APPEALS, COUNTER-SCHEDULES AND A RESERVE POSITION: NOT MANNA FOR THE DEFENDANTS
We will be looking at the Court of Appeal decision in Manna -v- Central Manchester Hospitals NHS Trust [2017] EWCA Civ 12 twice today. Here I want to look at the difficulties the defendant had in arguing a point in response to a claim for damages. The key point is that the defendant adopted an “all or nothing” approach. Having failed on that issue it was not allowed to argue that the claimant’s position was wrong.
THE CASE
The claimant was seriously injured due to mismanagement at birth. It was agreed that damages would amount to 50% of the full claim. At trial the judge awarded damages based on the claimant needing two homes as his parents were estranged. The defendant appealed that issue. In particular the defendant objected to the finding that the multiplier for the second home was based on the claimant’s life expectancy rather than that of his father.
THE DEFENDANT’S DIFFICULTY
The primary difficulty the defendant had was that it had not objected to the use of the multiplier at trial.
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That is not conclusive of the separate question whether we should uphold the judge’s adoption of the Claimant’s lifetime multiplier rather than the father’s. However at trial the Defendant raised no objection to this aspect of the Claimant’s proposed calculation of the award, in the event that it was made. After the judgement had been circulated in draft before hand-down Mr Seabrook invited the judge to consider whether it was her intention to apply the Claimant’s lifetime multiplier, 28.43, on a second home for Mr Manna, as opposed to Mr Manna’s own lifetime multiplier, which would be of the order of 14.90. The judge declined to alter her draft judgment.
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In seeking permission to appeal on this point Mr Seabrook sought to justify not having raised the point at trial by pointing out that the Defendant had perhaps focused on simply defeating the claim which it regarded as lacking merit and unlikely to succeed. The judge regarded that as a tactical assessment.
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Whether the course adopted was deliberate or the product of oversight, it is optimistic on the part of professional litigators represented by specialist solicitors and extremely senior counsel vastly experienced in the field to seek to revisit a critical aspect of the calculation which they have not challenged at trial. Mr Sweeting is able to submit with some force that had this point been taken below the Claimant would or might have explored further the question whether suitable provision might be made by some funding structure other than that established in Roberts v Johnstone. One possibility might have been an alternative structure based upon the Claimant claiming the costs of purchasing and adapting the property based upon Mr Manna having a life interest with ownership of the property reverting to the Defendant on the death of his father.
A BACK UP POSITION IN THE COUNTER-SCHEDULE
This case emphasises the importance of a defendant having a back-up position which should be set out in a counter-schedule.
- The defendant concentrated all its fire on the question whether a second home should be provided.
- The defendant did not, until after the judgment, have a back up position in relation to the principles that should be adopted if a second home was allowed.
- This could be a legitimate tactical decision. However it did then lead the defendant with major (and as it transpired insurmountable) difficulties once the judge had decided against it on the issue.
It is worthwhile going back to Practice Direction 16 which specifically imposes a duty to supply alternative figures in the counter-schedule. This case shows that a failure to supply alternative figures can (and most probably will) mean the defendant cannot argue for alternative calculations.