[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> JXL & Anor v Britton [2014] EWHC 2571 (QB) (31 July 2014) URL: http://www.bailii.org/ew/cases/EWHC/QB/2014/2571.html Cite as: [2014] EWHC 2571 (QB)

[New search] [Printable RTF version] [Help]

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WSXCA 2LL
		31st July 2014

Mr. Andrew Edis QC sitting as a High Court Judge:


 


1. This is an assessment of the damages payable by the Defendant to the Claimants under the judgment which was entered in default of the entering of an appearance by him on 11^th December 2013. He has been in prison throughout these proceedings and appeared before me by videolink.
2. JXL and SXC are sisters. In 1989 when they were children the Defendant raped them. JXL was 10 or 11 years old at the time, and SXC was 7 or 8. I omit unnecessary detail from this judgment in order to maximise the protection of anonymity which has been granted to them. JXL was raped twice, and JXL once. The second rape of SXC happened at the same time as the offence against JXL. The defendant was acquitted at his trial of the first count in relation to SXC, but convicted of the second offence relating to the occasion when both claimants were raped.
3. The defendant has repeatedly refused to open correspondence from the claimants' solicitors which always has a reference to Rule 39 on the outside. The defendant told me that this meant that he was entitled to refuse to accept it, and he chose to do so because he did not know who the solicitors were. Rule 39 limits the circumstances in which correspondence from lawyers can be opened by prison staff. It is principally concerned with privileged correspondence rather than material from solicitors who are conducting litigation against an inmate. I have seen correspondence from the claimants' solicitors to the defendant from March and April of this year which is marked "Return to Sender" and a letter from HMP Isle of Wight dated 18^th March 2014 which says

We are enclosing your correspondence to Mr. Winston Britton.

Mr. Britton has instructed us to return to sender this envelope. As you can see Mr. Britton has not opened or read the contents of your correspondence.

Mr. Britton did tell me that he thought that this correspondence had something to do with these proceedings. He certainly knew that it was correspondence from solicitors, and that they were not his solicitors. Given his situation, it could only have been about these proceedings or some other claim against him. I formed the view that Mr. Britton is not a stupid man, and that he knew quite well what the correspondence was about. Among other things which the claimants' solicitors sent to him was the Trial Bundle. He chose not to read it. In these circumstances I concluded that Mr. Britton had deliberately failed to take part in these proceedings and that I ought not to adjourn the hearing to allow him to read the Trial Bundle. I had in mind the expense which this would cause to the Claimants which would be, in reality, irrecoverable. Mr. Britton told me that he has little money but that he does have some interest in a house. Given the size of the awards which I am about to make, and the costs already incurred, it appears that the Claimants are unlikely to be able to recover the full value of those orders from him, and I ought to attempt to deal with this matter as expeditiously as I can. This, of course, must not be allowed to result in unfairness to the defendant. Before I decided how the hearing should be conducted I therefore asked him what part he wanted to play in it, and what issues he wished to raise. He told me that he thought it was very unfair that the case would proceed without my hearing his side of the story. It then became clear that his principal complaint was that he had not committed any of the three rapes which I am to award damages. He said that the complaints were made up for financial gain. I told him that there was a judgment against him, and that unless he successfully applied to set it aside the court would proceed on the basis that the claimants had established their complaints against him, and would assess damages on that basis. He also told me that he had limited means. This is, of course, irrelevant to my task. Finally, he made one point which is of potential relevance. He produced some documents which had been disclosed to him in the criminal proceedings which showed that there had been social services intervention into this family in 1986 and 1987 and which therefore suggest that there may have been problems which affected the upbringing of the claimants before the alleged rapes. This might have relevance to the causation of the psychiatric harm which each claimant has suffered.

4. The points which the defendant made to me are as follows:-

i) He denied liability and was, in any event, being punished enough. He said that he had lost everything.

ii) He referred to the other issues in the childhoods of the complainants which had nothing to do with him, namely the behaviour of people called Terry and Dave. These matters are referred to in the psychiatric reports of Dr. O'Neill and the documents produced by Mr. Britton do not add greatly to what she records.

iii) In support of his denial of liability he refers to the acquittal on count 1 which was based on the first offence against SXC, and refers to a piece of evidence she apparently gave at the trial about the incident ending when someone rang a doorbell. There isn't a doorbell.

iv) He referred to his defence statement in the criminal proceedings which alleged that the complaints were concocted for financial gain.

5. Having heard this, I concluded that justice could be done by taking the points he made which were truly relevant to the amount of damages into account without hearing oral evidence from anyone. The defendant had not served a witness statement in accordance with paragraph 3 of the directions order of 5^th March 2014. In any event, he had little of relevance to say in evidence, as opposed to by making submissions about quantum. All he could do was to deny allegations which the court must accept as being true in circumstances where judgment has already been entered. He has no knowledge of how the claimants have coped with the aftermath of the offences which he says did not happen. Further, he has not indicated any issues, apart from the above, which would require cross-examination. He did not put any questions in writing to the psychiatrist, Dr. O'Neill as directed, and thus the court will proceed on the basis of her written reports. I would not have permitted him to cross-examine the claimants in any event for the reasons which apply in criminal proceedings by virtue of section 34 of the Youth Justice and Criminal Evidence Act 1999. I do not say that a litigant in person can never cross-examine a claimant in a civil case where the allegation of is of sexual crime by the defendant against the claimant. In each such case there must be a balancing exercise to ensure that a fair trial takes place. In this case, given the very limited factual issues which there are, the absence of any defence evidence except the 1986 and 1987 documents, and the fact that the psychiatric evidence is being presented in writing under a direction given previously, I consider that cross-examination would serve very little useful purpose. I would have proceeded by ascertaining the questions which he wished to put and by asking them myself if I thought they were necessary. As I have indicated, I do not think that the issues he raises are proper matters for cross-examination. In particular, his denials of the offences, which are the principal matters he wishes to raise, should certainly not be repeated in these proceedings in the form of cross-examination.
6. The Civil Procedure Rules provide as follows:-

Power of court to control evidence

32.1

(1) The court may control the evidence by giving directions as to –

(a) the issues on which it requires evidence;

(b) the nature of the evidence which it requires to decide those issues; and

(c) the way in which the evidence is to be placed before the court.

(2) The court may use its power under this rule to exclude evidence that would otherwise be admissible.

(3) The court may limit cross-examination.

7. For this reason I conducted this hearing without any oral evidence, exercising my power under that Rule. The claimants did not seek to supplement their witness statements which were served with hearsay notices and are supported by statements of truth. The defendant had not served a witness statement and had little to say anyway about the facts relevant to the quantification of this claim.
8. FACTS

i) The Claimants are sisters. When they were children, their family moved to live in a block of flats in Chingford, Essex. The defendant lived in the same block. The Claimants became friends with his daughter and niece, and used to play with them.

ii) SXC attended the defendant's flat in or around 1989-1990, at which point in time she was 7 years of age, to see his daughter and niece. Neither was at home, but the defendant tempted SXC into his flat by offering her some mango, which she had never eaten before. He then took SXC into his bedroom, undressed her then raped her, ejaculating on her stomach.

iii) On a second occasion in or around 1989-1990, JXL and SXC attended the defendant's flat to see his daughter and niece again. Again, his daughter and niece were not at home, but he turned on his television and invited the Claimants inside to wait for them.

iv) Whilst JXL watched television, he took SXC into is bedroom again, and he raped her for a second time.

v) JXL went to look for SXC and found her and the defendant putting their clothes back on in his bedroom. SXC left the room. As JXL got up to follow her, he grabbed her arm and restrained her. The defendant forced JXL down on to his bed and pulled her knickers down. He forced her to touch his penis then he raped her. JXL was 10-11 years of age when she was raped by the Defendant.

vi) On one further occasion when JXL had attended the defendant's flat to see his daughter and niece again, he attempted to hug her and touch her breasts.

vii) SXC told the Claimants' mother what had happened. The Claimants' mother reported it to the police but no investigation was begun until October 2010, following another of the defendant's victims reporting a sexual attack to the police. The defendant was charged with 21 counts of child rape and indecent assaults on children. He entered not guilty pleas and his case was committed from the Waltham Forest Magistrates' Court to the Snaresbrook Crown Court for trial. Both JXL and SXC gave evidence of the facts that now give rise to this child abuse claim. The defence was that these complaints were invented for financial gain.

viii) The jury convicted the defendant of 18 of the 21 allegations he faced in March 2012. Two of these convictions related to the two rapes of the two claimants on the occasion when they were both raped. He was sentenced on 13 Apr 2012 to a total of 22 years custody: he received a sentence of 7 years for the rape of SXC described in count 2, 7 years for the rape of JXL described in count 3 and 8 years for another rape of a child described in count 12. These three sentences were consecutive. Other concurrent sentences were imposed.

QUANTUM: THE FIRST CLAIMANT (JXL)

9. JXL relies on the medical report of Consultant Psychiatrist Dr Jane O'Neill dated 6 Jun 2013. Dr O'Neill says that all the consequences she identifies were caused by the defendant's criminal conduct to her.
10. JXL therefore suffered vaginal rape, and a subsequent sexual assault when the defendant attempted to touch her breasts and hug her. This has caused permanent Post-Traumatic Stress Disorder ('PTSD'), with symptoms of flashbacks, hypervigilance, and psychosexual aversion/poor libido. JXL has not had sexual intercourse with her husband since the criminal investigation commenced in 2010. She also suffers poor self-confidence and esteem. The PTSD began 24 years ago (when she was 10/11 years of age) and her symptoms have continued to date. While therapy is expected to reduce her symptoms in the future, she will always have some permanent symptoms of PTSD. It is submitted on behalf of JXL that her general damages should be assessed on the basis that she is entitled first to be compensated for the actual sexual abuse to which she was made subject in her childhood, and then for the psychological symptoms (the PTSD) with which she has been left permanently as a consequence, as per paras 89 – 101 of Pierce v Doncaster [2007] EWHC 0000. It is JXL's case that the rape and subsequent sexual assault when she was 10-11 years of age should attract a general damages award of approximately £20,000, on the basis of the following aggravating features

i) JXL was a young (10/11 year old) girl at the time of the rape and sexual assault;

ii) JXL was a virgin at the time she was raped by D;

iii) The Claimants were not believed when their mother informed the police of their allegations in 1989/1990. It was not until the criminal investigation in 2010 that they were believed;

iv) D has always denied the allegations: as such JXL and SXC were put through the ordeal of giving evidence in his criminal trial;

v) D was acting in loco parentis for the Claimants when he raped them.

11. It is JXL's case that her consequential PTSD falls within the middle to upper range of bracket (b) Moderately Severe of Section (B) Post-traumatic Stress Disorder, Chapter 4, of the 11^th Edition of the Judicial College Guidelines ('the JC Guidelines'). Bracket (b) provides a quantum range of £17,000 - £44,000^[1]. JXL submits her very longstanding (and permanent) symptoms of PTSD are worth approximately £35,000.
12. As such, JXL contends that her total general damages are worth approximately £55,000.
13. Special losses as pleaded in JXL's Schedule of Special Damages dated 19 Jun 2014 at £84,174. This is a claim for past loss of earnings and a modest sum in future costs of treatment.
14. JXL contends that the rape and subsequent sexual assault to which she was made subject were of a nature such that an award of aggravated damages ought to follow. JXL contends that an award of approximately £20,000 for aggravated damages is appropriate to compensate her for the injury to her feelings, humiliation, loss of pride and feelings of chronic anger and resentment towards D, all of which JXL will argue are separate to the basis for the compensation to which she asserts she is entitled by way of general damages (as per para 56 – 67 of AT & ors v Dulghieru [2009] EWCH 225.)
15. JXL's claim is therefore for a total compensatory award of £75,000 general damages and £84,174 in past losses and treatment costs.

QUANTUM: THE SECOND CLAIMANT (SXC)

16. SXC relies on the expert medical report of Consultant Psychiatrist Dr Jane O'Neill dated 6 Jun 2013 Dr O'Neill says that all the consequences she identifies were caused by the defendant's criminal conduct to her.
17. SXC therefore suffered vaginal rape on two separate occasions, within a couple of weeks. These events have caused her to suffer from Emotionally Unstable Personality Disorder ('EUPD'), with symptoms of poor self-esteem, fear of rejection, recurrent self-harm, substance abuse namely marijuana, crack cocaine and vodka, suicidal ideation and unstable mood. She suffers from Substance Dependency (Cocaine and Alcohol). She has suffered PTSD, the symptoms of which are comparable to those sustained by JXL, as explained at paragraph 9 above. Although both these conditions are separate diagnoses, there is clearly a good deal of overlap between them. .The EUPD and PTSD both began 24 years ago (when SXC was 7/8 years of age) and the symptoms have continued to date. 18 months of intensive therapy is expected to reduce her symptoms in the future, but she will always have some permanent symptoms of both EUPD and PTSD.
18. Like JXL, SXC also contends that her general damages should be assessed on the basis that she is entitled first to be compensated for the actual sexual abuse to which she was made subject in her childhood, and then for the psychological symptoms (the PTSD, EUPD and Substance Dependency Disorder). She contends that the two rapes should attract a general damages award of approximately £27,500 - £30,000, on the basis of the following aggravating features:

i) SXC was a very young (7-8 year old) girl at the time of the two rapes;

ii) Like JXL, SXC was obviously a virgin at the time she was raped by the defendant;

iii) The Claimants were not believed when SXC disclosed the rapes to their mother, who then informed the police of their allegations in 1989/1990. It was not until the criminal investigation in 2010 that they were believed;

iv) The defendants has always denied the allegations: as such JXL and SXC were put through the ordeal of giving evidence in his criminal trial;

v) D was acting in loco parentis for JXL when he raped her fir the first time, and for both of the Claimants when he raped SXC on the occasion.

19. SXC contends that her consequential EUPD and Substance Dependency together fall within the middle to upper range of bracket (b) Moderately Severe of Section (A) Psychiatric Damage Generally, Chapter 4, of the 11^th Edition of the JC Guidelines Bracket (b) provides a quantum range of £14,000 - £40,300. It is suggested on her behalf that her very longstanding (and permanent) symptoms of EUPD and Substance Dependency are worth approximately £30,000, and that her consequential PTSD falls within the middle to upper range of bracket (b) Moderately Severe of Section (B) Post-Traumatic Stress Disorder, Chapter 4, of the 11^th Edition of the JC Guidelines. Bracket (b) provides a quantum range of £17,000 - £44,000. She suggests that her very longstanding (and permanent) symptoms of PTSD are worth approximately £30,000. Factoring in the inevitable degree of overlap between SXC's psychological conditions, she submits that her entire psychological damages are worth approximately £50,000.As such, she contends that her total general damages are worth approximately £77,500 - £80,000.
20. Special losses are pleaded in JXL's Schedule of Special Damages dated 19 Jun 2014 at £167,360. This represents past lost earnings and a small sum for future treatment costs.
21. SXC contends that the two rapes to which she was made subject were of a nature such that an award of aggravated damages ought to follow. SXC contends that an award of approximately £25,000 for aggravated damages (£5,000 more than is applied for on behalf of JXL, to reflect the fact that SXC was raped by D twice) is appropriate to compensate her for the injury to her feelings, humiliation, loss of pride and feelings of chronic anger and resentment towards D, all of which, like JXL, SXC will argue are separate to the basis for the compensation to which she asserts she is entitled by way of general damages (as per para 56 – 67 of AT & ors v Dulghieru [2009] EWCH 225.)
22. SXC's claim is therefore for £105,000 in general damages and £167,360 in special damages.

ASSESSMENT IN PRINCIPLE

23. The approach to general damages which is adopted on behalf of these claimants is somewhat unusual. Essentially, the claim is advanced in three parts: damages for the rape, damages for the psychiatric consequences of the rape, and aggravated damages. I have set out the argument above with some care and have used the language of the claim. It will be noted that the expression "aggravating features" is used in identifying the factors which require a substantial award of general damages for the rapes themselves. There is also a claim to aggravated damages as a separate head. The authority cited, Dulghieru, does not, to my mind, justify this approach. In that case Treacy J, as he then was, made a substantial award of general damages to a number of claimants who had been trafficked and exploited sexually and used for prostitution. They had been subjected to multiple rapes and long, terrifying periods of false imprisonment. They suffered from PTSD, in three cases in the moderate category and in the fourth in the moderately severe category. However, there is nothing in the passage where the Judge assesses general damages for pain suffering and loss of amenity where he identifies "aggravating features" as playing a part in that stage of the assessment. Therefore, when he addresses aggravated damages as he does at paragraphs 56-67 he does so in a way which avoids double recovery.
24. I accept that an award for aggravated damages is justified in a case of this kind, but I consider that I should approach the assessment of general damages in a two stage way. First, I should assess a sum which is designed to compensate each claimant for pain suffering and loss of amenity. This sum should reflect the approach taken in Griffiths v. Williams (Court of Appeal 21 November 1995, unreported), and Lawson v. Glaves-Smith (Executor) [2006] EWCH 2865 and distilled by Treacy J in Dulghieru at paragraph 46 as follows:-

"Rape has come to be treated in a quite different category from personal injury cases in general."

25. The Judicial College Guidelines 12^th Edition say this, when considering awards for damages for psychiatric damage

"Where cases arise out of sexual and/or physical abuse in breach of parental, family, or other trust, involving victims who are young and/or vulnerable, awards will tend to be at the upper end of the relevant bracket to take into account (A)(vii) below."

(A)(vii) below reads as follows:-

"Claims relating to sexual and physical abuse usually include a significant aspect of psychiatric or psychological damage. The brackets discussed in this chapter provide a useful starting point in the assessment of general damages in such cases. It should not be forgotten, however, that this aspect of the injury is likely to form only part of the injury for which damages will be awarded. Many cases include physical or sexual abuse and injury. Others have an element of false imprisonment. The fact of an abuse of trust is relevant to the award of damages. A further feature, which distinguishes these cases from most involving psychiatric damage, is that there may have been a long period during which the effects of the abuse were undiagnosed, untreated, unrecognised or even denied. Aggravated damages may be appropriate."

26. It seems to me that these pieces of guidance mean that the award for pain suffering and loss of amenity will be higher than most other awards for an equivalent level of psychiatric or psychological harm. This is not to punish the tortfeasor, but to reflect the fact that his conduct involved a truly terrifying physical assault. Very frequently it will be accompanied by physical pain. Invariably it will result in serious distress. The psychiatric harm is consequent on a serious physical violation and this is what justifies increasing the award within the Judicial College bracket, or treating it as being "in a quite different category from personal injury cases in general". This reflects the valuing of the harm to the victim, and not any of the factors which may additionally justify and award for aggravated damages. Abuse of trust is relevant at this stage only if it has played a part in causing harm to the victim, as it commonly will. It must be remembered, however, that all rapes cause intense damage to the victims and the court must guard against assumptions that familial rape (the classic breach of trust) is invariably more distressing than rape by a stranger, or by a former partner. Awards must be based on the evidence, and not on assumptions of any kind.
27. In assessing the sum for compensation for pain suffering and loss of amenity it is necessary to have regard to whether or not an award for aggravated damages is also to be made. If so, it is important to approach the assessment of general damages for pain, suffering and loss of amenity without regard to any element which will be represented by that aggravated damages award, as Treacy J did in Dulghieru see paragraph 52. The aggravated damages award will reflect the injury to feelings, humiliation, loss of pride and dignity and feelings of anger or resentment caused by the actions of the defendant. It is at this stage that the issue of abuse of trust is most likely to be relevant. In the present case, the element of trust was not the dominant feature of the offending. The defendant was trusted to have the care of the claimants in his home when they were visiting his niece and daughter. This is trust of a different order from that which is placed in a parent, teacher or other carer. Nevertheless any adult who is in caring for a child in the absence of her parents does have a level of responsibility for that child.
28. In the end, both elements of the award where aggravated damages are awarded are compensatory and not punitive and the court must assess the total of the final award to ensure that it is proportionate in the result.
29. GENERAL DAMAGES FOR PAIN SUFFERING AND LOSS OF AMENITY

i) The crime of rape of a child involves the infliction of physical pain as well as the traumatising of the child. It will often have serious, lifelong after effects.

ii) It is difficult and unrealistic to draw a firm line between the immediate effects of the rape and the psychological consequences. I see nothing in the cases to which I have been taken, or in the Guidelines which requires me to do this. The real adverse impact of a traumatic crime will often be seen most clearly in the impact it has had on the mental state of the victim. The most significant factor in determining the final size of the award will usually therefore be the psychiatric or psychological evidence, and the evidence of the victim about the consequences of the offending for her. I am referring to the victims as "her" in this judgment because both victims in this case are female. There is no difference between male and female victims of sexual crime in the principle as far as quantifying damages is concerned.

iii) In this case the impact on SXC has been, in my judgment, substantially more severe than it has been on JXL. She was raped twice, and suffers a more serious psychiatric illness. This does not minimise the offences against JXL, it merely states that she has been able to survive them more successfully than her sister. Both of them are very significantly affected and always will be. A measure of the difference is that after struggling in her late teens and early 20s JXL has now been able to qualify as a nurse and to work in that role. This is a demanding job which would beyond those suffering from a major psychiatric illness. SXC has not been able to work in paid employment with any regularity, and Dr. O'Neill feels that she will never be able to do so.

iv) Some of the decided cases concern long campaigns of abuse directed by a defendant against the victim. In this case I am concerned with two very serious attacks on SXC, and one against JXL followed another rather less serious offence. There was no serious physical violence, and the extent of any false imprisonment was short. This means that the present awards will be significantly lower than cases such as Dulghieru.

v) The very young ages of the victims at the time of the offending tends to increase the awards. Some improvement is expected in each of these cases following treatment, but each claimant has suffered without treatment for decades. They have lost their childhoods and youth. JXL has suffered serious damage to her marriage which may have unpredictable and damaging results. I hope that with treatment that will improve but this cannot be assumed. SXC has suffered even greater damage to her life from which it will never recover. I approach both cases as being within the moderately severe bracket for psychiatric damage in the Guidelines. For the reasons stated above the award should be higher, within that bracket, than awards for otherwise similar levels of psychiatric harm in personal injury claims.

vi) In these circumstances, I award damages under this head as follows:-

a) JXL, £32,500;

b) SXC, 40,000.

AGGRAVATED DAMAGES

30. There is really no useful guidance to be derived from authority as the amount to be awarded under this head. Both claimants gave evidence at the criminal trial and it was suggested to them that they were not telling the truth. This award compensates the claimants for the distress and humiliation which occurred at the time of the offences and with which they have had to live ever since. The award I make under this head is £25,000 in the case of SXC and £15,000 in the case of JXL. This reflects the differences between the two cases which I have attempted to explain above. The repeated rape of SXC and the fact that she gave evidence about the first offence which did not result in a conviction are relevant to the difference in these awards, as is the fact that she feels that she failed to protect JXL by reporting the first offence and so preventing that second incident. The impact of such a thought on the mind of a very young child must have been very substantial. She did report the matter to her mother after the second offence, but no action was taken at the time to vindicate her complaint which is also relevant.

SPECIAL DAMAGES

31. These claims are as follows:-

i) JXL. This claim is in three parts. The claim for loss of earnings is based on the proposition that she was delayed in qualifying as a nurse for 8 years because of the educational disruption caused by her psychiatric condition. There are also two claims for the cost of medical treatment. I allow these claims which are supported by the medical evidence in their entirety, and award £84,174.

ii) SXC is also in three parts. I note that although a claim for future loss of earnings could be sustained on the medical evidence, none has been advanced. In reality this is likely to be academic given the means of the defendant. There is, therefore, only a claim for past loss of earnings at the minimum wage from age 18 to date. I accept the medical evidence that this inability to work was caused by the combination of psychiatric illnesses from which this claimant suffers. In these circumstances, I allow these claims also, and award £167,360.

THE RESULT

32. The resulting judgments, exclusive of interest will therefore be in these sums:-

i) JXL: £131,674.

ii) SXC: £232,360.

33. INTEREST. I award interest on these sums at the rates which have been calculated by Mr. O'Donnell and approved by me. In doing this I bore in mind the Defendant's status as litigant in person and took care to ensure that the calculation was, as I would expect it to be, along conventional lines and fair to the Defendant. An order reflecting those figures has been drawn up and approved by me.
34. The Defendant requested a hearing at the hand down of this judgment and I heard him again by video link. He complained that I had failed to take account of what he said at the hearing. He said that he felt he had been treated very unfairly throughout because he could not afford a lawyer. He felt he had been "set up to fail". Unfortunately he had written a letter to the court which he copied to the Claimants' solicitors which did not arrive. I therefore asked him to tell me what was in the letter, of which he had kept a draft and a part copy. He told me he was still contesting his conviction.
35. He also told me about the equity in his home and the pending divorce proceedings in which that will be considered. He told me he could only pay a small part of the order, and that he would be bankrupt as a result of it. He told me about the fact that the property is the home of his ex-wife and his 16 year old son.
36. While the judgment stands, it is not open to me to deal with the case on any other basis than that which the Claimants allege to be the case. I understand the Defendant's disappointment at this, but these proceedings must proceed on the basis that the Claimants have proved their case. This is because he did not contest that case. He spoke to me this morning about events at the Prison which occurred when he said that he did not wish to have correspondence from the Claimant's solicitors, but did not say anything to me which persuaded me to change the statement of the facts which appears above.
37. As I have explained to the Defendant today, his ability to pay the judgment sum and costs will be considered at any enforcement proceedings, and is irrelevant to the exercise which I have had to perform.
38. In the circumstances the submissions made to me today did not lead me to make any changes to the draft judgment which I had circulated.
39. COSTS. I asked the defendant what submissions he has about costs and he told me that he has no money. This is not a ground for refusing an order for costs. There is no reason in this case to depart from the general rule. There will be an order for the costs of these proceedings to be paid by the defendant to be the subject of a detailed assessment on the standard basis if not agreed.

Note 1   These claims are funded by means of CFAs entered into on 7 Nov 2012 (for JXL – see p8) and 12 Mar 2013 (for SXC – see p10), and as such – in accordance with the ratio of Simmons v Castle [2012] EWCA Civ 1288 - do not attract the 10% uplift shown in the JC Guidelines.    [Back]