IN THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL Civil Appeal No. P029 of 2016 BETWEEN CRISTAL ROBERTS First Claimant ISAIAH JABARI EMMANUEL ROBERTS (BY HIS NEXT OF KIN AND NEXT FRIEND RONALD ROBERTS) Appellant/Second Claimant AND DR. SAMANTHA BHAGAN First Respondent/First Defendant AND MEDCORP LIMITED Second Respondent/Second Defendant PANEL: A. Mendonça, J.A. R. Narine, J.A. J. Jones, J.A. APPEARANCES: Mr. L. Murphy appeared for the Appellant Mr. J. Walker for the First Respondent/First Defendant Mr. R. Martineau S.C. and Mr. I Benjamin for the Second Respondent/ Second Defendant DATE DELIVERED: February 23 rd, 2016. Page 1 of 11
JUDGMENT Delivered by A. Mendonça J.A. 1. The issue in this appeal is whether the order of the Case Management Judge directing that only part of the monies paid into Court for the benefit of the infant claimant be paid out, was a proper exercise of her discretion. 2. The first claimant, Cristal Roberts, is the mother of the second claimant Isaiah Roberts, who is an infant and sues by his father and next friend, Ronald Roberts. On June 2 nd 2006 Mrs. Roberts when pregnant with Isaiah was admitted as a maternity patient to the second respondent s health centre. At the time Mrs. Roberts was under the care of the first respondent, Dr. Samantha Bhagan. Mrs Roberts gave birth to Isaiah on June 2 nd 2006 while a patient at the health centre. Isaiah was unfortunately born flat and required resuscitation. He was later diagnosed with cerebral palsy and will require for the rest of his life extensive care and support. 3. On March 24 th 2010 these proceedings were commenced by Mrs. Roberts and Mr. Roberts as the father and next friend of Isaiah. Mrs. Roberts claims damages for psychological injuries suffered from the birthing process. The claim on behalf of Isaiah is for loss and damage arising out of the diagnosis of cerebral palsy. 4. The claim so far as liability for the claimant s injuries and loss is concerned was settled by consent on the first day of the trial on January 21 st 2013 when it was agreed that the respondents were liable for ninety percent of the claimant s damages. The damages are still to be assessed. 5. A voluntary interim payment on account of the damages was made to the claimants in February 2013 in the sum of approximately US$1,000,000.00, and a further voluntary interim payment of approximately US $400,000.00 was made on account of the costs of the claim. 6. On March 5 th 2015 on the application of Isaiah, it was ordered by Rahim J, that the first respondent make a further interim payment for the benefit of Isaiah in the sum of $1,260,000.00 by paying the same into Court. Directions were given for the investment of the said sum with the Page 2 of 11
Trinidad and Tobago Unit Trust Corporation and for the payment out of eighty percent of the interest payable every quarter. 7. On November 25 th 2015 the second claimant applied for the payment out of Court of the said sum of $1,260,000.00 and interest. The order sought by the second claimant was for the release of the said sum to a joint account in the name of the claimants attorneys and Mr. Roberts as father and the next friend of Isaiah. 8. The grounds of the application essentially were that the cost of medical care and the legal costs of the action have been enormous. The claimants were heavily in debt as a consequence of having to find money to fund both Isaiah s medical care and treatment and advancing his claim to trial. 9. In an affidavit in support of the application, Mr. Roberts stated that in prosecuting the litigation to the determination of liability his family has endured a lot financially and emotionally as we had to mortgage our home. They also borrowed from Good Samaritans on a few occasions. He mentioned that there were several counsel involved in the matter as well as eight experts (local and foreign) who were instructed on behalf of the claimants and produced reports in relation to the liability trial. He further stated that additionally there were other legal costs borne by the claimants with respect to the liability stage which involved logistical expenses,[and] related expenses; such as flight, hotel, accommodation and ground transport. According to Mr. Roberts the total legal and other related costs, including the costs of the experts for the liability phase of the proceedings amounted to US$609,680.73. 10. With respect to the assessment of damages, Mr. Roberts noted in his affidavit that eighteen experts have so far been instructed on behalf of the claimants (against thirty-two on behalf of the respondents) in order to assist the Court to adjudicate on the matter fairly. The experts are predominantly based in England and the USA. Apart from the direct costs of retaining the experts he will have to bear the cost of them attending the hearing of the assessment of damages, which in the case of the foreign experts includes the cost of air transportation and hotel accommodation. Page 3 of 11
11. Mr. Roberts further points out that tremendous legal costs have been incurred to date in relation to the assessment of damages. He stated that there have been thirty-three applications to the Court on various matters touching on the assessment of damages, three procedural appeals (not including this appeal and one other heard with this appeal). He said that due to the complexity and unpredictability of the case it is difficult to determine the final legal and expert costs but estimates that the costs of the assessment of damages are envisaged to exceed US$ 1.2 million. 12. Further, a regime of medical care, various therapies and specialised educational services have been put in place for Isaiah in the USA. As a consequence Isaiah spends most of his time in the USA receiving care and treatment. Additionally due to the condition of Isaiah, he requires various aids and equipment which have been purchased for his benefit. Mr Roberts indicated that the cost of Isaiah s medical care and attention from birth to various periods in 2015 is US $448,499.93. 13. Mr. Roberts stated that the consequence of the legal and medical costs is that he is heavily in debt and therefore requests that the monies be paid out to him and the claimants attorneys in a joint bank account. As a safeguard for Isaiah s money both signatures will be required for any withdrawal. 14. The application was made without notice. The Judge however directed that the application be served on the defendants. The second defendant filed an affidavit in reply to that of Mr. Roberts in which it stated, inter alia, that (i) the damages to which Isaiah is entitled are for the purposes of compensating him for his injuries; (ii) Rahim J. on ordering the interim payment, considered the evidence in Mr. Roberts affidavit relating to the expenditure on the costs of the liability trial and on the care and attention for Isaiah; (iii) the defendants have already paid to the claimants almost all if not all of the total likely costs for the entire matter they are likely to claim under the Civil Proceedings Rules 1998 (the CPR); (iv) it did not accept the reasonableness of any of the sums claimed for legal and expert expenses and that the estimate of US $1.2 million is exorbitant ; (v) it did not accept that the second claimant can claim all those heads of damages or amounts which the claimants assert is US$448,449.93 for Isaiah s lifetime to date; and (vi) school fees for Isaiah were approximately US$20,000 per annum. Page 4 of 11
15. The Judge granted the application only in part. She ordered that of the interim payment paid into Court pursuant to the order of Rahim J. the sum of US$23,652.50 be paid out. This sum is approximately TT$144,000.00 or roughly twelve percent of the interim payment paid into Court pursuant to the order of Rahim J. 16. The Judge was of the view that for the Court to order any part of the interim payment to be paid out, the payment had to relate to one of the heads of loss which Rahim J. considered in making the order for the interim payment. The Judge noted that before Rahim J. there were claims on behalf of Isaiah for various heads of loss, such as future care and attention, medical care, future loss of income, accommodation, various forms of therapy, specialist education and training and other costs as well as for general damages. Rahim J. took these into account in arriving at the quantum of the interim payment. The Judge was of the view that any payment out had to be applied in respect of the claims that Rahim J. took into account. The Judge noted it was only in paragraph 17 of the affidavit of Mr. Roberts that there was any evidence that the payment out was to be applied to a head damage that Rahim J. considered. In other words it was only in paragraph 17 of the affidavit of Mr. Roberts that there was any evidence that the payment out of Court was required to meet an item of loss which Rahim J. took into account in arriving at the interim payment. In that paragraph of Mr. Roberts affidavit, he stated that school fees for Isaiah for the 2015 to the 2016 term amounted to US$23,652.50. The Judge noted that this came within the description of education and training which was a head of damage considered by Rahim J. It was on that basis that the Judge ordered that amount to be paid out. She was of the view that there was no other evidence that the sum required to be paid out was to be used for any of the infant s needs such as medical, dental, therapy, special nutrition or any related matters which were considered by Rahim J. The Judge made no order as to costs. 17. The second claimant has appealed. This is an appeal from the exercise of the Judge s discretion. It is of course well settled that an appellate court will not interfere with the exercise of a Judge s discretion simply because it would have arrived at a different decision. For the appellate court to interfere it must be shown that the Judge was plainly wrong. Unless therefore it can be shown that the Judge misdirected herself in law or on the evidence or took into account irrelevant considerations or failed to take into account relevant ones or where the Judge is Page 5 of 11
required to balance multiple considerations, the approach and/or result of the balancing exercise is plainly wrong, the appellate court will not interfere with the exercise of the Court s discretion. 18. The appellant contends that the Judge was plainly wrong. The appellant submitted that the Judge conflated two tests namely the test for the amount to be awarded in respect of an interim payment and the test for the payment out of court of the monies once paid into Court. In determining the application for an interim payment the Court had to have regard to the damages likely to be awarded to the claimant. However, when it came to an application for the payment out of Court there was no necessity for the payment to match or to be applied to a head of loss considered by the Court in arriving at the quantum of the interim payment. What the Court needed to consider was whether the payment out was in the best interests of Isaiah and it was clear in this case that it was. The Judge should therefore have ordered that the money be paid out. 19. The conditions that an applicant must satisfy to obtain an order for an interim payment are set out in rule 17.5 of the CPR. Among the conditions that an applicant must satisfy is that the claimant will obtain judgment for a substantial amount of money. This necessitates the Court in a claim for personal injuries to assess the amount of damages that might be awarded to the clamant. The Court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment. The order or Rahim J. therefore, must have taken into account the damages likely to be awarded to the infant claimant. However, on an application for an interim payment there is no necessity for the applicant to demonstrate that he requires the money for any particular need or that he will suffer prejudice if an interim payment is not made (see Stringman v McArdle [1194] 1 WLR 1653). In the case of an adult claimant, the monies are generally paid directly to him and the Court is not concerned with what he does with the interim payment. It is after all payment on account of his damages and the Court has no interest in controlling how he spends his damages. In the case of an infant the interim payment is usually directed to be paid into Court and an application will be made by the infant s next friend as and when the payment is required. 20. When an application is made for the payment out of money paid into Court on behalf of an infant the relevant rule of the CPR is rule 23.13. This rule relates to the control of money recovered by or on behalf of the minor or a patient and is as follows: Page 6 of 11
23.13 (1) Where in any proceedings - (a) money is recovered by or on behalf of or for the benefit of a minor or patient; or (b) money paid into court is accepted by or on behalf of a minor or patient. that money must be dealt with in accordance with directions given by the court under this rule and not otherwise. (2) Directions given under this rule may provide that the money must be wholly or partly paid into court or invested or otherwise dealt with. 21. It is relevant to note that the rule imposes no restrictions on the directions the Court may give in relation to money recovered on behalf of an infant. Rule 23.13 (2) is purely permissive and provides that the Court may give directions in accordance with that rule. It is fair to say that the Court exercises a wide discretion under the rule. However, it is clear from the context in which the rule is placed that the Court does not exercise an uncontrolled discretion. 22. Part 23 contains rules that are clearly for the protection of an infant or patient. So, for example, in relation to an application for the appointment of a person to act as next friend, rule 23.6 (2) provides that a person may act as a next friend if (a) he can fairly and competently conduct proceedings on behalf of the minor or patient and (b) he has no interest adverse to that of the minor or patient. This is to ensure that the infant s or patient s interests in the litigation are properly represented because it is in their best interests that they should be. Similarly, where money is claimed by or on behalf of a minor or patient, no settlement, compromise or payment or acceptance of money paid into court shall be valid without the approval of the Court (see rule 23.12). This is to ensure that it is in the best interests of the infant or patient to accept the compromise, settlement or payment. Rule 23.13 must be considered in that context. It is a rule that is there for the protection of the patient or infant. In the circumstances, whether or not money paid into Court for the benefit of an infant should be paid out, the Court must seek to protect the interests of the child and should only order that the money be paid out if to do so is in the best interests of the child. Of course the CPR requires that in exercising any discretion under the rules Page 7 of 11
the Court must seek to give effect to the overriding objective. It is therefore necessary to consider also whether or not to order the payment out it is dealing with the case justly. 23. The exercise of the discretion under rule 23.13 therefore, is not to be limited in the manner that the Judge did. There is no requirement that the Court must be satisfied before ordering the payment out of any money that it is to be used for a particular head of damage that was considered by the Court when it assessed the quantum of the interim payment. What is required in every case is for the Court to consider all the circumstances and come to a determination whether or not to grant or refuse the payment out is in the best interests of the child and will deal with the case justly. 24. The Judge also noted as reasons for the order she made that (i) the costs of Isaiah s medical care, as set out in Mr. Roberts affidavit, were considered by Rahim J. and the reasonableness of those costs are contested issues in the assessment of damages and (ii) the costs of this claim are to be determined on the prescribed costs scale, so it is not accurate to say, as the second claimant did, that it is difficult to determine what the final costs would be and further, the second claimant failed to provide any breakdown or supporting evidence of the estimate of US$1,200,000.00 as the costs of the claim. 25. With respect to the first reason, we are of the view that that is no basis to refuse the application for the payment out. The Court is concerned with the overriding objective and the best interests of the child. The Court is not concerned with whether the amount expended on the medical care of Isaiah is reasonable so as to fix the respondents with liability for same. That is an inter partes issue to be addressed at the assessment of damages and does not arise for determination on this application. Insofar as the Judge in refusing the application for the payment out took into account that the reasonableness of the sums expended for Isaiah s medical care was a contested issue at the assessment of damages, she took into account an irrelevant consideration. 26. As to the second reason, it is not disputed that as between party and party, the costs for which any party would be liable on the assessment of damages in this matter would be determined on the prescribed costs scale. But that scale does not capture all costs that might be incurred. It is relevant in that regard to note that prescribed costs do not include the costs, inter Page 8 of 11
alia, of an expert in preparing a report and attending any conference, hearing or trial as well as the costs of the making or opposing of any application except at a case management conference or pre-trial review (see rule 67.7). Further, the prescribed costs scale determines costs as between party and party. I doubt it is unusual, particularly in a claim like this, that the actual costs incurred as between attorney and own client would exceed the costs that a party would be held liable to pay to the other party. In any event there is little reason to doubt Mr. Roberts evidence as to the costs to pursue this claim to trial in respect of liability and to the assessment of damages, having regard to the nature of this claim, the number of experts retained, the importance to the parties, its complexity, novelty, and the number of applications and appeals that have so far engaged the Court s attention. 27. In the circumstances we are of the view that the Judge fell into error in the exercise of her discretion in failing to apply the appropriate test for the payment out and in taking into account considerations that were not relevant to the application. It therefore falls to this Court to consider the application afresh. 28. The evidence of Mr. Roberts in support of the application is that up to the stage when the issue of liability was determined on the first day of the trial, legal costs, including the costs of the experts who were instructed amounted to US$609,680.73. The costs of medical care and attention to Isaiah through to certain periods in 2015 amounted to a further US$448,499.63. These sums amount to US$1,080,180.36. 29. Since the end of the liability trial, significant costs have been incurred. The numerous applications and appeals have been referred to in Mr. Roberts affidavit and have been mentioned earlier in this judgment. In addition there are a number of experts who have since been instructed in preparation for the assessment of damages. Most of them are abroad and must be brought to this jurisdiction to give evidence at the assessment. This involves air transportation and hotel expenses which the claimants must bear. The assessment of damages is scheduled to last a number of days and the cost of counsel is likely to be significant. In the circumstances of this matter we will not take issue with Mr. Roberts statement that the approximate costs to the assessment of damages are likely to exceed US$1,200,000.00. When that is added to the Page 9 of 11
expenses already incurred of over US$1,000,000.00 the total liability is therefore over US$2M; far outstripping the interim payments made to date. 30. We are therefore not prepared to dispute that this litigation has taken a heavy financial toll on Mr. Roberts and his family and that as a consequence he is heavily in debt, having to find money both for Isaiah s medical care and treatment and advancing his claim to trial and assessment. It is therefore more probable than not in the light of the undisputed facts that Isaiah is in desperate need of the money that now stands in Court. If the money is not paid out there is a real risk that there will be insufficient funds to properly care for Isaiah or to properly prosecute his claim. It cannot be in Isaiah s best interest or dealing with the case justly that he is required to make a choice between his proper medical care and attention and the proper prosecution of the claim, which by refusing to order the payment out there is a real risk the second claimant will be called upon to do. 31. In our judgment the circumstances of this case warrants the exercise of the discretion in favour of the payment out of Court. We therefore allow this appeal and set aside the order of the Judge. We order that the money be paid out to the second claimant and be placed in an account at a reputable bank in the joint names of the second claimant and the claimants attorneys and is to be used for the benefit of Isaiah in meeting the cost of his care and attention ( including his medical care) and the costs of the litigation. 32. There shall be no order as to costs. Page 10 of 11
33. Before leaving this appeal we would like to make a few observations. The application made by the second claimant was in our view properly made without notice. A Judge hearing the application may direct that it be served on any person (see rule 11.2 of the CPR). In exercising that discretion the Judge must seek to give effect to the overriding objective. The issue of saving expense will be an important consideration and the Court must consider whether the added expense of an inter partes hearing would be to deal with the case justly. In this case the Judge directed that the application be served on the defendants. We are not aware of the reason for so doing and the question whether the Judge was wrong to do so does not arise on this appeal. However where in the proper exercise of the Judge s discretion it is directed that the application be served on the other party, that does not change the nature of the application and the Judge should not lose sight of the principles applicable to the application which we have attempted to set out in this judgment. A. Mendonça, Justice of Appeal R. Narine Justice of Appeal J. Jones Justice of Appeal Page 11 of 11