The Court of Appeal has recently upheld a County Court Judge’s decision to award damages to a former miner who complained that he had been under-compensated in an industrial injury scheme. One of the reasons given was that the Defendant’s explanation for the Claimant’s conduct was implausible in relying on a steady state of dishonesty interrupted by a brief “outburst of honesty” before he reverted to his mischievous ways in bringing the professional negligence claim.
The Claimant was an ex-miner who applied in 1999 to the government-endorsed scheme for compensating former NUM / British Coal miners for Vibration White Finger (“VWF”) injuries sustained during work with heavy power tools. The scheme had been the result of detailed negotiations between representatives of the unions and former workers and those of the employers. In 2002, while represented by Raleys, a solicitors’ firm, he accepted a settlement of his claim at around £10,800 for general damages and his handicap on the labour market. He later sued Raleys for failing to advise him of the advantages for holding out for an additional head of loss for “services” such as DIY, gardening and car maintenance.
At the time of the decision to settle, the Claimant knew of the possibility of such an additional award but was advised by Raleys that if he held out for it then it would delay the overall settlement and he would not be entitled to any further interim payment while waiting. He told the solicitor that he was short of cash and in need of funds to pay for a surprise wedding anniversary trip, so he agreed the settlement. In fact, the correct advice would have been that a further interim payment of around £3,000 would have been available if he wanted to hold out for a services claim. Raleys had been negligent not to tell him this.
At trial, the Defendant’s case was advanced by way of a “full frontal attack” on the Claimant’s honesty. The allegation was that he abandoned his services claim because in fact he knew that he had never had VWF at all and he thought it best to take what was available.
The trial judge found the Claimant to be a poor historian and an unimpressive witness – but not a dishonest one. What is more, the judge found that there was nothing to lose by holding out for the services claim and no sensible person would have abandoned it in such circumstances.
The Court of Appeal agreed with this point about his motivation and with a point made by his Counsel, namely that on the Defendant’s case required him to be an unsophisticated but dishonest person who demonstrated a “sudden outburst of honesty” by abandoning the services claim – before reverting to type and advancing a dishonest professional negligence claim.
This part of the analysis is something to bear in mind: judges are usually attracted by points which question and illuminate the motivation of a litigant or witness to help understand which version of events is more likely. Even in these days of fewer cases being fought to trial there is enough of a reserve of judicial experience to see that people – including dishonest ones – don’t generally behave as the Defendant’s characterisation required.
It must remain a matter of speculation whether any of the judges involved in the case were at all influenced also by the fact that Raleys acted for over 12,000 former miners and made millions of pounds from the scheme before being heavily criticised by the local MP and the SDT, with a number of partners being suspended and fined for their conduct related to it. This case of modest financial value reached the Court of Appeal because of the many others in the pipeline.
See Barnaby v Raleys  EWCA Civ 686.