Robbing Peter to pay Paul

In Manna v Central Manchester University Hospitals NHS Trust, [2017] EWCA Civ 12, the Court of Appeal considered two particular issues arising from a Roberts -v- Johnstone award for an additional property, to allow the claimant time with his natural father.

1. Whether such an award should in fact have been made at all and, if so;
2. Whether the multiplier should be based on the lifetime of the claimant (28.43), or his father (14.90).

The Defendant had raised no objection to the multiplier point until after the first instance judgment had been circulated in draft, and it was not therefore brought up during the original trial.

One of the critical features in this case was that liability had been established at only 50%, which the Judgment makes clear is only to be taken into account after the assessment of damages.

Nevertheless, it was likely that the combined effects of the Roberts -v- Johnstone calculation and the reduction on liability would result in an award that could not provide any opportunity to actually purchase the additional property, and would only augment the general damages. In relation to this, Lord Justice Tomlinson stated:

It was not suggested that this is in itself an undesirable or objectionable outcome, and indeed many would surely say that any device which legitimately facilitates the calculation of a fund which will enable proper care and support to be given to a person so grievously injured deserves support.

Tantalisingly, an alternative approach based on the Claimant being awarded the costs of purchase and adaptation, with a life interest for the father and ownership reverting to the Defendant following his death, was referred to, but had not been pursued by either party.

The parties were asked whether, if the Court had allowed the Defendant’s appeal in relation to the first point, there should be a wider enquiry on the basis of what, if any, financial model the claim for a second home should succeed, but neither Counsel urged such an approach.

Lord Justice Tomlinson observed:

In a case where we are not invited to reconsider the principle established in Roberts -v- Johnstone, such an approach would have a damaging effect upon the confidence with which litigants could in the future compromise their disputes.

The Court upheld the first instance award and dismissed the Defendant’s appeals.

The Judgment recognises that the Roberts -v- Johnstone approach is imperfect, but accepts it as pragmatic in the absence of any better alternative. However, the Judgment also acknowledges that this exercise is increasingly artificial because property prices have inflated far more than awards of general damages in the last quarter of a century or so.

Unfortunately, yet again both parties had too much to lose by risking a challenge to the status quo.

The full Judgment has been added to the Knowledge Bank.