Before: DISTRICT JUDGE HORAN MR LEE WALKER. -v- MR LUKE BROWN. Counsel for the Claimant: Counsel for the Defendant: JUDGMENT APPROVED BY THE COURT

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1 IN T STOKPORT OUNTY OURT laim No. 1IQ08987 The ourthouse dward Street Stockport SK1 3N Thursday, 14 th July 2011 efore: ISTRIT JU ORAN etween: L WALKR -v- LUK ROWN laimant efendant ounsel for the laimant: ounsel for the efendant: AVIS MISS SARON JUMNT APPROV Y T OURT Transcribed from the Official Tape Recording by Apple Transcription Limited Suite 104, Kingfisher usiness entre, urnley Road, Rawtenstall, Lancashire 4 8S Telephone: ax: Number of olios: 36 Number of Words: 2,615 Apple Transcription Limited /ss v.3

2 JUMNT 1. T ISTRIT JU: I agree with what the defendant says in this case, Miss Sharon. Quite simply the background is that the accident occurred on 28 th ecember 2009, there was a report from r vans at three months, 26 th March 2010, which I am told originally said neck and back; recovery period would be five months for each. When the claimant did not recover so quickly there was a revised report, the same date but with a new prognosis and not based on any re-examination which really is of grave concern to me because it is misleading to say the least. 2. If a doctor is changing his mind at the behest of a claimant, there should be a totally separate report with a totally separate date indicating that he has changed his original view and explaining why he has and to do other than that is an attempt to mislead, an attempt to mislead the other party and an attempt to mislead the court and I do not like that one iota and I request and I am going to order that you inform this doctor and these solicitors, Leech & o, they must not do anything like that again and I shall remember this, I shall mention it to my colleagues to look out in particular for Leech & o and for r vans. 3. An expert has a duty to the court, not to the claimant and not to the claimant s solicitors. e has got a duty to the court and he should not have changed his opinion just like that without there being a further re-examination. ad there not been this mess up, this error by the claimant s solicitors, we would not have known about this. You then wonder is this the tip of the iceberg? ow often is it happening? It is unprofessional, very unprofessional. I have half a mind to adjourn the case for a representative from Leech & o and for r vans to attend personally before me and explain what they are up to and, in fact, I am going to order that they both provide a written explanation as to how this has come about. 4. So the position then is that the defendants received and only received in the early stages the report which said the recovery from neck and back would be in five months. That was in the medical report of 26 th March and that is what was disclosed to the defendants. The defendants having seen that made offers. They made an offer on 18 th January, 1,750, for this five-month injury. That was before proceedings were issued. Proceedings were issued on 22 nd ebruary 2011 and then the defendants increased that offer on 30 th March to 2,100 which for a five-month injury is generous. 5. The defendants say that they were acting and making these offers in good faith and in a genuine attempt to settle and I have no doubt that had they known that this was a twelve-month injury they would have made an offer based on that. The fact is that the parties have now agreed to settle general damages on the basis of five months to the neck and one year for the back for 2,675 which is only 575 more than the offer made on 30 th March It was not until the claimant s witness statement was served and that is dated I think some time in June this year, is it 13 th June? MISS SARON: 15 th June, I believe, sir. T ISTRIT JU: I thought it was dated 13 th June. Apple Transcription Limited /ss

3 AVIS: It is dated the 13 th, sir, yes. T ISTRIT JU: ated the 13 th. You may well have received it on the 15 th. It was not until after that was served that the defendants queried the recovery period because they could not understand what was being said because they had the medical report saying five months and five months and so they queried it with the claimant and did not get a reply until 28 th June, so nearly two weeks before the claimant replies bearing in mind we are fast approaching a trial date and that sort of delay again is unfortunate to say the least. 7. I am quite satisfied that if the error had not been made and if the defendants had been aware at the outset that the claimant was said to be suffering from a five-month and a twelve-month injury that they would have increased the offer and they would have increased it along the lines of what has been agreed today and they have been denied that opportunity to do so before proceedings were issued and again before they were in a position to avail themselves of Part 36 payments latterly or recently. 8. ut even then, of course even then, of course this matter is proceeding on the basis of a doctor who is prepared to tear up his original report, not even re-date it, keep the same date, not bother to see this chap again and yet double the prognosis period. It is astounding. So I am going to limit the claimant s costs to those costs that they would have got pre-issue, the fixed costs, and I see no reason whatsoever why the claimant should not pay the defendant s costs of the action. MISS SARON: Sir, the defendant has prepared a costs schedule which T ISTRIT JU: Well, what are the claimant s costs first of all? AVIS: The claimant s costs will be 800 plus 20 per cent of the general damages plus 20 per cent of the damages. T ISTRIT JU: So what does that work out at? AVIS: The damages in total are 3,020 just give me one moment, sir. [Pause] The base costs are 1,404 plus VAT which is 1, T ISTRIT JU: Which is what sorry again? AVIS: 1, for the base profit costs. Then there are the disbursements minus the issue fee and the listing fee, unless you have any further submissions to make about those disbursements. MISS SARON: Sir, I would query the fee notes for the change of the medical report. T ISTRIT JU: Let us just have a look. So there is the issue fee comes out, the listing fee comes out, the medical reports, it says medical reports there should only be one. Apple Transcription Limited /ss

4 MISS SARON: There are various disbursement vouchers for the doctor making the comments and changing the medical report in the manner that he did attached to the claimant s schedule. T ISTRIT JU: Well, this is the invoice of 10 th June I am looking at. Is that the revised report? That will be the revised one, will it not, ? AVIS: And I think that would be the first one, sir, because the letter asking him to whether his opinion could be changed is dated November of T ISTRIT JU: Ah, right. All right, so that is the first, so that is You are not objecting to that? MISS SARON: No, sir. It is the two additional disbursement vouchers. T ISTRIT JU: The MISS SARON: or 90 each. T ISTRIT JU: ecause they are after the yes. 94 and then there is a AVIS: There is a 94 for the P medical records and a 47 for the hospital records. They are for obtaining the records themselves rather than for producing the report and then thereafter there are comments on medical report of T ISTRIT JU: Let us just stop for a moment. The P medical records were obtained on 3 rd ebruary. That is before Mr vans report of 26 th March, is it not? AVIS: Yes. T ISTRIT JU: So I think they are allowed that. MISS SARON: Sir, it is only the two additional disbursement vouchers. AVIS: I think the two things that are objected to is there is a comments on medical report, sir, which is T ISTRIT JU: Oh, right and that is dated November AVIS: Yes and then there is a comments as well which is which is 75 T ISTRIT JU: Well, those are out. Those are out, so that is 75 and comes off there, so that amounts to a reduction of what? AVIS: I think it would be safer if I add it up from scratch because it would be it is plus 94 plus 47 is T ISTRIT JU: That is the disbursements. AVIS: There is also a VLA figure of 2.50 that is claimed. Apple Transcription Limited /ss

5 T ISTRIT JU: So what does it come to then? AVIS: T ISTRIT JU: All right, so let us just the start. Judgment for the claimant in the agreed sum of 3,020, yes? AVIS: Yes. MISS SARON: Yes, sir. T ISTRIT JU: (2) defendant to pay claimant s costs assessed at we have not totally got the figure yet, have we, but it was 1, and , yes? AVIS: Yes, I get the total for those as 2, T ISTRIT JU: 2, Assessed at 2, and that deals with the claimant s costs. o remind me I want to include in this order a provision that the solicitors and the doctor provide a written explanation as to what has been going on here. AVIS: o you want to do that at the end, sir? T ISTRIT JU: I am going to do that at the end, make sure I do not forget. MISS SARON: Sir, if I hand up the defendant s costs schedule, it is on a rather garish yellow sheet. T ISTRIT JU: Right, thank you. [Pause] Any observations, Mr avis? AVIS: I have only very basic observations about the costs schedule, sir: simply that it was a very simple matter and there was no defence in this matter that was entered. There has only been one document as far as I can see that has been prepared by the defendant which was a counter schedule. Therefore, I would simply say that the amount of profit costs claimed is high. The only other thing which I T ISTRIT JU: Of course they have had to check and re-check these medical reports, have they not, and witness statements and scratch their heads and wonder what is going on? That is all under documents. AVIS: It is, sir, yes. T ISTRIT JU: Mmm. AVIS: The only other matter that I am reluctant to do is state that my learned friend s fee for the hearing of 690 is a fast track trial fee rather than a disposal fee in a matter that has not been tracked. I do not know what the amount that this court would normally award Apple Transcription Limited /ss

6 T ISTRIT JU: I usually allow 400 for that, so it is 400 plus VAT which would be 480? AVIS: Those are my only observations. MISS SARON: Sir, briefly in response, I know that this matter has been a matter that has caused significant trouble to my instructing solicitor and significant advice has been taken in the last couple of weeks about what to do in relation to these medical reports and how best to proceed in the circumstances. There has not been a great deal of documentation prepared, although requesting advice from counsel on these issues, perusal of the various documentation and similarly contrary to the defendant nominating eachcroft as the solicitors where proceedings ought to be served, these proceedings were incorrectly served and there was a considerable amount of work went in to remedying that situation and a further delay caused in I think a consent order and acknowledgement of service and various documents to that effect were also prepared to remedy that situation. In relation to my fee for the hearing, I think it was the same fee proposed by my learned friend but we both acknowledged this morning that it was a fast track trial fee. T ISTRIT JU: I am going to allow them as they are apart from the counsel s fee which including VAT would be 480 rather than 690 plus VAT so if you want to work out what the difference is. [Pause] They are going to be very similar figures, are they not? MISS SARON: Sorry, sir. I have forgotten my phone this morning so I have been relying on my learned friend for my telephone calls to solicitors and calculations. T ISTRIT JU: I am sure he will not make any charge for that. AVIS: If only I could. So the base figure excluding VAT is 1,739.50, inclusive of VAT it is 2, T ISTRIT JU: Two, zero AVIS: by my calculation. T ISTRIT JU: oes that include the 40 court fee? It does not, does it? AVIS: It does not, no. I was not aware of that. T ISTRIT JU: So that is 2, AVIS: 2, T ISTRIT JU: 2,127.40, all right. I suppose for clarification, the defendant to pay claimant s costs assessed at 2, and in brackets the pre-issue what is it called that scheme? AVIS: ixed costs of issue? No, it is not. Apple Transcription Limited /ss

7 T ISTRIT JU: No, it is not. AVIS: Predictive costs. T ISTRIT JU: Predictive costs and claimant to pay defendant s costs of the proceedings, 2, All sums to be paid four o'clock on 4 th August, give 21 days and by 4.00 pm no, I am going to allow 28 days for this because the doctor might be on holiday and solicitors might be on holiday and so on and so forth by four o'clock on 11 th August 2011 the claimant s solicitors are to file at court they have no need to serve it on you are to file at court a written explanation from themselves and from the medical expert, r Jeremy vans, explaining why the original report dated 26 th March 2010, I think, is it not? AVIS: Yes. T ISTRIT JU: 26 th March 2010 which gave a prognosis of five months recovery was replaced after November 2010 with another report dated 26 th March 2010 which amended the prognosis period to twelve months for the back without any re-examination of the claimant and without the report having a date after November 2010 on it and without it referring to the fact without it referring to the earlier report and stating that it was an addendum report so as to attempt to mislead the court and the parties and the defendant that there was only one report dated and that had a recovery period of one year for the back. The file to be referred to me after 11 th August 2011 to consider further action. If I do not get a suitable reply, if I do not get a reply at all, I shall direct they attend before me to explain so you might tell them that. AVIS: I will, sir. I will pass that on, sir. T ISTRIT JU: Anything else? MISS SARON: No thank you, sir. AVIS: No thank you, sir. T ISTRIT JU: Thank you very much. [nd of hearing] Apple Transcription Limited /ss