circumstances, I consider the opposition to the motion ill founded.  Counsel for the pursuer has set out the circumstances and dates of the instruction of the reports.  I am satisfied that it was reasonable in the circumstances to employ the skilled persons and grant the motion as enrolled.