The appellant had suffered injury when she fell on paving which was maintained by the respondent. She initially began her claim under the EL/PL Protocol. It later ceased to continue under that Protocol, although the precise reasons for this were disputed.
The case thereafter proceeded under the PI Protocol. The respondent failed to give pre-action disclosure pursuant to that Protocol and the appellant had made an application for the same. Disclosure had been given by the time that the application was heard but the appellant received her costs of the application in the sum of Â£1,250. On appeal the costs had been reduced to Â£300 on the basis that her application was caught by the EL/PL fixed costs regime. The appellant appealed the reduction.
The Court of Appeal was asked to decide whether the fixed costs regime applied to applications for pre-action disclosure in cases which were started, but no longer continued, under the EL/PL Protocol.
The Court of Appeal held that fixed costs do apply to such applications. From the moment of entering the Portal, the intention was that fixed costs would apply to a claim at all subsequent stages. Part 45 clearly provided that fixed costs were “the only costs allowed”, subject to a very small category of clearly stated exceptions.
While an application for pre-action disclosure was self-contained and distinct from the main action, there was a close connection between the two. It was apposite for such an application to be classed as an “interim application” for the purposes of r45.29H.
There was real force in the appellant’s submission that limiting claimants to fixed costs would deprive pre-action disclosure application of their value as a “spur to compliance”. However, the answer was not to exclude such applications from the fixed costs regime. Applying assessed costs to such application could give rise to unwelcome satellite litigation. The answer lay in the availability (in exceptional circumstances) of an application under 45.29J for costs exceeding fixed recoverable costs. The Court of Appeal acknowledged that the Rules Committee may need to keep the issue under review as it may be that claimants in such cases struggle to demonstrate “exceptional circumstances”.
The claimant, who had been drinking, was struck whilst crossing the road between two pubs. The defendant was driving at 20mph, had not been drinking, and was not distracted. Notwithstanding this, she had failed to see the claimant. In all the circumstances, had she been negligent
The expert evidence suggested the claimant had been in the road when the defendant was 20 metres away. Although the claimant was wearing dark clothes, the carriageway was well lit and his bare face and arms contrasted with the dark surface of the road. There was nothing preventing him being visible. The defendant should have seen him from approximately 6 metres away and taken evasive action. An emergency stop would not have been required, only a slight steering adjustment. The incident occurred at a junction and a reasonably careful driver would have considered it likely that people would be looking to cross the road.
There was a degree of contributory negligence on the part of the claimant but his carelessness had not been the predominant cause of the accident. He was in the road and ought to have been seen. Contributory negligence was assessed at 30%.
Consideration was given for the editing and publication of this post.
If youâ€™ve recently been caught speeding, whether by a speed camera or by police officers, you will probably still feel very shocked and worried about the future.
It may be your first offence, in which case you will probably receive a Fixed Penalty Notice (FPN), which consists of a Â£100 fine and three penalty points. If you feel this is a reasonable state of affairs, then you should pay the fine and learn your lesson.
Sadly, however, not everyone caught speeding feels theyâ€™re being treated fairly by the law, which is where specialist solicitors like motoringoffencelawyers.com come in.
Speed cameras keep us safe, butâ€¦
In recent years the number of speed cameras alongside our roads has increased and while itâ€™s thought they save dozens of lives every year, they are also catching drivers who are only just outside the speed limit.
This means that more and more drivers may be receiving FPNs than, realistically, should do. A slight lapse in concentration for a few seconds could see a driver slapped with three penalty points, which may affect their job or their insurance premiums.
If you know you were speedingâ€¦
You can still benefit from strong legal representation. You may have been late for an important meeting, or you were rushing to work and decided to put your foot down just for a few seconds. The gamble didnâ€™t pay off and now youâ€™re facing a court case because you went quite a bit over the speed limit, or you were on the motorway and youâ€™re looking at a large fine.
Hiring a legal team to help you works in two ways. First and foremost, they can look for inconsistencies in the way the evidence of your speed was collected by the police and also look for any failures to follow strict Home Office procedures. If there are any holes in the evidence, or a vital step in procedure was missed out or not performed properly, then the prosecution case may be unreliable. Savvy, experienced lawyers can see glaring errors that you may not, as youâ€™re too busy fretting about how youâ€™ll pay the fine or do without your car for six months.
Secondly, youâ€™ll have tough, knowledgeable people who are also on your side. Itâ€™s easy â€“ and understandable â€“ to feel guilty and judged when youâ€™re being prosecuted for a driving offence. No-one wants to put other people in danger, or be thought of as careless or negligent and youâ€™ll probably already be on the receiving end of comments and criticism. This, on top of feeling worried about your job security, makes for a lonely and scary time.
Motoring lawyers can give you peace of mind
With a good solicitor behind you, youâ€™ll know that youâ€™ll be going into court with strong representation and so youâ€™ll get fair treatment by the magistrate or judge, as well as the best outcome possible. Whether itâ€™s getting your case dismissed entirely, or reducing your Â£2,500 fine and 12-month ban to Â£1,100 and six months, youâ€™ll be better off with motoring lawyers than you will be without them.
The Court of Appeal set out the approach to be taken when considering an appeal from the decision of CICA in relation to a decision not to waive the time limit in the Scheme with respect to a claim which had been brought 40 years out of time. The FTT upheld the decision; but the UT allowed an appeal on the basis that the FTT had erred in its approach to the question of whether the deceased ex-partner (who had brought the claim) was a qualifying claimant under the Scheme; the approach to the deceased’s conduct had been inconsistent; and the tribunal had engaged in ‘speculation without evidence’ on when the deceased’s children had sufficient information to bring a claim.
â€¢ The court had to exercise restraint and proceed with caution before interfering with decisions of specialist tribunals. It was important to identify the tribunal of fact, to keep in mind that it had heard the evidence, and to respect its decisions. When determining whether a question was one of fact or law, the court should have regard to context, so as to ensure both that decisions of tribunals of fact were given proper weight and to provide scope for specialist appellate tribunals to shape the development of law and practice in their field, AH (Sudan) v Secretary of State for the Home Department  UKHL 49,  1 A.C. 678 and R. (on the application of Jones) v First-tier Tribunal (Social Entitlement Chamber)  UKSC 19,  2 A.C. 48 applied.
â€¢ The tribunal and not the UT was the tribunal of fact in the instant case. The UT’s jurisdiction was limited to one of judicially reviewing the tribunal’s decision. The UT had no jurisdiction to interfere with the tribunal’s decision, absent a public law error. The instant case was not one calling for guidance from the UT to shape the development of law and practice in respect of claims under the scheme. It followed that in classifying issues before the tribunal as those of fact or law, questions of context could have, at most, only very limited bearing
â€¢ The UT decision was untenable and could not stand.
A consultant plastic surgeon appealed against a finding of negligence arising from the respondent’s claim for an unsatisfactory breast augmentation operation. The respondent had alleged that she had undergone the operation in reliance on the negligent advice of the surgeon. At first instance the judge had found that the surgeon had unintentionally allowed the respondent to leave the consultation with the impression that after breast augmentation a more invasive mastopexy would not be needed for 5-10 years; whereas in fact the Claimant was advised following the augmentation procedure that a mastopexy was required in 10 months.
Held: The surgeon had been found negligent because she had failed to dispel an impression which she had not herself expressly given and which she had neither known nor ought to have known the patient had somehow derived. The question which the judge ought to have asked himself was whether anything said or done by the surgeon at the consultation would have been reasonably understood by a patient in the patient’s position as an assurance that it would be between 5-10 years before she would require a mastopexy. A defendant medical professional ought not to be liable in such circumstances unless she was responsible for the patient getting the wrong impression or, having realised the misapprehension or in circumstances where she ought so to have realised, took no steps to dispel it.
The Claimant owned a new build property which had been constructed by the First Defendant. She fell over a step in the garden and suffered serious injuries. Her pleaded case was that the First Defendant had breached the contract of sale by failing to complete the work to a satisfactory standard and in compliance with building regulations.
The Claimant made three applications one week before trial. Only one was opposed. By this application, the Claimant sought permission to amend her particulars of claim to allege that there had been a breach of common law duty.
The application was refused. There was no real reason advanced in support of the amendment which appeared to simply represent a late change of mind. The new allegation was substantially different and could not be met by the Defendants on the basis of the current evidence, certainly not without additional work. Allowing the amendment would require the trial date to be vacated if the Defendants were not to be faced with a new allegation at a very late stage.
A cathedral appealed against a finding that it was liable for the injury suffered by the respondent. The respondent alleged that he had tripped over a piece of concrete which stuck out from the bottom of a bollard within the cathedral precincts.
HELD: (1) A trial judge must strike a balance between the nature and extent of a risk and the cost of eliminating it when assessing whether a visitor would be reasonably safe in using the premises for the purposes of the Occupier’s Liability Act 1957. Not all foreseeable risks are sufficiently serious to require an occupier to take steps to eliminate them. The assessment of this seriousness amounts to an exercise of judgement by a trial judge.
(2) The trial judge in this case did not recognise in his judgment that not all foreseeable risks require action to be taken by the occupier. He could not have reached the decision he did if he properly took a practical and realistic approach to the dangers which the cathedral was required to rectify. The piece of concrete was extremely small and could not be said to pose a real danger to pedestrians.
The court determined liability and contributory negligence as a preliminary issue in a claim for personal injury brought by the Claimant, a pedestrian, who was struck by the Defendant’s vehicle while attempting to cross a road. The Claimant, who had been drinking, sustained serious brain injuries and consequent loss of capacity.
Held: (1) On the balance of probabilities, the accident had occurred at about 20-25 mph just before a raised pedestrian crossing; (2) before crossing, the Claimant had briefly stopped at the kerb, which allowed time for the Defendant to brake; it was foreseeable that the Claimant might step into the street, and yet the Defendant had failed to observe him or slow down such as to avoid a collision; he therefore failed to exercise the care of a reasonably prudent motorist; (3) the Claimant had not only failed to look right before crossing but he had also chosen not to cross at the crossing itself; had he done so, the collision would have been avoided. His failure to take care was linked to his alcohol consumption. The court gave judgment for the Claimant, but discounted damages by one third due to contributory negligence.
The question for the court was whether a first instance judge was correct in deciding that the appellant local authority owed a duty under section 2 of the Occupiers’ Liability Act 1957 to ensure that visitors were safe in using a small ornamental bridge in a park, notwithstanding that there was nothing wrong with the state of the premises and no history of previous accidents. The judge distinguished between section 2 of the Act and section 1(1)(a) of the Occupiers’ Liability Act 1984 which regulated whether a duty was owed by reason of any danger due to the “state of the premises” and held the local authority should have identified and assessed the risk of a fall from the bridge and warned users accordingly.
Held: (1) The provisions in the two Acts were not materially different: both required a clear identification of the dangers of the premises, on which the judge had not adequately focused. While an unfenced bridge presented dangers objectively constituting a danger from which a duty of care arose, that clearly did not mean that railings or warnings were required: Tomlinson v Congleton BC  UKHL 47 followed; (2) a formal risk assessment would not have produced anything other than a statement of the obvious, and would not have lessened the possibility of the accident occurring; (3) there was no requirement for the local authority to fit railings.
The Claimant was a litigant in person. A costs management hearing was held. The Claimant wished to obtain legal assistance falling short of a firm of solicitors having conduct of the litigation. These solicitors would then instruct a barrister who was not Direct Access qualified. The Court considered: (1) to what extent CPR r3.13 to r3.18 (the costs management regime) applied to a litigant in person’s costs; and (2) whether to grant a declaration that the Claimant could recover the costs of the assistance he wished to receive under r46.5.
(1) The Court could order a litigant in person to produce a costs budget. It could also make a costs management order in relation to a litigant in person’s costs.
(2) r46.5(3)(b) allowed payments “relating to the conduct of proceedings” to be recovered. There was no reason to construe this narrowly so as to prevent a litigant in person recovering the costs of assistance. Use of the Direct Access scheme was likely to assist with progressing the claim in an orderly manner and would therefore assist the Court.