Claimant loses 15% of costs for “engrained” exaggeration

Rugby posts: Accident injured claimant

The High Court has cut a costs award to a seriously injured claimant because exaggeration was “built into the structure” of the way the claim was presented before and during the trial.

Mrs Justice Farbey said Brian Morrow was not dishonest, but “exaggeration and an inflated claim for damages” had led to “unnecessary expense” which justified reducing the defendant’s costs bill by 15%.

The judge that said that, even with skilled lawyers, “the claimant’s exaggeration operated across multiple and cumulative witnesses”, including his wife, his line manager and the “exaggerated instructions” he gave to experts, and “across multiple days in court”.

Farbey J said that in a case where exaggeration was “engrained”, she gave “considerable weight” to it under CPR 2(5)(d).

“Some weight” should also be given to the fact that Mr Morrow’s part 36 offer was, at £800,000, “multiple times higher” than his damages award of £285,700 – although he was entitled to his costs as he beat an earlier part 36 offer from the defendant.

The court heard that Mr Morrow was struck on the head by a collapsing rugby post while watching a game of rugby.

The background to the accident, set out in Farbey J’s main judgment in February, was that the claimant, aged 46 at the time, was watching his son play rugby with his wife when the post fell on him, leaving him unconscious. Mr Morrow’s claim was for “in excess of £1m”.

Farbey J ruled that Mr Morrow, an independent financial adviser, would have “continued to work until his 55th birthday but no longer” if the accident had not happened.

Delivering judgment on costs in Morrow v Shrewsbury Rugby Union Football Club [2020] EWHC 999 (QB), the judge said that a month before the trial, in October 2019, the claimant made his part 36 offer – the defendant made an offer of £110,000 in June 2018.

The judge note that Mr Morrow’s “psychiatric or psychological condition” may have made him “prone to exaggeration and prone to pursue his claim beyond what common sense and realism would dictate”.

But he was at all material times able to instruct and take advice from his lawyers.

“Litigation involves strategic decisions. There is – and could be – no suggestion that he lacked the capacity to take them. I do not accept that he would have been unable rationally and reasonably to make decisions in his own case. He chose to put an exaggerated claim to the court.”

This prolonged the trial because of the lengthy cross-examination of multiple witnesses, causing unnecessary costs.

At the same time, the defendant’s part 36 offer – though closer to the final award than the claimant’s – “represented an assessment of the value of the case which I rejected”.

The defendant denied that the accident caused the claimant to be unfit to work, and chose to contest almost every allegation and almost every issue relating to quantum.

“In my judgment, a deduction of 15% is broadly appropriate to mark the additional costs caused by the claimant’s exaggerated case. A higher deduction would in my judgment begin to make inroads into areas in which both the claimant and the defendant overstated their respective cases.”

Farbey J said she had considered whether a reduction of 15% was “too little to be meaningful” and could encourage other litigants to take up “disproportionate” court time.

“I have come to the conclusion that, in the context of a seven-day trial with very numerous witnesses, the overall costs are bound to be high enough that a 15% reduction will be meaningful.

“It was not disproportionate of the defendant to seek a reduction in these circumstances.”

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