Evans v Secretary Of State For The Environment Transport And The Regions And Another [2006]

Reported: [2006] EWHC 322 (QB)
Year: 2006
Court: Queen's Bench

FACTS:-

The facts of this case are set out in Evans v The Secretary of State for the Environment, Transport and the Regions and the Motor Insurers Bureau [2001] PIQR P3 which was decided by Mr Justice Buckley in the Queen’s Bench Division of the High Court. Mr Justice Buckley decided to refer a series of questions to the European Court of Justice. That decision was appealed to the Court of Appeal, but the appeal was dismissed. (See Evans v The Secretary of State for the Environment Transport and the Regions and the MIB [2001] EWCA Civ 32.)

Advocate General Alber had already prepared an opinion for the ECJ, which answered the questions put by the High Court. These can be seen at Evans v The Secretary of State for the Environment, Transport and the Regions and the Motor Insurers Bureau – Opinion of Advocate General Albert Case No. C-63/01 (Delivered On 24th October 2002).

The European Court of Justice then gave its decision in Evans v the Secretary of State For the Environment, Transport and The Regions and The Motor Insurers Bureau – Case C-63/01 [2003] (Judgment Of European Court Of Justice)

Following that decision, the case was sent back to the High Court to apply the answers given by the European Court of Justice. For various reasons, it took some two years before The Claimant case came before a court in England and Wales and the Defendants said that they assumed that the case had simply gone away.

One of the first problems in the Claimant’ case was that the MIB were able to successfully argue that they should never have been brought into the case. If the Claimant wanted to sue anyone for non implementation of the Directive, he should have sued the government not the MIB. This meant that The Claimant had a costs judgment made against him by the MIB. At the time of this hearing, the MIB was not a party but only an intervener. The Claimant was still in receipt of public funding.

Secondly there were real issues around the actual merits of the Claimant’s original claim and whether he would have in fact got any more out of the Arbitrator had the procedure been tighter.

Finally on the 5 September 2005 the MIB had offered to waive enforcement of the costs judgment against the Claimant totalling, with interest, £ 36,000. The Claimant did not accept that offer and so the MIB and the government made an application to strike out the Claimant’s claim for abuse of process. Their reasoning was that the offer that they had put openly on the table was far in excess of what The Claimant could realistically achieve at trial. In addition the 1972 Untraced Drivers Agreement had been replaced by a new 2003 Agreement, which provided for the payment of both interest and costs. Any further litigation would be a waste of public money, given that both parties (the Claimant and the government) were publicly funded.

HELD:-

Judge Mackie QC gave judgement. He went over the questions put to the European Court of Justice and the answers that it had given.

He held that that the First Defendant (the Secretary of State) could not obtain summary judgment unless it satisfied the court that the Claimant had no real prospect of succeeding and that there was no other compelling reason why the claim should be disposed of at trial. He referred to CPR 3.4, which said that the court could strike out a statement of case if it appeared to disclose no reasonable grounds for bringing or defending the claim or if it was an abuse of the Court’s process or was otherwise likely to obstruct the just disposal of the proceedings.

The learned judge considered each item of damages claimed by The Claimant.

Claimant’s costs in MIB claim – £ 68,787

The Claimant sought £22,054, his liability for costs to MIB and also £ 46,733 his own costs incurred in the High Court, Court of Appeal and in the unsuccessful petition to the House of Lords. Judge Mackie said that The Claimant had been wrong to sue the MIB and he would not grant reimbursement from the Secretary of State of costs, which had been already ordered by another court in the exercise of “well informed discretion.” The Claimant’s claim for the costs of the statutory demand served on him was likewise a hopeless claim.

Reduction of award by arbitrator for contributory negligence – £ 11,687.

Judge Mackie said that he did not consider it seriously arguable that the absence of the procedure suggested by the Claimant made any difference. The issue of contributory negligence was one of which the Claimant and his solicitors were well aware and could have been raised during the arbitration procedure and the subsequent appeals. However there was a more basic problem. The judge could see no prospect on the available evidence of the Claimant overturning the finding of contributory negligence.

Solicitors fees for making claim under 1972 Agreement and taking the matter to arbitration – £ 7,984.

This part of the claim was not struck out for abuse of process. Reference was made to the provision for contribution towards legal costs by MIB now contained in Paragraph 10 of the 2003 Agreement. In the absence of any legal aid or public funding available to victims, in contrast to other cases, it was reasonable for the Claimant’s solicitors to charge a contingency fee, in this case one of 15%. The Secretary of State argued that there was no

requirement at all imposed following the ECJ decision, to provide for costs of submitting a claim.
Here Judge Mackie considered the various permutations of outcomes had there been a costs regime in place. One of the Secretary of State’s arguments was that if there had been a Part 36 equivalent under the MIB Scheme, The Claimant would have suffered the consequences of not accepting a reasonable offer and he would have got nothing. Consequently under the MIB scheme he was better off. Judge Mackie was not prepared to strike out this part of the claim. There were so many different permutations, that the Claimant might well be able to show that he would have got a better deal if the MIB Scheme provided for costs.
Interest on award £ 6254

Again Judge Mackie refused to strike out this part of the claim. The failure to award interest was an arguable claim.

Solicitors Costs of Application to set aside its Statutory Demand – £1028

This claim related to legal costs incurred by the Claimant’s current solicitors to set aside a statutory demand made by the MIB. Judge Mackie said that this claim was hopeless as there was no direct causal link between the First Defendant’s failure to properly implement the directive and these costs.

The Arbitrator’s fee, the video and dishonesty

The Arbitrator had ordered the Claimant to pay her fee, on the grounds that in her view, The Claimant was dishonest in the account he gave the doctors as to how his injuries affected him, and there were no reasonable grounds for his appeal.

The size of the fee was only £ 150 but behind it was the claim that had The Claimant had the benefit of a CPR type procedure, he would have been able to adduce medical evidence to disabuse the Arbitrator of the impression, apparently gained from her viewing a video recording, that his injuries were much less substantial than he claimed and that he had been dishonest in exaggerating them.

However the Claimant and his advisers had the opportunity of looking at the video, but had made no comment to the Arbitrator. The Claimant said that he was not made aware of any matter that might be used against him and did not have an opportunity to submit comments. If he had known that, then he would have explained how his cousin had been present at the time and that it was his practice, when in public, to try to conduct himself so that the limitations on movement which he found to be embarrassing were not visible to others. Judge Mackie felt that this submission was unreal “given the practicalities of everyday personal injury litigation”. Solicitors in this area knew perfectly well why Defendants rely on video evidence. Apparently the matter had never been raised by the Claimant in appeals or subsequent litigation.

Summary judgment – no real prospect of success

Judge Mackie concluded that The Claimant had no real prospect of success in establishing any of his claims for damages with the exception of those relating to legal fees for making the claim under the 1972 Agreement and in the arbitration and as regards interest on the award. That meant that the damages claim would not exceed £13,000.

There was a submission from the Claimant’ lawyers that there were others who were present in court at the hearing of the applications and whose rights would be affected by the outcome in his case. However there was no evidence about this before the court.

The Claimant solicitors acknowledged that any damages their client recovered would be payable direct to the MIB (for the costs judgment). Therefore it followed that anything The Claimant recovered at trial would be less than what he would gain by accepting the MIB’s offer. The holding of trials on liability and then on quantum, with both Claimant and First Defendant in effect publicly funded would be a complete waste of time and money.

Judge Mackie said that the continuation of this action would be a pointless waste of time, costs and other resources. Any purpose the action had beyond the financial had already been achieved. The reality was that one party was insisting on a trial when the other was offering to pay in full the liability which remained in issue. The Claimant pointed out that at earlier stages of the proceedings the courts had been highly critical of the case while still accepting that it was their duty to allow it to continue. (See the judgement of the Court of Appeal in Evans v The Secretary of State for the Environment, Transport and the Regions and the Motor Insurers Bureau [2001] EWCA Civ 32)

However the action had now reached a different stage.

The Claimant and his lawyers could be rightly proud of their achievement in bringing about the changes in procedure which had resulted from this reference to the ECJ (the introduction of the 2003 MIB Untraced Drivers Agreement) but was no reason for continuing to the bitter end with a piece of litigation which would have nothing to show for further expense of time and costs.

Therefore there would be judgment for the First Defendant on its application.