Jason Fleming v Zurich Insurance PLC

In a personal injury claim, a claimant seeking to introduce a substantial new head of loss after expert evidence changes the diagnosis and prognosis must regularise the pleadings. The court must assess the application against the realities created by that evidence. A case-management decision refusing the amendment is vulnerable if it fails to consider that the evidence could not reasonably have been obtained earlier, that the new evidence transformed the claim, and that the trial would have been lost even if the application had been made sooner. The overriding objective generally favours allowing the claimant to pursue the full loss supported by permitted evidence, subject to the merits and further case management. The stated value in a claim form does not permit a claimant to bypass the requirement to plead each head of loss.

The claimant brought a personal injury claim arising from a road accident. It was initially valued at £10,000 and presented as a straightforward soft-tissue injury claim. Following permission to obtain further medical evidence, an orthopaedic surgeon’s addendum report indicated a substantially more serious and potentially permanent spinal condition affecting earning capacity. The claimant served an updated Schedule of Loss claiming substantial past and future loss of earnings and applied to increase the value of the claim.

Deputy District Judge McKenzie refused the application shortly before trial, principally because allowing it would cause the trial date to be lost and require the case to be managed on the multi-track. HH Judge Lethem dismissed the claimant’s first appeal. The Court of Appeal considered whether the DDJ had properly exercised his discretion, particularly whether he had taken account of the new expert evidence, the claimant’s responsibility for delay, and the inevitability of losing the trial date.

Appeal allowed. Lady Justice Andrews delivered the judgment, with Lord Justice Arnold and Lord Justice Peter Jackson agreeing. The Court of Appeal exercised the discretion itself and allowed the claimant’s application to increase the value of the claim.

1. An appellate court should respect robust case-management decisions, even where they substantially affect the proceedings. Intervention remains justified where the lower court considered an irrelevant factor, failed to consider a material factor, or reached an irrational decision. Those principles, reflected in Jalla v Shell International Trading and Shipping Co Ltd [2021] EWCA Civ 1559, did not prevent intervention in this case.
2. The DDJ failed to grapple with three decisive matters. The orthopaedic surgeon’s addendum report had materially transformed the diagnosis, prognosis and value of the claim. The claimant could not reasonably have advanced the substantial future-loss claim without that report, which he obtained after difficulties accessing the MRI scans and within an agreed extension. Once the report and updated Schedule of Loss had been permitted, the application to increase the claim value was principally a means of regularising the claim.
3. The DDJ also failed to appreciate that the trial date would have been lost even if the claimant had applied at the earliest practicable opportunity. Loss of the trial date therefore could not justify refusing the application. The prejudice to the defendant was regrettable but inevitable, and had to be balanced against the very substantial prejudice to the claimant of being confined to a small fraction of the claim supported by the permitted evidence.
4. The statement of value in the claim form did not itself limit the court’s power to award more than that amount where the evidence justified it. However, under the Civil Procedure Rules 1998, rule 16.3(7) did not permit the claimant to bypass the requirement to plead every head of loss. The claim form and Particulars of Claim required amendment.
5. Allowing the application did not determine the merits of the enlarged claim. Further case management was required, and the claim would proceed on the basis of the updated Schedule of Loss and expert evidence.

• Court of Appeal (Civil Division): allowed the appeal and allowed the application to increase the value of the claim.
• County Court at Central London: HH Judge Lethem dismissed the claimant’s appeal against the case-management decision.
• County Court at Willesden: Deputy District Judge McKenzie refused the claimant’s application on 6 January 2021 to increase the claim value.