Paul McGrath appears before Court of Appeal in a case bringing clarity to whether a party can circumvent amending their claim by relying on CPR 16.3(7). The Court of Appeal confirmed that the Claimant must formally apply to amend to introduce a new head of loss.

19/12/2023

In Fleming v Zurich Insurance plc [2023] EWCA Civ 1417 the Court of Appeal dealt with a personal injury claim that was said to be worth up to c.£500,000, but the claim form was limited to just £10,000. The Claimant had been given permission to rely on updated expert evidence and had served, pursuant to the standard direction, an updated schedule of loss. However, that updated schedule of loss sought to bring in a new claim for loss of earnings and to increase the claim from c.£10,000 to c.£500,000. The Claimant argued that he did not have to amend the limitation to his claim where he had permission to rely on an updated schedule of loss and where the Court had power, under CPR 16.3(7), to award a greater amount than the stated value. CPR 16.3(7) provides: ‘The statement of value in the claim form does not limit the power of the court to give judgment for an amount which it finds the claimant is entitled to.’

The Defendant argued that the Claimant could not sidestep the requirements to amend in this way. The Defendant argued that the addition of a new head of loss (loss of earnings) was not an ‘updated’ claim at all and that the Claimant was required to amend and lift the value of the claim. The Court of Appeal, whilst permitting the amendment to the claim, said that the Claimant’s argument that he did not need to amend was misconceived:

‘49. In fairness to the DDJ and to Judge Lethem, the argument presented to them was also clouded to some extent by a misconceived attempt by the Claimant to rely on CPR rule 16.3(7). That rule provides that the statement of value in the claim form does not limit the power of the court to give judgment for the amount which it finds the claimant is entitled to. It was argued in the courts below that the trial judge therefore had the power to award the Claimant damages in excess of £10,000 on the basis of the already admitted medical evidence, irrespective of whether the application to amend the value succeeded. But as Judge Lethem rightly held, that rule cannot be used as a bypass to circumnavigate the provisions of Rule 16.3 and 16.4.

50. Rule 16.3(7) simply means that the court is not prevented from giving judgment for a larger sum than specified in the claim form where that is justified by the evidence; it does not relieve the claimant of the obligation to plead all heads of loss claimed. For example, the trial judge might award more than £10,000 for pain, suffering or loss of amenity in a case where the evidence justified such an award, even if the claim had been capped at £10,000. The Claimant undoubtedly required the court’s permission to increase the value of his claim, by making the necessary amendments to his claim form and Particulars of Claim, though as Mr Denham submitted, that was the final step necessary to regularise what had already been permitted.’

The clarification will bring welcome relief to Defendant insurers who frequently have to face increased claims made in the updated schedule of loss.

The judgment is available via the link below.