(1) Nicholas Andrew Manning (2) Michael John Beggs (suing as Personal Representatives of the estate of Gary Richard Manning deceased (himself previously suing as Executor of the estate of Jane Louise Manning deceased) [2011] EWHC 2954 (QB)

Posted on Thursday, November 10th, 2011

GRM brought proceedings on behalf of his wife’s estate against D for clinical negligence. His claim was funded by a CFA together with ATE policy. Appropriate and timely notice was given. D made a limited admission of liability and Part 36 offers in the sum of £15,000 and later £50,000 which were rejected. GRM died on 18th January 2008, before judgment could be handed down. Fresh CFA’s were entered into between the executors (C), solicitors and Counsel. On 19th March 2008, C’s solicitors informed D of the new CFA but did not give the date of the CFA or indicate whether it provided for a success fee. On 5th December 2008, the Judge awarded C £475,191. On 24th June 2009, 12 days before the hearing of D’s appeal, C informed D that the CFA provided for a success fee. The appeal was dismissed and C was awarded costs. On the 5th day of the detailed assessment hearing, D took the point that no success fee should be recoverable on the new CFA’s because no Notice of Funding had been given and that there had been a further breach of the rules in that no ATE insurance certificate had been served. C applied for relief from sanction. The Master granted relief save for the period between GRM’s death and 24th June 2009, on the basis that D had suffered prejudice in the assessment proceedings because it could not make a proper offer without knowing the whether C would obtain relief from sanction. He also ruled that C could not recover the top up ATE premium in the sum of £70,875 incurred during that period. C appealed. D had conceded that that any prejudice which it had suffered could be compensated by way of costs. C also argued that if the Master’s reasoning was allowed to stand then uncertainty would preclude relief from sanction in all cases. Furthermore, the Master had failed to have regard to the guidance of the Court of Appeal in CIBC Melon Trust Co –v- Stolzenberg [2004] EWCA Civ 827 and had imposed a sanction out of all proportion to the seriousness of the default. The Court agreed. In relation to the insurance premium, the Master had found that it had to be disallowed because Rule 44.3B(1)(c) precluded the recovery of any additional liability incurred during the period in which he refused relief from sanction. The Court found that on a proper construction, importing the words “as the case may be” from CPR 43.2(1)(o) into CPR 44.3B(1)(c) meant that the latter applied only to the specific additional liability which was the subject of the default and was not a disproportionate blanket bar to the recovery of every additional liability. Appeal allowed. In a later judgment, the Court deprived C of 25% of the costs of detailed assessment by way of sanction.

http://www.bailii.org/ew/cases/EWHC/QB/2011/2954.html

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