Skeleton argument (interim payment) PDF

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IN THE HIGH COURT OF JUSTICE Claim No. - QUEEN’S BENCH DIVISION MANCHESTER DISTRICT REGISTRYBETWEEN MR JONATHAN REESE Claimant andEXPRESS DELIVERY LIMITED Defendant ___________________________________SKELETON ARGUMENT FOR INTERIM PAYMENT APPLICATION ON BEHALF OF THE CLAIMANT ________________________...

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IN THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION MANCHESTER DISTRICT REGISTRY

Claim No. -

BETWEEN MR JONATHAN REESE Claimant and EXPRESS DELIVERY LIMITED Defendant ___________________________________ SKELETON ARGUMENT FOR INTERIM PAYMENT APPLICATION ON BEHALF OF THE CLAIMANT ___________________________________ Introduction 1. This is an interim payment application in the sum of £40,000 made on behalf of Mr. Jonathan Reese (hereinafter referred to as the Claimant (C)), pursuant to CPR r.25.7. Relevant Documentation: 2. In C’s view, the court will likely benefit from the following relevant documentation provided prior to the present interim payment application hearing: a. Particulars of Claim (hereinafter referred to as POC); b. Defence; c. Photographs of the Accident Locus (hereinafter referred to as PAL1, PAL2 & PAL3); d. Police Accident Report dated 01 March 2018 (hereinafter referred to as PAR); e. Witness statement of C dated 03 August 2020 (hereinafter referred to as WS/C); f. Witness statement of Mr. James Anand, C’s Spouse, dated 03 August 2020 (hereinafter referred to as WS/JA); g. Witness statement of Mr. Daniel Gibson dated 05 October 2020 (hereinafter referred to as WS/DG); h. Witness statement of Mr. Adam Bukowski dated 05 January 2021 (hereinafter referred to as WS/AB); 1

i. Witness statement of Mrs. Janelle Daniels dated 05 January 2021 (hereinafter referred to as WS/JD); j. Witness statement of Mrs. Charlotte Scriven dated 04 January 2021 (hereinafter referred to as WS/CS); k. Medical Reports No.1 & 2 of Dr. Ahmad Azad dated 06 July 2019 (hereinafter referred to as MR/AA1) and 04 January 2021 (hereinafter referred to as MR/AA2) respectively; l. Medical Report of Dr. Nicola Preston dated 06 July 2019 (hereinafter referred to as MR/NP); and, m. Medical Report of Mr. Rupert Elliott dated 19 February 2021 (hereinafter referred to as MR/RP). Factual Background The test at CPR r.25.7 3. This interim payment application, in the sum of £40,000 made on behalf of C, is pursuant to CPR r.25.7 4. Rule CPR r.25.7 dictates that: 1) The court may only make an order for an interim payment where any of the following conditions are satisfied:

c. it is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against the defendant from whom he is seeking an order for an interim payment whether or not that defendant is the only defendant or one of a number of defendants to the claim; 4) The court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment. 5) The court must take into account – a. Contributory negligence. Relevant Case Law and Legislature

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5. The Highway Code - General rules, techniques and advice for all drivers and riders (103 to 158), Rule 125 6. Schott Kem Ltd v Bentley [1991] 1 QB 61 a. As per the ruling in Schott Kem v Bentley [1991], the court must be satisfied on the balance of probabilities that, if the claim went to trial on the basis of the evidence currently before it, the claimant would obtain judgment for a substantial amount of money. It is not sufficient for the claimant merely to show that it is likely that it will do so (Test Claimants in the FII Group Litigation v Revenue and Customs Commissioners [2012] EWCA Civ 57); and, b. if so, the Court must, at its discretion, determine whether it should order an interim payment. 7. Goddard & Walker v Greenwood [2002] All ER 285; 8. Dolman v Rowe [2005] EWCA Civ 715; and, 9. Eagle v Chambers [2003] EWCA Civ 1107.

FIRST SUBMISSION – Whether C would obtain judgment 10. Based on the following elements, C avers that Express Delivery Limited (hereinafter referred to as the Defendant (D)) failed, as was his responsibility, to keep an, if any, adequate lookout: a. C was wearing a bright yellow long sleeved running shirt ( WS/AB) and, as such, any layperson would appreciate that he was clearly visible; b. It is common practice that even if the traffic lights were in D’s favor, this fact alone does not relieve D of the responsibility and duty to keep an adequate lookout for pedestrians and other vehicles in its immediate vicinity Supported by the ruling in Goddard & Walker v Greenwood [2002] All ER 285 wherein the Court ruled that any driver may still be considered negligent even when they proceed while traffic lights are in their favor. c. As per WS/DG, D avers, and quote, As I was travelling through the lights which were green and, in my favor, I saw a man, who I now know to be Jonathan Reese, part way across the road. It can therefore be appreciated that C was clearly visible prior to D proceeding through the traffic lights in his favour and, if D was keeping an adequate lookout as was his responsibility and duty, he would have noticed C. d. Furthermore, seeing that D was unable to avoid colliding with C, C avers that any layperson would naturally conclude that D must have seen C later than declared. If 3

D was keeping an adequate lookout as was his responsibility and duty to keep, he would have definitely avoid colliding with C as the latter was clearly visible. 11. Based on the following elements, C avers that D was driving recklessly and is therefore accountable for the accident: a. As per WS/AB, and quote, I considered that it was potentially safe for me to cross but suddenly, I heard a loud revving noise to my left. I looked to the left and saw a white van had come out from behind the stationary traffic into the lefthand lane and was accelerating. b. As per WS/JD, and quote, As I approached the lights a van pulled out from the stationary traffic into my lane. In my opinion, it was safe for the driver of the van to do this because my car was sufficiently far back. The van then accelerated but in my view was travelling below 30 mph: even though the van accelerated, I still was able to close up behind it and so reduce the distance between my car and the van. c. As per WS/AB, D himself declared though admittedly in a daze, and quote, I was late for the next delivery I just didn’t see him. d. In addition, as per The Highway Code - Rule 125 under General rules, techniques and advice for all drivers and riders (103 to 158), and quote, The speed limit is the absolute maximum and does not mean it is safe to drive at that speed irrespective of conditions. Driving at speeds too fast for the road and traffic conditions is dangerous. You should always reduce your speed when: i. the road layout or condition presents hazards, such as bends; ii. sharing the road with pedestrians,… Therefore, C avers that if D was driving at a speed appropriate the conditions at that material time, he would have been able to notice C with reasonable time for any average driver to avoid the collision. C also avers that, as per WS/DG, if D truly noticed C at the time he stated he did, he should have reduced his speed as per The Highway Code - Rule 125 under General rules, techniques and advice for all drivers and riders (103 to 158). However, as per WS/DG, D did not reduce his speed as was his responsibility and duty as soon as he noticed C but he merely, and quote, expected him to continue across the road towards the central traffic island. It is only when C appeared to panic, way too late might C add, that D, and quote, immediately slammed on my brakes, as per WS/DG; e. C avers that this accident could have been avoided if a reduction in driving speed was observed by D, as dictated by The Highway Code - Rule 125 under General rules, techniques and advice for all drivers and riders (103 to 158).

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12. Based on the following elements, C also avers that D failed to adequately, if any, make his presence known as any reasonable driver is expected to do in these circumstances: a. C avers that D completely failed adequately, if any, make his presence known. D failed to use his horn or make use of any other signaling means at his disposal to notify C of his approach. No WS make mention of a horn or any other signaling means. As per WS/AB, and quote, only a loud revving noise was heard but at that material time, it was too late.The Court will appreciate that any reasonable driver would have done so. Had D really been a careful driver as per WS/DG, he would have notified C of his approach as was his responsibility and duty. Conclusion 13. Based on all the aforementioned elements, the Court shall appreciate that C has satisfied Part 1 (Whether C would obtain judgment ) of the test as laid down in Schott Kem Ltd v Bentley [1991], pursuant to CPR r.25.7. SECOND SUBMISSION – Whether C would obtain judgment for a substantial amount of money 14. The Court will appreciate that sum of £48,284.80, though subject to liability, representing general damages incurred and any additional losses, amounts to a substantial sum. 15. Subject to liability since even though loss of earnings is evidenced by Medical Reports MR/AA1, MR/AA2/ & MR/NP, and is agreed upon by both parties, the extent of the losses is being disputed. 16. Following the accident and subsequent convalescence period, C has decreased his working days from 5 to 3. Yet, Medical Reports present opposing prognosis as per MR/AA2 vs MR/NP. 17. A breakdown of C’s claim for damages is as follows: a. £65,142.17 for past losses of earnings; and, b. £523,214.06 for future losses of earnings based on a decrease working days from 5 to 3 until the accepted retirement age of 65 years old. 18. As per opposing Medical Reports MR/AA2 vs MR/NP, based on the latter, D avers that C ought to have increase his working days from 3 to 4 at the 18-24 months post-accident timestamp and back from 4 to 5 working days at the 18-24 months post-accident timestamp. 19. As per opposing Medical Reports MR/AA2 vs MR/NP, based on the latter, D avers that current and future losses are inflated and, therefore, denies being indebted to the tune of the advanced amounts towards C.

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20. As per opposing Medical Reports MR/AA2 vs MR/NP, it can be agreed upon by both parties that there is a post-accident period of 18 months wherein C decreasing his working days from 5 to 3 is acceptable and reasonably foreseeable. a. This amounts to a sum of £30,668.03 in loss of earnings. b. An additional amount of £3,830.46 is agreed upon as being acceptable and reasonably foreseeable for a reduction of only 1 working day for the following 6 months. To be noted that this is a lower than what is estimated by C. c. Total sum of at least £34,498.49 though subject to liability, representing general damages incurred and any additional losses, agreed upon by both parties. 21. Therefore, in light of all the relied upon evidence, C will receive judgment for the general damages incurred and any additional losses added to the undisputed loss of earnings, which amounts to at least £82,783.29. Conclusion 22. Based on all the aforementioned elements, the Court shall appreciate that C has satisfied Part I (Whether C would obtain judgment for a substantial amount of money) of the test as laid down in Schott Kem Ltd v Bentley [1991], pursuant to CPR r.25.7.

THIRD SUBMISSION - Whether it is reasonably foreseeable that the Court is likely to order an interim payment. 23. Part II of the test as laid down in Schott Kem Ltd v Bentley [1991], pursuant to CPR r.25.7, dictates that the Court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment. 24. As there is no judicial guidance in respect of what is a reasonable proportion, C humbly requests, as per the ruling in Dolman v Rowe [2005] EWCA Civ 715, that the Court do its best to make a rough estimate of the likely award and is entitled to rely upon its general experience in the absence of any judicial guidance. 25. Other than the agreed upon general damages incurred and any additional losses added to the undisputed loss of earnings amounting to at least £82,783.29, the additional disputed amount rests on which Medical Report is more likely to be admitted/considered in Court. There is not much of a basis, if not none whatsoever, for a judgement to be made midway of the disputed amounts. This application in the sum of £40,000 is therefore acceptable and reasonably foreseeable as the lowest amount the final award is likely to be granted for. 26. Pursuant to CPR r.25.7(5), the Court must also take Contributory Negligence into account.

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27. C avers that any evidence of contributory negligence will rely upon the conclusions of the Court. 28. C further admits that even though Contributory Negligence cannot be ascertained with certainty, the Court will appreciate that the upper limit of findings of contributory negligence and, therefore, the resulting sums for damages, may still be determined. a. C is free of any major Contributory Negligence seeing as he behaved in line with the ruling in Eagle v Chambers [2003] EWCA Civ 1107 wherein the Court ruled, and quote, it was unusual for a pedestrian to be held at more fault than a driver unless it was evident a pedestrian moved suddenly into the driver’s path. However, as there was no evidence of Ms Eagle doing this, the court accepted the traditional approach in placing the higher burden on the driver due to the driver being in control of a ‘dangerous weapon’. Ms Chambers was more at fault as her actions had been much more causatively potent than of Ms Eagle and consequently Ms Eagle’s liability was reduced to 40%. b. Therefore, C avers that any potential finding of Contributory Negligence would reasonably not exceed 40%. 29. If both a liability reduction of 40%-50% is imposed and the Court rules in favor of D’s valuation, it is reasonably foreseeable that the Court is likely to order a judgment for a sum of around £41,391.65 – 49,669.98. 30. Therefore, C avers that a sum of £40,000 is reasonable. Conclusion 31. In light of all the aforementioned elements, C respectfully requests the Court to order an interim payment in the sum of £40,000, pursuant to CPR r.25.7.

-, Senior Counsel On behalf of Claimant, Mr. Jonathan Reese. This 24th of February 2021

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