20
Dec
21
Articles, Travel & Cross Border Claims
The Weekly Roundup: the Bucks Fizz Edition

What’s the best champagne cocktail? It’s a question almost as vexed as the great Muppets Christmas Carol v Blackadder Christmas Carol debate. The team has been investigating the matter with our usual diligent thoroughness this week, and for us, the Bellini just about beats the Kir Royale to the top spot, with Bucks Fizz an honourable third, and Black Velvet a morning favourite. If you think you can do better, drop us a line, and if your suggestions find favour, there could be a little Christmas gift winging its way to you. In the meantime, Dominique Smith has two important case summaries for you this week, and we also bring you the news that Pepperall J, in Hill v Generali Biztosito ZRT [2021] EWHC 3381 (QB), has found on appeal that an English motorist can include in his claim against a foreign insurer a subrogated claim on behalf of his insurer. The decision puts to rest a debate which raged, pre-Brexit, with all the intensity of the Bellini v Kir Royale argument; but which is now (unlike the Cocktail Wars) largely of historical interest only.

 

Making Your Mind Up 1: Fernandez v Iceland Foods

In any case, there is always a risk that an expert may later change their opinion. This situation may arise when an expert sees evidence they had not previously seen at the time of writing their report. On other occasions, an expert may consider agenda questions with their opposing counterpart, and simply reach a different view to one held previously.

When an expert does change their opinion, does that change of opinion justify a new expert being instructed in their place? This was an issue that came before the High Court in Fernandez v Iceland Foods Ltd [2021] 12 WLUK 201 (QB).

Factual background

The Claimant suffered with diabetic retinopathy and vascular eye abnormalities. He had no sight in his right eye. During the course of his employment with the Defendant, he was lifting heavy bottles onto shelves when he felt a pop in his left eye. Despite hearing a pop, there was no immediate change to his vision. Following his shift, he was able to drive home and go to sleep. When he woke, he was unable to see properly. It transpired he had a sub-retinal bleed and sadly lost the sight in his left eye.

The Claimant subsequently brought a claim against his employer. Liability and causation were in dispute between the parties. The Claimant obtained expert evidence from a medical expert, who stated that the Claimant’s bleed and vision loss were related to the Valsalva manoeuvre, and while the underlying cause of the injury was diabetic retinopathy, the manoeuvre involved in heavy lifting significantly contributed to the injury. However, upon seeing the Defendant’s expert reports, the Claimant’s medical expert changed his view, such that his evidence no longer supported the Claimant’s case. The Claimant applied for permission to instruct another expert, as he alleged that his expert had changed mind without good reason and this was fatal to his case. The matter came before a Judge who refused the application, finding that the Claimant’s medical expert had changed his view for well supported and good reasons and had properly discharged his duty as an independent expert.

The Claimant thereafter appealed, arguing that the Judge had given inadequate consideration to the circumstances of his expert’s change of mind and to the consequences of refusing the application.

The decision

The appeal came before Mr Justice Cotter. Cotter J considered that various factors had to be taken into account when considering the appointment of a further expert under CPR35.1, namely: the nature, importance and number of issues in the case, the reason for appointing a new expert, the claim’s value, delay, and the overall justice to the parties. Expert shopping had to be discouraged. The mere fact that an expert changed their opinion could not, by itself, provide a reason to allow a party to instruct another. Cotter J noted that an appellate court was unlikely to interfere with a case management decision where there was no error of law and where the decision maker did not exceed the ambit of their discretion. The Claimant’s expert had sound reasons for altering his view, and the Claimant could not realistically challenge his opinion on the basis that it was not properly or fairly held. Although a new expert could have supported the Claimant’s case, the other factors (such as justice to both sides, the age of the case and the need to discourage expert shopping) had to be weighed against that. Cotter J found the Judge had weighed those factors carefully. The appeal was consequently dismissed.

Comment

It is difficult to see how a change of opinion of an expert alone could justify the appointment of another expert, even if their opinion proves fatal to a claim. The difficulty the Claimant had in this case was that the expert appeared to act in accordance with their Part 35 obligations and their change of view was well supported and for good reason. This decision emphasises that experts should not simply be changed just because they no longer support a party’s case, even though that may ultimately result in a party having to discontinue their claim.

About the author

Ranked by the Legal 500 2021 and 2022 as a Rising Star, Dominique Smith was called in 2016 and has a busy practice in travel law. She undertakes work for both Claimants and Defendants in package travel claims, contractual disputes, and other related claims. Dominique has a particular interest in cross-border clinical negligence claims and regularly appears in the Coroners’ Courts.

 

Making Your Mind Up 2: XL Caitlin Insurance Company v Newpoint Capital

All too often, admissions are made in civil litigation which a party later seeks to withdraw. If a party cannot explain why they are seeking to withdraw admissions made without waiving privilege, can that party still satisfy the Court that the admissions should still be withdrawn? The High Court recently grappled with this issue in XL Caitlin Insurance Company UK Ltd v Newpoint Capital Ltd [2021] 12 WLUK 171 (QB).

Factual background

The Claimant, acting on behalf of itself and others, asked the First Defendant to act as its broker in relation to a cover holding arrangement between the Claimant and an underwriting agent. The Claimant alleged that the First Defendant received payments from the agent which were supposed to be held on trust for the Claimant. The Claimant further alleged that the First Defendant failed to pay over the sums, in breach of contract and trust, and instead paid it to others, including the Seventh Defendant. Proceedings were issued and the Seventh Defendant admitted in its Defence that it had knowledge of the Claimant’s beneficial interest in the money and that £50,000 had been paid to it by the First Defendant.

However, the Seventh Defendant later sought to amend its Defence and withdraw its admissions. The Claimant did not object to the Seventh Defendant amending their Defence, but did object to the withdrawal of its admissions, as no explanation had been offered as to how they came to be made. The Seventh Defendant’s counsel said he was unable to give reasons for seeking to withdraw the admissions, without waiving privilege.

The matter came before Judge Pelling QC. The Judge noted that pursuant to CPR14.1, permission was required to amend or withdraw an admission. Further, the court had to have regard to the all the circumstances in the case, including those set out under CPR PD14 paragraph 7.2. The Judge considered that it was incumbent on a party who sought to set aside an admission to explain why. Without that evidence, it was impossible to work out on what grounds the application was being made and the Court could not consider what prejudice would be suffered. The Judge considered that the Court was entitled to receive a fairly full and frank explanation of how things had gone wrong, namely the basis upon which the admission was to be withdrawn, the reasons for it, and how the admission came to be made in the first place. In this case, the admissions made were not due to a casual error. To withdraw the admissions would amount to a wholesale withdrawal of admissions without explanation. There had been no new evidence that had come to light that justified withdrawing the admissions. Further, with no explanation from the Seventh Defendant to explain the reasons behind the withdrawal, it was impossible to conclude whether it was in the interests of justice. As such, the application was refused.

Summary

A defendant must consider very carefully whether they wish to make an admission in a case. When an admission is made, it is not easy to simply withdraw it, as this case demonstrates. Nor, in this author’s view, should it be. However, if an admission is to be withdrawn, it must be right that clear and proper reasons behind the withdrawal should be before the Court. Without them, it is difficult to see how the Court can properly grapple with PD14 paragraph 7.2.

About the author

Ranked by the Legal 500 2021 and 2022 as a Rising Star, Dominique Smith was called in 2016 and has a busy practice in travel law. She undertakes work for both Claimants and Defendants in package travel claims, contractual disputes, and other related claims. Dominique has a particular interest in cross-border clinical negligence claims and regularly appears in the Coroners’ Courts.

 

…And Finally…

The gang at 1CL are off on our hols now; and we hope our loyal readers will also get the chance to take a relaxing break. It’s been another challenging year, at times, but your support has kept us going, and we’re hopeful that next year will see a return to some kind of normality. A very Merry Christmas to all.

Written by or involving: Dominique Smith

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