UK Insurance Limited v Stuart Gentry [2018] EWHC 37 (QB)

The Claimant insurer brought tort of deceit and committal proceedings arising out of an alleged accident in March 2013. The Claimant had settled the pre-accident value of the Defendant’s vehicle in the sum of £14,000 and the Defendant had brought further claims for PI and hire of a replacement vehicle. These damages were assessed in the sum of £75,000. In 2014 the Claimant undertook internet research which indicated that the Claimant’s Insured and the Defendant knew each other prior to the accident. In a witness statement the Defendant had asserted he did not know the Insured, but at the time of the trial he accepted that this was untrue. The Claimant’s case was that the accident was staged. After a two-day trial in the High Court, Teare J held that UKI had made out its case against Mr Gentry. The Court concluded that, when stepping back and assessing all of the evidence, it was suggestive that the collision was staged. The Defendant and the Insured knew each other and neither had informed UKI, even when the 2014 information came to light. In addition, the Insured’s vehicle was very old and the Defendant chose not to give evidence at the trial. The Court had the required evidence to conclude that the Claimant had made out its case.

February 28, 2018 · Editorial Team · Comments Closed
Posted in: Cases

London Organising Committee of the Olympic and Paralympic Games v Haydn Sinfield [2018] EWHC 51 (QB)

LOCOG appealed against a finding of a Recorder that a Claimant was not fundamentally dishonest for the purposes of section 57 Criminal Justice and Courts Act 2015. The Claimant brought a claim for personal injuries caused whilst he was volunteering at the Olympic Games. The Recorder found that the Claimant had been dishonest in fabricating invoices and exaggerating a claim for gardening services, but did not find that the dishonesty was fundamental, as it was the product of ‘muddled, confused and careless’ case preparation. On appeal, it was held that the Recorder had erred. He had elided the tests for fundamental dishonesty and whether this would cause substantial injustice to the Claimant. The Claimant had acted dishonestly in relation to a substantial part of the claim in a way that adversely impacted the Defendant. The Schedule of Damages contained dishonest misstatements which were fundamentally dishonest. The largest head of damage was supported by a dishonest witness statement and fabricated invoices. Both were premeditated and maintained. As a result of the finding of fundamental dishonesty the claim, valued at some £26,000, was struck out and the Claimant ordered to pay the Defendant’s costs of the action and appeal on the indemnity basis.

February 15, 2018 · Editorial Team · Comments Closed
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CN and another (through their Litigation Friend the Official Solicitor) v Poole Borough Council [2017] EWCA Civ 2185 (unreported)

The claimants and their mother were placed in local authority housing. The first claimant suffered from severe physical and learning difficulties, and was a child ‘in need’ for the purposes of s.17 of the Children Act 1989. The second claimant was also a child. The defendant was allegedly aware of a family housed in nearby accommodation persistently behaving in an anti-social manner. That family were said to harass and abuse the claimants, resulting in CN attempting to commit suicide. The claimants brought an action against their local authority in negligence, alleging that the latter had a common law duty of care to the claimants, informed by the Children Act 1989, to protect children in the local authority’s area, and to protect children at foreseeable risk of harm. It was alleged that the local authority ought to have conducted a child in need assessment, which should have led to the conclusion that the children (if not the family) required relocating. At first instance the claims were struck out as disclosing no reasonable cause of action. This decision was overturned in the High Court and the claims were restored. The defendant unsuccessfully appealed to the Court of Appeal, which ruled that conventional common law principles prohibited any finding of liability on the local authority’s part.

The Court of Appeal set aside its earlier decision of D v East Berkshire, in which it had held that the general preclusion of claims brought by vulnerable children against local authorities (as laid down in X v Bedfordshire) could not survive the Human Rights Act 1998. The Court held that D v East Berkshire could no longer stand following the Supreme Court’s decision in Michael v Chief Constable of South Wales, in which the Court held that the common law of negligence did not require extending to accommodate Articles 2 and 3 of the European Convention on Human Rights, given that there was a statutory cause of action under the Human Rights Act 1998.

Therefore, relying heavily on the decision of X v Bedfordshire, the Court considered the Children Act 1989 and held that Parliament could not be taken to have intended to create a private law cause of action in negligence. Further, the Court held that the case did not satisfy any of the exceptions to the general common law rule that a defendant is not, without more, liable to protect a claimant from the actions of a third party.

January 28, 2018 · Editorial Team · Comments Closed
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Ivor Cook v Swansea City Council [2017] EWCA Civ 2142, [2017] All ER (D) 110 (Dec)

The claimant brought an action against the local authority on the basis that it had breached its duty under the Occupiers’ Liability Act 1957 (‘OLA’) in failing to grit a car park which it owned and operated. The claimant had slipped on ice in the car park, causing him to fall and sustain injuries. The local authority operated a ‘reactive’ system, whereby they would grit an area if a member of the public reported it as being dangerous. The claimant argued that the local authority employees who visited the car park, such as ticket wardens, should report icy conditions to the local authority, and that the failure to utilise such a system fell below the standard of reasonable care. The first instance judge found that the local authority’s reactive system was sufficient to discharge its duty of care under OLA. On appeal, the Court of Appeal upheld the judgment, noting that it would be unreasonable in all the circumstances to impose a duty which required the local authority to grit all unmanned car parks when icy conditions were reported, and that there had to be a balancing exercise which took account of the likelihood of injury, the seriousness of any injury which may occur, the social value of the activity giving rise to the risk, and the cost of preventative measures. Particularly, the Court noted that ice was an obvious danger and that people could be expected to look out for the same. It also held that there was social utility in providing a 24 hour parking facility, and that the cost of manning and/or regularly gritting the car parks (as an alternative to closing them and thereby losing their utility) was disproportionate to the risk in question.

January 15, 2018 · Editorial Team · Comments Closed
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Advantage Insurance Ltd v Ewere (16 November 2017, QBD, Slade J)

The Claimant insurance company applied for committal of the Defendant for contempt of court. The Defendant had stated in the original personal injury action that he was in a parked vehicle when it was struck by the Claimant’s insured thereby causing him injury. That was verified with a statement of truth in the Particulars of Claim and two witness statements. The claim was dismissed, the Judge finding that the Defendant was not in the vehicle at the time. Slade J considered that the Claimant had established to the criminal standard, that the Defendant was not in the vehicle. In assessing the evidence of the Claimant’s insured, she had been consistent throughout. The Defendant, conversely, had given an inaccurate account of his medical history and had failed to disclose a previous RTA. In order to succeed in proving contempt of court, the Claimant had to demonstrate that the Defendant had signed the documents with no honest belief in the truth of their contents and he knew they were likely to interfere with the course of justice. Each of the grounds was made out, and the Defendant was thus in contempt of court.

December 15, 2017 · Editorial Team · Comments Closed
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Petroleum Company of Trinidad and Tobago Limited (Appellant) v Ryan and another (Respondents) (Trinidad and Tobago) [2017] UKPC 30

The respondent Claimants were diagnosed with pulmonary fibrosis and reactive airways disease respectively, which they attributed to emissions of hydrocarbon gases from land under the Appellant’s control. They sought compensation for their conditions by bringing actions in nuisance and negligence against the Defendant. The Defendant had accepted that there had been oil leaks, and had taken steps to prevent further leaks. However, even on the Claimants’ own medical evidence, there were many possible causes of both of their conditions, and a link with hydrocarbon emissions had not been established. The Court of Appeal in Trinidad and Tobago had taken a flexible approach to causation, applying the Fairchild v Glenhaven Funeral Services line of case law: they held that on the basis of policy reasons the Court could and should draw inferences to bridge evidential gaps, and therefore held the Defendant liable on the basis that the emissions were a contributing factor to the Claimants’ conditions. The Privy Council held that this assumption was not supported by the evidence, and that there was no reason to depart from the usual ‘but for’ test of causation in this case. As a result, the appeal was allowed and the claims were dismissed.

November 28, 2017 · Editorial Team · Comments Closed
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Armes v Nottinghamshire County Council [2017] UKSC 60

The Claimant had been in the care of the Defendant council between the ages of 7 and 18. During that time she had been placed with two sets of foster parents. She was physically and emotionally abused during her first placement, and sexually abused during her second. In both instances the abuse took place within the foster homes. The Claimant brought a claim in negligence on the basis of two arguments: either the Defendant council owed the Claimant a non-delegable duty of care, or it was vicariously liable for the wrongdoing of the foster parents.

The Supreme Court held that the council did not have a duty of care to provide day to day care to children, which would be too broad. Their duty was to take reasonable care in selecting foster parents and supervising those placements. There had been no negligence in the performance of that duty. Therefore, the claim for negligence in the performance of a non-delegable duty could not stand.

However, the Supreme Court found in the Claimant’s favour on the issue of vicarious liability. Applying the five factors set down by the Supreme Court in Cox v Ministry of Justice in 2016, the Court held that the foster parents were not carrying on an independent business of their own and that the acts had been committed in the course of an activity conducted for the council’s benefit; the council’s placement created a relationship of authority and trust between foster parents and children, rendering the latter vulnerable to abuse; the council exercised a significant degree of control over what foster parents did and how they did it; and that councils are more likely to be able to satisfy any compensation granted to victims than foster parents with insufficient means. The Court emphasised that when assessing vicarious liability, the role of control should not be exaggerated and that vicarious liability may be imposed in the absence of close supervision.

November 15, 2017 · Editorial Team · Comments Closed
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Breaking Down First and Second Degree Burglary Charges in California

Consideration was given for the editing and publication of this post.

According to the California Penal Code 459 the act of burglary involves breaking and entering a property in order to commit theft or felony. This could refer to an apartment or another place of residence, a business office, a cargo container and even storage units and tents.

However, California law recognizes two degrees of burglary. But what constitutes a first degree burglary or second degree burglary? This depends on several factors, including the type of property you entered and the type of theft committed: petty or grand.

In this article, we break down the difference between first and second degree burglary.

First Degree Burglary

The first degree burglary involves breaking into a place of residence or dwelling, like a house or an apartment. This type of burglary usually involves a harsher sentence than a second degree burglary.

A person facing first degree burglary charges can be sentenced by two, four or up to six years in prison. Since this type of burglary marks a strike on a criminal record, a convict has to serve 85% of their sentence.

However, if they were convicted with a prior strike, they will have to serve a double sentence and at least 80% of this sentence. Finally, if this is the third strike on your criminal record they are facing 25 to life.

Second Degree Burglary

Second Degree burglary involves breaking into a structure that does not serve as a dwelling, like an office with the intent to commit theft or felony.

Since this type of burglary is considered a wobbler, the prosecution can choose to treat it whether as a felony or a misdemeanor. The prosecutor’s choice depends on a number of factors.

If the burglary is filed as a felony, a convict could face a sentence of three years maximum. If it is filed as a misdemeanor, a convict is looking at a sentence of up to 364 days.

The factors that help determine how to file a second degree burglary involve whether a person charged has any prior convictions, what type of crime they committed upon breaking and entering and whether there’s enough evidence to convict them.

Naturally, a grand theft will lead to a larger sentence. You can read more about what constitutes a grand theft here:

What are the Possible Defenses?

The prosecution has to present the evidence proving that the accused intended to commit a crime upon breaking and entering for both types of burglary charges. Therefore, there are several possible defenses against the allegations.

  • The defense could try to prove that the defendant was not aware of the party’s intent to commit a crime upon burglary.
  • The defendant did not commit an act of burglary, leading to a false accusation
  • The defendant did not intend to commit a crime
  • The defendant was intoxicated and couldn’t form intent.
  • The defendant was invited by an owner or a resident of the structure
  • The police violated the defendant’s constitutional rights.

If you are accused of burglary in San Diego, contact Monder Law Group at 424 F Street, San Diego, CA, US; 619-405-0063.

November 6, 2017 · Editorial Team · Comments Closed
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Thomas v Hugh James Ford Simey Solicitors [2017] EWCA Civ 1303

Mr Thomas brought a professional negligence claim against his previous solicitors for allegedly settling his claim in respect of Vibration White Finger for an under-value. He argued that he had not received proper advice in respect of special damages (in particular in respect of gratuitous care and assistance received) and so had accepted an offer made in relation to general damages alone.

The Recorder at first instance dismissed the claim and found that there was no actionable breach of duty; the solicitors had advised generally in respect of special damages which was enough.

The Claimant appealed on the grounds that the solicitors had been in breach by failing to provide an approximate value of the special damages claim, failing to inform him about the availability of interim payments and treating comments regarding evidential difficulties as concluding the special damages claim.

The Court of Appeal dismissed the appeal finding that the failures identified did not constitute a breach of duty, as the solicitors’ retainer merely required the solicitors to give advice about possible general and special damages claims. That had been done. It was significant that the claim was a low-value one which the solicitors were running as part of a high volume fixed-costs practice and the Claimant had instructed the solicitor not to pursue the claim for special damages. In those circumstances the solicitors could not be criticised for failing to ‘go the extra mile’. There had to be a sensible limit on what solicitors could be expected to do in those types of cases.

October 28, 2017 · Editorial Team · Comments Closed
Posted in: Cases

Bizarre use of a No Win No Fee agreement

Consideration was given for the editing and publication of this post.

The below article on no win no fee from solicitors is from more information can be obtained by contacting the law firm directly.

No Win No Fee agreements are widely used by the legal profession in Personal Injury and Medical Negligence claims for compensation for injury suffered in accidents. It is also used by the law firms in employment law and just recently it has appeared in litigation. In recent times it has been associated with the search for the lost Malaysian Airlines flight 370.  The aircraft which disappeared on March 18th, 2014 was a Boeing 777 and was on a flight from Kuala Lumpur to Beijing when it vanished from radar screens after a short while from taking off. There were 239 people on board.

A number of governments searched the oceans for the missing airplane from shortly after it disappeared until January 2017. Although a few parts from the airplane have been washed up in the western Indian Ocean there has been no sign of the airplane or where even it came down.

The mystery has continued of what happened to the airplane and with many questions about the last flight of the aircraft unanswered an American company called Ocean Infinity stepped in. What they have said to the Malaysian government is intriguing. They have said that they will continue to search for the aircraft on a No Win No Fee basis and that they will only get paid if they find the missing aircraft.

And they will get well paid although no exact details of the recent contract with the Malaysian government have been released it is believed that Ocean Infinity stands to earn in excess of a $150 should they find the missing aircraft. But in the meantime, Ocean Infinity will bear all the costs of the search operation until either they find the aircraft or they stop looking for it. Sceptics’ are of the opinion that they either know where the aircraft is or they know the rough area where it is. We will see soon enough!

What is a No Win No Fee agreement? A No Win No Fee agreement sometimes known as a No Win No Foal agreement or a Contingency agreement says that you pay nothing, either upfront or during the process until your case is won or as in this case, the aircraft is found. In some ways, it is a reward for success for the person or organization that does all the work. In some jurisdictions, a premium can build into the reward for having taken the risk on winning. In other jurisdictions, this is not allowed in the legal area where solicitors and barristers may only charge for the actual work done. Indeed the Law Society of Ireland who regulates all solicitors in Ireland requires the following statement or disclaimer on all advertising and websites “In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.”

For sure anyone who offers a No Win No Fee agreement must believe that there is a fair chance of winning. Ocean Infinity must have an idea as to where the aircraft is the size of the Indian Ocean alone makes looking for a needle in a haystack fairly easy!

For the peace of mind and for some closure for the family and friends of the people aboard flight 370 we certainly hope that they find the aircraft.



October 25, 2017 · Editorial Team · Comments Closed
Posted in: News