No: 99/TLQ/1671
Neutral Citation Number: [2006] EWHC 322 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: 16th February 2006

B E F O R E :

H.H. JUDGE MACKIE QC

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

B E T W E E N :

SAMUEL SYDNEY EVANS
Claimant
-and-

THE SECRETARY OF STATE FOR THE
ENVIRONMENT, TRANSPORT AND THE REGIONS
First Defendant
-and-

THE MOTOR INSURERS BUREAU
Second Defendant
- - - - - - - - - - - - - - -

Richard Plender QC and Donald Broatch instructed by Simons
appeared on behalf of the Claimant

Peter Roth QC and David Barr instructed by The Treasury Solicitor
appeared on behalf of the First Defendant

Dermod O’Brien QC and Clare Brown instructed by Greenwoods
appeared on behalf of the Second Defendant

Hearing Dates: 1st and 2nd December 2005

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

JUDGMENT
1.	There are applications by all three parties in a case which, by January 2001, was already described by Lord Justice Judge in the Court of Appeal as an “interminable nightmare”.  This judgment decides the application of the First Defendant (“The Secretary of State”) for summary judgment and/or to strike out the Statement of Claim under CPR Part 3.4 as an abuse of process. The evidence before the court consists of three witness statements from Mr Brunsdon, a solicitor with the Treasury Solicitor, a witness statement from Mr Parsons, solicitor for MIB and a witness statement from Mr Simon Aaron the Claimant’s solicitor.  These statements set out the background and the basis for the positions adopted by the three parties.

Background

2.	I set out only such facts as are necessary for my decision as these have been repeatedly set out in an arbitration award, two judgments of the High Court, two judgments of the Court of Appeal, the Opinion of the Advocate-General and in the judgment of the European Court of Justice.  The Claimant was injured on Christmas Day 1991 by a passing car which failed to stop.  In May 1992 he made a claim to the Second Defendant (“MIB”) under the Untraced Drivers Agreement 1972 (“The 1972 Agreement”).  In July 1993 he claimed £75,364.25 and received an interim payment of £10,000 in April 1994.  He rejected the MIB’s offer of £50,000 in August 1994 and just over a year later made a revised claim for £183,678.  In January 1996 MIB decided to award the Claimant £50,000 on the basis that he was substantially responsible, perhaps to the extent of two-thirds, for the accident.  In February 1996 the Claimant gave notice of arbitration under Clause 11 of the 1972 Agreement and Ms Diana Cotten QC was appointed as arbitrator.  In July 1996, as part of briefing the arbitrator, MIB wrote to the Claimant’s former solicitors with a bundle of papers and a video asking whether there was any further evidence the Claimant wished to put in.  The Claimant’s solicitors replied they had no further evidence to include and the material went to the arbitrator who gave a detailed award on 27 August 1996.  The arbitrator found that the Claimant’s account of his continuing disability was “wholly exaggerated and untrue” and awarded £15,000 in general damages and specials of £43,286.  The award, after deducting 20% for contributory negligence, was £46,629.  She ordered the Claimant to pay her fee of £150 under Clause 22 of the 1972 Agreement because he had been dishonest in his account to doctors and there were no reasonable grounds for the appeal.  As was the practice at the time the arbitrator made no award of interest.

3.	Mr Evans applied to the Commercial Court for leave to appeal under Section 1(2) of the Arbitration Act 1979.  This was granted by Mr Justice Longmore on the question of whether the arbitrator should have awarded interest but refused as regards a challenge to the finding of contributory negligence.  Mr Justice Thomas ruled that there was no right to an award of interest but that the arbitrator had power to grant this in circumstances which did not apply to Mr Evans.  The Claimant appealed to the Court of Appeal and his case was heard with two other appeals brought under the Uninsured Drivers Agreement 1988 (“the 1988 Agreement”) which applies to drivers who are identified but uninsured and operates the familiar regime by which the victim brings the MIB to court.  The Claimant argued that the second EC Council Directive of 30 December 1983 on Motor Insurance (“the Directive”) was directly enforceable against the MIB.  His alternative argument was that the 1972 Agreement should be interpreted in accordance with the Directive.  The Court of Appeal held that the Directive was of no direct effect, that the 1972 Agreement was not to be interpreted according to EC law principles and that no construction of the 1972 Agreement would yield a result requiring payment of interest.  The Claimant’s petition to the House of Lords was unsuccessful although the House did hear an  appeal under the 1988 Agreement.

4.	This action was started on 25 February 1999 and is a claim for damages and a declaration against the Secretary of State for loss caused by the United Kingdom’s alleged failure properly to implement the Directive.  It is a Francovich claim, a cause of action succinctly described in Paragraph 83 of the ECJ ruling. First there must be an infringement of a rule of community law intended to confer rights on individuals.  Secondly the breach must be sufficiently serious.  Thirdly there must be a direct causal link between the breach of the obligation on the state and the loss or damage sustained by the injured party.  In May 2000 Mr Justice Buckley ordered the reference to the ECJ of five questions for preliminary rulings and in January 2001 the Court of Appeal rejected the Defendants claim that two of the five questions should not be referred.  After an oral hearing on 11 July 2002 the Advocate General delivered his Opinion on 24 October 2002 in terms encouraging to Mr Evans.  The ECJ did not however give its ruling until 4 December 2003.  There was then  a further long delay.  The Defendants say that they simply assumed this case had gone away.  The Claimant and his lawyers faced what they described as a variety of problems involving ill health, alterations in representation and public funding, which has apparently been continuously available since 1999.  The Secretary of State’s application is stated to be a response both to the ECJ ruling and to an offer made by MIB on 5 September 2005 that if the Claimant discontinues these proceedings it will waive its claim to costs due to it of £36,000.  

5.	MIB supports the First Defendant but is only an intervenor.  It is involved because of its interest in the Untraced Drivers Agreement, its knowledge of how in practice claims are dealt with, its particular knowledge of Mr Evans claim and the fact that its interests do not in every respect coincide with those of the First Defendant.

European Court of Justice – Questions and Answers

6.	The five lengthy questions on the interpretation of the directive were essentially the following:-

1.	Must compensation arrangements include provision for payment of interest on damages and, if so from what date and on what basis?

2.	Must those arrangements also include the provision of the payment of costs incurred by a victim in making his application and, if so on what basis are those to be calculated where the victim recovers less than the amount of an offer which he has earlier declined to accept?

3.	Must a victim have a full right to appeal on both the facts and the law when the body determining compensation is an arbitrator under a scheme which has the characteristics of that imposed by the 1972 Agreement, including the making of an award without an oral hearing?

4.	If the answers to 1-3 are yes has a Member State duly authorised a body as required by the Directive in the circumstances described in the question?

5.	If the answer is no, does this failure to comply constitute a sufficiently serious breach to give rise to liability for damages if it is shown that damage was caused?  

In answer to these questions the court ruled, as regards Article 1(4) of the Directive that:- 

“-	A body may be regarded as authorised by a Member State within the meaning of that provision where its obligation to provide compensation to victims of damage or injury caused by unidentified or insufficiently insured vehicles derives from an agreement concluded between that body and a public authority of the Member State, provided that the agreement is interpreted and applied as obliging the body to provide victims with the compensation guaranteed to them by Directive 84/5 and provided that victims may apply directly to that body.

-	Procedural arrangements such as those adopted in the United Kingdom are sufficient to provide the protection to which victims of damage or injury caused by unidentified or insufficiently insured vehicles are entitled under Directive 84/5.

-	The compensation awarded for damage or injuries caused by an unidentified or insufficiently insured vehicle, paid by the body authorised for that purpose, must take account of the effluxion of time until actual payment of the sums awarded in order to guarantee adequate compensation for the victims.  It is incumbent on the Member States to lay down the rules to be applied for that purpose.

-	The compensation awarded for damage or injury caused by an unidentified or insufficiently insured vehicle, paid by the body authorised for that purpose, is not required to include reimbursement of the costs incurred by victims in connection with the processing of their application for compensation except to the extent to which such reimbursement is necessary to safeguard the rights derived by victims from Directive 84/5 in conformity with the principles of equivalence and effectiveness.  It is for the national court to consider whether that is the case under the procedural arrangements adopted in the Member State concerned”.

7.	The court also ruled that “It is incumbent on the national court, if examination of the existing compensation system discloses a defect in transposition of Directive 84/5 and if that defect has adversely affected Mr Evans, to determine whether the breach of that obligation of transposition is sufficiently serious”.

8.	Dr Plender QC for the Claimant relied on other observations in the findings of the court as regards particular questions such as paragraph 56 “nevertheless it is important to stress that the procedure established must guarantee that, both in dealing with the MIB and before the arbitrator, victims are made aware of any matter that might be used against them and have an opportunity to submit their comments thereon”, it being for the national court to determine whether those conditions have been considered. The procedural arrangements were upheld subject to an extent to that reservation (“The Reservation”).

9.	The ECJ declined to answer the fifth question but set out at Paragraphs 83-86 the test for the national court to apply.  

10.	The Secretary of State contends that if there was a breach of the Directive it was not sufficiently serious to create a liability to damages but, for the purpose of these applications, is willing to assume the opposite.  Making this assumption the effect   of the ECJ ruling, for the purpose of these applications , is that the Claimant is entitled to interest, costs are only recoverable to the extent that they are necessary to safeguard rights in conformity with the principles of equivalence and effectiveness, and the procedure of the 1972 Agreement arbitration scheme is sufficient subject to the Reservation.  It is against that background that the Secretary of State brings these applications.

Approach to the applications

11.	The First Defendant cannot obtain summary judgment unless it satisfies the court that the Claimant has no real prospect of succeeding and that there is no other compelling reason why the claim should be disposed of at trial.  I bear in mind the guidance in the White Book and in the cases drawn to the court’s attention including in particular those two high cards now often played by respondents and applicants respectively the speeches of Lord Hope, and Lord Hobhouse in Three Rivers District Council & Others -v- Bank of England (No 3) [2003]  2 AC1.  Under CPR 3.4 the court may strike out a statement of case if it appears that it discloses no reasonable grounds for bringing or defending the claim, a test effectively the same as that for summary judgment under CPR 24, or if it is “an abuse of the Court’s process or is otherwise likely to be obstruct the just disposal of the proceedings …”.

12.	As to summary judgment the First Defendant claims that Mr Evans has no real prospect of success in recovering damages and that there is no other compelling reason for a trial for the indirect benefit of other claimants or the public given that the 1972 Agreement has now been replaced by the Untraced Drivers Agreement 2003 providing both for interest and a discretion to award costs.  The First Defendant’s argument on abuse of process is that provided some items of damage are dismissed at the summary judgment stage, the others will amount to less than the £36,000 offered by MIB as waiver of costs.  If that be the case then successive trials on liability and on quantum would be a complete waste of costs between two publicly funded parties with a third such party intervening.  The Claimant submits that the issues here are of considerable complexity, across a number of different heads of damages and cannot properly be said to have no real prospect of success.  It would be highly unusual for summary judgment to be granted whilst the trial of the action is part heard.  Further it is in the public interest that these matters should go to trial.  While the Untraced Drivers Agreement 2003 has rectified much injustice it does not help others who, like the Claimant, claim under the old arrangements.

13.	I now consider each item of damages claimed by Mr Evans in descending order of financial importance as listed by the First Defendant. Mr Evans claim is set out in Paragraph 14 of the Statement of Claim and in Further and Better Particulars and Replies to Requests for Further Information.

Claimant’s costs in MIB claim - £68787

14.	The Claimant seeks £22,054, his liability for costs to MIB and also £46,733 his own costs incurred in the High Court, Court of Appeal and in the unsuccessful petition to the House of Lords.  On the question of costs the Claimant draws attention to paragraphs 76-78 of the ECJ judgment.  These provide that it is for the domestic legal system to lay down the detailed procedural rules for safeguarding rights which individuals derive from community law in conformity with the principles of equivalence and effectiveness. “In particular it should assess whether in view of the less advantageous position in which victims find themselves vis-à-vis the MIB and the conditions under which such victims are able to submit their comments on matters that may be used against them, it appears reasonable, and indeed necessary, for them to be given legal assistance”.  The findings continue in terms of the ruling at the end of the judgment.

15.	The Claimant submits that at the time of his appeal to the Commercial Court and the Court of Appeal it was not yet established whether, as a matter of law, the MIB was bound to provide compensation in accordance with the terms of the Directive.  The matter was only clarified when the Court of Appeal established that the MIB is not an emanation of this state and also that the Directive could not be applied to the MIB indirectly through estoppel by convention and construction of the 1972 Agreement.  It is also submitted that it was reasonable for the Claimant to petition the House of Lords and that all these costs are recoverable because they would not have been incurred had the Secretary of State not been in breach of its obligations under the Directive.  Reliance is also placed on the fact that even the First Defendant submitted to the Court of Appeal that it was an open question whether the MIB, through estoppel by convention, was itself bound to provide compensation under the Directive.

16.	The First Defendant submits that if any Member State fails properly to implement an EC Directive and someone who suffers loss as a result first sues the wrong person advancing unsuccessful arguments such costs are not recoverable from the Member State.  There is no direct causal link between the two events.  It was not necessary for the Claimant first to sue the MIB.  The first action was unnecessary and not encouraged by the First Defendant.  Mr Roth emphasises the ECJ’s ruling that reimbursement is qualified by having to conform with the “principles of equivalence and effectiveness”.  The requirement is that victims of untraced drivers be treated in “like manner to the victims of traced or insured drivers”, as the Claimant himself puts it at Paragraphs 10(i) and (ix) of the Statement of Claim.  At Paragraph 10(iii) the Claimant identifies non compliance with the Directive as including the fact that a victim of an untraced driver may not recover his legal or other costs in the same “like manner”. 

17.	Dr Plender emphasises that he puts forward his argument on this point in summary terms and that the question is not whether those costs will be recovered but whether the prospect of that is real rather than fanciful or imaginary.  Nevertheless this aspect of the claim does seem to me to be far fetched and, indeed, fanciful.  The right to reimbursement of one’s own legal costs described by the ECJ is to treatment equivalent to that of other victims in the processing of the application for compensation. Other legal costs and those payable to a third party will only be recoverable if there is a “direct causal link” a concept on which Mr Roth did not elaborate much.  As in other areas a “but for” link is obviously not enough.  Otherwise a wide range of costs rashly or wisely incurred would be recoverable.  Similarly it is not enough for a claimant to say that his conduct was, from a particular stand point, reasonable although not actually necessary. As a result of the  Secretary of State’s failure to implement the Directive the Claimant decided to sue what turned out to be the wrong party and thus incurred expense and liability. There is however no direct causal link between the failure and the expense ,as opposed for example, to the alleged lost  interest. The expense claimed is linked only indirectly to the failure as it follows directly  from the decision to sue and the outcome of the litigation. However the link is approached I cannot see any English court permitting recovery of the legal fees incurred in pursuing this unsuccessful litigation however sensible it was to bring it.  Still less would an English court grant reimbursement from the First Defendant of legal costs which, in the exercise of a well informed discretion, it had ordered the Claimant to pay to the Second Defendant. The gap between the failure and the expense is too wide for any conventional approach to causation to bridge. 

Reduction of award by arbitrator  for contributory negligence - £11,687

18.	The Claimant contends that if the arbitration procedure had been fair, within the requirements of the Directive, there would have been no reduction for contributory negligence.  The Claimant relies on Paragraphs 56-58 of the ECJ judgment and in particular on the Reservation requiring that the procedure guarantee that victims are made aware of any matter that might be used against them and have an opportunity to submit their comments.  Mr Evans says that if he had been told that he faced an allegation that it was negligent to take packages from the roadside of a stationary vehicle he would have drawn attention to the precautions that he took, to the visibility of the parked vehicle to any oncoming traffic, the location of other parked vehicles, the infrequency of traffic and the light and road conditions.  The Claimant accepts that the ECJ did not hold that an oral hearing was obligatory but he argues that fairness required some other step to be available such as, for example, the arbitrator forming provisional conclusions and inviting further submissions following a “minded” letter as is the practice in some other areas.  Indeed the arbitration procedure now contained in Paragraph 22 of the Untraced Drivers Agreement of 14 February 2003 adopts just such a preliminary decision letter stage.

19.	The First Defendant responds that the ECJ upheld the procedural arrangements which applied in this case and the Claimant was made aware of matters that might be used against him as the Reservation required.  The Claimant was well aware of the issue of contributory negligence.  The Particulars to the notice of appeal to the arbitrator of 14 February 1996 make it clear that the Claimant’s central grievance was lack of evidence to support a finding of contributory negligence and a failure by MIB to set out the relevant calculations and percentage.  At that point Mr Evans submitted a statement in which he said that he had nothing to add to what he had said in previous statements except to mention that he did look up and down the road before he stepped out to walk round to the driver’s side of the car.  The statement added observations about a variety of other matters.  In January 1997 the Claimant sought permission to appeal and as regards contributory negligence identified eight points of fact before making four submissions to the effect that the arbitrator had got this wrong.  Permission was refused and the court applied the criteria then in force under the Arbitration Act 1979.  Mr Justice Longmore refused permission on this ground but granted it on the interest point.

20.	I do not consider that it is seriously arguable that the absence of the procedure suggested by the Claimant would amount to a failure to observe the terms of the Reservation in circumstances where Mr Evans and his experienced solicitors were aware of the issue of contributory negligence and had an opportunity to submit comments and then invoke procedures with appeal first to arbitration and then to the Court.  There is however a more basic problem for the Claimant.  I see no prospect at all of the Claimant overturning the finding of contributory negligence.  The accident was very distressing to Mr Evans but the surrounding facts were mundane and any experienced personal injury practitioner would intuitively have had regard to the matters now put forward in Dr Plender’s skeleton argument without having to spell each one out in detail.  Queens Counsel of immense experience and high standing in this field had regard, as one would expect, to the relevant considerations in reaching what is necessarily a judgment, about the appropriate percentage of deduction for contributory negligence.  The Claimant has not begun to build a case which shows that a smaller, or no, reduction should have been made.  Such a claim is bound to fail.  

Solicitors fees for making claim under 1972 Agreement and taking the matter to arbitration - £7,984

21.	The Claimant submits that these costs were incurred directly in the processing of the application for compensation.  The Claimant points to the provision for contribution towards legal costs by MIB now contained in Paragraph 10 of the 2003 Agreement.  In the absence of any legal aid or public funding available to victims, in contrast to other cases, it was reasonable for the Claimant’s solicitors to charge a contingency fee, in this case one of 15%. 

22.	The First Defendant argues, to me unconvincingly, that there is no requirement at all imposed following the ECJ decision, to provide for costs of submitting a claim.  The First Defendant submits further that if there is a right to costs it cannot extend to any amount however incurred or without regard to any offer received on the MIB.  The principle of equivalence should prevent the recovery of a contingency fee since this would not be available to a victim of a traced driver going through the courts – but equivalence perhaps falls down because such a driver might have access to public funding whereas Mr Evans would not have done.  The First Defendant also argues that since the arbitrator ordered the Claimant to pay her fee, because there were no reasonable grounds for his appeal, she would equally have awarded MIB its costs against the Claimant had she possessed that power.  The First Defendant puts forward further arguments that the Claimant would have been financially worse off had there been provision to award costs since an “equivalent” costs procedure would have included a mechanism like that contained in CPR Part 36. The Claimant replies that he should not be penalised for the consequences of not accepting the equivalent of a Part 36 offer when the offers were not expressed in terms that spelled out the consequences.  This led to further exchanges illustrating some of the difficulties in assessing what might have happened had different cost regimes (the likely conditions of which are also in dispute) applied in particular circumstances.  The First Defendant has retained an independent costs specialist to calculate, on admittedly limited information, the fees which the Claimant’s solicitors might have recovered should these have been assessed by a costs officer.  The total profit costs inclusive of VAT are suggested to amount to some £840.13.  While I have a sense that the amount of costs claimed may be too high there is a range of potential permutations here. The matter is not straightforward and  in view of the uncertainties which need to be resolved the First Defendant cannot show that the claim fails at the summary judgment stage.

Interest on award £6254

23.	The Claimant contends that since the right to interest on the award by MIB is established by the ECJ judgment at Paragraphs 69-71, the United Kingdom’s arrangements for implementation of the Directive were defective at the time of the award and the Claimant has a good claim for lost interest. The First Defendant argues that the Claimant would never have received an award of interest even had this been theoretically available.  The First Defendant argues that when updated for inflation to the date of the arbitrator’s award the value of the MIB offer on 6 August 1994 was £54,735.  Thus the Claimant would have been better off had he accepted the MIB’s offer whether or not the arbitrator had awarded interest calculated by the Claimant to be £52,883.27.  The First Defendant’s argument, draws upon an observation made by Mr Justice Thomas when considering leave to appeal in 1997.  It does however depend upon making an inflation adjustment between August 1994 and August 1996 in the manner conventionally done with interest calculations.  An inflation adjustment is not normally performed and the point does not appear ever to have been argued.  The First Defendant’s argument may have merit but it does not follow that the Claimant’s claim has no reasonable prospect of success.

Solicitors costs of application to set aside its statutory demand - £1,028

24.	Although this claim does not find its way into Dr Plender’s skeleton argument it is nevertheless persisted with.  It apparently relates to legal costs incurred by Mr Evans current solicitors setting aside a statutory demand made by MIB.  I have difficulty in understanding how there can be a direct causal link between the First Defendant’s failure properly to implement the directive and these costs. This claim is hopeless and is within that category of argument which risks casting doubt on the plausibility of others.

Arbitrator’s fee - £150, the video and dishonesty

25.	The arbitrator stated at the end of her decision in (5):-

	“In my view the Applicant was dishonest in the account he gave the doctors as to how his injuries affect him, and there were no reasonable grounds for this appeal.  Consequently in the exercise of my discretion I decided that the Applicant pay my fee”.

	The size of the fee is only £150 but behind it is a claim put forward on behalf of the Claimant by his solicitor Mr Aaron that if his client had had the benefit of a procedure such as that required by the Reservation he would have been able “to adduce medical evidence to disabuse the arbitrator of the impression, apparently gained from her viewing a video recording, that Mr Evans’ injuries were much less substantial than he claimed and that he had been dishonest in exaggerating them”.  Mr Aaron then suggests that with the benefit of such a procedure his client would have recovered more.  This was the basis for Dr Plender’s submissions that his client is entitled to what he terms unliquidated damages.  The Claimant accepts that he and his advisers had the opportunity of looking at the video but claims that it was never suggested that he had been untruthful or that the MIB was going to invite the arbitrator to make a finding to that effect.  The Claimant now accepts that there was no comment from either party to the arbitrator about the video but insists that he was not made aware of any matter that might be used against him and did not have an opportunity to submit comments.  The claim is that if given a “minded to” letter the Claimant would have invited a doctor to view the video and in other ways have dispelled the arbitrator’s impression.  When I asked Dr Plender what additional evidence might have been available to deal with the arbitrator’s conclusion he told me, on instructions, that his client would explain how his cousin had been present at the time and that it was his practice, when in public, to try to conduct himself so that the limitations on movement which he found to be embarrassing were not visible to others.  It would further be suggested that, as man of good character, the Claimant would not have deceived his doctors.  Before turning to the Defendant’s response I have to observe that these submissions seem to me unreal given the practicalities of everyday personal injury litigation.  The Claimant was advised by specialist solicitors who were sent a copy of the video but chose not to make observations about it.  Solicitors in this area know perfectly well why Defendants rely on video evidence. One sees weekly in the County Court , case management disputes about the use of these videos.  

26.	The submissions in opposition to this claim were led by Mr O’Brien QC for MIB and are set out in detail in his helpful supplemental skeleton argument.  MIB suggest that if Mr Evans had any honest explanation to make this would have been produced at some point in the last 9 years, the solicitors would have known the purpose of the video, it spoke for itself, the matter was never raised by the Claimant in appeals or subsequent litigation, the Claimant had a remedy under Section 23(2) of the Arbitration Act which he chose not to invoke and if he had an objection to raise it was his duty to do so promptly.

27.	MIB also contend that the Claimant should not be permitted now to pursue a matter which, if it had any substance, would in the ordinary way have been raised in the Arbitration Act proceedings many years ago.  Although relying on what is called the Rule in Henderson -v- Henderson (1843) 3 Hare 100 the submissions really falls within the discussion of abuse of process to be found in the speech of Lord Bingham in Johnson -v- Gore Wood [2002] 2 AC 1 at 22 and at 31 A-F.  The approach to be adopted is less dogmatic than before and involves a broad merits – based judgment taking account of the wide variety of considerations identified by Lord Bingham. It is not necessary for my decision for me to conduct that wide ranging exercise. There is however merit in the observation that if Mr Evans was going to challenge the conclusions based on the video he should have done so when the opportunity arose in his appeal to the Commercial Court.

28.	I state, what should be obvious, that the arbitrator did not reduce the award of damages because of her conclusion that Mr Evans had been dishonest.  She reached an assessment of the loss which the Claimant suffered having regard to all the material including what the video revealed about his condition in the context of the medical appointment he attended at about the same time and of the other medical evidence.  The Reservation requires that victims are made aware of any matter that might be used against them and have an opportunity to submit their comments.  That is precisely what happened in this case.  Furthermore, on the facts it is fanciful to suppose that a trial judge in England, against the background set out in the MIB’s supplemental skeleton argument, would conclude at trial that the arbitrator was mistaken and that the outcome should be different. Leaving aside the Henderson abuse point it seems to me that Mr Evans’ claim is bound to fail.

Summary judgment – no real prospect of success

29.	I accordingly conclude that the Claimant has no real prospect of success in establishing any of his claims for damages with the exception of those relating to legal fees for making the claim under the 1972 Agreement and in the arbitration and as regards interest on the award.  The damages claim will therefore not exceed £13,000.

30.	The Claimant points out that he has a claim for a declaration independent of the damages which he seeks.  When I asked Dr Plender to explain the utility of that declaration I was unconvinced by his reply.  As was pointed out by the Defendants the claim for a declaration is expressed in the most general terms (“declaratory relief”).  A declaration appears to serve little purpose in a case where damage is an essential part of the cause of action and is indeed its essence.

Summary judgment – no other compelling reasons

31.	The Claimant submits that there are others who were present in court at the hearing of the applications and whose rights may be affected by the outcome in his case.  The First Defendant submits that there may be two or three but none with the same particular facts as the Claimant.  There is  no evidence about this.  The matters of which the Claimant complained have been rectified by the February 2003 Agreement. It is also submitted that it would be highly unusual for summary judgment to be granted whilst the trial of the action was part heard.

32.	These are not considerations which merit the cost and inconvenience of what will be two trials the first a comparatively short one on liability and secondly, if the indications from the Defendants are anything to go by, a more lengthy hearing on quantum.  While one can understand disappointment that a case that has lasted so long and climbed to such judicial heights should end with a summary judgment application that for the reasons I have given is, except as regards the 2 items I have identified, its inevitable fate.

Abuse of process

33.	The Defendants claim that if the First Defendant obtains summary judgment on the MIB action costs and the contributory negligence claims it is an abuse of process for the Claimant to be permitted to continue this action.  This is because by open letter dated 5 September 2005 the MIB offered to waive enforcement of the costs judgment against the Claimant totalling, with interest, £36,000.  The terms of that offer were clarified at the hearing and it remains open for acceptance.  The Claimant’s solicitors acknowledge that any damages their client recovers would be payable direct to the MIB.  It follows that anything the Claimant recovers at trial will be less than what he would gain by accepting the MIB’s offer.  It is submitted that the holding of trials on liability and then on quantum, with both Claimant and First Defendant in effect publicly funded would be a complete waste of time and money.

34.	This approach is rejected by the Claimant on the grounds that even if the offer made by the MIB were a Part 36 offer it would not be a sound basis for discontinuing the action.  A Part 36 offer is not there as a basis for summary judgment or strike out but to determine liability for costs incurred by continuation of the trial after that.  Even more a Defendant in one action cannot resist continuance on the ground of an offer that has been made by a Defendant to another action.  There is also an objection on the figures which has fallen away following clarification.  

35. 	There was little debate at the hearing about the power of the court to strike out under CPR 3.4 in these circumstances.  I have considered the notes to the CPR and the cases drawn to my attention and in particular Johnson -v- Gore Wood referred to above. I have no doubt that the court does have power to strike out so as to prevent the claim going forward in the circumstances which I have identified. Of course this  abuse of process claim is broader and more difficult to establish than one based on Henderson grounds but the guidance given by Lord Bingham is clear. A litigant is not to be denied the right to a trial without scrupulous examination of all the circumstances. However this does not mean that the court must hear in full and rule on the merits of any claim put forward. The court has a duty to exercise what Lord Diplock in his speech in Hunter quoted by Lord Bingham at page 22 of Johnson calls the salutary power to prevent misuse of its procedure in a way which although consistent with the rules is manifestly  unfair to a party or brings the administration of justice into  disrepute. The circumstances in which the power may be exercised will be very varied

36.	Continuation of this action would be a pointless waste of time , costs and other resources. Any purpose the action had beyond the financial has already been achieved. The fact that Part 36 offers serve a different purpose  is irrelevant. What counts is the reality before me  which is not much different from one party insisting on a trial when the other is offering to pay in full the liabilty which remains in issue.The Claimant points out that at earlier stages of these proceedings very eminent judges had been highly critical of the case while still accepting that it was their duty to allow it to continue.  I trust that the conclusion which I have reached reflects the fact that the action has now reached a different stage and not the fact that I have underestimated the importance of the remaining issues.  Dr Plender sees this approach as a device to deprive the Claimant, six years after instituting the action, and after receiving the benefit of the judgment of the ECJ, of the High Court trial which justice  requires. But the Claimant is not entitled to a trial regardless. The Claimant and his lawyers can be rightly proud of their achievement in  bringing about the changes in procedure which have resulted from this reference to the ECJ. But the significance of the case so far is not a reason for continuing to the bitter end with a piece of litigation which in my judgment will have nothing to show for further expense of time and costs .In 2002 The Court of Appeal observed that unless the Claimant succeeded at every point before the ECJ he would end up with nothing. He did not succeed at every point.

37.	There will accordingly be judgment for the First Defendant on its application.  I shall be grateful for any corrections of the usual kind, for a draft order and for brief written submissions before any argument about costs.  There may well be further procedural matters to resolve arising out of this decision and I ask that the parties draw these to my attention.