B2/2001/2562
Neutral Citation Number: [2002] EWCA Civ 827
IN THE SUPREME COURT OF JUDICATURE       
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TORQUAY COUNTY COURT
(His Honour Judge Griggs)

								Royal Courts of Justice
								Strand
								London WC2

								Thursday 23rd May, 2002

B e f o r e:

LORD JUSTICE LATHAM
MR JUSTICE HART

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HELEN WILLIAMS
Claimant/Appellant

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DEVON COUNTY COUNCIL
Defendant/Respondent

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040
Official Shorthand Writers to the Court)

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MR M MELVILLE-SHREEVE (Instructed by Messrs Eastleys, Brixham, Devon TQ5 8LZ) appeared on behalf of the Appellant

MR P VINCENT (Instructed by Messrs Veitch Penny, Exeter EX1 1UP) appeared on behalf of the Respondent
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J U D G M E N T
1.	LORD JUSTICE LATHAM: This appeal comes before the court today by permission of Hale LJ. There are three grounds upon which permission was granted. The first two grounds relate to the substance of the action, which was a claim for damages for personal injuries arising out of an accident that the claimant had at work. The first ground related to the fact that the judge in his judgment concluded that the appellant was one‑third to blame for the accident which befell her, and it is submitted that that was wrong. Secondly, the judge awarded £9,000 for general damages for the injury to the shoulder which was the substantive injury for which she suffered, and it is submitted that that is wrong. Those two grounds are grounds relating to issues which this court is reluctant to interfere with a judge's views about, and it is clear from the reasons given by Hale LJ that she may well not have given permission to appeal on those two grounds were it not for a third ground of appeal which relates to the order that the judge made as to costs.
2.	The position was that the respondents had made a payment into court which was made up of £10,000 as the sum paid into court, but grossed up to something over £25,000 by reason of the certificate given by the CRU in relation to the benefits that the appellant had received. Those benefits fall to be aggregated to the sum paid into court for the purposes of Part 36 of the Civil Procedure Rules. It is the gross sum which is the primary figure to be considered by the court when considering ultimately how to exercise any discretion in relation to costs, as explained in particular in Practice Direction 36-010.
3.	The outcome of the trial was that the appellant in fact received a total of £23,000 or thereabouts by way of damages. The judge made an order based upon the fact that as a result the appellant had not obtained more than had been offered under the Part 36 payment, and accordingly gave the appellant her costs to the payment in but the respondents their costs thereafter.
4.	Overnight, after the judgment had been given, counsel for the appellant appreciated that the judge's judgment had in fact restricted the period for which the appellant was entitled to loss of earnings in a way which would affect the benefits which fell to be deducted from her damages under the provisions of the Social Security (Recovery of Benefits) Act 1997. He accordingly, the next morning after the judgment, made application for permission to appeal in relation to the two grounds to which I have already referred, but also the third ground in relation to costs; although he accepts that he had put forward no reasoned argument against the order that was in fact made.
5.	The basis upon which he submits that the order was inappropriate is that if in fact the amount to be deducted by way of social security benefits is (as may in the event be) as low as £9,000, the consequence will be that the appellant will have been held entitled to damages after deduction of benefit of some £14,000 as opposed to the £10,000 or thereabouts which was the face value of the Part 36 payment. In order for those benefits to be reduced an appeal has to be made pursuant to the provisions of the Act and can indeed only be made, again under the provisions of the Act, after the claim has been disposed of.
6.	The judge refused permission to appeal at that time. Whether the issue was put as clearly as may be to him at that stage or not we know not, but it was the subject of the application for permission to appeal to this court and raised, according to Hale LJ, an issue which was worthy of consideration by this court. She referred to a previous decision of this court relating to a previous regime relating to the recovery of benefits Davies v Inman [1999] PIQR Q26.
7.	The problem today, however, is this. The appeal has not yet been concluded. It may be that the benefits to be deducted will be reduced to the figure of £9,000 or thereabouts which Mr Melville-Shreeve hopes, but that is all that can be said today. It seems to me that in those circumstances it is inappropriate for this court to embark on an appeal from the decision of a judge in relation to costs where the issue which is sought to be argued was not argued before the judge and requires the permission of this court to submit new evidence, there being at present no evidence which can be submitted in order to challenge that decision.
8.	One course which could be adopted by this court today would be to deal with the appeal robustly in those circumstances, and, certainly in relation to the costs matter, dismiss the appeal on the basis that the matter was not argued before the judge and that there is no further evidence before this court which could justify this court interfering with the judge's decision. That would leave it open to the appellant to make application to the judge under what was County Court Rule 37(1), which remains in force in such circumstances, enabling a litigant to ask for a rehearing. That clearly would involve the matter going back to the County Court judge. The issue being one of significance, the matter may well then be the subject matter of a further appeal to this court and the matter would therefore come back to this court after the expenditure of further costs.
9.	It is in any event, it seems to me, an issue of some significance in practical terms to those concerned with personal injury litigation and the way in which Part 36 payments can be fitted comfortably into the statutory structure relating to social security benefits.
10.	It seems preferable, therefore, for this appeal to be adjourned in order for the results of the appeal to be known, the consequence will be that if the appeal is not successful or successful to a degree which enables the appellant to continue to raise the issue, that issue at least would be resolved and it may well be that the appellant would see that there was perhaps little purpose to be served in pursuing the other two grounds.
11.	If, on the other hand, the appeal is successful to an extent which enables the issue of significance to be argued in this appeal, it will be advantageous generally for that to be done. It is for those reasons that I would adjourn this appeal, although we shall have to consider with some care a timetable to ensure that the matter does not drag on longer than is necessary.
12.	MR JUSTICE HART: I agree.
13.	The third ground of appeal raises points of both substance and procedure. The point of substance relates to the effect of the reduced certificate on the exercise of the court's discretion under Part 36, rule 22 and I agree that it is inappropriate to hear that unless and until it is known whether the certificate has been reduced.
14.	The procedural points arise out of the fact that the point was not taken before the judge, and no attempt was made to explore the possibility of arguing the point before him on proper evidence.
15.	Both points it seems to me are of some general importance to practitioners, and it would be unsatisfactory to decide either without knowing what is the true position in relation to the certificate.
ORDER: Appeal adjourned; case to be stood over to the first open day after 1st October on the basis that by two weeks before 1st October the appellants notify the court and the respondents of the state of the appeal, so that consideration can then be given to what steps to take (if any) in relation to it; directions to be retained to Latham LJ to deal with on paper; costs reserved.
(Order not part of approved judgment)
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