“I FIND THAT THE CLAIM WAS CONSTRUCTED BY THE CLAIMANT’S LAWYERS ON A PREMISE WHICH WAS IRRELEVANT AND WAS NOT IN ACCORDANCE WITH THE CLAIMANT’S EVIDENCE OR THE LAW”: WHY MUCH MORE CARE IS NEEDED IN DRAFTING SCHEDULES
We are looking again at the decision in Cojanu v Essex Partnership University NHS Trust  EWHC 197 (QB). This time at the judgment in relation to quantum. The case involved a situation where the claimant’s lawyers presentation of the case led to major difficulties in relation to allegations of fundamental dishonesty. It highlights the importance of careful consideration of the case being forward in a Schedule.
“I consider that the incorrect pleading and the failure to quantify the claim properly by the Claimant’s lawyers in the schedule is not in this case a fundamental dishonesty. It was not a dishonesty at all. In addition, on the facts of this case inadequate pleading is not within the mischief which Parliament aimed to prevent by the passing of S.57. Nor is incompetence, carelessness, negligence or mere omission by the lawyers. The section requires proof of the Claimant’s dishonesty not his lawyers’ lack of competence.”
This case will be one of many cases in a webinar on the 7th March 2022: Claims for loss of earnings: learning from recent cases. Booking details are available here.
The claimant brought a claim for damages for clinical negligence. He had been imprisoned for a period and then deported. The Schedule of Damages, however, brought a claim for loss of earnings on the basis of earnings he could make in England, as a carpenter. This was one of the reasons the trial judge made a finding of fundamental dishonesty on the claimant’s part. That finding of fundamental dishonesty was overturned on appeal, however the judge did observe that it was the calculations of the claimant’s lawyers that caused the problem. The claimant could not reasonably be expected to understand the claim that was being made and his own evidence was that he was in Romania and seeking work in Romania.
THE JUDGMENT ON THIS ISSUE
Dishonesty as to quantum
71. The Recorder’s finding of fundamental dishonesty on quantum related to two factual findings: the correct country for the assessment of damages and the size of the scheduled calculations of the claim. So the Recorder found as follows:
“33. The special damages the Claimant has put forward relate to losses which are based upon him being employed in the UK as a carpenter. These, I find, are claims which are not just open to legitimate argument due to differences of legal or professional approach to the calculation of damages but, rather, they are predicated on wholly false premises. The Claimant has produced little evidence of any sustained employment either here or in Romania. He has at the most earned some few hundreds of pounds over many years, since 2008, during a rather chequered employment history. He had no earnings in the United Kingdom for the year he was in the UK before the index
offence was committed.
He had no identifiable occupation, which is supported by evidence of regular earnings such as would enable the Court to quantify a Smith v Manchester award. This element is grossly inflated, which even a superficial comparison with what little documentation there is in the bundle to prove his earnings since 2008 would show. This approach is compounded by the fact that the Defendant knew full well since May of 2016 that he was to be deported at the end of his sentence and that therefore there was no realistic
possibility of him living and working in the United Kingdom on his release.
Miss White submitted to me that an inflated claim on quantum will have a substantial adverse effect on the Defendant’s approach to the claim and affect how they would deal with it. She refers me to a passage inLondon Organising Committee of the Olympic and Paralympic Games (in liquidation) v Haydn Sinfield EWHC 51 (QB). That is referred to in her skeleton argument. I agree with that submission. The Defendant would have been influenced to adopt different tactics, make different decisions on expert evidence and view the litigation risk entirely differently.”