Simon Wheatley was instructed to act on behalf of the claimant on this personal injury case:

On 4 July 2013 Mr Murphy, a lorry driver, fell and injured himself at work. He brought a claim for damages caused by the injury to his right wrist and left shoulder. He said he still had pain and restriction as of the date of trial. The Defendant alleged he was fundamentally dishonest by pretending that his pain and symptoms had persisted beyond a period of six months. They relied on CCTV and Facebook entries. In addition, while they accepted primary liability for the accident, they alleged he had contributed to it by his own injury.

The judge made the following findings/orders:

  • The Claimant was not fundamentally dishonest.
  • Whereas his injuries had objectively largely resolved, the Claimant genuinely believed they persisted.
  • The Claimant had not contributed to his accident and was entitled to 100% damages.
  • Damages for GDs (£9,000), SDs (£3,827.67) and interest were worth £13,431.97.
  • The Claimant made a Part 36 offer to settle his claim for the sum of £12,500. Service of a Part 36 by email is not valid service unless previously agreed by the recipient.
  • However, the actions of the Defendant solicitor in rejecting the offer two days after receipt constituted a waiver of defective service.
  • The Court had the power under CPR3.10 to cure the defect in service and it was appropriate to apply that discretion.
  • The Defendant should bear the costs of the claim. Those should be at the standard basis up to the service of the PT36 + 21 days (10.11.18). Thereafter they should be on an indemnity basis, either because the Defendant had failed to beat the Pt 36 offer or because the Defendant had alleged fundamental dishonesty and failed.
  • In considering the consequences of Pt 36, the Defendant should also pay the Claimant:
    1. Interest on GDs and SDs at the usual rates up to 10.10.18 and then at an enhanced rate of 5.75% from 11.10.18. (CPR36.17(4)(a))
    2. [costs on an indemnity basis, as set out above (4(b))]
    3. Interest on costs at 5.75%, (4(c))
    4. A 10% uplift on GDs and SDs (12,827.67) £1,282.77. (4(d))
  • Thus, total damages and interest as enhanced = £15,392.02
  • In passing, the judge criticised the Defendant’s orthopaedic expert, Mr Lyall for a lack of impartiality (see paragraph 126 -128).
  • The judged also criticised the manner in which the Defendant had set the expert agenda (paragraph 129)
  • The Defendant’s application for multiple permissions to appeal were dismissed by the judge.

View Judgment here: Murphy v The Doctors Laboratory Ltd.Judgment

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