JUDGE STRIKES OUT CLAIM FOR LOSS OF EARNINGS: IT IS “INCOHERENT” AND OBSTRUCTS THE JUST DISPOSAL OF THE CLAIM
It is an easy matter for a claimant to insert a claim for a substantial loss of earnings into a schedule of damages. However a claimant then has to prove that loss. Further, even prior to trial, a defendant is entitled to know the basis upon which the claim is being made. In this case the claimant claimed a loss of earnings of £2.5 million, yet could not explain how those some were formulated. The judge, who rejected the defendant’s application to strike out the claim generally, did strike out the claim for loss of earnings.
“I remain of the view I indicated to the Claimant. To allow the pleaded claim for loss of earnings to proceed would obstruct the just disposal of the claim. The Claimant has not adduced evidence in support of his calculation, did not provide an explanation for it in his schedule, did not take the opportunity afforded to him by Part 18 questions, could not explain the arithmetic behind it in court and agreed with me that it did not make sense. Its continued presence serves no purpose and obstructs the just disposal of the proceedings. The Defendant is entitled to know that this is not a claim that he has to face and he does not have to devote resources to anticipating how it might be put and how he might meet it.”
KEY PRACTICE POINT
The major point here is that when a schedule of damages is drafted there must be some logical basis to support the claims being made. To simply assert large losses, with no supporting evidence, and where the claimant himself stated the schedule “did not make” sense is inviting trouble.
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THE CASE
In Butler v Ward [2025] EWHC 877 (KB) the claimant brought an action in clinical negligence alleging a failure of informed consent in that he was not properly warned about the risks of an operation. The defendant applied for summary judgment, on the claim as a whole, but also, as an alternative to strike out the claim for damages.
THE RESULT
The judge, Christopher Kennedy KC, sitting as a Deputy Judge of the High Court, did not grant the defendant’s application to strike out the claim. Nor was the application granted in relation to the claim for care. However the judge did grant the application to strike out the claim for loss of earnings. The claimant worked as a ski instructor. The claim for earnings totalled £2.5 million. There was no explanation as to how this figure was reached.
THE JUDGMENT ON THE CLAIM FOR LOSS OF EARNINGS
The application to Strike out the Schedule of Loss
44. The Claimant’s schedule of loss is dated 15 May 2024. It contains his valuation of general damages £70,000, a lump sum claim for past care, £15,000, a claim for future care (in fact for remedial surgery) for £10,000 and a claim for past and future loss of earnings which comes to £2.5 million. There is also a claim for interest.
45. I will deal with the claims apart from loss of earnings first.
46. The Claimant’s witness statement dated 11 April 2024 does not deal with the issue of past care. It includes a claim for medical fees and rehabilitation costs of £20,000 which is not part of the schedule and the statement uses a different figure for the cost of future surgery – £10,000 as opposed to £15,000.
47. The Defendant raised Part 18 requests of the Claimant. Question 2, which was broken down into several parts, directed the Claimant towards the issues relevant to a claim for care. The Claimant’s answer did not engage with the individual questions but rather referred the reader to Mr Gilham’s report, as he had done in his updated schedule. Mr Gilham’s report gives some limited relevant information – the Claimant is restricted in domestic lifting and gardening and needs more help with certain work activities. The answer is however thin and fails to engage at all with the issue of how the sum claimed was calculated.
48. Question 5 of the schedule related to the claim for future surgery. The Claimant responded to that more fully. The cost claimed was the cost of a further hip replacement to be undertaken by Professor Griffin. The sum advanced was an estimate but I note one that is somewhat below the figures for Hip Replacements in the latest edition of Facts and Figures.
49. The Defendant invites me to use my case management powers under CPR 3.4(2)(b) on the basis that the statement of case is likely to obstruct the just disposal of the proceedings. I remind myself that the strike out of a claim or part of a claim should be a last resort and that there is nothing to stop a judge at trial from adjudicating on a claim and making a finding that it has not been established.
50. When the schedule and part 18 replies are taken together, the claim for future remedial surgery is adequately (if sparsely) pleaded, notwithstanding its somewhat misleading title.
51. The claim for past care is inadequately pleaded but I find that the inadequacy will not obstruct the just disposal of the proceedings. The judge at trial will take a view on whether the evidence justifies any award and, if so, how much. The Defendant has experienced representation and will be able to make submissions on this.
52. The Claimant’s claim for past and future earnings is of a different order to his other claims for special damage and future loss. He seeks £700,000 for past loss and £1.8 million for future loss.
53. In his witness statement dated 11 April 2024 the Claimant deals with his loss of earnings in a single paragraph, paragraph 22. In that he says that the damage, by which I assume he means his disability following his surgery, has destroyed his business as a ski instructor. He has attached a set of accounts to which I shall turn shortly. He deposes to earning £200,000 per annum and says that he would have carried on earning at that level until age 70.
54. The accounts attached to his statement are for the 13 month period 1 June 2017 to 30 June 2018. There would therefore have been accounts for at least some of the period between 1 July 2018 and 24 July 2019, the date of his surgery. These are not exhibited, neither are any accounts for earlier years. The 2017/2018 accounts state that the Claimant had an average of 8 employees and his business incurred staff costs, including directors’ salary costs, of just under £93,000. The business made a profit of just under £21,500. It is not clear what proportion of either figure was paid to the Claimant. On any view the sum supported by the accounts is nowhere near the claimed £200,000 per annum.
55. Beyond the assertion that the Claimant would have received £700,000 during the period from the operation to 15 May 2024, the schedule provides no detail. There is nothing to help with how that figure was calculated. The schedule adopts the multiplicand of £200,000 per annum for future loss without further explanation. The multiplier is also, and obviously, incorrect but that is a technical matter capable of being rectified.
56. The Defendant raised Part 18 questions as to both past and future loss. The first question about past loss was what income the Claimant earned in the 5 years before his surgery. It was a reasonable question which went unanswered. Instead the Claimant answered a different question, where he earned his income. He was asked what income he had in fact earned. The figure of approximately £36,000 was provided by way of answer with no further particulars and there has been no supporting disclosure.
57. None of the remaining answers permit the Defendant or the court to understand how the Claimant’s claim was calculated. I therefore asked the Claimant if he could help. He gave me further background to his claim but did not explain on how the numbers in the schedule were arrived at. He referred to some French accounts which were not complete and which had not been disclosed. I suggested to him that his claim did not make any sense. He agreed. I indicated that I was minded to strike out the claim for loss of earnings. He did not seek to dissuade me. He told me that he might come back with a re-formulated claim for loss of earnings support by evidence as yet undisclosed. I said that I anticipated the Defendant would object and that the decision as to whether or not to admit such a revised claim would be a matter for another judge but it might not be straightforward.
58. I remain of the view I indicated to the Claimant. To allow the pleaded claim for loss of earnings to proceed would obstruct the just disposal of the claim. The Claimant has not adduced evidence in support of his calculation, did not provide an explanation for it in his schedule, did not take the opportunity afforded to him by Part 18 questions, could not explain the arithmetic behind it in court and agreed with me that it did not make sense. Its continued presence serves no purpose and obstructs the just disposal of the proceedings. The Defendant is entitled to know that this is not a claim that he has to face and he does not have to devote resources to anticipating how it might be put and how he might meet it.
59. Separately, I find that the criteria under CPR 3.4(2)(a) are also satisfied in relation to the claim for past and future earnings. There are no reasonable grounds for bringing the loss of earnings claim pleaded. It is incoherent. The Defendant’s application to strike out the Claimant’s schedule of loss therefore succeeds in part.