Oppenheim v Khangura

The court’s case-management powers may include requiring a claimant to pay money into court as a condition of an order. The power must be exercised consistently with the overriding objective. Where non-compliance would deprive a claimant of the opportunity to defend an appeal, such an order will ordinarily be inappropriate in a personal injury case, particularly where no stay was sought earlier. The court may instead require a fresh disclosure statement under CPR 31(10), leaving the sufficiency of the list and relevance of further documents to be assessed in the appeal or any rehearing.

The claimant obtained judgment for damages following a road accident. Liability had been admitted, and the defendant appealed on damages after learning shortly before the appeal hearing that the claimant had received earlier treatment for a back injury. The appeal was adjourned.

The defendant applied for part of the damages to be paid into court and sought further disclosure. The High Court judge had refused permission to appeal, but this court later granted permission. The applications raised whether payment into court should be imposed as a case-management condition and what disclosure order was appropriate pending the appeal.

1. Payment into court. The court accepted that CPR 3.1 conferred power to make an order subject to a condition requiring payment of money into court, and also permitted further case-management steps to further the overriding objective. The power was discretionary and had to be exercised consistently with that objective.
2. The requested condition was refused. Its proposed sanction was that the claimant would be deprived of the opportunity to defend the appeal if he failed to comply. In those circumstances, making the order would not further the overriding objective. It would be rare in a personal injury action for the power to be exercised where a stay had not been requested at the relevant time.
3. Disclosure. The defendant’s detailed request was in substance closer to interrogatories than a request for documents. The court ordered a fresh disclosure statement under CPR 31(10), identifying the appropriate list and making clear that it was sufficient for standard disclosure.
4. Documents relevant to comparing the claimant’s pre-accident abilities, including any pre-existing disability, with his post-accident abilities were disclosable. The court did not exclude the possibility that post-trial documents might be relevant. The sufficiency of disclosure and any further issues were left for scrutiny if the appeal proceeded to a rehearing or fresh trial.
5. The applications were refused subject to the fresh disclosure statement. Mr Justice Rimer agreed.

• Court of Appeal (Civil Division): Permission to appeal on damages was granted on 10 July 2000. The appeal was adjourned and remained listed for a later hearing. The present applications were refused subject to a fresh disclosure statement under CPR 31(10).
• High Court, Queen’s Bench Division: Judgment for the claimant in the sum of £187,877.74 was entered on 5 February 2000. The trial judge refused permission to appeal.