Masterman-Lister v Brutton & Co, Court of Appeal - Civil Division, December 19, 2002, [2003] Lloyds Rep Med 244,[2003] PIQR P20,[2003] WTLR 259,[2003] 3 All ER 162,[2003] Lloyd's Rep Med 244,(2003) 73 BMLR 1,[2002] EWCA Civ 1889,[2003] 1 WLR 1511,[2003] CP Rep 29,(2004) 7 CCL Rep 5

Extract

---

Masterman-Lister v Brutton & Co, Court of Appeal - Civil Division, December 19, 2002, [2003] Lloyds Rep Med 244,[2003] PIQR P20,[2003] WTLR 259,[2003] 3 All ER 162,[2003] Lloyd's Rep Med 244,(2003) 73 BMLR 1,[2002] EWCA Civ 1889,[2003] 1 WLR 1511,[2003] CP Rep 29,(2004) 7 CCL Rep 5

Neutral Citation Number: [2002] EWCA Civ 1889

Case Nos: A2/2002/0691 & 0692

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM MR JUSTICE WRIGHT

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 19th December 2002

Before :

LORD JUSTICE KENNEDY

LORD JUSTICE POTTER

and

LORD JUSTICE CHADWICK

- - - - - - - - - - - - - - - - - - - - -

Between :

and

(2) Jewell & Home Counties Dairies

- - - - - - - - - - - - - - - - - - - - -

Brian Langstaff QC, Patricia Hitchcock and Anna Beale (instructed by Stewarts) for the Appellant

Robin De Wilde QC and Nick Brown (instructed by Blake Lapthorn) for Brutton & Co

Richard Methuen QC and Hugh Hamill (instructed by Clarke Willmott & Clarke) for Jewell & Home Counties

Robert Francis QC represented the Official Solicitor as an Interested Party

Hearing dates: 12th, 13th, 14th, 15th and 19th November 2002

- - - - - - - - - - - - - - - - - - - - -

JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

Lord Justice Kennedy:

This is an appeal by the claimant from a decision of Wright J in relation to a preliminary issue namely -

"Whether the claimant has been a patient within the meaning of RSC Order 80 and/or Part 21 of the CPR at any time since the 8th September 1980 and, if so, what are the period or periods when the claimant has been a patient between the 8th September 1980 to date."

On 29th March 2000 Master Murray ordered the trial of that issue in relation to both of the claimant's actions, and after a lengthy hearing in January and February 2002 the judgment was delivered on 15th March 2002.

Background.

For this section of my judgment I am indebted to the judgment of the trial judge. The claimant was born on 24th July 1963, and on 9th September 1980, when riding a motorcycle to his work as an engineering apprentice, he collided with a milk float driven by Mr Jewell, an employee of Home Counties Dairies. The claimant sustained very severe injuries, including a serious head injury. He was in hospital for over three months and when he returned to work in June 1981 he was only able to perform routine clerical work, which he continued to perform until March 1989 when he resigned. He has barely worked since that date.

The claimant's parents consulted a solicitor, Mr Wilks of Brutton and Co, soon after the accident, and on 24th December 1980 proceedings were commenced against Mr Jewell and Home Counties Dairies. It took some time to gather together the medical reports and the information in relation to financial loss, so the Statement of Claim was not served until 7th September 1985. The defence denied liability and alleged contributory negligence which counsel for the claimant had advised could be assessed as high as 50%. In October 1985 there was a payment into court, which was not accepted, but on 11th September 1987 the payment into court was increased to £70,000. Two days previously the claimant, his father and his solicitor had attended a lengthy conference with his counsel in London. At that time counsel had valued the claim at £117,000 on full liability, and recommended serious consideration of any payment into court representing half of that sum.

Nevertheless the claimant was not happy with the offer of £70,000, and on 13th September 1987 he wrote to Mr Wilks. As the judge said, the letter asked three relevant and sensible questions as to the effect of delaying an acceptance. The claimant's father said in evidence that the letter, although physically written by the claimant, was largely dictated to him by his father, and that seems to be borne out by the entry for that day in the claimant's diary, but the entry also says that he and his father "discussed all the possibilities of my court case" including "accepting their present offer or waiting a while".

On 15th September 1987 there was a conference at the offices of Brutton and Co in Fareham attended by Mr Wilks, the claimant, both his parents, and Mr Boot, a financial director of the claimant's father's company and a family confidante. The payment into court was fully discussed. The attendance note of the solicitor records that the claimant, with the advice of his parents, instructed the solicitor to tell the other side that if a further £10,000 was paid into court the claimant would accept it. Mr Wilks did as instructed. The defendants' solicitors took instructions from their clients, and were authorised to p...

See the full content of this document

---