Summary of Recent Cases – Costs

Low value RTA claim settled under the terms of a Part 36 offer, the costs were to be assessed under CPR 45 Part II rather than on the standard basis
Sandra Solomon v Cromwell Group Plc: Donna Oliver v Sandra Doughty [2011] EWCA Civ 1584, 19/12/11

The appellants, who had been claimants in low-value road traffic accident claims, appealed against decisions to award costs in accordance with Part 45 Part II rather than on the standard basis. In both cases, the Claimants had accepted Part 36 offers of sums totalling less than £10,000 made by the Defendants before the claims had been issued. The Court held that it could not have been intended that a Claimant in a low-value road accident claim who accepted a Part 36 offer before proceedings had been commenced should be entitled to recover costs assessed on the standard basis, whereas a Claimant accepting an offer not made under Part 36 should be limited to the costs under Part 45 Part II. Furthermore it was not clear why a claimant proceeding under r.44.12A should be subject to a more restrictive costs regime than one who started Part 7 proceedings. If the Claimants' argument were correct, the acceptance of a Part 36 offer would always result in an order for costs on the standard basis in low-value road traffic accident cases which would undermine the fixed costs regime and provide a powerful incentive for defendants not to make Part 36 offers in such cases. The appeals were therefore dismissed.

A judge's award of costs based on a Claimant's Part 36 offer was illegitimate as the offer had been withdrawn the Court could rely on the consequences of a previous unwithdrawn Part 36 offer
Epsom College v Pierse Contracting Southern Ltd (In Liquidation) (Formerly Biseley Construction Ltd) [2011] EWCA Civ 1449, 13/12/11
It was agreed between the parties that the judge's award of costs based on the second Part 36 offer was technically illegitimate as that offer had been withdrawn. The question was whether the award could or properly should be translated into Part 36 costs consequences under the surviving first offer or under Part 44. It was held that the first Part 36 offer was valid and reliance on that offer could be substituted for the second offer. The essence of the judge's disposal of the question of costs would be upheld. As the second Part 36 offer's withdrawal meant that it could not be made the basis of Part 36 costs consequences, reliance on the first, unwithdrawn, Part 36 offer would be substituted.

January 27, 2012 · editorial · Comments Closed
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Summary of Recent Cases – Substantive Law

SUMMARY OF RECENT CASES - PROFESSIONAL AND CLINICAL NEGLIGENCE

Hospital Trust Granted Summary Judgment In Clinical Negligence Claim Where Claimant Debarred From Relying On New Expert Evidence
Wright v. Basildon and Thurrock Hospital NHS Trust, QBD, 7/12/11

Judge Stockdale QC (sitting as a deputy High Court judge) granted the Defendant hospital trust summary judgment in respect of all outstanding issues in the underlying clinical negligence claim brought against it. Judgment by consent had been entered in respect of part of the claim, there having been an admission of a breach of duty in a limited sense. Summary judgment was however entered in respect of other discrete serious allegations of breach of duty (including that the surgery had been carried out without consent and was barbaric) on the grounds that they did not have real prospects of success. The original expert in support of the Claimant's case withdrew and pursuant to the terms of a Court Order, the Claimant stood debarred from relying upon new expert evidence as he had failed to obtain such expert evidence by a certain date.

January 23, 2012 · editorial · Comments Closed
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Summary of Recent Cases – Substantive Law



DAMAGES

Judge Wrong Not To ApplyThe Decision in Copley v Lawn In A Credit Hire Claim
Sayce v. TNT (UK) Ltd, CA, 19/12/11
The Court of Appeal held that the judge's decision, that the Claimant had unreasonably failed to mitigate her loss in failing to accept the Defendant's offer of a replacement vehicle, was procedurally irregular in that the judge had decided the appeal on a basis contrary to the way in which it had been argued before him and without any indication that he was so minded (namely he did not hear any submissions on whether the Court of Appeal's decision in Copley v. Lawn [2009] EWCA Civ 580 should be followed). Furthermore, the Court of Appeal held that the judge had not been entitled to disregard the decision in Copley, notwithstanding his disagreement with the decision and his doubts as to its reconciliation with previous decisions of the House of Lords.

January 19, 2012 · editorial · Comments Closed
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Summary of Recent Cases – Substantive Law

PERSONAL INJURY & FATAL ACCIDENTS

Event Management Company In Breach Of Duty To A Visitor To Santa's Grotto
Dufosse v. Melbry Events Ltd, CA, 14/12/11

The Court allowed the Appellant's appeal against the dismissal of her claim for damages for a leg injury sustained as a result of tripping and falling over a plastic icicle christmas tree bauble during a visit to Santa's grotto. The Court of Appeal approached the issue of whether the Respondent event management company had breached its duty of care from the starting premise of whether the icicle was there to be seen. On the basis that the icicle was there to be tripped upon, the Court of Appeal held that the proper inference was that it was there to be seen. Consequently, the Court of Appeal held that whilst in principle the Respondent had a safe system in place for checking the floor of the grotto for tripping hazards, on this particular occasion the Santa and elf had not been as careful in the checking of the floor as they should have been. As such, the Respondent was found to have breached its duty of care to the Appellant.


Protestor Successful In Recovering Damages For Assault By Police Officer In The Course Of A Demonstration
Minio-Paluello v. Commissioner of Police of the Metropolis, QBD, 16/12/11

Eder J held that the Claimant protestor, who sustained a fractured arm during a pro-Palenstinian demonstration following restraint by a police officer, was entitled to recover damages from the police for assault. Eder J held that whilst the police officer had reasonable grounds for believing that the Claimant was committing the offence of obstructing the highway and that the arrest was thus lawful and the Claimant resisted her arrest, the method and force used by the officer to get the Claimant to her feet were not reasonable or proportionate. In particular, the locking of the Claimant's arm behind her back and lifting her by that arm was dangerous and her injuries were avoidable. The Claimant was awarded damages for assault and general damages of £11,500.00.


In Upholding A Limit On Damages For Future Loss of Earnings In A Claim Under The Criminal Injuries Compensation Scheme 2001, The Upper Tribunal Had Not Erred
Rust-Andrews v. First Tier Tribunal (Social Entitlement Chamber) & Criminal Injuries Compensation Authority (Interested Party), CA, 19/12/11

The Court of Appeal dismissed the Appellant's appeal against a decision of the Upper Tribunal in respect of her claim for compensation under the Criminal Injuries Compensation Scheme 2001 following a violent assault at work and which caused her to suffer from a post-traumatic stress disorder. The Appellant claimed that she was entitled to £100,000.00 future loss of earnings. The First-tier Tribunal awarded her £19,028.00 for past and future loss of earnings on the grounds that she had failed to mitigate her loss in not undertaking cognitive behavioural therapy ('CBT'). The Appellant's application for judicial review of that decision was dismissed by the Upper Tribunal. The Court of Appeal held the First-tier Tribunal had been entitled to find that on a balance of probabilities, had the Appellant undertaken the recommended CBT there would not have been an ongoing loss of earnings for which she would be entitled to recover compensation. Consequently the appeal was dismissed.

January 16, 2012 · editorial · Comments Closed
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PI Practitioner – each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area

EMPLOYERS' LIABILITY FOR EXPOSING EMPLOYEES TO ASSAULT

1. Vaile v Havering LBC, [2011] EWCA Civ 246, [2011] All ER (D) 124 (Mar) - the claimant was a teacher at a school for children with learning difficulties. One of the Claimant's pupils, X, assaulted her twice. In the second incident, the claimant suffered such severe injuries that she was unable to return to work. She brought an action against the Defendant for failing to provide a safe system of work.

At first instance, John Leighton-Williams QC found that while X had never formally been diagnosed as suffering from autism, he did in fact suffer from Autistic Spectrum Disorder (ASD). He found that a highly structured approach should have been employed for X, but had not been. However, the court held that there was no evidence that the teaching of X had fallen below what was educationally acceptable for him, or had been inadequate so as to result in an unsafe system of work for the claimant. The judge also held that if there had been negligence on the part of local education authority (LEA), that had not caused the claimant's injury.

Held on Appeal: that the judge's primary finding of fact logically compelled the conclusion that the LEA had not taken adequate steps to provide the claimant with a safe system of work. The LEA should have had a system in place to establish whether or not pupils at this school suffered from ASD; and ensured that teachers were properly instructed in techniques to manage children with such conditions. The claimant had no adequate training. Accordingly the judge had not followed through the logic of his own findings. The proper conclusion was that the LEA had failed in its duty to provide the claimant with a safe system of work. The Court of Appeal also overruled the judge on the causation point.

2. Lloyd v Ministry of Defence [2007] EWHC 2475 (QB), [2007] All ER (D) 407 (Oct) - The claimant was a prison officer. He was violently assaulted by a prisoner, H. H's history sheet had recorded no information pertaining to his violent history. Claimant submitted that he had not known that H had had a long history of violence including violence to prison officers. He further submitted that if he, or those around him, had known about H's violent history, further precautions would have been taken which would have avoided the incident.

Held: The duty was on the employer to keep his servant reasonably safe; the employee would of course take reasonable care for his own safety, but that had not diminished the primary duty of the employer. The defendants had been negligent in failing to inform the senior officer or the prison officers, including the claimant, of H's history of violence. Such negligence was a material cause of the incident and the claimant's injury. Therefore the defendant was liable.

3. In Connor v Secretary of State for Scotland [1999] 1 PLR 221 (OH) - AC was a prison officer on duty in the wood assembly shed. He asked a prisoner, FC, to give him a piece of wood which he ought not to have had. FC threatened AC. AC said that FC would be placed on report, whereupon FC attacked AC; FC's brother, PC, joined the attack.

The prison was aware that these men had a history of attacking officers. FC and PC, together with a third brother, MC, had in August 1994 attacked another prison officer. The board which allocated prisoners to different workshops took into account disciplinary records.

AC argued that prison management should not have allocated FC and PC to the same location, given that this produced an increased risk of assault. The Secretary of State argued that the decision as to allocation was a professional decision (involving balancing the rights of prisoners, the expectations of prison officers and the effective management of prisons) and so liability could not be found unless it was shown that no reasonably competent board would have allocated the brothers to the same work party, which in turn required expert evidence. AC further argued that the prison management were under a duty to warn officers working in the wood assembly shed that FC and PC were working together in the same shed.

Held: There was a higher risk of assault if FC and PC were placed together; that was, or ought to have been, foreseeable by the prison management who decided on the allocation of prisoners.

The duty owed to AC arose from his status as an employee; the prison management had a discretion as to the appropriate disposition of prisoners, which required balancing different interests such as the training of inmates, the maintenance of good order and administration, the best use of resources and the safety of officers. Liability arising from the exercise of a discretion arose when the discretion was exercised so carelessly or unreasonably that there had been no real exercise of discretion. On the evidence, it was not shown that no reasonable board could have decided to allocate PC to the same work party as his brother. The claimant failed on this ground.

However, it was reasonably foreseeable that if FC was approached in a confrontational manner by an officer he would resort to some form of violent behaviour more readily than other prisoners, in the knowledge that his brother would come to his aid. Had AC been advised that the brothers were present together, he would not have approached FC in the manner he did. The assault would not have occurred. Accordingly, the prison authorities were in breach of their duty of care by failing to inform AC that the two brothers were working together in the same shed.

January 4, 2012 · editorial · Comments Closed
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Summary of Recent Cases – Civil Procedure

Insurance status of the Defendant from whom an interim payment is sought is irrelevant

Donald Berry (A protected party by his wife and litigation friend Carol Berry) v Ashtead Plant Hire Co Ltd & Others [2011], EWCA, Civ 1304, 10/11/11

The word "defendants" in CRP r. 25.7(2)(e)(ii) meant the Defendants against whom an order for an interim payment was sought. Therefore when a Claimant applied for an interim payment against a number of Defendants on the basis that one or another was liable and they were all insured, it was irrelevant that there was also another Defendant who was not insured. On the facts, the Appeal was allowed as it was far from certain that the parties against whom the interim order had been made would be found liable.

A DJ had not erred in concluding that a litigant should not be able to withdraw an admission

Satoshi Kojima v HSBC Bank Plc [2011], CA, 09/11/11, Extempore

The applicant appealed against a DJ's decision not to allow him to withdraw an admission he had made that he was indebted to the respondent bank. At first instance the judge had ordered that unless he executed a charge over his flat, judgment would be entered against him for the admitted amount. The applicant was later informed by solicitors that he had a defence to the claim, however his application to have the unless order revoked was refused. The CA held that the DJ had considered all the principles in CPR PD14 had had made a value judgement. The CA would only displace the decision if they had gone wrong in principle and there was no evidence this had occurred. It was impossible to say that his decision was one that he was not entitled to reach.

Interim payment for property refused when judge not reasonably satisfied that it was necessary for the Claimant's needs
Crispin v Webster [2011], QBD 04/11/11, Extempore
The Claimant who had been rendered quadriplegic sought an interim payment of £250,000 and £750,000 to buy a house in the centre of Winchester. She wished to be close to the centre of the City and live in a house with character as opposed to a bungalow. The amount of £250,000 was granted however following Eeles v Cobham Hire Services Ltd (2009), EWCA Civ 204, (2010) 1 WLR 409 the judge was not prepared to release the funds for the house. The issue for the judge was whether the judge was satisfied at an interim stage that the trial judge would award a lump sum to purchase that particular house, not just any accommodation to fulfil her needs. The judge at an interim stage had to look at the matter on a conservative basis and with a high degree of confidence. It was not possible to conclude that the trial judge would grant the requested accommodation costs based on that particular house. There was evidence of other housing stock which the trial judge might regard as a suitable yardstick by which to measure the capital sum to be awarded. It was a matter for the trial judge to decide the yardstick and to reconcile what the C wanted and needed with what was objectively reasonable. The issue needed to be the subject of evidence and cross-examination and was not an issue for determination on an interim application.

January 1, 2012 · editorial · Comments Closed
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Summary of Recent Cases – Costs

A success fee of 100% was unreasonable when judgment on liability had already been entered in favour of the Claimant

Arlene Fortune v Jonathan Roe (2011), [2011], EWHC 2953 (QB), 10/11/11

A success fee of 100% was unreasonable where judgement had already been entered as the main risks to the litigation had gone. Non-recovery of charges would only have arisen if the C rejected a Part 36 offer and subsequently failed to beat that offer. The Master had originally decided that as the C was litigating in a risk free environment a success fee of 20% as opposed to 100% was appropriate following the C's acceptance of the D's Part 36 some 3 weeks before trial. There mere fact that a 2 stage success fee was in place did not mean that the 100% uplift could be justified. If there was no proper justification for the first stage fee it could not be used as a platform for the second stage fee, and it was difficult to see how the first stage fee of 25% cent was justified as there was no significant risk facing the C or her solicitors until a Part 36 offer was served. Where the risk was not great, and a substantial proportion of the costs were already secured for the Claimant's solicitors, a success fee of 100 per cent was unjustified and a reasonable success fee was 20%.


A Disclosure Order was granted to enable successful Defendants in 2 PI claims to gain information on whether the impecunious had been funded by their solicitors for the purposes of a potential 3rd Party Costs Order

Gill Germany v Gavin Flatman: Barchester Healthcare Ltd v Richard Weddall [2011], EWHC 2945 (QB)

There was a power under the Senior Courts Act 1981 s.51 to determine by whom the costs of litigation should be paid. Such an order could be extended to non-parties, such as solicitors, in appropriate circumstances. What was required was evidence to show that the solicitor had gone beyond the scope of a solicitor's ordinary role and had acted as a funder of litigation. A solicitor would become a funder if he paid out sums on the basis that they would be recovered from the other side in the event of success, or not at all in the event of failure. A disclosure order was necessary to establish what exactly had passed between a claimant and his solicitor. The judge had misdirected himself in over-estimating the consequences of the applications for the daily workings of the CFA regime as a whole and was unduly influenced by a public policy consideration that did not arise. The applicants were not seeking to establish that an order for third party costs should become the norm in CFA cases. They only sought to make the application if the Claimant's solicitors were shown to have become a funder of litigation. There was sufficient material to justify ordering the disclosure.

December 27, 2011 · editorial · Comments Closed
Posted in: Cases

Summary of Recent Cases – Substantive Law

SUMMARY OF RECENT CASES - PROFESSIONAL AND CLINICAL NEGLIGENCE

Causation Not Established In Case Where Hospital Failed To Diagnose And Treat Cauda Equina Syndrome Upon Patient's Admission Into Hospital
Hussain v. Bradford Teaching Hospital NHS Foundation Trust & Anor, QBD (Bradford), 10/11/11
Coulson J dismissed the claimant's claim for damages against the defendant NHS trustï¿•s alleged negligent treatment of him upon admission into one of its hospitals. Coulson J held that the defendant had negligently failed to diagnose the claimant as having Cauda Equina Syndrome ('CES') and thus did not request an urgent MRI. On the evidence, Coulson J found that had the MRI scan be undertaken at this initial stage, emergency surgery would have been performed some 48 hours earlier than it ultimately was. In the event, that surgery was unsuccessful and the claimant was left with no sensation below the waist. However, based upon the majority expert opinion, Coulson J found that had the surgery been carried out some 48 hours earlier, on a balance of probabilities the claimant's prospects of making a good recovery were less than 50%. In view of the expert evidence that the rapid onset of CES and deterioration in the claimant's condition reduced his prospects of recovery further still, Coulson J held that the claimant had failed to establish causation.

December 23, 2011 · editorial · Comments Closed
Posted in: Cases