The appeal in Workman v Forrester and others is both remarkable and unremarkable.
It is remarkable because of the dramatic facts that underpin it: Mr Workman murdered his ex-wife in the course of financial relief proceedings following on from their divorce. In McCombe LJ’s bathetic words, “The claim is based upon the undoubted tort committed by the Appellant upon the Deceased in killing her.” That claim sought in part to recover for the deceased’s estate compensation by reference to what might have been expected to be recovered in the financial relief proceedings; something of a novel point. On 26 January 2012, the executors secured a worldwide freezing order of the appellant’s assets and an order that he make disclosure on oath of his assets.
It is unremarkable in that it deals with the consequences of a default judgment on liability, entered against a defendant who had no intention of cooperating with the legal process, and every intention of frustrating it. On 4 May 2012, default judgment was entered in respect of liability and Mr Workman failed repeatedly to give disclosure of his assets.
Following default judgment for damages to be assessed, the normal course of events, as the Court of Appeal reminded itself at paragraph 32 of the decision, was that the claimant still had to prove damage and quantum.
In this case, proving damage and quantum required Mr Workman to give disclosure of his assets and there was an order to that effect; then, on 21 December 2013, there was an unless order to that effect.
Clearly, the failure to comply with the order had the effect of frustrating C’s ability to prove loss, but an order of committal for contempt is not such a daunting prospect for a man serving 11 years for murder.
The terms of the unless order were unusual in that, rather than debarring the appellant from taking part in the assessment exercise, the court fixed at that interlocutory stage something like a best estimate of C’s likely recovery as the monetary judgment that would be entered in default of compliance with the unless order. C’s solicitors’ attendance note described the submission in these terms:
“… based upon the matrimonial proceedings there was two figures. One made by the defendant Mr Workman and a figure put forward by counsel on behalf of Mrs Workman and therefore we have taken in between and mid way point which is a figure which is likely to have been awarded.”
Certainly, there is some logic in that approach.
The Court of Appeal took the view that there was nothing in the rules to fetter the judge’s case management discretion. He was not obliged simply to debar the appellant from taking part in the assessment proceedings (see paragraph 43 of the judgment of McCombe LJ).
Maximising recovery without an assessment
The court’s discretion as to unless orders is obviously very wide. Now, it can be seen even to extend to the power to set a (slightly) arbitrary figure as prospective damages, for which judgment will be entered in default. CPR 3.1(3)(b) gives the court power to “specify the consequences of failure to comply with the order or a condition.” Arguably, this is a sanction even more serious than the entry of judgment on liability.
The Court of Appeal judgment sheds no light on how far apart the parties were and how accurate the parties’ calculations were. It is a hard result for a defendant who may have had strong arguments on liability.
Plainly, the court will have to approve the default figure in a judicial manner: there is a simple, if not entirely satisfactory, logic in fixing it at a mid-point between the parties’ respective positions. There is also, as a matter of advocacy, such a course of action that has a quality of even handedness about it. This will be attractive to a judge making what is, on any view, an unusual order.
However, there may be cases where making such an order would be inappropriate. Indeed, there may be cases in which a claimant could push for a more advantageous order. Cogent submissions about why the claimant’s estimate of loss is the right one, even where the evidence would have to be heard for a proper assessment to be made, might well win the day in an appropriate case.
Furthermore, the Court of Appeal points tantalisingly (paragraphs 45-47) to the prospect of a different and simpler course of strategic action. Would it have been possible for the claimant in this case simply to have claimed a “specified sum” in her claim form, even though it was a damages claim? The White Book commentary to CPR 12.4 suggests that that is possible, albeit without citing any authority to that effect. Sadly, McCombe LJ merely raises the question without answering it. No doubt, this is something to test.