Thomson v Thomson and Colonial Insurance Company Ltd
| Jurisdiction | Bermuda |
| Judgment Date | 30 November 2015 |
| Neutral Citation | [2015] SC Bda 84 Civ |
| Date | 30 November 2015 |
| Docket Number | CIVIL JURISDICTION 2012: No. 6 |
| Court | Supreme Court (Bermuda) |
[2015] SC (Bda) 84 Civ
In The Supreme Court of Bermuda
CIVIL JURISDICTION 2012: No. 6
—and—
Mr. Paul Harshaw, Canterbury Law Limited, for the Plaintiff
Mr. Craig Rothwell, Cox Hallett & Wilkinson Limited, for the Second Defendant
(in Chambers)
On June 14, 2013, following the liability phase of a split trial, the 2 nd Defendant was found liable for the 1 st Defendant's negligence in causing the Plaintiff (his wife) serious injuries in a road traffic accident which occurred on January 15, 2006. The Plaintiff was found to have been contributorily negligent in that she was not wearing a seat-belt at the time of the accident 1. In my Ruling dated June 22, 2015 in Warren-v—Harvey et al [2014] SC (Bda) Civ (22 June 2015) (at paragraphs 105–106), I made findings as to the applicable discount rate for the Plaintiff's future loss award. The latter Ruling has been appealed by the 2 nd Defendant.
On July 17, 2015, I delivered judgment on the quantum limb of the Plaintiff's claim. In paragraph 32 of that Judgment, I found as follows:
‘ 32. The pension contribution claim is clearly supported by the Dews case, the recoverability of the private medical expenses claimed is clearly supported by the Woodrup case but there is no support for the proposition that the loss of health insurance premium contributions is recoverable independently of a corresponding medical expense. The 2 nd Defendant accepts in principle that the employer's contributions towards the Plaintiff's pension for whatever period she would have worked in Bermuda constitute recoverable loss (Counter Schedule, page 18). The Plaintiff based on my findings is entitled to recover $50.68 per week for the seven month period conceded by the 2 nd Defendant until March 5, 2014. I did not understand the quantum of the corresponding UK pension employer contributions to be in dispute and so the amounts claimed by the Plaintiff are, for the avoidance of doubt, also awarded, subject to hearing counsel as this issue was not directly addressed in either the 2 nd Defendant's Counter Schedule nor, as far as I can recall, in oral argument [Footnote: This “omission” was drawn to my attention by Mr. Harshaw when commenting on a draft of this Judgment. When Judgment was handed down it emerged that no evidence on the UK pension position was actually adduced at trial.].’
At the hearing when judgment was handed down, Mr Harshaw informed the Court that this finding was erroneous to the extent that while a loss of pension claim had been asserted by the Plaintiff, no evidence had been adduced at trial in support of a specific quantified amount based on the hypothesis that she would have returned to the UK to work as a NHS nurse. The Plaintiff's case on quantum had been based on the premise, which I rejected, that she would have worked in Bermuda until
retirement. With a view to filling this evidential lacuna, the Plaintiff issued a Summons dated August 12, 2015 seeking leave to amend her Schedule of Loss to claim an additional £247,979 (or $396,766). This Summons was treated as in substance an application to adduce further evidence after trial.At the hearing of this Summons, both the content of principles governing adducing further evidence after trial and the ability of the Plaintiff to invoke them were hotly contested. I indicated that I considered the real question not be one of amending pleadings; the loss of pension claim had been sufficiently pleaded in modern terms. The crucial issue was whether it was open to the Plaintiff to adduce further evidence post-judgment, before the final Order had been perfected, to quantify a head of loss which was not in principle disputed but which the Plaintiff had through oversight failed to address at trial.
It was clear, despite much huffing and puffing on Mr Harshaw's part directed at shifting blame for the evidential gap onto the 2 nd Defendant's employment expert, that with reasonable diligence the relevant evidence could to some extent have been adduced at trial. It was admittedly impossible to anticipate with any precision how the Court would have resolved the disputed issue of how long the Plaintiff would have continued to work in Bermuda and, if not until retirement, when she would have returned to the UK. But some evidence could have been adduced indicating at least in outline the basis on which a UK loss of pension claim would be calculated.
I should add that save in this one respect, the Plaintiff's case had (with the assistance of specialist English solicitors) been prepared with scrupulous care.
Less clear than the fact that a gap in the evidence existed was the governing principles applicable to a prayer for relief which has not seemingly received the benefit of considered judicial attention in Bermuda before.
Mr Rothwell opposed the Summons by essentially contending that the governing rules on post-judgment fresh evidence were substantially the same as those governing adducing fresh evidence on appeal under English law. He relied in particular on a recent authority, Absolute Lofts South West London Limited-v-Artisan Home Improvements [2015] EWHC 2632 (IPEC) (September 17, 2015). In that case Hacon J refused permission to the claimant in a patent case to adduce post-judgment evidence in the form of a page accidentally omitted from a license agreement, with a view to enhancing its damages award. Hacon J approved the following principles and applied them to the facts of the case before him in the following way:
‘ 6. Birss J recently reviewed the jurisdiction of a court at first instance to reconsider a judgment after it has been handed down and, where that may done, the matters relevant to the exercise of the court's discretion so to do, seeVringo Infrastructure Inc v ZTE (UK) Limited [2015] EWHC 214 (Pat). Having considered the several authorities in some detail he said this:
“[38] I can summarise the principles in this way. The court has a jurisdiction, at least before the order is drawn up, to entertain an application of this kind as in here. The principle to be applied generally is the overriding objective to deal with cases justly and at proportionate cost. This involves dealing with cases expeditiously and fairly and allocating an appropriate share of the court's resources to a dispute. In a case like this one, in which the application is to amend the statement of case, call fresh evidence and then have a further trial, the principles relevant to amending pleadings have a role to play but the Ladd v. Marshall factors are also likely to have real significance.
[39] As regards principles applicable to amendments, the modern view is probably the Court of Appeal in Swain v. Hillman [2001] All ER 91 . If the court would not have permitted the amendment before trial, it is hard to see how it is likely to be admitted after trial, apart from some very unusual circumstances. Nevertheless, just because a court would have permitted the amendment sought before, or even during the trial, if it had been raised at that stage, it does not mean that it should be permitted after judgment.
[40] As to Ladd v. Marshall , the trial judge is in some ways in a better position than the appellate court to assess the significance of a new point and new evidence. In any case, at this stage theLadd v. Marshallfactors should be applied more leniently to an applicant than they might be applied in an appellate court; but, all the same, theLadd v. Marshallfactors are clearly relevant because the application is an attempt to call new evidence after judgment. If those factors, even applied more leniently, are against the applicant, it is likely that powerful factors in the applicant's favour will be needed to justify the application.”
8. Absolute Lofts' main difficulty is the first of these requirements. It concedes, as it must, that the parts of the Shutterstock licence now relied on were just overlooked until very recently and so not put before the court. I take the view that this engages the overriding principle of the Civil Procedure Rules in an important way. It is essential to the saving of expense, ensuring that a case is dealt with expeditiously and fairly and allotting an appropriate share of the court's resources to a case that the parties bring all relevant evidence before the court at the trial. Where a party fails to do that and has no reasonable excuse for that failure, it will have to overcome a high barrier to satisfy the court that the circumstances are sufficiently unusual to permit the proceedings to be reopened with fresh evidence after judgment has been handed down. It is possible that a court could be persuaded, for example, where the second Ladd v Marshall requirement is resoundingly satisfied (bearing in mind that Ladd v Marshall is to be applied in attenuated form, as contemplated in Vringo). In other words if the fresh evidence unarguably puts the issues considered in the judgment into a bright and truly...
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