Case No.  9CH90122
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
CHESTER DISTRICT REGISTRY
The County Court,
Little St. John Street,
Chester.

Date: 14th September 2012

Before:

HIS HONOUR JUDGE BARNETT

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Between:
ALEX SADLER
Claimant
and

GERALD PEART
First Defendant
and

MOTOR INSURERS BUREAU
Second Defendant

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MR. ROWLEY QC appeared on behalf of the Claimant.

The First Defendant did not attend and was not represented.

MR. GRIMES QC appeared on behalf of Second Defendant.
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J U D G M E N T

1.	JUDGE BARNETT:  This matter is listed before me today to approve a settlement.   The claimant is Alex Sadler, and she was born on 7th January 2000.   She is therefore twelve years of age.   On 16th June 2004 when she of course was four years of age, she suffered very severe injuries as a result of an accident for which the defendant, Gerald Peart, was responsible.   He is the first defendant and has taken no part in these proceedings.   The second defendants are the Motor Insurers Bureau.   After a period in hospital Alex went to live with her grandparents, Mr. and Mrs. Coleman, and she did so because not only did she suffer the tragedy of the injuries she sustained but also her mother was killed in the accident.  Her mother and father had been, as I understand it, estranged for some years prior to the accident, and Alex’s father has, sadly, taken no part in providing her care.
2.	It accordingly fell to her grandparents to step into the breach, and that they did in commendable fashion.   
3.	I need not devote too much attention to the background to this matter.  It is sufficient to observe that the matter proceeded to a joint settlement meeting on 21st March this year which, regretfully, failed to produce an agreement, but as a direct consequence of which a Part 36 offer was made on behalf of Alex.   That provided for the following:  a lump sum in the total of £3 million to cover all heads of damages except for future care and case management;  and a periodical payments order in respect of future care and management at the rate of £90,000 per year, payable annually in advance on 1st December 2012 until 2017, uplifted to £130,000 per year from 1st December 2018 for life.
4.	That, then, in essence summarises the proposed settlement and, needless to say, I have been provided with the opinion of counsel, Mr. James Rowley QC, in respect of the proposed settlement.   As I pointed out during the course of the hearing, he also provided a helpful schedule showing how negotiations had proceeded between the parties.   A draft order has also been prepared to give effect to the terms of settlement agreed between the parties.   Regretfully it is not subject to full agreement as there are two issues which have arisen between the parties in respect of that schedule, and I propose to deal with those two issues at this stage.
5.	Essentially the issues revolve around the terms of certain provisions contained in the schedule to the order in respect of the periodical payments provisions.   The first area of dispute centres upon paragraph 6 of Part 1 of the schedule, and paragraph 6 as presently drafted provides as follows:  “The claimant, or those acting on her behalf, shall, by 1st November in each year, provide to the second defendant a certificate or letter from the claimant’s general practitioner that the claimant has been seen by the general practitioner within the preceding two months and that the claimant is still alive, and those acting on behalf of the claimant or her estate shall immediately notify the second defendant upon her death.”   That is the form of words contended for by Mr. Grime on behalf of the second defendant.
6.	Mr. Rowley on behalf of the claimant seeks to insert within paragraph 6 additional words so that the certificate or letter need not be provided by the claimant’s general practitioner but could be provided by her professional financial deputy or professional trustee from time to time, or in default of either, from the claimant’s general practitioner.   The claimant’s argument essentially revolves around the fact that the order as drafted is not flexible.  It involves a trip on a yearly basis to the general practitioner, and in an ordinary case where one was concerned with someone who was able-bodied that might not seem to be a burden.   However, given the claimant’s condition, it would involve the claimant and her carers in both considerable effort and also some, albeit modest, expense.   It is submitted on her behalf that the additional provisions which I have indicated would create flexibility and would obviate the need for these trips to see the doctor on a yearly basis.
7.	The argument on behalf of the second defendant is that the provision as drafted in the order before me is very much in standard form.   It is something which should not be departed from, and provides appropriate balance between the interests of the litigants.
8.	I, of course, acknowledge that there is a benefit which inures to litigants in general of having structure and, in appropriate cases, model orders;  but of course, in this case I am concerned with a claimant who is a protected party and the first duty upon this court as I perceive it is to approve a settlement which is for the benefit of that protected party, and in those circumstances the claimant’s interest should not yield to the second defendant’s imperative of standardisation.   That is particularly so, in my judgment, as the proposed amendment creates no particular difficulty and is, of course, capable of being readily adapted into a standard or model form of order for if the claimant concerned were not a protected party then the provisions in respect of a financial deputy or professional trustee would simply be otiose, and the provisions in respect of the general practitioner would apply.
9.	Having given consideration to this matter I approve the amendment as proposed on behalf of the claimant.
10.	The second issue with which I am concerned is also in respect of Part 1 of the schedule, and in particular in relation to paragraph 9, and the part with which I am directly concerned is in paragraph 9.1 of the schedule.   It would be as well if I were to read what is proposed on behalf of the second defendant:  “If the Office for National Statistics (ONS) does not publish by 1st November in the relevant year all the relevant data and as a result the second defendant is unable to perform the relevant calculations under Part 2 to recalculate the periodical payment due to the claimant before 1st December of the relevant year, the second defendant shall, on 1st December of the relevant year, make the periodical payment (a) in the same sum as that paid in the previous year;  or (b) in the increased/decreased sum recalculated in accordance with the relevant data for the previous year where, in the relevant year the annual sum was due to be increased or decreased or commenced under the relevant sub-paragraph of paragraph 1 or of Part 2.”
11.	Mr. Grimes submits that it would be appropriate to include such a provision, and he resorted to making some calculations and demonstrated that having regard to the operations of paragraphs 9.2 and 9.3 of the schedule, the court was concerned with a very small amount of money, a potential loss somewhere in the region of £10 or so which I probably unfairly described as “peanuts” within the context of this case.   
12.	The argument on behalf of the claimant is encapsulated in sub-paragraph (iv) of Mr. Rowley’s submissions or note on the draft order where he wrote as follows:  “The MIB addition, option B, gives it the choice of either paying the same as the last year, or paying a sum applying the same percentage change up or down as applied the previous year.   Thus, if the index moved up the previous year, the MIB can opt simply to pay the same as last time, i.e. not reflect the upward movement in its interim calculation of the PPO.   If the index had gone down the previous year, however, it can apply the same downward variation, so the claimant never gets the benefit of an upward trend whilst the MIB gets the benefit of a declining trend.”   In answer to the point that the court was effectively concerned with a relatively trivial amount of money Mr. Rowley asked the question, perhaps rhetorically, “Why should the claimant lose anything?” and it was, as he put it, the case of the MIB trying to obtain an edge.
13.	Accordingly, the claimant submits that so far as the drafting is concerned, the drafting should adhere to what is the general or model practice, and that the alternative B clause imposed in this draft order should be deleted.   Again, I bear in mind the protected status of the claimant and that she should not be in any way prejudiced, be it small or large, and I accede to Mr. Rowley’s submissions in respect of this matter and accordingly the alternative B section of paragraph 9.1 of the schedule will be deleted.
14.	Having dealt with that, I then turn to the principal issue with which I am concerned, namely whether or not to approve the settlement.   Firstly, I am entirely satisfied that this is an appropriate case for a lump sum award, coupled with a periodical payments order.   I am reinforced in that by having had the opportunity of reading the report of Edward Tomlinson of IMSZ(?) Management.   I have to say that having considered some of the papers before I got to that report it seemed to me to be a wholly appropriate case for such an order and I was pleased to be reinforced in that view by having had the opportunity to consider Mr. Tomlinson’s report.   I am grateful to both counsel for the help they have given throughout this matter, and I am grateful of course in particular to Mr. Rowley for his opinion and his analysis of the issues.   
15.	I can say that I am entirely satisfied that this is an appropriate settlement and I unhesitatingly approve it.
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