Case No: B3/2011/3174 
Neutral Citation Number: [2013] EWCA Civ 1380
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM CLERKENWELL & SHOREDITCH COUNTY COURT 
(HIS HONOUR JUDGE CRYAN)

Royal Courts of Justice 
Strand, London, WC2A 2LL 

Date: Wednesday, 16 October 2013
 
B E F O R E:

LORD JUSTICE MCFARLANE 
 
SIR STEPHEN SEDLEY 

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MR HASAN TUTAS 
Appellant/Claimant
‑v‑
 
EAST LONDON BUS & COACH COMPANY 
Respondent/Defendant 
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WordWave International Limited
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165 Fleet Street, London EC4A 2DY
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Mr R Whittock (instructed by Lucas & Co) appeared on behalf of the Claimant 
Mr F Treasure (instructed by David Hurley Associates) appeared on behalf of the Defendant 
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J U D G M E N T
LORD JUSTICE MCFARLANE:
1.	This is an appeal brought by Mr Hasan Tutas, who was the claimant in proceedings before the Clerkenwell and Shoreditch County Court, which resulted in a judgment given by His Honour Judge Cryan on 11 November 2011, some 2 or 3 days after a contested hearing.  The case was a personal injuries claim brought by Mr Tutas, who certainly then was a 41‑year‑old, who had had a career as a bus driver but on 17 November 2007 he was involved in an accident whilst in his bus.  His vehicle was the recipient of a rear‑end shunt from another bus.  It was a low velocity collision but, no doubt partly given the size of the two vehicles, it had some physical consequences for Mr Tutas.  He sued his erstwhile employers, the East London Bus Group Limited, for damages for injury.  Liability, certainly by the time the case got to trial, was admitted.  
2.	The issues that occupied Judge Cryan related to quantum.  By far the bulk of the time before the judge was not concerned with issues of special damage, and the current appeal relates to one of the heads of special damage.  But to set the overall scene, the judge found, in a relatively short part of his judgment, that the claimant had made out a good claim for ordinary general damages for the physical injury, which he assessed at £3,000, and then it seems the bulk of the hearing, and indeed the judgment, was taken up in assessing the more sophisticated claim relating to post traumatic stress that the claimant claimed to have suffered.  In the event, the judge awarded him a further £3,000 general damages under that head.  
3.	The claim that is the subject of this appeal relates to physiotherapy treatment, and the judge deals with that at paragraph 66 of his judgment onwards.  The claimant sought a total of £513.50 in relation to private physiotherapy treatment.  That was for some eight sessions, together with an initial assessment from a general practitioner.  That claim had been pleaded in that sum in the original claim documents but was never admitted by the defendant and remained a live issue at trial.  In the event, for reasons to which I will come in a moment, Judge Cryan disallowed that element of the claim in its entirety, and it is therefore against that decision, the refusal to award any part of the £513.50, that the appellant now brings this appeal to this court.  
4.	Permission to appeal was given by Toulson LJ on 6 February on the basis that the case as described by the appellant, which is in short that the point that led to the defeat of this claim had been taken very much at the last minute by the defendant and the judge was wrong to prevent the claimant from putting in documentation that might answer the criticism and also, secondly, wrong to come to the finding of fact that the judge made upon which he based his refusal.  
5.	It is necessary, before coming to the judgment, to describe the procedural build up to the point.  The accident, as I have indicated, occurred in November 2007 and proceedings were issued in September 2010.  Liability was admitted, effectively at the first opportunity, in the defence but a counter‑schedule was filed by the defendants in which the personal injuries claim was looked at and insofar as the physiotherapy is concerned, that document, dated 3 November 2010, is simply in these terms:   
"The Defendant is unable to agree or dispute this item, having no knowledge of the same.  The request for disclosure of the notes of the treating physiotherapist is repeated."
6.	That state of affairs was revisited in an updated counter‑schedule for special damages submitted by the defendant on 14 June 2011, and there it is said as follows:
"The Defendant is unable to agree or dispute this head of claim, having no knowledge of the same.  The Claimant has failed to provide disclosure of documentary evidence to support this head of claim in full, despite being requested to do so."
7.	Pausing there, it is necessary to understand what is there stated in the context of the fact that there had been some disclosure by that stage.  The ordinary disclosure of documents had taken place by the claimant delivering his list of documents on 22 February 2011 and that included "letters and invoices from Physio‑Link" and copies of the documents are said to have been served at that time in February.  We have now seen the clip of documents that are said to comprise that disclosure.  They include a statement of account, as it then existed, setting out certainly the initial GP consultation and the initial physiotherapy treatment sessions, each being charged at £50 per session.  It also includes the forms filled in by Physio‑Link and indeed by the individual physiotherapist on some, if not all, of the sessions that are there recorded.  In that context, it is difficult to understand the pleaded response that the claimant has failed to provide disclosure of the documentary evidence to support this head of claim in full.  It does seem to me that the detail of what the claimant said he had had in terms of physio treatment, and indeed the cost of it, was at that stage disclosed.
8.	The trial was fixed initially for a date in September but eventually it took place on 4 November 2011.  There was no requirement upon the defendant to file any updated counter‑schedule relating to the damages but, in preparation for trial, counsel, who had then had been instructed for the defendant, Mr Francis Treasure, took the course of putting in an updated schedule dated 3 November 2011, and in relation to physiotherapy treatment, the following is pleaded:
"This appears to be a claim for a GP consultation, an initial physiotherapist's assessment, and 8 treatment sessions.
Firstly, there is no evidence that the Claimant has paid these sums, nor that he is legally obliged to pay them."
9.	There is then a second claim that if there is some arrangement for payment which is other than simply a bill being rendered and paid promptly, there may be some consumer credit implications that would make the agreement unenforceable.  Thirdly, a point is taken on quantum as to why it was necessary both for a GP to conduct an assessment session and separately for a physio to conduct an assessment session before any treatment is delivered.  That document, delivered on 4 November, effectively came, to use a phrase that has been applied on a number of occasions, on the eve of the hearing.  It was, points out of appellant before us, the very first occasion that the defendant had raised any point about the claimant's liability to pay for the physiotherapy sessions and the question, as is pleaded, whether he is "legally obliged" to pay them.
10.	The hearing seems to have taken most of the day before the judge on 8 November, both the hearing of oral evidence and the receipt of closing submissions, and, as I have described, the bulk of the hearing seems to have been concerned with matters other than physiotherapy treatment.  But in the course of his evidence, and we have a transcript of the relevant passages, the claimant was taken to the issue of physiotherapy.  He was asked the basis upon which he was referred for physiotherapy and he said this:
"I was referred to the Cavell Hospital for physiotherapy but who sent me there, I believe it's the third party, East London Buses sent me to physiotherapy.  I said that from the beginning as well."
He is then asked various other questions about the detail of that.  He was then asked again, "You don't know who that was?", that being the person who referred him, and the answer is, "I am presuming it is East London Bus Company that have set up and paid for the physiotherapy.  They are the ones that sent me.  Because of the suffering and the pain I was going through, they obviously set up the appointments and the arrangements for me to go".  He is then taken to some documentation where the bill is shown from the Physio‑Link organisation going to the solicitors that were then acting for the claimant and not to the bus company, and he is asked about that and he says, "It could have been Scott Rees [the solicitors] that sent me there".  Question: "But this is not a bill that you expect to be paying yourself, is it?"  Answer: "No, no.  I am baffled as well who arranged it, who paid for it.  I don't know".  A short time later he is taken back to the documentation and asked to remember whether there was a particular date in January 2008 when he did or did not attend for a consultation, and he is taken to the particular dates, and his answer is, "I can't remember".  Moving on from there, counsel, Mr Treasure, says this: "Your Honour, these are perhaps points that I can make on the papers.  I do not want to be accused of being unfair".  Then Judge Cryan says this: "Yes.  If the witness does not expect to be paying for it I can't see how he can regard it as a loss".  
11.	By the time the end of submissions came the paperwork had not changed but by the morning of the day that the judge came to give his judgment it had, in the sense that the solicitors acting for the claimants had produced a clip of documents, which again we now have, which run in all to some 30 or so pages, but the principal two documents relied upon are the first and second page.  The first page is a letter from Physio‑Link Services Limited, purportedly addressed to the claimant, Mr Tutas, at what I assume is his home address, and it is dated 30 November 2007.  It refers to the accident, it refers to the fact that it seems to be that the accident was not Mr Tutas' fault and that there is a compensation claim pending.  Having referred to a course of physiotherapy being provided at an early stage following the accident, the letter then includes this paragraph: 
"This will assist both the claim for compensation and aid you in the recovery of your injuries.  We provide a private, fast track physiotherapy treatment service to Scott Rees & Co Solicitors clients at specialist clinics local and convenient to you.  The cost of treatment is included at part of your claim and pursued against the guilty party's insurance company."
12.	Those acting for the claimant sought to introduce this clip of documents before the judge.  On the basis of what my Lord and I have heard today, it seems to me that the judge made a case management decision to refuse to admit this documentation into evidence.  He then went on to deliver the judgment that he had prepared and, as I say, from paragraph 66 dealt with the physiotherapy claim.  I am not going to read the entirely of that section of the judgment into this judgment but, in summary, the judge notes the value of the claim but then says this:
"In evidence however the claimant said that he was not aware that he was liable to pay for any physiotherapy.  He thought it had been provided, as he put it, by a third party.  All he did was turn up to it."
13.	There is then an account of the filing of the counter‑schedule and the amended counter‑schedule.  Then at paragraph 69 and 70 the judge draws matters together, and I will read this out.
"69. It is, it seems to me, clearly the case that where there is a challenge as to the liability of a claimant to pay for treatment of this sort and how it arose, there is a duty when the absence of documentation is highlighted to produce all relevant documents upon which the claimant intends to rely.  It is quite clear that the letter from Physio‑Link Services of 30 November 2007 has existed for a very long time and could have been, and indeed ought to have been, produced at a very much earlier stage.  It might be tempting to say that the physiotherapy was provided and invoices submitted and therefore the physiotherapy ought to be paid because it resulted out of the accident, but on the other hand the court must have considerable sympathy for the defendant who says that it wanted to know the basis upon which this liability was incurred so that they could consider it and decide to challenge it one way or another.  
70. The clear evidence from the claimant himself was that he did not believe he was liable.  Whether that is a question of him being misinformed or whether it was a question of him having forgotten would be really a matter of speculation.  The evidence itself was plain.  In those circumstances I do not consider that it would be appropriate for me at this stage, on the basis of the evidence which the claimant gave to me at the start of this week and on the basis of the hopelessly late production of what is said to be supporting documentation, to give judgment against the defendant, who has not had an adequate opportunity of considering what might be described as the new case presented this morning and who would prefer instead really to rely upon the claimant's own evidence that he is not liable for his charges.  In those circumstances I do not give judgment for that sum."
14.	In bringing this appeal, Mr Whittock, who did not appear below but appears before us for the appellant, essentially makes two points.  The first is that the judge was in error and it was unfair to categorise the sequence of events with a late production by the claimant of the letter and therefore a critical decision against the claimant on that basis when, in truth, the lateness arises from the earlier stage of the eve of hearing raising of the point by the defendant in their updated counter‑schedule.  That, says Mr Whittock, is the first occasion that the question of who was going to pay for the physiotherapy was raised and, effectively, it could only be dealt with after the hearing of the evidence and submissions by obtaining further documentation, as was the case.  To categorise the claimant as acting late in the day when, in fact, what the claimant was trying to do was to respond to a point which was itself raised very late in the day was in error and unfair.  
15.	Secondly, the appellant seeks to go behind the judge's conclusion on the finding of fact that the claimant was accepting that he was not himself liable to pay this bill and that therefore by his own evidence, as it were, the claim for special damages for £513.50 fell.  Mr Whittock seeks to take us to the transcript of the sections that I have already read out to indicate that the evidence did not justify the judge’s conclusion.  
16.	Before looking at the merits of those two grounds of appeal it is necessary to indicate a further flurry of documentation that has been a feature of the latter days pending the start of this hearing before us this morning.  A notice of appeal was filed and, as I would understand it, served as long ago as December 2011.  It was supported by a skeleton argument and in due course permission to appeal was granted.  No skeleton argument was filed in response by the defendants until one from Mr Treasure was produced, dated 2 October 2013, that being, effectively, under 2 weeks before the hearing that we have conducted today.  On receipt of that document, the appellant's team, rightly, complained.  They sought leave to file their own skeleton argument in reply.  In the course of that document Mr Whittock spells out the range of points that he says Mr Treasure is now seeking to make which are not matters upon which the judge expressly relied in giving his judgment and are, effectively, says Mr Whittock, new points.  He submits that it is too late for the respondent to be able to run these points in a skeleton argument filed some 6 months after the Rules would have required such a filing to take place.  He also says that if these new points were to be run, they should have surfaced in a respondent's notice and again that is not a document that has been filed.  
17.	Mr Whittock's intervention in turn led to a response from the respondents.  They filed a respondent's notice with this court on 14 October, dated 11 October, in which, root and branch, they seek to run the points that are set out in the skeleton argument on the basis that they are further points for supporting the judge's judgment.  The narrative in section 9 of the form indicates that the respondent did not receive any notification either from the solicitors for the appellant or from the Court of Appeal that a skeleton argument was needed to be filed by 28 March 2013, which it is agreed is the date that the Rules would have required filing to be achieved by, and that therefore the solicitors for the respondent failed to understand the need to file such a document and only understood that that was the situation in relatively recent days.  
18.	That respondent's notice triggered a statement from Mr Stuart Lucas, the solicitor for the appellant, in which he gives a chronology of the forensic events since the Notice of Appeal was filed and he exhibits some 14 different letters sent by his firm to the respondent's solicitors in connection with the appeal and he makes the point that only one of those letters achieved a response in terms of another letter being sent back from the respondent's solicitors.  In particular, on 20 February 2013, a letter was sent from Mr Lucas' firm enclosing a copy of the "listing window notification" letter from the Civil Appeals Office which spelled out the requirement to file a skeleton argument and, if necessary, a respondent's notice.  
19.	In addition, the Court of Appeal, it is accepted, will have sent out to the respondent's solicitors, and the date seems to be 14 February, their own letter with the listing window notification.  
20.	A statement has now been filed by Miss Lorraine Mattocks, who is a litigation assistant employed by the respondent's solicitors, in which she says that she has been right through the file and cannot find any evidence of either the letter from the appellant's solicitor enclosing a copy of the Court of Appeal letter or the Court of Appeal letter itself.  She apologises for the inconvenience that arises but indicates that the failure to file a skeleton argument was inadvertent rather than for any other reason.  
21.	Mr Treasure seeks this morning before us to have leave to run the points that he wishes to run, as adumbrated in the skeleton argument and respondent's notice.  That application was contested by Mr Whittock but we are grateful to Mr Whittock for accepting a steer that my Lord and I gave, which was that we were interested in hearing the essential arguments in the case despite the important pleading points that are made and that we would review matters at the close of the proceedings.  Indeed, we have heard Mr Treasure enlarge upon the arguments that he wishes to make, I think without any limitation, and for my part it has been of benefit to understand the detail of the case that the respondent seeks to put and also to hear from Mr Treasure his own account of the development of the matters in the lower court as they unfolded before Judge Cryan.  For my part, I would therefore think it artificial now to refuse permission for the respondent's notice to be issued and the skeleton to be relied upon.
22.	Turning back to the merits of the case, I have explained the way in which the case is put in outline by the appellants.  It is only necessary, I think, for me to revisit the transcript of evidence of Mr Tutas, quotations from which I have already given, to underline the basic point that Mr Whittock seeks to make about the finding of fact.  He submits that at its highest point the evidence of Mr Tutas indicates that he was "baffled" by the responsibility of one agency or another for the payment of this physiotherapy treatment.  The evidence that he did give shows that his presumption had always been that is was the bus company who were responsible for that.  Mr Whittock says, and indeed my Lord and I also made the point, that that would be a reasonable presumption for anyone to have in the circumstances that liability had been admitted early on and I think before the physiotherapy treatment really started and also on the basis of the text of the letter which obviously we have now read.  Mr Whittock submits that it is just not possible to elevate the claimant's evidence to a status of him asserting that he personally had no liability to pay for the physiotherapy treatment, which was, in effect, the judge's finding.  Simply Mr Tutas was doing his best to help the court by explaining his understanding, and that is what he did.  
23.	In opposing the appeal, Mr Treasure makes a number of submissions.  He, rightly, indicates that there were two stages in the judge's approach to this matter, albeit undertaken, as they were, at short notice shortly before the judge was to give judgment.  The first was to determine that the letter should not be taken into account at all and, secondly, to hold that, in any event, any understanding to be gained from the letter was overborne by the weight of the evidence from the claimant himself, which was to the effect that there was no liability.  Mr Treasure goes on to make a number of points in support of his opposition to the appeal.  He does not accept Mr Whittock's categorisation of the defendant's last‑minute questioning of liability to pay as being in some way a brand new point.  He says liability for the payment by the defendant for this physiotherapy element had never been admitted and was always in issue.  He says there was no need, in fact, for the defence to plead by submitting an updated counter‑schedule as they did on the eve of the hearing, they could have run the point orally before the judge.  All that the document does is state what is obvious from the face of the disclosure, which is that there is no indication either that the claimant has paid for this physiotherapy treatment, and I say in parentheses it is plain he has not yet done so, and, secondly, there is no indication on the face of the documentation which is being rendered to the firm of solicitors that there is any liability or expectation that the claimant should pay, therefore the point was in issue and had always been in issue.  
24.	Mr Treasure, in terms of whose responsibility it is for the late running of this point, submits that had disclosure taken place properly and comprehensively in proper time in early 2011, this letter of November 2007 would have been disclosed.  It is accepted by the appellant that the letter was disclosable.  It is obviously accepted that it was not.  Mr Treasure submits that if disclosure had happened then, his side would have been on notice to the slightly more complicated payment arrangement that the letter indicates and the point that he now was able to raise before the judge, and continues to argue before us, would have been taken in an orderly fashion because of the orderly timing of the disclosure.  Further, he points to the trial itself and he says that when the letter was produced on the day of judgment, counsel then acting for the claimant did not seek to recall the claimant to give evidence, and earlier, when the claimant was giving his evidence, there was no objection to the line of cross‑examination that was being adopted.  So he submits that from the defendant's point of view procedurally they conducted themselves in an entirely proper manner.  Any degree of delay or last‑minute running of a point cannot be laid at their door but at the door of the claimant.  He submits that the judge was justified in excluding the letter and also justified in the finding of fact that he made.  
25.	Having described matters as I have, it is now necessary to look at the merits of the case.  Before I do, in terms of looking at the detail, in my view it is important to stand back and see just what it is that is being considered here.  This was a personal injury arising from an accident, about which there was no dispute as to liability.  There is no dispute also before the judge or before us that it was entirely reasonable for the claimant to receive physiotherapy treatment and that it may well have been wise for that to happen in a timely manner, as was the case here.  Save for the potential argument as to the necessity for both a GP and the physio to assess the claimant, no issue was taken as to the rate of £50 per session that was being claimed.  It is also clear that the physio treatment agency, Physio‑Link, expected to be paid.  All of that is readily established.  Indeed, the judge in the passage that I have already indicated, said that it might be tempting to approach matters on that basis and simply say that this is money due.  I would suggest rhetorically: why not?  It seems to me that it is not common, and Mr Treasure was able to confirm this, that the actual chain of payment in a personal injury case always has to be nailed down by provision of the sight of the bank account from which the money has come or the credit card that has paid for a particular item.  Rendering of reasonable evidence as to the requirement to pay from those who are seeking payment would, in my view, normally be sufficient, unless one party or the another is on notice of a need to look behind matters.  These sorts of topics, particularly, I would suggest, at a level of payment such as this, are in everyday life, in relation to these matters, to be taken as read without requiring nitty‑gritty proof of the channel of payment.  
26.	So far as this case is concerned, the documentation showing the detail of all of that I have described, the treatment, the payment and the claim for payment by the physio agency, were provided in due time, some 6 months or more before the hearing, and it is the case that the point about where the money was coming from to pay for the physio treatment was only raised by the defendant in the updated counter‑schedule.  It could have been raised orally at the hearing but that would not alter the lateness, as lateness it is, in my view, of this point being taken.  
27.	Then the claimant gives his evidence in the witness box and he gives the answers which, as I have indicated, are understandable, that he does not know who paid.  He thought that the defendant had paid for it or was responsible for it.  That then falls into the arguments made by the defendant and is seen to be endorsed by the judge in his judgment.  There is an opportunistic element to that sequence of events, it seems to me, arising from the absence of nitty‑gritty evidence of who actually paid for the physio being disclosed at an earlier stage and the claimant's own evidence.  
28.	Looking at the judge's approach now, I consider that both of the grounds of appeal that the appellant places before us are made out.  It was unsatisfactory for the process to have been presented to the judge in the way that it was, with the point being raised in the updated counter‑schedule and then for the claimant to be unable to answer it on the day with the document or his own personal knowledge and then that document coming on the very moment before the judgment is delivered.  But Mr Whittock, in my view, is correct in saying that the judge should either have excluded the argument altogether and prevented Mr Treasure from running the point raised late in the day, or, if it was to be run, it should have been run to its conclusion, even if that meant having a short adjournment for the letter to be obtained.  That would have been a reasonable step and I do not think the claimant could be criticised for the time taken to produce this letter, and if there are implications arising out of the letter, questions raised by the text of the letter then the judge and the court should have allowed time for those to be teased out and analysed, for further submissions to be made and for the judge then to adjudicate upon the point as a whole once the evidence about it had settled down, as it were, and all that could be known was known.  To allow the point to be run, but then not allow it to be answered is, in my view, a valid criticism of the judge's approach and the judge therefore, in my view, was not justified in adopting the course of simply ignoring the letter which was produced to him at the moment before he gave his judgment.  
29.	Secondly, and, in my mind, of greater import, I am afraid, I consider that the judge, a very seasoned and experienced judge, has come to a conclusion on the facts which is not borne out by the evidence and then used that as the principal reason for deciding this point.  The judge's conclusion is at paragraph 70:
"The clear evidence from the claimant himself was that he did not believe he was liable."
That, with respect, is not a conclusion that could be drawn from the oral evidence, to which I have already made reference.  The claimant simply did not know.  If there is a conclusion to be drawn, it is that he assumed that the defendant was going to be responsible for this payment, and that, I think it is accepted, would be the ordinary outcome given that liability is agreed and the various sums involved are unremarkable but for this opportunistic point as to the transmission of money arising.  
30.	Therefore, despite all that Mr Treasure has with force and attractiveness put before us, I am very clear that this is a good appeal and I would therefore allow the appeal on both of the grounds that are raised.
31.	SIR STEPHEN SEDLEY:  I too would allow the appeal, having first, as my Lord proposes, admitted Mr Treasure's respondent's notice.  
32.	The letter of 30 November 2007 setting out the terms on which Physio‑Link was willing to offer treatment does not seem to me to be, on the face of it, objectionable.  If there is a credit hire issue that such arrangements raise, it will have to be canvassed on another occasion.  But barring such objection, it seems to me beneficial to both claimants and defendants that a procedure like this should be available.  
33.	One of the recurrent features of personal injury litigation is that by the time it comes to court, the claimant's condition has either deteriorated or not improved nearly as much as it should have done for want of treatment in the interim.  The claimant in such situations frequently has to say that he could not afford the treatment that was needed.  Insurers quite often nowadays offer to pay for interim treatment in order to mitigate the damage which the defendants are going to be liable for in cases where liability is admitted.
34.	This Physio‑Link procedure seems to me to meet such a need, albeit through reference by the claimant's solicitors, by deferring the payment that will be due to them until damages have been recovered.  This is done on the assumption, which I think is a correct assumption, that the damages will include any reasonable sum expended on restorative treatment.  
35.	The interesting thing about this letter is that it explains what it was that the claimant was saying when he gave evidence that he did not expect to be paying for the physiotherapy himself.  It did not amount, as Judge Cryan thought it did, to saying that he was not liable and therefore could not regard it as a loss.  The letter made it clear, had the judge looked at it, that it amounted to saying that, while Mr Tutas had needed this treatment, he had not had to pay for it and did not expect himself to be paying for it because the defendants would be paying by way of damages.  
36.	It is a misfortune, and a most unusual one, that because this material was advanced only at the 59th minute of the 11th hour, the judge, taking a view that many judges would have taken, said, "Enough is enough.  I am not taking this on board".  But it meant that he starved himself of essential information which, had he had it, would have enabled him to come to a more just conclusion.  That conclusion would have been that the sum was recoverable.
37.	For the reasons given by my Lord, I agree that the appeal should therefore be allowed.