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Patterson v Ministry of Defence [2012] EWHC 2767 (QB) - 12/10/12


Where a soldier had sustained a non-freezing injury to his feet after undertaking cold weather survival training, his injury could not be regarded as a "disease" within the meaning of CPR Part so as to attract a higher success fee.

It was held that as a matter of ordinary everyday language, a non-freezing cold injury would not be regarded as a disease; it was not caused by any virus, bacteria, noxious agent or parasite; it was simply a condition where blood failed to reach the cells in the nerves, skin and muscle as a result of exposure to weather or environmental conditions. There was no basis for concluding that the term 'disease' in CPR 45 was intended to be interpreted by reference to the pre-action protocol for disease and illness claims, the purpose of which was very different from CPR 45. The Protocol was concerned with the procedure to be followed at and before the commencement of litigation, while the subject matter of CPR 45, namely the success fee payable to a claimant's lawyers was altogether different. The definition of disease in the Protocol was therefore not a reliable guide to the meaning of disease in CPR 45.

On a proper construction of the CPR r.36.13(2), the court could not be told whether a Part 36 offer had been made until the conclusion of an action and it was therefore precluded from making an order for costs in the instant action, where liability had been determined but damages remained to be decided.