Change in factual basis of case must be disclosed

LAW REPORT: 21 January 1997

Vernon v Bosley; Court of Appeal (Lord Justice Stuart-Smith, Lord Justice Evans, Lord Justice Thorpe) 13 December 1996

Where the material facts on whose basis a civil action had been conducted were known by the plaintiff to have altered, he was under a duty to disclose the fact to the defendant and the judge.

The Court of Appeal by a majority (Lord Justice Evans dissenting) allowed an appeal by the defendant, Katherine Sarah Bosley, and reduced from pounds 1,332,231.59 to pounds 541,493.70 the damages awarded by Mr Justice Sedley on 30 Janaury 1995 to the plaintiff, Peter Frazer Vernon.

Dermod O'Brien QC and Daniel Pearce-Higgins (Howard Palser Grossman Hermer & Partners) for the defendant; David Blunt QC and Jonathan Marks QC (Osborne Clarke, Bristol) for the plaintiff; Diana Cotton QC (Treasury Solicitor) as amicus curiae.

Lord Justice Stuart-Smith said the plaintiff's claim was in respect of nervous shock or psychiatric injury suffered by him after witnessing the death of two daughters in a car accident. The defendant did not deny negligence but disputed that the plaintiff suffered post- traumatic stress disorder, as opposed to an extreme grief reaction, and argued that his subsequent psychological problems had other causes.

The appeal court had already handed down draft judgments reducing the judge's award but no final order had been drawn up when, on 17 April 1996, Mr O'Brien received from an anonymous sender copies of a judgment given by Judge McNaught in Gloucester County Court on 6 January 1995 in proceedings between the plaintiff and his wife relating to their children, and a judgment of the Court of Appeal on 4 July 1995 affirming his decision. These judgments revealed that the evidence before the family court had been that the plaintiff's psychiatric health had dramatically improved and he was substantially if not fully recovered.

The defendant applied for, and was granted, a rehearing of the appeal against Mr Justice Sedley's judgment. Further evidence was admitted as to the plaintiff's mental condition at the time that judgment was given. Their Lordships concluded that the plaintiff had made a substantial recovery and that evidence of that recovery should have been disclosed to the defendant's advisers before Mr Justice Sedley gave judgment.

It was the duty of every litigant not to mislead the court or his opponent, not just by giving evidence known to be untrue, but also by leading the court to believe a certain state of affairs, once believed to be true, but now no longer so. That duty continued until the judge had given judgment.

The plaintiff's case had been argued before Mr Justice Sedley on the basis of evidence which the plaintiff knew at the time, and his legal advisers knew shortly afterwards, did not represent the true position. Unless the altered position was communicated to the judge there was a risk that he would give judgment on a basis that was no longer true, and that was what happened here.

Mr Blunt sought to rely on the difference between actively misleading and passively standing by and watching the court being misled. The classic example of the distinction was where a barrister knew his client had previous convictions but the court and prosecution did not: he was not obliged to disclose the convictions but he must not suggest his client was a man of good character.

Similarly, neither the litigant nor his lawyers in a civil case were bound to call witnesses whose evidence did not support their case.

But where the case had been conducted on the basis of certain material facts which were an essential part of the case, in this case the plaintiff's condition at the time of the trial and the prognosis, which were discovered before judgment to be significantly different, the court was being misled, not by the defendant's failure to put before it material of which she could or should have been aware, but by the plaintiff's and his advisers' failure to correct an incorrect appreciation which the court would otherwise have.

His Lordship accepted that the plaintiff's counsel had not deliberately intended to deceive the court. But they made a serious error of judgment in failing to advise him of the need to disclose. By the time the case came before the appeal court, they should have appreciated that they could no longer seek to uphold the judgment.

PROMOTED VIDEO
News
ebooksAn evocation of the conflict through the eyes of those who lived through it
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

HR Analyst - Banking - Bristol - £350-£400

£350 - £400 per day: Orgtel: HR Analyst - Banking - Bristol - £350 - £400 per ...

HR Manager - HR Generalist / Sole in HR

£30000 - £35000 per annum + benefits: Ashdown Group: HR Manager - HR Generalis...

Business Analyst - Banking - London - £350-£400

£350 - £400 per day: Orgtel: Business Analyst - Banking - People Change - Lond...

HR Manager - Milton Keynes - £50,000 + package

£48000 - £50000 per annum + car allowance + benefits: Ashdown Group: HR Shared...

Day In a Page

All this talk of an ‘apocalyptic’ threat is simply childish

Robert Fisk: All this talk of an ‘apocalyptic’ threat is simply childish

Chuck Hagel and Martin Dempsey were pure Hollywood. They only needed Tom Cruise
Mafia Dons: is the Camorra in control of the Granite City?

Mafia Dons: is the Camorra in control of the Granite City?

So claims an EU report which points to the Italian Mob’s alleged grip on everything from public works to property
Emmys look set to overhaul the Oscars as Hollywood’s prize draw

Emmys look set to overhaul the Oscars as Hollywood’s prize draw

Once the poor relation, the awards show now has the top stars and boasts the best drama
What happens to African migrants once they land in Italy during the summer?

What happens to migrants once they land in Italy?

Memphis Barker follows their trail through southern Europe
French connection: After 1,300 years, there’s a bridge to Mont Saint-Michel

French connection: After 1,300 years, there’s a bridge to Mont Saint-Michel

The ugly causeway is being dismantled, an elegant connection erected in its place. So everyone’s happy, right?
Frank Mugisha: Uganda's most outspoken gay rights activist on changing people's attitudes, coming out, and the threat of being attacked

Frank Mugisha: 'Coming out was a gradual process '

Uganda's most outspoken gay rights activist on changing people's attitudes, coming out, and the threat of being attacked
Radio 1 to hire 'YouTube-famous' vloggers to broadcast online

Radio 1’s new top ten

The ‘vloggers’ signed up to find twentysomething audience
David Abraham: Big ideas for the small screen

David Abraham: Big ideas for the small screen

A blistering attack on US influence on British television has lifted the savvy head of Channel 4 out of the shadows
Florence Knight's perfect picnic: Make the most of summer's last Bank Holiday weekend

Florence Knight's perfect picnic

Polpetto's head chef shares her favourite recipes from Iced Earl Grey tea to baked peaches, mascarpone & brown sugar meringues...
Horst P Horst: The fashion photography genius who inspired Madonna comes to the V&A

Horst P Horst comes to the V&A

The London's museum has delved into its archives to stage a far-reaching retrospective celebrating the photographer's six decades of creativity
Mark Hix recipes: Try our chef's summery soups for a real seasonal refresher

Mark Hix's summery soups

Soup isn’t just about comforting broths and steaming hot bowls...
Tim Sherwood column: 'It started as a three-horse race but turned into the Grand National'

Tim Sherwood column

I would have taken the Crystal Palace job if I’d been offered it soon after my interview... but the whole process dragged on so I had to pull out
Eden Hazard: Young, gifted... not yet perfect

Eden Hazard: Young, gifted... not yet perfect

Eden Hazard admits he is still below the level of Ronaldo and Messi but, after a breakthrough season, is ready to thrill Chelsea’s fans
Tim Howard: I’m an old dog. I don’t get too excited

Tim Howard: I’m an old dog. I don’t get too excited

The Everton and US goalkeeper was such a star at the World Cup that the President phoned to congratulate him... not that he knows what the fuss is all about
Match of the Day at 50: Show reminds us that even the most revered BBC institution may have a finite lifespan – thanks to the opposition

Tom Peck on Match of the Day at 50

The show reminds us that even the most revered BBC institution may have a finite lifespan – thanks to the opposition