From 6 April 2007 Defendants definitely will not be compelled to pay in when making offers , but pre-action admissions will be binding. We will analyse this more fully in the next Bulletin
New Part 36 rules
The Civil Procedure (Amendment No. 3) Rules 2006 has been introduced. It includes a new Part 36 and changes to the rules on pre-action and post issue admissions. The text of the new SI is at:
http://www.opsi.gov.uk/si/si2006/20063435.htm and the explanatory notes are to be found at:
http://www.opsi.gov.uk/si/em2006/uksiem_20063435_en.pdf
Earnings linked Periodical Payments for future care – a breakthrough
This month’s big case is called Thompstone. For the first time the court has decided that an index other than the Retail Prices Index may be appropriate for periodical payments in respect of future care costs. The issue was whether periodical payments should be varied by reference to the RPI in accordance with Section 2 (8) of the Damages Act 1996 or whether that subsection should be modified pursuant to Section 2 (9) of the Act.
It is clear that the Judge Mrs Justice Swift, was influenced by the decision of the Court of Appeal in Flora -v- Wakom, and accepted that that it was fair and reasonable not to link the payment to RPI. The claimant’s experts had argued three alternative measures as more suitable than the RPI. Each of these is an official measure of earnings published by the Office for National Statistics.
The three are Average Earnings Index (AEI), Annual Survey of Hours and Earnings (ASHE), and Median and Annual Survey of Hours and Earnings (ASHE) 6115. The Judge decided to modify the effect of Section 2 (8) by providing for the periodical payments to vary by reference to the 75th percentile of ASHE 6115.
The importance of this decision is that the detailed expert evidence presented on behalf of the claimant withstood detailed forensic scrutiny and was largely accepted by the court.
Thompstone -v- Tameside and Glossop Acute Services NHS Trust. Mrs Justice Swift, November 2006.
As a result of this development another NHS Trust appealed against a decision of the judge not to adjourn the issue of the determination of the appropriate measure of indexation for periodical payments until an appeal in the Thompstone case is heard. However, the Court of Appeal upheld the judgment of the Judge at first instance saying that the Judge’s decision not to adjourn the determination of the indexation issue was a proper case management decision and therefore the Court of Appeal would be reluctant to interfere with it.
It was an oversimplification to contend that the two cases were identical. At the trial, the Judge would be able to hear evidence concerning the type of care required by the claimant and the appropriate index relating to periodical payments that would best meets his needs. Were there to be an appeal against the Judge’s conclusion on the indexation issue then the case could be joined with Thompstone in the Court of Appeal.
Corbett -v- South Yorkshire Strategic Health Authority. Court of Appeal, 6 December 2006.