"SECOND" ACTION FOR CLINICAL NEGLIGENCE NOT STRUCK OUT AS AN ABUSE OF PROCESS

In the judgment today in Wright -v- Barts Health NHS Trust [2016] EWHC 1834 (QB) Mr Justice Edis refused the defendant’s application to strike out the claim or for summary judgment on the grounds that the claimant had settled an earlier claim for damages. the defendant Trust was liable to pay different elements of the claim and there was no abuse of process.

KEY POINTS

• The judge refused the defendant’s application to strike out the claimant’s claim against the defendant Trust on the grounds that the claimant had already settled the claim with the original defendant.
• The Trust were liable to pay different elements of the damages claim to the claimant and the claimant was not seeking double recovery.
• If the defendant seriously wished to pursue the argument it would need to amend its pleadings (and there were potential difficulties with the amendment at this stage of the action).

THE CASE

The claimant was injured in an accident at work. He settled his action with the defendant in that action. Subsequently he issued proceedings against the defendant NHS Trust.  The claimant’s case was that Trust’s negligence had led to a worse outcome and damages were sought on that basis.

THE DEFENDANT’S APPLICATION

The defendant argued that the compromise of the first action rendered it an abuse of process to bring an action against the hospital because the claimant had already been compensated for his loss. Alternatively the compromise operated as a defence to the claim because the claimant could not prove any loss.

THE JUDGE’S DECISION

1. The law relied upon by the defendant appears in Jameson v. CEGB [2000] 1 AC 455 and Heaton and others v. AXA Equity and Law Life Assurance Society plc and another [2002] 2 AC 329. Jameson decided that settlement of a claim against one tortfeasor in a claim for mesothelioma discharged the claim against the other concurrent tortfeasors and barred a subsequent claim against one of them. Heaton considered and explained the decision in Jameson. In my judgment the key passages in Heaton are in the speech of Lord Bingham. Lords Mackay and Rodger delivered their own judgments and did not express disagreement with Lord Bingham. Lord Steyn agreed with Lord Bingham and Lord Mackay. Lord Hope (who gave the principal speech in Jameson) agreed with all three substantive speeches. This suggests, as appears to me to be the case, that all of those speeches are to the same effect at least so far as they are material to what I have to decide. Although passages from the speeches of Lords Mackay and Lord Rodger were drawn to my attention in submissions, it is not necessary to cite them in this judgment.

2. Lord Bingham defined the issues on the appeal in Heaton at [3]-[5]. In doing so he explained the proper approach to a compromise as opposed to a judgment of the court at [5]. He refers (for present purposes) to the claimant as A, to CCRL as B, and to the defendant as C. He said this

“Where a sum is agreed which makes a discount for the risk of failure or for a possible finding of contributory negligence or for any other hazard of litigation, the compromise sum may nevertheless be regarded as the full measure of B’s liability. But A may agree to settle with B for £x not because either party regards that sum as the full measure of A’s loss but for many other reasons: it may be known that B is uninsured and £x represents the limit of his ability to pay; or A may wish to pocket a small sum in order to finance litigation against other parties; or it may be that A is old and ill and prefers to accept a small sum now rather than a larger sum years later; or it may be that there is a contractual or other limitation on B’s liability to A. While it is just that A should be precluded from recovering substantial damages against C in a case where he has accepted a sum representing the full measure of his estimated loss, it is unjust that A should be so precluded where he has not.”

1. At [8] Lord Bingham identified the effect of the decision in Jameson and at [9] he explained the proper approach to a compromise case. He said that the primary focus of attention should be the construction of the agreement in its appropriate factual context. He said that the release of one concurrent tortfeasor does not have in law the effect of releasing another concurrent tortfeasor. The absence of a reservation of a right by A to sue C is of lesser and perhaps no significance since there is no need for A to reserve a right to do that which he is entitled to do without any such reservation.

2. The present case concerns concurrent tortfeasors, that is parties who commit separate tortious acts which cause or contribute to the same damage.Heaton is clear that the rule which provides that the release of one joint tortfeasor (parties jointly and severally liable for the same tortious act) operates as a release for all does not apply to concurrent tortfeasors.

3. Mr. Burton cited Webb v. Barclays Bank Plc, Portsmouth Hospitals NHS Trust [2001] EWCA Civ 1141. In that case the claimant settled a claim against her employers, the Bank, for the full value of her loss caused by an accident at work, including an amputation which had been unnecessarily done at the hospital. The Bank then issued contribution proceedings against the hospital which had treated the claimant negligently, increasing her loss and its liability to her. The loss attributable to the clinical negligence was apportioned as to 75% against the hospital and 25% against the employer as between themselves but they were both liable for the whole of the loss as against the claimant. There was no contributory negligence in that case capable of reducing the liability of the Bank. The success of the contribution proceedings required a finding that the Bank and the hospital were “liable in the same damage”, see s.1(1) of the Civil Liability (Contribution) Act 1978 and the judgment at [58].

4. The position in this case is that CCRL and the defendant are liable in the same damage, but that damage is only part of the claimant’s loss. There is a pre-clinical negligence element for which only CCRL is liable. That element includes the loss which occurred after the clinical negligence but which would have occurred anyway. CCRL is liable for this, but the defendant is not. After the clinical negligence there is the additional loss which would not have occurred but for the clinical negligence. The hospital is liable for this, as also is CCRL. CCRL is only liable for the proportion of this part of the loss which remains due after the reduction for clinical negligence. The hospital is liable for all of it. It follows that if one action had been initiated against both tortfeasors and if judgment had been given against them both, those judgments would have been in different sums. This is because each made a contribution to that part of the loss by a different tortious act in breach of different duties to the claimant. They are concurrent tortfeasors, not joint tortfeasors.

5. Mr. Burton relied upon a decision of Nelson J in Appleby v. Northern Devon Healthcare NHS Trust [2012] EWHC 4356 (QB) in which he decided the same issue which is before me. In very similar circumstances to the present case he declined to enter summary judgment for the hospital. Mr. Whitting argues that it was wrongly decided and invites me not to follow it. Nelson J held that the test to be applied in considering the claim against the hospital is whether the compromise agreement represented the full measure of the claimant’s estimated loss. The argument which was raised in that case about abuse of process was based on the conduct of the claimant’s lawyers and is not advanced in the present case. There is a suggestion that it is an abuse of process to start proceedings against the hospital after the settlement with CCRL, but it is not easy to identify what that abuse might be. A collateral attack on a compromise is not an abuse of process. A collateral attack even on a judgment in civil proceedings is not necessarily an abuse of process, although it may be: Arthur JS Hall v. Simons [2002] 1 AC 615 at 702F-703D. In any event, on the facts of this case an assertion that substantial sums remain due from the defendant to the claimant does not mean that the claimant settled his claim against CCRL for too little. The real basis of the defendant’s application is that the compromise operates as a defence to the claim because the claimant has been fully compensated by it for his loss. Procedurally this could find its expression either as an order striking out the statement of case under CPR 3.4(2)(a) as disclosing no reasonable ground to bring the claim, or an order for summary judgment for the defendant under CPR24.2. In substance, as Lord Bingham said in Heaton this involves a focus on the agreement and the circumstances in which it was concluded.

6. The short answer is that he has not been fully compensated for his loss. CCRL was not liable to compensate the claimant for the whole of the loss for which both tortfeasors were liable because of the contributory negligence discount. The defendant is liable to compensate the claimant for the whole of that loss if his current claim succeeds. The defendant is not liable for the part of the loss which was not caused by the alleged clinical negligence. CCRL has neither paid nor purported to pay the whole loss caused by the hospital (on the assumption that the claim against it succeeds on the merits). It is, it seems to me, impossible to construe that agreement in its true factual context as providing full compensation for the loss which is claimed against the hospital. The fact is that the settlement did not pay 100% of the loss for which both tortfeasors are said to be liable. In fact, on its face, it paid only 20% of that claim as it did of the claim for the rest of the loss. Although I have not accepted that this is an accurate figure, I have accepted that a substantial discount for contributory negligence was allowed in the settlement. That is a sufficient basis for this decision, but I regard the facts of this case as illustrating a general principle which is that a settlement with one concurrent tortfeasor does not release the others unless it is clear that it was intended to have that effect, or unless the payment clearly satisfies the whole claim (which is what happened when the Bank settled Webb’s case referred to above, see [13]).

7. It is clear that the rule in Heaton was aimed against the avoidance of injustice which would occur if the claimant recovered twice for the same loss. There is no such risk in this case. The claimant agrees that credit must be given “as appropriate” for the sum received from CCRL. It may not be altogether easy to calculate how much credit should be given in these circumstances, but that is not something I have to decide.

8. I consider that Nelson J was right on Appleby for the reasons which he gave. In my judgment these applications fail and are dismissed.

9. If the defendant wishes to pursue these arguments in the light of the failure of this applications, it will have to secure leave to amend the Defence and a variation of the directions to permit evidence to be adduced enabling the court to decide the question on real, rather than assumed, facts. Any such application would have to overcome the lateness of the stage at which it would be made, and the absence, as it seems to me, of any real merit in the proposed amendment. However, I have resolved these applications on the basis on which they were advanced and that is all I have done.