VERNON v. THE UNITED KINGDOM
Inadmissible
Nicolas Bratza
The applicant is a British national, born in 1942, and resides in Gloucestershire. He is represented by Messrs Osbourne Clarke, Solicitors, from Bristol. In 1982, the applicant witnessed the tragic death by drowning of his two young children when the car they were in, being driven by their nanny, went into a river. The applicant had previously experienced some psychological instability in his life, but, following the accident, he began to manifest symptoms of Post Traumatic Stress Disorder. From being a successful businessman, he became unemployable, and the relationship with his wife broke down. In October 1993, they were divorced. In August 1985, a writ was issued in an action for damages for personal injury against the driver of the vehicle. The action was set down for trial on the application of the Defence in June of 1996. The initial estimate for the length of the trial was six weeks. The trial began on 12 January 1994. After six weeks, the applicant as plaintiff was still giving evidence. He was in the witness box for thirty days overall. Due to his mental condition, the process of questions and answers was very lengthy, and the estimate for the trial length was revised. There were additionally conflicts with the judge's timetable which required lengthy breaks in the trial, and a move in the venue from Cardiff to London. An application was made by the applicant's representatives in February 1994 to impose time-limits in respect of cross-examination of the applicant. This was refused on the basis that the defence must have every opportunity to present their case, subject to the normal controls. In April 1994, the applicant’s expert witnesses, Dr L and Mr M, gave evidence, essentially stating that the prognosis was not very good, and that the applicant was unlikely ever to be able to work again. On 13 June 1994, Mr Justice Sedley imposed time-limits for the hearing of the remaining witnesses and to ensure the trial finished in time. The evidence in the trial, which lasted 70 days, concluded on 14 July 1994. Counsel made their final submissions on 24 and 25 October 1994. The judge, Mr Justice Sedley, did not give his judgment until 30 January 1995, which judgment ran to 262 pages, giving judgment for the applicant in the sum of over 1,300,000. Following further submissions of the parties on aspects of social security benefits, interest, costs, stay of execution, time for appeal and the form of order, Mr Justice Sedley gave a further judgment on 10 May 1995. In August 1994, the applicant had applied for a residence order under the Children Act 1989 in respect of his remaining children. The expert doctors who had given evidence in the personal injury trial were instructed by the applicant to give their views of the state of the applicant's mental health for the purpose of these proceedings. They produced draft reports which gave a more positive prognosis. Mr M’s report went so far as to suggest that the applicant was no longer suffering mental health problems. It was sent to the solicitors of the applicant’s wife by mistake. The applicant’s counsel, on his instructions, applied to the judge in the family matter for the report to be returned on the basis that it had been disclosed without the applicant’s authority and that the applicant did not wish to rely on it. The judge ruled that the report was to be admitted in evidence. The applicant states that as a result he was obliged to call Mr M as a witness. Mr M produced a revised version of his draft report. Dr L in his oral evidence stated that he would have to alter the prognosis given previously as the applicant had remained free of depression and his medication had been reduced, such that it was now appropriate to see if it could be further reduced or even stopped. He stated that he had not foreseen this improvement earlier though it was premature to be optimistic. In the applicant’s evidence in the family proceedings, he said in a statement of 30 September 1994 that his psychiatric situation had improved dramatically and, in his oral evidence, he did not resile from his descriptions of his improved mental health. On 6 January 1995, the Judge in the family matter, Judge McNaught, rejected the applicant’s claim for a residence order, though subsequently, the applicant’s ex-wife agreed that he should have custody of the youngest child. Concerns had arisen as to the relevance of the medical reports to the imminent decision of Mr Justice Sedley in the personal injury action. The applicant sought the opinion of his Queen's Counsel as to whether the documents needed to be disclosed. He was advised on 16 November 1994 that as the reports were subject to professional privilege they need not be. The defendants in the personal injury action appealed against the decision of Mr Justice Sedley, and the appeal was heard over 12 days in January and February 1996. A draft judgment of the Court of Appeal was produced on 29 March 1996. It reduced the award of damages to £643,425.59 with interest and costs. Part of the interest awarded by Mr Justice Sedley was deducted (one year) on the basis of the applicant’s inordinate delay in the case. When the draft judgments were handed down, however, issues were raised by the parties as to the correct calculation of past and future loss of earnings. These matters were adjourned in the hope that the parties could agree, failing agreement the matter was to be re-argued on those points. On 17 April 1996, leading counsel for the defendants received anonymously through the post copies of the reports prepared by the applicant’s doctors in the Children Act proceedings. On 30 April 1996, the defendants applied to the Court of Appeal for the appeal to be listed for rehearing, for discovery and inspection of the medical reports and evidence given in the family proceedings. After initially resisting the application for disclosure, on 19 September 1996, the applicant waived any privilege covering the documents in the light of the decision of the House of Lords of the House of Lords, In re L (A Minor)(Police investigation: privilege) judgment of 21 March 1996 [1997] A.C. 16, and in the hope of shortening the proceedings. The reports and transcripts of evidence were placed before the Court of Appeal, which sat on 22 and 23 October and 5 to 8 November 1996. The Court of Appeal agreed to the defendant’s application for further evidence to be heard and for Dr L to be heard as a witness. The applicant called Mr M as a witness. The applicant also applied to be allowed to give evidence himself as to his current mental condition, and to call another witness as to the same matter. He asked to be able to produce further evidence from an employment expert regarding loss of earnings, based on the Court of Appeal's findings as to his mental state. The Court of Appeal refused both these applications, giving the following explanation at page 50 of its judgment: “So far as the Plaintiff is concerned we know what he was saying about his health in October 1994; we also had Dr <L.>'s clinical notes recording the <applicant’s> condition at fairly regular intervals since then. The Judge found the <applicant> to be an unsatisfactory and unreliable witness who was compulsively manipulative. There is also abundant evidence from his pre-accident job applications that he was untruthful when it suited his convenience. If <the applicant> had given further evidence it would only have invited further lengthy cross-examinations to show this Court what the Judge had already concluded. We did not think further evidence from him would assist the Court. As to further evidence from an employment expert, no doubt to be countered by such a person called on behalf of the Defendant and which would in any event have occasioned further delay and expense in this far too protracted litigation, again we did not think this would assist the Court. Such evidence would be unlikely to be sufficiently precise and would be likely to be discursive and speculative depending on the findings of this Court. In my judgment the Court must adopt a broad-brush approach to the question doing the best we can with the material at our disposal.” Judgment was given on 13 December 1996, and the decision of the Court, by a majority, was to reduce the award of damages made in favour of the applicant to the sum of just over 600,000. This involved a further reduction in Mr Justice Sedley’s award of £60,000 from the sum of future loss of earnings, the sum of general damages was reduced by a further £20,000, and sums for future domestic help and future gardener/handyman reduced from £10,233.60 and £3,952 respectively to nothing. This decision was made on the basis of the finding by the Court of Appeal that the applicant had made a substantial recovery since 1993. While it found that his recovery was not complete and that he would require low level medication and supportive therapy for the foreseeable future, it considered that this did not prevent him functioning normally. As regards the issues arising from the disclosure of materials from the family proceedings, one of the appeal court judges observed that “it is simply unconscionable for a litigant to run contradictory cases in simultaneous proceedings in the hope of gaining advantage in each” and another appeal judge noted that, if it was correct that the evidence falsified the assumptions previously made by the trial judge and themselves in the civil proceedings, it would be inequitable and an affront to common sense and justice not to admit it. The award was however less than the £750,000 paid into court by the defendants, and thus the applicant became liable to pay a substantial amount of costs. The applicant petitioned for leave to appeal to the House of Lords, which petition was refused on 10 March 1997.