Fog in Fleet Street – City Cut Off!

14 April 2016

Anyone practising law in the last twenty years has been living in a world of permanent revolution. Some changes have been more successful than others – the New Law Journal, for example, recently ran an article under the headline Costs Budgeting: a Make-Believe World? – but one innovation no one can possibly decry is the introduction of the Ogden Tables.

When I was a pupil, thirty-seven years ago, and for some time afterwards the method of calculating future loss of earnings in personal injury cases, and loss of dependency in fatal accident cases, can only be described as a bone-headed disgrace. Calculation of the multiplicand was by then more or less rational, but the multiplier was a random number plucked from a conventional range by a judge ‘doing the best I can’ with the assistance of counsel.

Every attempt to put the system on a sound statistical base ran into a brick wall. The courts steadfastly refused to hear actuarial evidence on the premise that a judge’s experience of the world is more reliable than mere statistics: every plaintiff is different, it was said, a sentiment to which there are two possible replies, neither of them fit for a courtroom. ‘Yes, my Lord, every plaintiff is indeed different, but unless there is unequivocal medical evidence about life expectancy, your Lordship’s thoughts on the extent of that difference are worthless. What is more, the entire world outside the narrow and often rather odd strip of territory between Temple Gardens and Gray’s Inn Gardens resolves these so-called imponderables through the use of statistics. When there is fog in Fleet Street which is cut off, the City or the Temple?’

In 1984 a stiff breeze began to blow with the publication of the Ogden Tables. The fog thinned, but was too dense to lift immediately. The breeze blew for a further nine years before s.10 of the Civil Evidence Act 1995 made the Tables both admissible and capable of proving themselves. Even then the fog was not fully dispelled until 1999, when fifteen years after their introduction the House of Lords stated in Wells v Wells [1999] 1 AC 345 that judges not merely could, but in most cases should, use the Tables.

Despite the general sunlight, however, for the past fifteen years one last obstinate patch of the old system has remained unmoved, the decisions of the House of Lords in Cookson v Knowles [1979] AC 556 and Graham v Dodds [1983] 1 WLR 808 requiring a judge in a fatal accident case to calculate the multiplier from the date of death rather than (as in personal injury cases) the date of trial, a principle that systematically under-compensates the claimant.

The Law Commission recommended a change in 1999 (Claims for Wrongful Death (1999) (Law Com No 263)) and several judges made more or less ingenious attempts to sail around the obstacle, but it has been finally removed only this year. In July 2014 in Knauer v Ministry of Justice [2014] EWHC 2553 Bean J decided he had no alternative to applying Cookson v Knowles but, by certifying the point as one of general public importance already decided by the appellate courts, opened the way for an immediate appeal to the Supreme Court. There ([2016] UKSC 9), on 28th January this year, the revolution launched in 1984 finally came to an end : the multiplier in a case under the Fatal Accidents Acts is to be calculated from the date of trial.

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