DRAFTING COUNTER-SCHEDULES SOME ADVICE: WITH A LITTLE HELP FROM MY FRIENDS AND A FEW CASES ALONG THE WAY

The post last week on the judgment in Allard v Govia Thameslink Railway Ltd [2024] EWHC 2227 (KB) has led me to revisit an earlier post giving advice on the drafting of counter-schedules.  That post contained advice from the social media site formerly known as Twitter. It also looked at some of the key judicial observations in relation to counter-schedules.

“12.2  Where the claim is for personal injuries and the claimant has included a schedule of past and future expenses and losses, the defendant should include in or attach to his defence a counter-schedule stating:

(1) which of those items he –

(a) agrees,

(b) disputes, or

(c) neither agrees nor disputes but has no knowledge of, and

(2) where any items are disputed, supplying alternative figures where appropriate.”

THE CONTRIBUTIONS FROM SOCIAL MEDIA

(1) Include summary page and totals for past and future loss. Many don’t.

(2) Be consistent: don’t plead C would’ve earned a pittance in LOE section and then plead he’d have lived in a mansion under accommodation.

(3) Don’t pluck figures out of thin air. Link to your evidence.

(4) Don’t describe claim as “ridiculous”, “manifestly unreasonable”, “jaw-dropping”. Will just annoy C and probably the judge.

(5) Plead a decent figure for PSLA. Cs accept disputes about future losses but don’t minimise what they’ve been through.

Final thing: I much prefer it when D serves a counter schedule which includes crazily low numbers. Easy to paint D as unreasonable. It’s the counter schedules that come across as reasonable and well-thought through that are more of a concern.

I am increasingly using photographic images in CSOL where credibility is in play ie Facebook posts (say on a stag do where C’s case is he is crutches dependent). It’s okay to ride two horses provided you are clear ie primary case & alternative case – see Preamble

Don’t be afraid to use ASHE in Facts & Figures for residual earning capacity, etc. Agree needs to be realistic – no point being mean for the sake of it – ‘reasonable’ should be the byword and barometer of the tone. Don’t be insulting – be respectful

1. It seems to me that the importance of the schedule of loss is frequently overlooked. This is, or should be, the document that draws together the presentation of the claim. It ought to be presented in an accessible and easy to follow format. The fact that the schedule of loss is required to be supported by a statement of truth highlights the need for it to be readily understandable by the claimant. It also sets out the claim for the defendant and for the trial judge who will come to the case afresh and ought to be able to follow the case from the schedule. This means that it should not simply be a series of calculations. It needs to be supported by sufficient narrative to explain the case being presented by the claimant.

2. With the exception of the claim for loss of earnings the schedule in this case did not serve that purpose. I note that the Claimant said in cross-examination that he regarded the schedule as similar to a set of accounts prepared by an accountant that he would sign in reliance upon the professional expertise of the drafter. I have some sympathy with that position given the format of the schedule here. However, that is not the right approach. Claimants will be fixed with knowledge of and taken to have certified the truth of the contents. It is very important that lawyers draft the schedule in such a way that the facts to which the client is attesting are clear. Failing to do so is failing in their duty both to the client and to the court.

3. I note the contrast between the schedule and the counter-schedule in this case. It was immediately apparent to me that the counter-schedule was a well drafted document clearly setting out the Defendant’s case. I note that the counter-schedule was drafted by Ms Foster who was trial counsel. It properly fulfilled its purpose. It does need to be appreciated that schedules and counter-schedules are an essential part of the advocacy in a case. In my view, they need to be drafted by lawyers with sufficient experience and skill to properly present the claim as it will be presented at trial, particularly in a contentious case such as this. This claim and the appeal highlight the dangers of treating the schedule as little more than a number-crunching exercise.

Some interesting comments were made by Mr Justice Jay in Hayden -v- Maidstone & Tunbridge Wells NHS Trust [2016] EWHC 3276 illustrates this point. The judge was determining damages for personal injury. He commented on the Schedule and Counter-Schedule.

1. The final updated Schedule extends to 89 pages and is far too long. It contains unwarranted discussion, argument and submission. On the other hand, the Defendant’s Counter-Schedule, dated 15^th November 2016, is unduly Spartan, and only addresses the Defendant’s best case.

WHERE IT CAN GO BADLY WRONG FOR THE DEFENDANT: MANNA

Anyone drafting a counter-schedule should also consider 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.

1. 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.

2. 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.

3. 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.

THE PRACTICE DIRECTION

As the judge observed in the Hayden case the defendant’s schedule was “sparse”, it only dealt with the defendant’s best case. This approach (although tempting) carries major risks for defendants.  Any document that has no credibility is likely to be ignored. The path is left open for the judge to prefer the claimant’s figures. The obligation set out in Practice Direction 16 is often ignored.

“12.2  Where the claim is for personal injuries and the claimant has included a schedule of past and future expenses and losses, the defendant should include in or attach to his defence a counter-schedule stating:

(1) which of those items he –

(a) agrees,

(b) disputes, or

(c) neither agrees nor disputes but has no knowledge of, and

(2) where any items are disputed, supplying alternative figures where appropriate.”

I CAN DISPUTE DAMAGES, OH NO YOU CAN’T

It is worthwhile returning to the comments made at first instance in Allard v Govia Thameslink Railway Ltd [2024] EWHC 2227 (KB) as a result of the counter-schedule in that case the defendant was not allowed to rely on a late served counter-schedule.

6. The counter schedule which was served by the defendant last week, really takes the matter very little further. It recites in its preamble that the defendant has denied breach of duty, has denied causation. It asserts the claimant is asthmatic, atopic, suffers from hay fever, eczema and it deals with his history. It mentions the medical reports which are not agreed. It is the defendant’s case that the claimant did not suffer any injury following the alleged chemical exposure on 4 January 2017. I interject to say that when the draft counter schedule was served last week, breach of duty on the part of the defendant was denied, although this morning it is admitted that the defendant was in breach of duty, by the exposure of the claimant in the course of his employment to a chemical, which has dangers associated with it.

7. Returning to the counter schedule it continues, ‘Amount offered for general damages, nil”, it then has the heading, “Disadvantage on the labour market” it says causation is denied, the claimant has failed to serve evidence, amount offered nil. Past loss of earnings records the primary contention that the claimant’s injuries are not related to the accident. The evidence of Dr Hinds is mentioned which sets out, “It would be reasonable to conclude that the claimant has not suffered from any injury due to the alleged chemical exposure.’ The defendant repeats what is stated in the preamble on causation, the defendant offers nil. Loss of pension contribution, similarly, is a repetition of causation, and the defendant offers nil.

8. In my judgment, the counter schedule is one which wholly fails in the purpose which the court expects it to serve in personal injury litigation, certainly of this character where the claim is measured by quite significant sums. If I take the maximum level of £200,000 as demonstrating that, I treat that as a significant claim in which any employee has suffered loss in the course of his employment.

9. The purpose of schedules and counter schedules is to understand what happens if the court accepts the claimant’s case that injury of some kind was caused by the exposure to the chemicals in question. In my judgment, this counter schedule serves no purpose whatsoever and I would for that reason alone, decline permission for it to be served at this stage. The counter schedule has completely failed to engage with what might be the claimant’s losses if, which the defendant denies, injury of some kind was caused