When should the aggregate rate be applied, and when not? Are there any principles which emerge from case law which indicates how judges might respond in any individual case? After all, Lord Diplock stated in Wright v British Railways Board  2 AC 773 (at ), when referring to the high number of personal injury cases that settle:
'This is only possible if there is some reasonable degree of predictability about the sum of money that would be likely to be recovered if the action proceeded to trial and the plaintiff succeeded in establishing liability. The principal characteristic of actions for personal injuries that militate against predictability as to the sum recoverable are, first, that the English legal system requires that any judgment for tort damages, not being a continuing tort, shall be for one lump sum to compensate for all loss sustained by the plaintiff in consequence of the defendant's tortious act whether such loss be economic or non-economic, and whether it has been sustained during the period prior to the judgment or is expected to be sustained thereafter. The second characteristic is that non-economic loss constitutes a major item in the damages. Such loss is not susceptible of measurement in money. Any figure at which the assessor of damages arrives cannot be other than artificial and, if the aim is that justice meted out to all litigants should be even-handed instead of depending in idiosyncrasies of the assessor, whether jury or judge, the figure must be "basically a conventional figure derived from experience and from awards in comparable cases"...'
It is worth stating with the basic principles which govern this head of claim:
(1) All compensation is governed by the 'full compensation' principle set out in Livingstone v Raywards Co  5 App Cas 25, 39
'Where any injuries is to be compensated by damages, in settling the sum of money to be given for reparational damages you should as nearly as possible get at the sum of money which will pout the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.'
The so-called 'full compensation' principle was re-stated by Lord Steyn in Wells v Wells  1 AC at [832, 833], and by several appellate courts since. However, in calculating what is 'full compensation' it would appear that the common law has set certain trammels.
(2) The common law basis for such a claim, and its status, was finally settled in the House of Lords (as it then was) in the seminal case of Hunt v Severs  2 AC 350 (where, it will be remembered, the issue was critical because the provider of the care was the defendant tortfeasor). Lord Bridge:
'But it is nevertheless important to recognise that the underlying rationale of the English law, as all the cases before Donnelly v Joyce demonstrates, is to enable the voluntary carer to receive proper recompense for his or her services and I would think it appropriate for the House to take the opportunity so far as possible to bring the law of the two counties into accord by adopting the view of Lord Denning MR in Cunningham v Harrison that in England the injured plaintiff who recovers damages under this head should hold them on trusts for he voluntary carer.'
In Housecroft v Burnett  1 All ER 332 O'Connot LJ set the benchmark when referring to the fact that the award would be held in trust for the carer,2
'Once it is understoof that this is an element in the award to the plaintiff to provide for the reasonable and proper care of the plaintiff and that a capital sum is to be available for that purpose, the court should look at it as a whole and consider whether, on the facts of the case, it is sufficient to enable the plaintiff, among other things, to make reasonable recompense to the relative. So, in cases where the relative has given up gainful employment to look after the plaintiff, I would regard it as natural that the plaintiff would not wish the relative to be the loser and the court would award sufficient to enable the plaintiff to achieve that result. The ceiling would be the commercial rate.' [Emphasis added]
This case establishes the twin pillars: that first, what is required of the award is that it provides 'reasonable recompense'; and secondly, that the commercial care rates set a ceiling on the award.
Whilst the upper limit of any award is the value of a commercial care rate, at the other end of the spectrum there is no threshold test in terms of the severity of injury suffered. However, in order to be recoverable, the care must go 'distinctly beyond that which is part of the ordinary regime of family life.' 3
If the carer did lose earnings, then the court will consider the lost income in valuing the gratuitous care, but will not usually award a sum which is more than a figure achieved by applying the commercial care rate (less a discount to reflect that those rates attract taxes in the hand of a paid worker). The award would not necessarily be limited to the loss of earnings if that loss represents an underestimate of the gratuitous care that has been provided. If a carer does not leave paid employment or work in order to provide the care, then the court traditionally looks to the various commercial rates but then applies a discount to them to reflect the fact that the award on behalf of a carer does not include any operating costs, tax or national insurance contributions.
The Court, therefore, has three variables to use in determining the value of a gratuitous claim: the number of hours, the hourly rate of pay that should apply, and a discounting factor.
There are two factors that have been used to justify a discount being applied. The first is that the care being provided by an 'amateur' gratuitous carer may not measure up to that which the commercial rate would provide. The second factor reflects the fact that the gratuitous carer does not have any 'business costs' such as travel and does not pay income tax or make national insurance contributions. As a general observation a discount of 25% is often applied but can be as high as 33%.
The courts have repeatedly refused to set any fixed hourly rates or discounting percentages. In Evans v Pontypridd Roofing Services  PIQR 5 the Court of Appeal was concerned with a man who suffered constant, very severe pain. His wife had been his main carer. The experts adduced evidence as to 'home carer' rates for one period of his care by his wife, and a 'residential carer' rate (ie. 24 hours) for a separate period. The judge had accepted these rates and applied a 25% discount.
May LJ said:
'If a caring relation has given up remunerative employment to care for the claimant gratuitously, it may well be appropriate to asses the proper recompense for the services provided by reference to the carer's lost earnings. If the carer has not given up gainful employment, the task remains to assess proper recompense for the services provided. As O'Connor LJ said in Housecroft v Burnett, regard may be had to what it would cost to provide the services on the open market. But the services are not in fact being bought in the open market, so that adjustments will probably need to be made. Since, however, any such adjustments are no more than an element in a single assessment, it would not in my view be appropriate to bind first instance judges to a conventional formalised calculation. The assessment is of an amount as a whole. The means of reaching the assessment must depend on what is appropriate to the individual case. If it is appropriate, as I think it is in the present case, to have regard to what it would cost to buy the services which Mrs Evans provides in the open market, it may well also be appropriate to scale them down. But I do not think that this can be done by means of a conventional percentage, since the appropriate extent of the scaling down and the reasons for it may vary from case to case.' [Emphasis added]
Both O'Connor LJ and May LJ have emphases that what is being awarded is a lump sum and that lump sum should represent the 'reasonable' recompense for the labour given freely. May LJ in particular emphasised that there were three components: assessing the number of hours, divining an appropriate commercial rate, and making a deduction to reflect the non-commercial nature of the care given. His deliberate failure to provide a 'standard' discount is bound up in the philosophy that what is being assessed is gratuitous care, and the commercial rates and the discount are merely tools to try to assist the judge in reaching the correct amount.
This is all very well, but how are practitioners to gauge whether an 'aggregate' rate is opposite, and what deductions should be made? Can a more specific approach be used to take account of the actual hours and the type of care given? How have the courts been dealing with it?
It is not practicable here to set out each and every case which has made it onto a database. Further, for the most part, it is only the more seriously injured claimants whose cases (being dealt with it in the High Court) appear in the databases now available. There are not many County Court cases which have been 'reported'. There is no substitute for the detail of exactly what the care needs were, which requires careful analysis of the reports (some of which do not provide all the necessary detail). With that bias in mind:
Massey v Tameside & Glossop NHS Trust  EWHC 317: Teare J was concerned with a claimant who was a child with dyskinetic cerebral palsy and dystonia. He was described as being 'generally floppy' with poor postural control. He could sit, save when heavily supported. In addition, overt involuntary movements affected his head, face and all of his limbs (athetosis). He had poor oro-motor function so that his ability to swallow and speak very limited. He could say 'mum', 'no' and 'yes', but little else. He could only move by rolling. He could not grasp objects but could attempt to reach out and 'bat' them. There were to facets to the judge's consideration of the appropriate sum. The first was assessing the 'additional' hours that Mother gave to the care of her two sons, over and above that which she would have been provided with if he had not been injured; the second was as to the appropriate hourly rate to be applied. Teare J awarded the equivalent of the aggregate rate (ie. a basic rate with an enhancement' applied by Jacqueline Webb & Co). He said:
'The Spinal Point 8 rate is a flat rate which does not take account of the antisocial hours (nights and weekends) during which much of the care provided by Joseph's mother has been provided. Nor is it a rate which takes any particular account of the intensive care required of a person caring for someone with Joseph's needs which, it is common ground, are at the most serious end of the spectrum of sufferers from athetoid cerebral palsy. Whilst any rate for voluntary care is in one sense artificial I have difficulty in accepting that the Spinal Point 8 flat rate is a rate which enables Joseph's mother to receive proper recompense for her services when much of her services were provided during the night or at weekends and were particularly demanding because Joseph's needs are and were particularly demanding.
For the same reason I have difficulty in accepting that the Spinal Point 8 flat rate is a rate which is appropriate in this case or which can produce a fair result in this case. In order to be appropriate and produce a fair result the Spinal Point 8 flat rate requires some enhancement to reflect the particular circumstances of the care provided by Joseph's mother.'
[ Comment: thus, the judge awarded a higher rate on the basis of both (a) the demanding type of care required; and (b) the unsocial times at which it would be provided, and had in mind the overall question of what was reasonable recompense in those circumstances.]
In Mark Noble v Martin Owens  EWHC 534 (QB) the claimant had suffered multiple bone fractures to his pelvis, leg, both wrists and to his spine at T4; he underwent 11 operations and suffered considerable pain. He required help with his toileting, including incontinence at night and night sweats. He mobilised slowly. He needed a lot of attention and was difficult and demanding. Some days his pain was considerable and then he needed more care. Expert evidence was adduced with Ms Sargent contending for aggregate rates, and Ms Conradie for the basic rate. Field J awarded the basic rate on the basis: 'given that the care, although onerous. did not require training and was provided by a person who lived with the person cared for...' Field J distinguished Massey on the basis that Massey's 'needs were much more serious'.
[ Comment: however, what seems to have escaped the attention of the judge is that these NJC rates are for carer without special training, ie. unskilled workers. Furthermore, to distinguish Noble on the basis that in that case 'the child's needs were much more serious' may be the wrong approach, when the focus should be on what is required to compensate the carer. It is worth noting his judgment as to the type of care provided (see §72) - which seems to the authors very significant, time consuming and harrowing care. It is difficult to see how the care provided was so much less arduous and exhausting to the carer than it was in the case of Massey.]
In Romy Smith v East and North Hertfordshire Hospitals NHS Trust  EWHC 2234, the claimant had suffered brain damage at birth. Her problems, in adumbrated form, were:
- she functioned at a very low cognitive levle with very severe learning difficulties;
- she was very sensitive to noise bit with a real talent for music and said to have perfect pitch;
- she would never work and would remain totally dependent on carers for all aspects of self-held and daily living skills, requiring 2 carers much of the time in order to deal with her challenging behaviour and to protect her and her carers from impulsive behaviour;
- she was incontinent, which was thought might improve with maturation, though it was agreed that her prognosis for social maturation was very limited;
- she had a severely disturbed sleep pattern with difficulties going to sleep and frequent night-waking when she would require attention.
Her parents looked after her. There was competing expert evidence: Ms Sargent for the claimant and Ms Slawson for the defendant. Again, Ms Sargent contended for the aggregate rates and Ms Slawson for the basic rates. The case was put on the basis that the 'demanding and exhausting but devoted nature of the care given at antisocial hours during day and night and at weekends requires that compensation be assessed using an aggregate hourly rate.' Penry-Davey J agreed. That made the total figure £82,998. The defendant sought a one-third deduction, arguing that tax and NIC needed to be taken into account as well as the costs of going to work, and the fact that it was provided out of love and affection. The claimant said that 25% was the maximum contending that tax and NIC would not amount to 25%. A deduction of 25% was made.
[ Comment: can one realistically distinguish the carer's efforts in Noble from those in this case - and, if not, how can one reconcile the decisions? Consider what is said in the judgment as to needs and care at §2-3. Overall, this case, it is suggested, more fairly recognises the worth of what was given gratuitously compared with what the cost would have been if professional carers had been employed.]
Some more recent cases - Part gratuitous care
Whiten v St George's Healthcare NHS Trust  EWHC 2066 The claimant was 7 and had suffered with severe quadriplegic cerebral palsy from birth. Unable to stand and with limited arm use, he was also double incontinent. He was described as 'totally dependent'. Ms Sargent was called for the claimant and Ms Douglas for the defendant. During the time when his care need was met by his mother and father it was extremely demanding. Even feeding was described as 'time consuming'. It was also required every day and at times during the night as well. Given the amount and extent of care, and the times when it was needed, Swift DE J judged that the aggregate rates were applicable. She also had to decide between the parties on the level of discount the defendant seeking 30% and the claimant floating a nil per cent. A 25% deduction was made, taking into account that commercial rates were being used as the yardstick, and that the aggregate rate took into account the nature of the care required and provided.
[ Comment: again, when comparing this decision with that in Noble, Field J's conclusions seem harder and harder to accept. Basic rates and taking of 25% for what Mrs Stanton did for Mr Noble seems impossibly low. NB: in this case an argument was also raised that the commercial rates did not reflect the true cost of care in London but there does not seem to have been an attempt to adduce evidence of those rates or to plead them.]
Streeter v Hughes & MIB  EWHC 2841 Jeremy Baker J found the defendant not liable in negligence for colliding with the 14 year old claimant cyclist, but went on to describe what he would have found as to quantum (which is therefore obiter). The claimant was gravely injured (tetraplegia) and needed considerable care. His expert contended for aggregate rates and the defendant's expert had used the rates paid to agency carers (which were unlikely to be less than the NJC rates). In the event the judge concluded there was no difference between them and applied the agency rates 25% less.
[ Comment: It is always worth looking at what is the local rate for the provision of local care, since it can be significantly higher than the NJC rate.]
Patricia Nicholas v MoD  EWHC 2351 The claimant suffered with asbestosis which caused severe breathlessness and incapacity. She died aged 86 from an unrelated cancer. Her daughter had provided substantial care for her in the last few years. The claimant sought £10 p/hr (it is not clear exactly whence this figure came) and the defendant contended for the basic rate applicable in 2008. The judge said:
'I bear in mind that the care of the deceased was provided during antisocial hours, evenings, weekends and bank holidays, and that should be reflected in the rate selected. An aggregate hourly rate is therefore appropriate. It is common for care experts to use Spinal Point 8 of the NJS rate as being appropriate, ie. rates applicable to home helps or companions. These were £8.43 to £8.98 per hour throughout the relevant period. Actual commercial rates are likely to be in excess of those rates, and perhaps nearer to £10 per hour for gardening/housekeeping/DIY type work.
In my judgment, the Spinal Point 8 rates are appropriate to use. After the 25% discount...'
[ Comment: the care provided will have been very significant, particularly in the last few months given the horrible effects of the disease, but it is questionable whether the care will have been so much more arduous or requiring of expertise overall than in Noble.]
Tate v Ryder Holdings  EWHC 4258 The claimant sustained a very severe brain injury which reduced his mobility and his cognitive effectiveness, as well as making him impulsive and aggressive at times. He needed a 24 hour package for the future. As to his past gratuitous care: expert evidence was lead on behalf of the claimant. The judgment does not make clear what rates she applied, not what her gross figure was. There was other expert evidence, but what it contended or is not revealed in the judgment either. Kenneth Parker J simply awarded a sum of £50,000 less 25% discount.
[ Comment: there is little enough in the judgment to provide evidence of what the judge considered correct as to the rates or deduction. However, this case is a rare example of the 'lump sum' award referred to above, and is included for that reason.]
Downing v Peterborough & Stamfordshire Hospitals NHS Trust  EWHC 4216 This case does not deal with gratuitous past care, the claim for which was, in the event, abandoned. In relation to the cost of future care there was a dispute between 'standard' and aggregate commercial rates. Some care was to be provided by commercial carers, but it was the 'extra' gratuitous are that was being valued. Sir David Eady sitting in the High Court expressly followed the reasoning of Field J in Noble and applied the 'standard' rates. The claimant had suffered reactive arthritis which then became a severe pain disorder with an uncertain prognosis. He was wheelchair-bound on his bad days, and limited in his mobility. His independence was clearly compromised and his wife had become his carer. The report is not full of detail as to his actual needs, what his wife did for him, or when she did it.
[ Comment: it probably ought to make little difference that the award was for prospective rather than special damages; however, it does make a difference that much of it, it would appear, was to be provided by commercial carers, which will have reduced both the amount of care which the carer was able to provide, its type, and the effect of it upon him. It is not clear what, if any, cases other than Noble were cited to the judge, some of which, we have seen, put a different perspective on Noble.]
Marion Miller v Imperial College Healthcare Trust  EWHC 3772 HHJ Curran QC was the trial judge sitting in the High Court. The claimant was in her 60s when, because of the defendant's negligence, she suffered an above-knee amputation. By the time she was discharged she had a fitted prosthesis which she could use. She needed 'support' and had suffered falls with a consequent dent to confidence. For some time a member of the family came to live with the claimant to assist her Each party called their own expert witness and the number of hours of care was agreed. The hourly rates and the amount of discount were at large. The claimant sought application of the aggregate rate, the defendant for the basic rate. The experts gave opinions as to when aggregate and basic rates should be used. The evidence was that she required care at this time not only during the day, but at night and at the weekend. Thus the claimant sought to justify application of the aggregate rates. The defendant contended for the basic rate. The judge awarded the aggregate rates, and at §40 of his judgment explained that the type and time of provision of care justified use of the aggregate rate. The judge awarded a discount of 20%.
[ Comment: for those contending for the use of aggregate rates in other than 'catastrophic injury' cases, this would seem to be a watermark case. Both the use of the aggregate rate, and the lower discount, point to a more generous approach.]
Sarah Finnie v South Devon Healthcare NHS Foundation Trust  EWHC 4333 Mrs Finnie required her mother's assistance to get her downstairs, to have a shower, to make meals, to have hot and cold drinks, to look after her cats and their litter boxes, to do her washing, to bring in shopping an in providing a roast dinner when the family were visiting. Mrs Finnie's mother still worked full time, but managed to see the claimant several times per day, and when Mrs Finnie was very unwell her mother changed her stoma bag and helped her shower at home and in hospital, and to change dressings. The experts in applying different rates appear to have distinguished between daytime care and nighttime care in their use of those different rates - the significant issue being at what time the nighttime care rate began. A nil per cent discount was contended for by the claimant but the judge discounted by 20%, having regard to the fact that, being damages, no tax would be payable whereas it would be suffered by the commercial carers. He also had regard to the fact that much of the care was of an intimate nature.
Eva Totham v King's College Hospital NHS Foundation Trust  EWHC 97 Laing J was dealing with a minor who had suffered an hypoxic event at birth, which resulted in cerebral palsy. Her muscle control was compromised with difficulty in sitting and walking. She was generally continent and slept reasonably well. Here, an unusual position was before the court.
'It is common for experts to arrive at the commercial cost of care by using the National Joint Council (NJC) rates. The basic rate is used when care is provided during working hours, and the higher, aggregate, rate, when care is provided twenty four hours a day and at weekends, or is rather more than basic unskilled care. The parties agree that the aggregate rate is appropriate, because care was provided at all hours.'
However, Mother gave up highly paid work to look after her daughter. The issue was around the amount of the discount. The claimant contending for a nil per cent discount, the defendant seeking 30% - the judge opted for 25%.
[ Comment: counsel for the claimant raised the point that the commercial cost of care in London was higher than the NJC rates - but his argument failed on the point that he had agreed the application of the aggregate rates in his schedule! This case does not help in the general argument because of the factor that Mother gave up significant earnings to care for her child.]
(1) The table of the different NJC rates as set out in Facts and Figures provide for different rates for daytime (currently £6.90), evening (£9.21) and weekend hours (Saturday £10.36, Sunday £13.81). It is to be noted that these hourly rates are all applicable for the same 'carer' and for the work they provide, whatever its nature. If these are the rates that the commercial carer would demand, on what logical basis should one apply the basic or aggregate rate throughout, if the care is provided in the evening and/or at weekends as well?
(2) The tables below seek to show a comparison of possible results when the rates are applied in different ways.
(3) The first table makes an assumption that for the first few weeks after discharge from hospital the injured claimant cannot fend for himself in terms of personal washing, dressing, obtaining and preparing food (no account being taken of being unable to do housework), where his supper would be at about 7pm; further, that he needs assistance to go to the toilet during the night. The assumption is that 3 hours of care is required each day and 1 hour of care in the evening/night. Discount is ignored at this stage (but see below).
|Basic Rate throughout||10 x £6.90||£69.00|
|Aggregate Rate throughout||10 x £9.07||£90.70|
|Individual Rates 3 hours weekday, 1 hour evening, 3 hours Sat & Sun||3 x £6.90, 1 x £9.21, 3 x £10.36, 3 x £13.81||£20.70, £9.21, 31.08, £41.43||£102.42 per week|
(4) The aggregate rate is calculated on the basis that the full 168 hours of each week are apportioned between day, night and weekends. In most cases, however, the full 168 hours/weeks are not being used, and the number of hours required during the evenings/nights will be significantly fewer in the less-significantly injured claimants; whereas the weekend care is likely to be the same as during the week. Using the aggregate rate distorts the result. Applying the actual commercial rates produces a higher figure, even over the use of the aggregate rate. There is a good argument for not applying the 'basic' rate for gratuitous care being provided at the weekend, since the commercial carer will demand the higher rate for the same level of care, and the gratuitous carer is losing her/her time off.
(5) It is worth repeating here that the different rates are applicable only because of the time at which the commercial carer is providing the service, not because the carer who is providing the care in the evening or at the weekend has any extra training or skill. IN other words, in these examples it is not being contended that the type of care was so arduous or emotionally draining as to justify a higher rate on its own.
(6) If we now assume that there is no evening or nighttime care, but that some loss of housework and domestic assistance is required so that the hours are greater during weekdays and fewer at the weekend. Assume that the 'nursing care' element includes some personal toileting, some assistance with dressing and mobility and food, but also there is a need for cleaning clothes, bedding, or kitchen utensils. Assume that this can be divided between about 3 hours per day for the care and about 1 hour per day for the rest, with the domestic assistance only being done during the week. Thus, 5 x 4 hours (20), plus 2 x 3 hours (6) for a week. The model now changes to this:
|Hours||Rates||Result||Total per week|
|Basic Rate throughout||26 x £6.90||£179.40|
|Aggregate Rate throughout ||26 x £9.07||£235.82|
|Individual Rates 3 hours weekday, 1 hour evening, 3 hours Sat & Sun||20 x £6.90, 3 x £10.36, 3 x £13.81||20 x £6.90, £31.08, £41.43||£210.51|
(7) Here applying the aggregate rate has a disproportionate effect by over £25 per week, and applying the basic rate throughout produces a loss of over £31 when compared with the use of the proper rate for the time when the care is to be provided.
(8) As can be seen from these two worked examples, applied a hybrid rate that seeks to specifically take into account the actual hours worked can produce results either above or below the aggregate rate depending on when the hours of care occur.
(9) If one is going to use commercial rates as an appropriate 'yardstick' for assessing what is a reasonable sum for recompensing a gratuitous carer, it is hard to see why it is justifiable only to apply the basic rate when some care is given in the evening/at night, and at weekends, even if the care being provided is relatively straightforward in nature.
(10) That said, typically, the claimant's spouse would have been at the home of the claimant and would have been likely to have provided some services in any event. The carer is foregoing their day off, at least to some extent. It is tentatively suggested that a fairer approach to estimating the reasonable recompense for a gratuitous carer is to apply the appropriate and different hourly rate for evening and weekend care, but apply a different discount than is currently the norm, to take into account these contentions. There is no reason why a greater discount could not be applied to the weekend rates, where that is considered appropriate.
(11) Reliance on Noble and/or Downing as some sort of precedent for application of the basic rate in all or at least most cases, is likely to be dangerous, not only because each case will turn upon its own facts, but also because those two authorities seem to be out of kilter with a significant number of other cases. It seems particularly harsh to limit the rate to the lower basic rate and apply 25% reduction, when it is by no means clear that a commercial carer on the basic rate would ever fail to pay income tax in any event.
(12) It must be correct that in valuing recompense for a gratuitous carer, the type of care being provided and whether it is particularly arduous or emotionally draining, should be a significant factor.
(13) The tables above suggest that simply pleading the aggregate rates in all cases may well be misguided. A more judicious use of the various rates applicable according to the time when the care is provided may pay dividends.
(14) There is no rule of law that the rates provided by Spinal Point 8 are the only applicable rates. It may well prove fruitful to claimants to find out what the local commercial rate is for any particular task, whether it is for nursing care, domestic assistance, or child care.
1 Since the publication of the PNBA Facts & Figures booklet there is widespread use of the Local Authority Spinal Point 8 rates paid to carers. The Table provides different rates which would be paid to a commercial carer for care provided during “daytime” (basic), or Evenings, or Weekends. The Aggregate rate is arithmetically a balance of “all the hours of the week by their relative number and appropriate rate” – see §15 on P 290 of the Booklet.
2 NB - before Hunt v Severs!
3 Giambrone v JMC Holidays Ltd  EWCA Civ 158