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Prigmore (PR of the Estate of Anne Prigmore Deceased) v Welbourne, High Court, 21 November 2003

24 November 2003
The issues

Actuarial evidence – multipliers – single joint expert.

The facts

Mrs Prigmore died from a road traffic accident on the 11th October 1999, leaving a husband, 4 adult children and a dependent daughter. She was 56 at the time of her death. The dependent daughter was disabled and would require care throughout her life. She had learning difficulties, was partially sighted and would never be capable of looking after herself independently. Her affairs were subject to the Court of Protection. There was a substantial issue as to the multiplicand in respect of the deceased’s care for her daughter, Clare. The Claimants put forward a figure of £30,000.00 to £40,000.00, whereas the Defendants contended that the dependency was more in the order of £10,000.00. The Claimant argued for a multiplier based on the premise that the mother would have continued to provide services to the age of 82. The Defendant argued that the multiplier should end at the age of 70. The figure on the Claimant’s case was £763,948.00 and on the Defendant’s case £94,235.00, respective multipliers being 20.65 and 11.05. The Claimant’s Solicitors had told the Defendant’s Insurers that they were intending to obtain evidence for an actuary, asking him to calculate the multiplier on two different bases. Firstly, on the Cookson -v- Knowles approach (ie from the date of death) and secondly as recommended by the note to the Fourth Edition of the Ogden Tables from the date of Trial. They stated that they would then leave it for the parties to argue at Trial as to which approach was to be taken. The Claimant’s Solicitors sent three options to the Insurers. Option 1 calculated the dependency in accordance with the Ogden Tables from the date of death and produced a post-Trial multiplier of 15.92. Option 2 calculated the multiplier from the date of Trial and produced a post-Trial life multiplier of 18.22, having adjusted the figure for the risk that the deceased might have died in any event before the date of Trial. Option 3 calculated the multiplier upon the basis of the proposed compromise calculation suggested by David Kemp QC, which produced a post-Trial life multiplier of 17.94. Relying on upon these approaches to Insurers and upon the explanatory note to the Ogden Tables, the Claimants sought leave for actuary evidence. The District Judge permitted an actuary to be appointed as a single joint expert.

The Defendant appealed.

The decision

1. The District Judge had exercised her discretion in making the Order she had. It was for the Appellant therefore to show that the decision was wrong in that a discretion was exercised wrongly. The District Judge did not appear to have been given the benefit of a detailed analysis on the difference between the question of principle as to the approach to be taken and the calculation itself. There was no dispute between the parties but actuarial evidence was irrelevant as to the question of principle. The resolution of which date should be taken for the purposes of the multiplier was a matter of law. That was a sufficient ground in itself for the Court to re-exercise the discretion.

2. There was another basis for challenging the decision. The District Judge had noted that as the Court of Appeal were involved, the Court would want to be “doubly sure” that the figures were right. This was not a reason for the instruction of an actuary. It might, in exceptional cases, be relevant where the Court of Protection had refused to give its approval to a proposed settlement. In those circumstances, it might become relevant for a Court to obtain actuarial evidence, but only as to the question of the calculation of the multiplier rather than the question of principle.

3. Discretion therefore had to be exercised. This was an unusual case. There was however no particular complication arising over joint lives as the evidence clearly showed that Clare’s life expectancy was greatly in excess of that of the mother had the mother survived. The complications in the case related to the calculation of the multiplicand and the issues of fact as to which of the deceased’s services would have continued and to what extent. Even if the explanatory notes in the Ogden Tables are applied, this case still failed to fall within the category of case where actuarial evidence was necessary. The starting point was that the criteria of simplicity required that in the majority of cases, the Tables alone would suffice. It was only where the accuracy of the multiplier was of critical importance in for example very large claims and where a level of multiplicand was unambiguously established the advice of a professionally qualified actuary should be sought. Here, such evidence was not required. The Ogden Tables were not a perfect instrument but they had been adopted, as had the Lord Chancellor’s discount rate, for public policy reasons, namely that certainty was necessary in order to facilitate settlements and save costs.

Appeal allowed.

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