Summary of Recent Cases – Civil Procedure

A Claimant’s date of knowledge that he had sustained a significant personal injury was within 3 years of issue following exposure to asbestos

Sir Robert Lloyd & Co Ltd and Others v Bernard Hoey (2011), EWCA Civ, 1060, 09/09/11

The Claimant had been exposed to asbestos following employment with the Defendant and issued on the basis of diffuse pleural thickening. He had first developed chest pains in the mid 1980’s and though pleural thickening was noted on some of his x-rays, it was not the suspected cause of his chest pain and he was subsequently discharged from clinic. The expert evidence was that the pleural thickening would have caused this chest pain. He returned to work but returned to hospital with breathing difficulties in 2007. It was held that the trial judge was correct to conclude this admission represented a transient episode of chest pain and he did not realise he had suffered a significant injury pursuant to s.14(1)(b) of the Limitation Act 1980 and the question of attributability under s.14(1)(b) did not arise.

An appeal was allowed to vary an arithmetical error by the judge but applications for permission to re-open previously failed appeals were dismissed.

Genevra Pope (As Personal Representative of Jason Pope) v Energem Mining (IOM) Ltd (Formerly Branch Energy Ltd) (2011), (2011), EWCA, Civ, 1043

The judge at first instance had appeared to have made an arithmetical error in determining the sum for which judgment should be given and the appeal was to that extent allowed. Permission to appeal on costs was refused as there was no realistic prospect of success on appeal. The Claimant complained that, in addition to indemnity costs the judge should have given her the additional consequences available to a claimant who had made a Part 36 offer which a defendant had been unable to better at judgment however there was no reason to revisit his exercise of discretion. The Claimant also alleged bias and prejudice against the judge who had refused permission to appeal and refused to recuse himself from dealing with the r.52.17 application. However, there was not the slightest evidence whatsoever of any bias of prejudice, actual or even apparent. Therefore the balance of the Claimant’s application to appeal and to re-open previous failed attempts to appeal was dismissed.

November 1, 2011 В· Editorial Team В· Comments Closed
Posted in: Cases