Going to Trial: What’s It Really Like?
And why wasn’t the offer of Mediation accepted by the defendants’ insurers?
Personal Reflections on my own, from start to finish.
I am a fully qualified Scottish litigation solicitor and a Law Society of Scotland accredited commercial mediator (one of only four), in practice since 1993 and this article is written from both those perspectives. It’s also written from a comparative law perspective-the trial involved me as the Scottish claimant at Birmingham County Court in March 2021; the defendants were an English married couple, Mr and Mrs White, who live in Birmingham; the jurisdiction was English on account of the defendants’ residence; procedural law was English, but the applicable law on damages and liability was French per Rome II and in addition to the lay witness evidence to fact given in person, expert witnesses on French law gave evidence remotely from France via Teams. Mediation had been offered by the claimant to the defendants several times during the currency of the court process but was rejected on each and every occasion. I will reflect on that, by reference to Canadian mediation law, and what difference mediation might have made, if any, later in this article.
Setting the Scene
My wife (also a solicitor) and I were on a skiing holiday in Flaine in the French Alps in March 2016, when I was involved in a skiing accident with the defendants when I sustained significant injury to my right knee involving a complete rupture to my anterior cruciate ligament (ACL) and the post-operative appearance of symptomatic osteoarthritis also at the right knee, which leaves me in more or less permanent physical discomfort and often pain, particularly in cold weather. The good news is that, following operative intervention and donation from my hamstring my right ACL has been reconstructed and I can now ski again!
At the time of the accident, I was ascending a poma lift on the ‘Bois’ Poma. This is a very steep and winding Poma track through heavily wooded country, with rising and level pitches, where visibility is often compromised. I had ascended the first steep pitch over a distance of approximately 200 m, and then came over a crest, with a short flat section, leading to another short steep rise. As I reached the top of that second rise, I noticed ahead of me, close to the top of a third steep rise about 40 m in front of me, two skiers standing up, on their skis, side-by-side, blocking the poma track. They were facing downhill towards me. It was so unexpected I got the fright of my life.
I immediately started shouting, ‘get off the poma’-and then, after no discernible movement on their part, ‘get off the f*****g poma’, several times. As I crested that second short steep rise, I had about four or five seconds to decide what to do, and I was in shock. The next section of the poma track – which they were close to the top of – was steep and hemmed in on both sides by high snow banks. There was a small gap on the right side of the poma track, between the defendants and the snow bank. Immediately behind me was my wife.
The Federation of Skiing (FIS) Conduct Rules provide that skiers ascending on a poma track/tow must not dismount from the tow unless they fall off the tow or in an emergency. I was acutely aware of that. I worried that if I attempted to dismount, I would fall backwards given the steepness of the slope, and either I would be injured in that process, and/or, that I would form an obstacle for my wife and that she might be injured. What I did not know (because this was the first time I had been on this particular poma tow), was that there was an emergency path out to the left through the woods-there was no obvious marking of this for me to see. In the few seconds I had to take everything above into account, and being in a state of shock, I decided that the ‘best’ course of action, was to stay on the poma tow, still hoping that the defendants (or one of them) would move, and to try and ski around them on the right-hand side where there was a small gap.
As I came abreast of the defendants my skis got caught in the snow bank on the right-hand side, the poma tow pulled itself loose from me, and I fell forwards onto my left side with my head pointing up the hill. In the approximately 12 to 13 seconds from first seeing the defendants to collision, the defendants did not move at all.
Immediately after the collision, I calmed down very quickly and apologised for shouting and for my bad language. My apology was swiftly accepted, with Mrs White apologising over and over again for causing the accident. Notwithstanding that apology the defendants then left me with my skis still jammed into the snow bank, lying on the poma track, unable to move, and skied down the poma track to the lower level section about 15 m below. In the interim, terrified other skiers would appear and crash into me, I attempted to free my skis by pulling them out of the snow bank -in the process I twisted my right knee and ruptured my ACL-which gave an audible pop!
FIS rules require skiers who fall on pomas to clear the poma promptly and without unreasonable delay-I was doing my best to do that. FIS rules also require, at accident scenes, that every skier is duty bound to assist even when they have not caused the accident. To be fair to Mr White, he did come back after ushering his wife to a safer place and taking off his own skis. He walked back up and released my ski boots. Of course, by then the damage was done. I would have expected him to help release me before leaving me. Interestingly, the trial judge Her Honour Judge Ingram (HHJ Ingram) commented on Mr White’s general approach to matters, when she put it to him, during his cross examination, that he seemed to be more concerned with the safety of himself and his wife, and not immediately or equally concerned with the safety of others.
Following my release from the snow bank, I was able with help from Mr White to hop/crawl off the poma track to the side immediately-even though I was unable to weight bear. A conversation then took place among all four of us. Mrs White suggested that Mr White should provide his card with their details to my wife-he observed that it was his business card and it did not have their personal details on it-he declined. That evening my wife went to buy anticoagulant medication for me on the instruction of a doctor-she bumped into the defendants by chance at the pharmacy. She explained that I had been badly injured and could she please have their details. His card was provided at this point. The FIS rules provide that skiers, whether the responsible party or not, must exchange names and addresses following an accident-Mr White did his best to avoid doing this at the time of the accident.
Back to immediately following the accident. The defendants explained that Mrs White had fallen off the tow, and that he had got off to help her and that they were trying to get off the poma when I appeared. They did not say why they both had their skis on, or why they were standing side-by-side effectively blocking the poma track. Mrs White however was very apologetic and kept apologising for causing the accident. Thereafter, Mr White did go off and returned with help and I was stretchered off the mountain down the Poma track which by then had been switched off.
I came back to Edinburgh and had reconstructive surgery two months later. It took 1 ½ years of physiotherapy to completely rehabilitate.
Raising the case
Shortly after returning home, I decided to claim against the defendants for my injuries. I thought it would be an open and shut case, on account of Mrs White’s apology; also given that the defendants had obviously had time to regroup, put their skis back on and start down the poma track, contrary to the FIS rules to clear the poma quickly after a fall. I met with a Scottish solicitor, provided a statement, and a claim was formally intimated.
Around August/September of 2016, I was consternated to find that the defendants’ insurers were denying liability and had provided a statement from them to the effect that the accident was my fault entirely! According to them I had managed to ski past and around them and then turned round some 20 feet later and further up the hill to shout more abuse at them and had fallen off at that point. To say that I was shocked is an understatement-initially I was also incandescent. At that point I had practised as a litigation solicitor for 23 years and I prided myself on always being completely honest and straight down the line with clients, opposing solicitors, counsel, insurers, sheriffs and judges. The duty of a solicitor to the court in all circumstances is to tell the truth, the whole truth and nothing but the truth-it is a duty I have always maintained and adhered to and it forms a major part of my life’s credo-I will not lie or misrepresent the position on behalf of others, and I will certainly not do so for myself.
In the face of this repudiation, I could either give up or I could go to court. I wasn’t about to give up. I am not a liar-and the defendants’ outrageous and untrue allegations simply made it too personal for me. So off to court. This meant instructing Hugh James solicitors in London-initially Katherine Allen, partner and subsequently Rebecca Gilmore, senior associate, who saw my case through to trial and judgement.
The court case commenced in early 2019-it took that length time from the accident to get finalised medical evidence and French expert evidence both on French law and French damages. The case was listed for trial on 18th and 19 March 2021 before HHJ Ingram.
The medical evidence changed during the course of my case-specifically, it became apparent that the more or less permanent physical discomfort and pain I have immediately below my right knee was ascribed to pre-existent, but asymptomatic, osteoarthritis, made symptomatic by the injury and subsequent operation. According to the doctor I would have developed this pain within five years anyway and the accident had brought forward the symptoms by that amount of time. Additionally, the insurers insisted on valuation under French law-this is much less generous than English or Scottish law on damages. Throughout the case a number of part 36 offers to settle were made by me to the defendants/their insurers/their solicitors (for Scottish readers a part 36 offer is equivalent to a judicial tender/pursuer’s offer). All these offers including one shortly before trial were rejected. No offer was made by the defendants.
My solicitors, on my instruction, also offered to take part in mediation. The offer was that I and my wife, were prepared to attend mediation and in effect be cross-examined by counsel for the defendants on all of our evidence-in return we sought reciprocation-that both the defendants would also attend mediation and would also submit to cross-examination from our counsel.
It was apparent before trial to both myself and my solicitor, Rebecca Gilmore, that the defendants’ statements did not deal in many significant aspects with all the details of what had happened at the time of the accident and indeed, that there was a lack of corroboration of Mr White by Mrs White. My wish at that time was to offer mediation. Then the deficiencies in the defendants’ statements would become apparent (as happened in actual cross examination at the trial)-and that the defendants would effectively have to address the missing factual issues that they had left out and that their written statements did not deal with. From my perspective, mediation would have allowed a much more candid exchange of witness evidence. It would also have enabled both parties’ solicitors/insurers to have much more accurate information on which to base their informed assessment of risk, before proceeding to trial.
To illustrate these points, I remember that in approximately 2005 I was acting for a pursuer (claimant) against Grangemouth petrol refinery in Scotland. The issues of the credibility and reliability of the pursuer’s evidence were key to success and my opposite number felt that this was lacking. It was clear to me that it wasn’t and after consulting my client, he instructed me to allow the defenders’ very senior solicitor (who I had known for years and who was straight but tough) to question him at length on any issues-I was present but remained silent. The day after this that solicitor made an offer that resolved the case. He had the further information he needed to properly risk assess the case and advise his clients on. He advised me afterwards that if he had not had the opportunity to interview my client, he would have run the case to trial. He looked after his clients’ best interests by availing himself of that (at the time) unusual opportunity.
Back to my case. In preparing for the court case, Rebecca and I compared my witness statement and my wife’s witness statement to the witness statements for both defendants forensically for hours. My witness statement ran to 61 long paragraphs, with very detailed information about the accident circumstances. My wife’s witness statement ran to 64 detailed paragraphs. By contrast Mr White’s statement ran to 35 short paragraphs and Mrs White’s statement ran to 28 short paragraphs
There was very little detail in the defendants’ statements-they were silent on many of the significant factual issues and in one important aspect Mrs White’s account did not corroborate Mr White’s. I would go so far as to say the defendants’ witness statements were, at best, lacking in candour. They also bore no resemblance to what each defendant had said to us at the time of the accident. Most importantly, when they subsequently gave evidence under cross-examination, they gave far more evidence than in their statements; and that evidence was substantially different from the evidence in their written statements.
In one incredibly important matter their evidence in court directly contradicted each other. It was noted by HHJ Ingram that the first time the defendants suggested that Mrs White was lying on the ground when I approached was at trial. Their previous statements had not suggested this. HHJ Ingram also noted that Mr White advised in his evidence under cross-examination that before I arrived a couple of skiers had skied around them about two minutes after Mrs White had fallen (when she was allegedly lying on the ground) and then a minute and a half later, after those skiers had departed the scene, he stated that I had arrived, fully 3 ½ minutes after the alleged fall. In his written statement Mr White had advised that those skiers had skied around all three of us after I fell. His wife advised in cross-examination that he was wrong in his recollection under cross-examination. However, when she was cross-examined, she said that she could not remember how she got off the poma track after my accident (she skied off)-but seemed to be clear about other aspects of her evidence-these contradictions were later noted by HHJ Ingram in her judgement.
It seemed obvious to me, that the defendants’ solicitor would want to do the same-as my opposite number did in 2005- in order to look after the best interests of his clients. These days, that could mean taking part in mediation.
Now of course, the defendants’ solicitor’s ‘real’ clients are the insurers, because they underwrite the claim. There is a financial imperative for there to be a full risk assessment based on as full disclosure of evidence as possible. I would have thought there would also have been a ‘real’ interest for his other clients, the actual defendants, for there to have been a full examination of all the evidence, so that he (the solicitor) could give all of his clients candid advice (after comparing evidence adduced in mediation under cross-examination). After all, in the event, it is not my reputation for truth and veracity that has been undermined, as a result of HHJ Ingram’s judgement, but Mr White’s reputation-and he sells ski boots (but of course not by the seashore)!
In the event, the defendants’ solicitors/insurers rejected the offer to mediate. I still do not understand why. It seems to me that the defendants’ and their insurers’ risks were not as fully assessed as they could or should have been. Would mediation have settled this case? I can’t say for certain-but if the evidence had come out in mediation as it did at trial under oath and in cross examination, I would have thought that the assessment of risk would have changed-on both sides. My guess? It would have settled and the defendants’ insurers legal costs bill would be an awful lot smaller than they are now going to be -with those legal costs now dwarfing the damages awarded tenfold.
In some parts of the world mediation is mandatory. In Ontario, Canada you cannot proceed to trial without first attending at a mediation diet. This covers PI cases -but it’s only defendant solicitors and their insurers (in addition to the pursuer and his solicitors) who have to attend at the mediation diet-not the ‘real’ defendants (this is an obvious failing and my case would have fallen foul of that rule). For me, genuine candour should be an important part of the legal case-mediation should be a mandatory part of the legal process-but witnesses should also be required to attend-otherwise insurers or their legal representatives can simply frustrate access to justice, hiding behind legal procedure to spin things out as long as possible. Particularly if the defendants’ solicitors or insurers don’t want their witnesses to be exposed or give away evidence that doesn’t help the defendants. To my mind this is an abuse of process.
In the week of the trial, I met via Teams with my counsel Alex Carington (Barrister at 12 King’s Bench Walk) and with my solicitor Rebecca Gilmore, in order to make final preparations-which were mainly an opportunity for Alex to fine-tune his understanding of evidence and seek any clarification necessary from me.
Rebecca had already prepared the trial bundle and lodged this with court-I had a hard copy. The bundle contained copies of the pleadings for both parties, including orders, copies of the claimant’s disclosures, significantly including YouTube footage of the Bois Poma lift and the FIS rules of conduct. Also included were all witness statements; mine, my wife’s and the defendants. Medical evidence was included, English and French. Expert reports on French damages and liability law were also included for both parties; there was a joint statement by the French law experts on matters where they were agreed. In total a modest 175 pages. All parties referred to this bundle throughout the trial-it was invaluable. All of this had been prepared by Rebecca- who was incredibly thorough. Everything was there, shipshape and Bristol fashion. Throughout the time Rebecca acted for me she was a consummate professional-I always knew what was going on in terms of court timetabling and orders. Rebecca gave significant time to me; her client care was impeccable. I’m sure I must have driven her slightly mad-many of our conversations were long- my fault. Rebecca is a very experienced PI lawyer, but it must, at least initially, have been a little awkward for her in acting for a client who had been a PI lawyer himself for 26 years when we first met. One thing is for certain-she knew a lot more about French law and dealing with cases under Rome II, than I will ever know. I used to run a million miles from such cases, for fear of making mistakes. These types of cases are a speciality for Hugh James solicitors and Rebecca was on top of her brief. It was also interesting- and comforting to me – that she had experience of being a defendant lawyer before acting as a claimant lawyer-gamekeeper turned poacher! It gave her good insight into how defendants’ agents would ‘normally’ behave!
Back to my case! During the course of our pre-trial consultation, Alex explained to me how the trial would proceed. My witness statement would be proffered at the bar and I would be asked to confirm it was my true evidence, and he would then ask the court to treat that as my evidence. There is no equivalent for this in Scottish legal procedure. No witness statements are lodged or accepted as evidence in this way. All witness evidence in Scotland is given in chief in court-except in some very limited circumstances (for example where evidence has to be recorded as an emergency if a party might be about to die for example at a Commission). Thereafter Alex explained, I would be straight into cross examination.
On the day of the trial, we all arrived at 10 am and stood outside in the cold for 30 minutes. As a result of the pandemic, entry was strictly controlled. As we queued, we stood beside the defendant’s counsel, who chatted at length to my counsel. As we went in, I said as a matter of courtesy and politeness, that I appreciated it would not be appropriate to discuss matters, but I wished to introduce myself as Paul Kirkwood, the claimant. Defendant’s counsel in response, said so that only I could hear, that we would have plenty of time to chat at the trial! That seemed ominous to me, and so it proved. I mentioned this to my solicitor-it transpired subsequently that this was his opening gambit in his attempt to ‘psych me out’.
The trial began before HHJ Ingram. I was straight into cross examination. For me this was strange-in Scotland, every witness effectively gets to warm up during their evidence in chief in response to questions from the counsel of the side which called them-so usually this would be a slightly more relaxed start. Not so with the defendants’ counsel. He adopted an extremely aggressive cross examination style-his approach appeared to be to try and deliberately rile and provoke me into ‘losing my rag’ and thus discredit my evidence and blacken my character.
I can safely say that it was the most unpleasant, difficult and nerve wracking 2 ½ hours I have ever spent in court. By the time of the trial, I had been a solicitor for 28 years. Of course, this was my only time in court as a witness rather than in my professional capacity. I’ve already commented on what I shouted to the defendants to try and get them to move out of the way. I am not proud of what I said-but I was in shock and frightened by the very fact of their presence, and my swearing was said in the heat of the moment. I apologised very quickly. In court – to my disbelief – the defendants’ counsel asked me to say out loud what I had shouted- even though that evidence had not been challenged previously in written form – I repeated ‘get off the f*****g poma’. There were two expert witnesses on French law attending throughout the trial by Teams, and using the pretext that they may not be able to hear me he asked me to repeat that loudly so that they could hear-he did this four times, each time asking me to say it more loudly. This seemed entirely unnecessary to me (I had already confirmed what I had said in my written evidence)-and in the last take, I asked him, acidly, if that was loud enough? Then he dropped his (to me utterly unexpected) bombshell.
I have already alluded to the scant nature of the defendant written evidence. This fact was subsequently roundly criticised by HHJ Ingram in her judgement. But the defendant’s counsel then put it to me that, that was not what I had said, was it? He put it to me that I had said, ‘get off the f*****g poma, you f*****g bitch’. I was gobsmacked and absolutely shocked and taken by surprise. My immediate reaction was to blurt out, ‘where is your evidence for that? That’s not true, that’s not what I said’, and ‘when I first saw your clients, they were about 40 m away. I couldn’t tell from that distance whether they were two men, two women, or a man and a woman, or a cat or a dog in ski suits’. The point I was trying to make badly, was that the defendants were too far away from me for me to know what sex they were-and in the circumstances how could I dream up that language to direct at a woman, when I didn’t know if either of them were women?
One month later when handing down judgement on Teams HHJ Ingram noted this passage of evidence and noted my ‘indignant response’; also noting my reference to ‘a cat or a dog in a ski suit’. She said that my response had the ring of truth to it-and that she felt that the defendants had embellished their evidence with a view to discrediting me-but that this had backfired. When she said this in early on in her judgement, before I knew she was going to find for me in her judgement or prefer my and my wife’s evidence to the defendants, I was so relieved to hear this that I started to cry in front of the judge and all the other parties on the Teams link. I had been horrified by this untrue and horrendous allegation-and I had worried that if the defendants’ evidence in that regard was believed it would do incalculable damage to my public reputation. HHJ Ingram noted that ‘the claimant is upset’ so ‘I’ll pause for a few seconds to enable him to compose himself’. As my wife says, I’m an emotional old Hector. Although I did not know at that point what the outcome was going to be, it was already enough in my mind that the judge had seen through this piece of nonsense.
After I had given evidence, I reflected that I had not had the presence of mind to say that I would never use such language to describe a woman as it would be both sexist and violent. Anyone who actually knows me, would know that. My wife hates the word. I have a daughter. I have chosen throughout my legal career to work often in a team with women.
From 1994 until 2005 I instructed Lady Leeona Dorrian QC (now Lord Justice Clerk – Scotland’s second most senior judge), in almost all of my Court of Session cases. I was distraught when she became a judge in 2005 – my go to QC, with whom I’d worked closely for over 10 years was gone. I also instructed another lady QC, Joanna Cherry (now the SNP MP) often in conjunction with Leeona. I’ve fought cases through proof (trial) and debate, and appeal resulting in reported decisions, with the former in Duthie v Macfish Limited per Lord MacFadyen (0/512/5/99) and with both to Inner House appeal, in the case of Skinner v SAS (A 324/03).
More recently, since 2016, I have worked frequently with Pamela Lyall a former solicitor and long-standing commercial mediator. I have always enjoyed working in a team with women. I find that when there is a ‘mixed double’-both parties do things slightly differently, but in a complementary way-and that trust is very much key to these relationships, with respect flowing both ways. But at my trial, I was so shaken at the line adopted by the defendants’ counsel that I didn’t say any of these reflections-and one relies on a judge who does not know you to judge you on snippets of evidence given over a short time-when one is being attacked. It was for me a chilling illustration of the nature of our adversarial system.
The cross examination attempts to discredit me continued in much the same vein. Next up, this related to my wife and I stopping for lunch on the day of the accident. It had been the last day of the holiday, at 12 noon (early to beat the madding crowds) and we had a proper sit-down meal and a bottle of white wine between us. The accident happened at about 3 pm. Counsel for the defendants was at pains to suggest I was not paying enough attention because of alcohol consumption-he likened it to drink-driving. I pointed out that I had spotted the defendants approximately 40 m away and had shouted to give warning of my approach. Counsel obviously felt I should have seen them still earlier (the insinuation being that I had not seen them early enough because of the effect of the alcohol).
Hilariously, when Mr White give evidence, despite saying that he was looking every which way while taking care of his ‘allegedly’ fallen over wife (because he said he was acutely aware of his surroundings and risk)-in the same breath he advised that the first he knew of my presence was when he heard me shouting, which was before he saw me. It seemed to me that the one who wasn’t paying attention was him!
Counsel for the defenders wasn’t averse to trying to ‘pull another fast one’ either. When the trial resumed after lunch, he said ‘I think we have agreed about X and Y’-my response to that was to say ‘no, that’s what you said, that’s not my evidence’. By then I’d had enough of him and his behaviour. After that he seemed to run out of puff-he didn’t put much of the important evidence to me in cross, leaving my written evidence largely unchallenged. He did the same to my wife, leaving most of her written evidence unchallenged. In my view this was a professional mistake on his part – I don’t know why he didn’t – he just seemed to give up. Maybe it was because I hadn’t cracked?
I had a conversation the following morning with my own counsel, who told me that my French law witness, Frank Benham had been shocked by how rude the defendant’s counsel had been to me and commented that if he emulated that behaviour with him the following day, he would have to say something about that. Of course, in French and German jurisdictions, law is inquisitorial, and not adversarial, as it is in England and Scotland-where going to trial seems almost to be about trial by combat!
My own counsel, Alex Carrington’s style of cross examination, was the mirror opposite, and also much more effective. It was much gentler, but also much more probing. He allowed the defendants more latitude to say what they wanted. They gave much more evidence under cross-examination, on all the areas that they had not covered in their witness statements and they did so without any aggressive or rude behaviour from counsel. The verbal evidence of both contradicted their written statements markedly. We were told, for the first time, that Mrs White had fallen and was still on the ground when I approached. She had given evidence that she saw me fall 20 feet further up the hill-but when she was gently asked about what she could see when she was apparently lying on the ground in her left side-she had to say that she couldn’t really see anything above or below her. Then she had to concede that she did not see me fall 20 feet above her, because she physically wouldn’t have been able to do so. Especially since on their account, her husband was standing up, with the skis on further up the hill, obscuring her view. Counsel got discrepancy after discrepancy after this, from both of them. Earlier in the case my solicitors had asked for further information under part 18 of CPR as to how long the defendants had been on the poma track immediately prior to the accident. The response by the defendants was to the effect that they couldn’t really remember much-but they believed they were on the poma track for no more than a few minutes attempting to move in a safe manner prior to the accident. In evidence Mr White, contradicting his own written evidence, said that two minutes after his wife fell, two skiers came past and skied round them (Mrs White advised that French skiers had also shouted abuse at her!), and then one and a half minutes after they had disappeared, I had arrived-in other words on his own evidence at least 3 ½ minutes had passed while the defendants were still on the poma track with their skis on before I arrived ‘attempting to move in a safe manner’ (whatever that means). Interestingly Mrs White said her husband’s evidence was wrong in that regard.
The defendants gave no real explanation as to what they were doing in that 3 ½ minute period and in her judgement HHJ Ingram accepted my counsel’s submission, absent any other explanation, that a plausible explanation as to why the defendants were still on the poma with their skis on was because they were going to attempt to ski down the poma which was inconsistent with skiing rules (FIS) and contrary to their duty under French law.
Judgement was handed down verbally by HHJ Ingram one month after the trial concluded on 19th April 2021. My wife and I were present via Teams. This is what HHJ Ingram said.
Credibility:HHJ Ingram found the claimant and his wife to be straightforward, consistent and honest witnesses doing their best to recall events. Matters were not exaggerated and if the claimant could not recall he would say so. HHT Ingram found the first defendant quite defensive and at times indignant. There were a number of inconsistencies in his evidence. The second defendant was equally found to be at times inconsistent in her evidence. There were a significant number of details she could not remember. HHJ Ingram made it clear that she preferred the evidence of the claimant and his wife-who were credible and reliable.
Contributory negligence:The defendants argued that they were clearly visible and that the claimant ought to have got off the poma lift in anticipation of them blocking the track. HHJ Ingram did not accept this but instead accepted the claimant’s evidence that ‘you never leave a poma left unless you fall or it is an emergency. You do not leave voluntarily’. No criticism was held of the claimant in respect of his decision to stay on the Poma tow. The court accepted the claimant’s evidence that he was shocked, surprised and fearful when he saw the defendants and felt he had no choice but to stay on the poma lift. The court accepted his evidence that if he came off the poma lift his worry would be for his wife who was travelling behind him. Accordingly, the court held there was no contributory negligence on the part of the claimant either in staying on the poma lift or by trying to ski around the defendants.
Despite being truthful throughout, I worried that the judge might believe the defendants and that my professional integrity and reputation after 28 years of unblemished practice, could be irredeemably tarnished – I was incredibly relieved when I heard HHJ Ingram give her judgement, especially on the untrue allegation on the appalling use of the word bitch. I’m not ashamed to say that I cried. It wasn’t premeditated-it just happened and was born of my release from the stress of having the whole case and question marks over my honesty hanging over me for five long years. I felt I had been completely vindicated. I knew that I and my wife had been telling the truth-and I was glad that HHJ Ingram had seen through the alternative suggestions from the defendants.
As commercial mediators we often say to parties in private caucus that taking part in any trial is fraught with danger and risk and that no one can predict with certainty the outcome. We also talk about how unpleasant it can be to give evidence and to be cross-examined. These observations are true-but unless you have experienced them for yourself it is almost impossible to appreciate the reality of that. The cross examination of me by the defendant’s counsel was described by my counsel, in his summing up, as forensic (I think he was being kind). I wouldn’t categorise it as that -I would say it was an incredibly aggressive attempt to blacken and destroy me and my credibility-it was an attempt at character assassination. I don’t approve of that style-fortunately it entirely backfired.
In commercial mediations, I also say to parties that professional reputations and commercial viability can be damaged when matters go to court and public judgement is given. In my case, I’m sure the defendants’ solicitors and insurers don’t care-but I think that the actual defendants might care-their public reputations, for what they are worth, have been tarnished.
Mediation should have been tried in this case-to examine the evidence, and to test it, and to see if settlement was possible. Any such settlement would have been confidential-and public reputations would have been protected, including those of the defendants. Instead, for reasons best known to themselves, the defendants’ insurers and their solicitors ran a case in court, at huge cost to the public purse, without testing the evidence-I simply cannot fathom it. The guesses I can make about their motivation for doing so are just that, guesses. Insurers and their solicitors run cases for different reasons. Perhaps they looked at the statements without really thinking carefully enough about them and came to the conclusion that they believed their own clients and decided that they would run it on that basis. That seems highly unlikely to me – defendants’ insurers in my experience are not usually motivated by ‘belief in their clients’ – they are usually motivated by cold hard commercial reality. If there is a genuine 50/50 risk, they would normally seek to buy it off. The vast majority of PI cases are settled. Sometimes insurers just don’t believe a claimant and think that they are making it up – they run the case for that reason- to make an example of that person “pour encourager les autres”. Perhaps they thought they would get the scalp of a solicitor – although why they would think a solicitor who had worked in that field for all his professional life would manufacture a claim with all the concomitant risk, is also beyond me. Maybe they just didn’t consider the case properly – maybe it was just a cock up and there was no conspiracy – I don’t know – but from where I’m sitting, I don’t think they did a very good job. I’d still like to know though – I suppose I shall never find out.
Thank goodness that’s over- I can move on now-I’ve got the horrendously long-lived, unnecessary, troublesome and badly behaved monkeys off my back.
As we say in Scotland ‘nemo me impune lacessit’-loosely translated into Scots ‘wha daur meddle wi me’ or if you prefer in the Gaidhlig, ‘cha togar m’fhearg gun dioladh’.
Till we meet again.
Posted by Paul Kirkwood