PROVING THINGS 87: FAILURE TO PROVE BASIC ELEMENTS MEANT THAT THE FULL PREMIUM WAS NOT RECOVERED
I am grateful to Dominic Regan for sending me a copy of the judgment of District Judge Baldwin in Nicolaou -v- Cass (Liverpool CC 1st November 2017). The claimant failed to recover a substantial figure for a stage 2 premium because the evidence in support of that figure was inadequate.
The judge was assessing costs in a clinical negligence case, the case had settled for £250,000. The only remaining issue was the amount of the after the event policy. The assessment was adjourned to deal with that one issue.
THE ISSUE IN RELATION TO THE PREMIUM
The sum originally claimed was £53,145.
However between the two hearings the claimant discovered an error in calculation. This meant that the premium was reduced to £32,120 plus insurance premium tax. There was a reduction of £21,025 or 39.56%.
The arguments raised by the defendant related to the lack of detail provided by the claimant.
12. Mr Wilcock led the court through a comprehensive critique of the cogency and persuasiveness of the evidence relied upon by the Claimant. He highlighted that the only evidence of any revised premium is contained within the statement of Mr Dyer and the only documentary evidence of any level of premium is contained within the original schedule , there being no revised schedule put before the court.
13. He criticised the evidence of Mr Dyer for its lack of detail, firstly by using the phrase “typographical error”, perhaps a strange phrase to be used in such circumstances, without further explanation and more particularly for its total lack of description of the calculation process which firstly resulted in the incorrectly claimed figure and, more importantly, which ultimately resulted in the substituted figure. In essence, says Mr Wilcock, such a nonchalant or cavalier attitude as to evidence in the circumstances of this case, with its admitted history of documentary and analytical error, ought to lead to a straightforward finding that the claim for the ATE premium must fail.
14. In the foregoing context, it is argued, there needs to be much more in terms of cogent and persuasive evidence put before the court for the court to be satisfied that the current evidence before it is sufficiently reliable for the premium to be awarded.”
THE JUDGE’S FINDINGS
The judge rejected the argument that there was any breach of the indemnity principle in relation to the stage 2 premiums. However the claim for the stage 2 premium failed because of the absence of cogent evidence as to the figure.
41. However, after careful consideration of the evidence before me and the submissions made at the hearing, I have concluded that the Claimant has not proved to my satisfaction and on the balance of probabilities any quantifiable level of that premium, for these reasons:-
(i) the initial stage 2 premium claimed had every appearance of being genuinely and correctly calculated by ARAG and, but for my agreement to adjourn for further evidence, might well have been held as part of the assessed costs payable to the Claimant in these proceedings;
(ii) it is only as a result of happy chance that, consequent upon my decision on the last occasion, Mr Dyer came to reconsider the figure and reached his conclusion as to the “typographical error”, with the consequential considerable reduction in the figure claimed;
(iii) in those circumstances, in my view the court is entitled, in this matter at least, to entertain doubts as to the reliability of prima facie assertions of evidence and to expect a comprehensive approach to proving what might otherwise have been relatively straightforward matters of fact;
(iv) as such, in that the evidence of Mr Dyer does little more than point out the error and apparently correct it, without supplying the court with any cogent, persuasive and thus apparently reliable basis upon which to accept not only the existence of the initial error but also the accuracy of the consequential correction, such that the Claimant is forced to resort to matters of theory alone as exemplified upon Issue 1 , I remain unpersuaded in support of a claim for a significant individual lump sum in excess of £27,000, set against this particular background of error and confusion, that the figure
sought in substitution for that documented at  can be safely accepted as accurate on balance.
42. In consequence, without having to resort to consideration of issues of reasonableness or proportionality, the claim for the stage 2 element of the premium fails for lack of quantifiability.”
The judge allowed the stage 1 premium of £4,950 plus IPT.