Order for costs – Conditional fee agreement – Costs-only proceedings – Success fee
Patterson v Ministry of Defence: Queen's Bench Division (Mr Justice Males (Sitting with Assessors)): 12 October 2012
The claimant, who was of African-Caribbean ethnic origin, enlisted in the British Army in December 2002. In February 2006 he was deployed to Norway for cold weather survival training. He sustained a cold injury known as non-freezing cold injury (NFCI) as a result of which he was discharged from the army in 2007. He brought a negligence or breach of statutory duty claim against the defendant Ministry of Defence. The claim was settled by a damages payment of £75,000.
The costs payable by the defendant were agreed subject to the issue of the appropriate success fee. The success fee included in the agreed figure was 25%, which the defendant accepted was recoverable under CPR 45, section IV. CPR 45 sections IV and V regulated the success fees payable in personal injury claims against employers. In all cases, success fees were 100% when the case proceeded to trial.
However, the success fee was lower in cases which settled before the trial commenced. In such cases the success fee depended on whether the claim fell within section IV (injury) or section V (disease) and, in the latter case, on the type of disease in question. The claimant contended however, that NFCI was a 'disease' and that the more generous regime contained in CPR 45, section V should apply, resulting in a success fee of 62.5%. The contention was rejected by a master; however, he gave permission to appeal observing that guidance was needed on the inter-relationship between CPR 45, sections IV and V and on the meanings of 'disease' and 'bodily injury' in those provisions. The claimant appealed.
The issue in the case was whether the NFCI sustained by the claimant was a 'disease' contracted by him within the meaning of CPR 45, section V. The defendant submitted, inter alia, that features of NFCI which pointed to it being an injury and not a disease included the facts that (a) no virus, bacteria, noxious agent or parasite was involved in the pathology, (b) the mechanism of injury was simply that blood failed to reach the cells in the nerves, skin and muscle of the claimant’s feet; and (c) if NFCI was a 'disease', so too were chilblains, hypothermia, frostbite, sunstroke, sunburn and heat blisters which were no more than the result of exposure to weather conditions, but that would be surprising or even absurd. The appeal would be dismissed.
The starting point had to be the natural and ordinary meaning of the words used in their context. That meant that the particular circumstances in which a claimant came to suffer from the condition were of no real relevance. However, it was at least of some relevance to take account of the way in which NFCI typically occurred. Further, the particular susceptibility to a condition of individuals of an identified ethnic origin might, in an appropriate case, be a factor pointing to the characterisation of that condition as a disease (see , , ,  of the judgment).
Notwithstanding that the objective of CPR 45 was to provide a clear and certain test for the award of success fees, inevitably questions might arise as to whether particular conditions were to be characterised as 'diseases'. When that occurred, and when the answer was not obvious, there was no single test or definition which could be applied. It would not be practicable or sensible for the court to attempt to supply its own definition.
Instead it would be necessary to apply the natural and ordinary meaning of the word, and in cases which were near the borderline to form a judgment by taking account of the various factors which pointed in one direction or the other (see  of the judgment).
NFCI was not a disease within the meaning of CPR 45. NFCI was not caused or contributed to by any virus, bacteria, noxious agent or parasite. It was simply a case where blood failed to reach the cells in the nerves, skin and muscle of the claimant’s feet as result of exposure to weather or environmental conditions. The result was damage or injury to the body parts affected, but that could not be regarded as a 'disease' and accordingly the claimant’s lawyers were not entitled to a success fee calculated in accordance with section V of that rule (see ,  of the judgment).
Benjamin Williams and Ivan Bowley (instructed by Thompsons) for the claimant; Mark James (instructed by A&M Bacon Limited) for the defendant.