News Category 2
Christine Bangs v FM Conway Limited [2024] EWCA Civ 1461 - Andrew Ratomski, Temple Garden Chambers
16/12/24. Date of judgment: 6 November 2024
This appeal was unusual because it is a rare example of the Court of Appeal intervening to reverse a decision to set aside the strike out of the claim.
Jacobs J had set aside a strike out on account of the Particulars of Claim not being served in time and also made an order extending time for service. The judge had relied on an admission allegedly made by the Defendant, FM Conway, but since withdrawn and a combination of other factors that he held demonstrated the Claimant’s case was “very strong”. The Court of Appeal disagreed.
Facts
Ms Bangs, the Claimant and Respondent to the appeal, brought a claim alleging that street works undertaken on behalf of Westminster City Council had caused severe vibration, noise and disturbance and had damaged underground watertight vaults below her property including the formation of cracking.
Procedural history
Loss adjusters appointed by Westminster’s contractors, FM Conway, appeared to concede breach of duty in early correspondence when the claim was estimated to be around £30,000 but this was later revised to around £200,000. The loss adjustors then raised issues with the lack of evidence supporting the claim and withdrew the admission. It was accepted that FM Conway was entitled to...
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PMC v Local Health Board [2024] EWHC 2969 (KB) - Philip Matthews, Temple Garden Chambers
13/12/24. Date of judgment: 6 November 2024
In PMC, the High Court provided instructive guidance on reporting restrictions in the clinical negligence context.
Background
The Claimant developed cerebral palsy as a result of the Defendant’s negligence at the time of his birth. Liability was admitted, and substantial interim payments had been made.
Anonymity Application
Prior to the quantum trial, the Claimant applied for restrictions on non-party access to unredacted documents from the Court’s records. In support of their application, the Claimant’s solicitors filed a witness statement that included articles which identified the Claimant’s story as an example of the human cost of poor standards of maternity care. Nicklin J held that, as a result of this media coverage “the Claimant is likely to be readily identifiable, particularly in his local area, as a very high-profile victim of medical negligence” (§23). The Defendant adopted a neutral stance regarding the application.
Judgment
Nicklin J conducted a comprehensive review of the authorities on open justice [§26-§33], the justification for derogation to the open justice principle [from §34 - §44] and anonymity orders [§45-§93]. Nicklin J proceeded to evaluate the factors in favour of and against granting anonymity in the instant case.
Factors in favour of anonymity [§128]: -
- The Claimant was a child (and the Courts recognise that derogations from open justice may be necessary to protect their interests; and
- The remaining phases of the litigation were likely to involve consideration of intensely private medical information.
Factors against grant of anonymity [§130]
- Significant weight to be attached to the principle of open justice;
- Pre-existing media coverage of the Claimant and the Claim; and
- Earlier phases of litigation have been conducted without any anonymity order having been sought or granted enhance the weight to be attached to Article 10 rights.
Ultimately, Nicklin J stated, at §133, that, as a matter of practicality, the prior decision to release information into the public domain precluded the possibility of securing meaningful anonymity for the Clamant. On the other hand, it was found that there was a “clear and continuing public interest in the Claimant’s claim going beyond the inherent public interest in court proceedings generally [§139]. Nicklin J rejected the Claimant’s argument that this was a limited derogation from the principle of open justice on the basis that it “fails to appreciate the impact of jigsaw identification” and the impact on future press coverage [§142].
Therefore, the Claimant’s application to impose restriction on reporting the case or identifying the Claimant was refused.
https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/KB/2024/2969.html&query=(PMC)
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Senay & Anor v Mulsanne Insurance Company Ltd [2024] EWCC 12 - Philip Matthews, Temple Garden Chambers
21/11/24. Date of judgment: 24 May 2024
How does a finding of fundamental dishonesty in respect of a claimant’s personal injury claim impact their right to recover damage for property damage to their vehicle? This was the question before Charman J in Senay.
The case arose from a road traffic accident. The Claimant was a taxi driver. There was a collision between his vehicle and that of the Defendant’s insured. Liability was in dispute. The Claimant brought a claim for personal injury. He also claimed for damage to his vehicle, its recovery and storage, and in respect of credit hire.
At trial, Charman J ruled that the Claimant succeeded on liability, and he was entitled to damages in respect of his vehicle repairs (albeit not for credit hire nor recovery/storage). However, the Claimant’s personal injury claim was found to be fundamentally dishonest.
There was disagreement between the parties following the judgment as to whether the fundamental dishonesty finding in respect of the personal injury claim meant that the whole claim, including other heads of loss, should be dismissed.
The dispute turned on the proper construction of section 57 of the Criminal Justice & Courts Act 2015. Charman J noted that there were no definitive higher court authorities on this question, and therefore he embarked on his own statutory analysis (§16): -
“Section 57 applies to claims which include a claim for damages for personal injury, which is Mr Senay's claim; and is engaged when the court finds that there has been fundamental dishonesty in respect of the personal injury claim, as I did in Mr Senay's case. The section then provides that the court must dismiss Mr Senay's personal injury claim unless he would suffer substantial injustice thereby. It notably does not provide that parts of his claim other than the primary claim, (being the personal injury claim), must be dismissed. This is because the section defines the primary claim as the claim for damages for personal injury and then provides that it is the primary claim which is to be dismissed where fundamental dishonesty is found to be present.”
Ultimately, Charman J held that it was only the Claimant’s personal injury claim which fell to be dismissed following his finding of fundamental dishonesty, and the claim for vehicle damage remained intact.
In support of his construction, Charman J looked at relevant parliamentary debates. The Government had rejected a specific amendment which would have had the effect contended for by the Defendant. Lord Faulks stated: -
The types of loss that would be caught by the amendment arise primarily in motor accident claims, and in practice payments for such losses are generally made up front by the Claimant's insurer, and are then recovered by them from the Defendant's insurer in the event that negligence is admitted or proved. This means that the amendment could affect subrogated rights between insurers, and could operate to the disadvantage of the Claimant's insurer, who would find it much more difficult to recover such sums. That might in turn have the undesirable consequence of making insurers less inclined to make payments in respect of this kind of loss to genuine victims of accidents for whom, for example, the rapid replacement of a vehicle could be essential.
Being the first circuit judge-level authority on this point in the wider battleground of fundamental dishonesty / credit hire, Senay will no doubt become essential reading for civil practitioners.
https://www.bailii.org/ew/cases/Misc/2024/CC12.html
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Tindall and another v Chief Constable of Thames Valley Police [2024] UKSC 33 - Andrew Ratomski, Temple Garden Chambers
18/11/24. Date of judgment: 23 October 2024
The Supreme Court has handed down an important decision on the duty of care in negligence. Tindall revisits the vexed question in English tort law of liability for omissions and whether a party can be found liable for making matters worse (and the evidential issues that any claimant making such an allegation will typically face).
Facts
The assumed facts were that Mr Kendall skidded on a patch of black ice on 4 March 2013 in the late afternoon and his car rolled into a ditch. The emergency services attended, Mr Kendall was taken to hospital, the police cleared up the debris and later removed a “POLICE SLOW” sign. Nothing was done about the black ice.
Twenty minutes later Mr Bird lost control of his vehicle on the same area of black ice and skidded into a head on collision with a vehicle driven by Mr Tindall and both drivers were sadly killed. The Chief Constable of Thames Valley Police had sought to strike out a claim brought against him by Mr Tindall’s widow.
The Decision
The Supreme Court dismissed the claimant’s appeal and the claim remained struck out (upholding the Court of Appeal). The police intervention, on the assumed facts, was held not to give rise to any possible liability for making matters worse and none of the exceptions to the general rule, that there was no duty of care to protect a person from injury, were made out.
After reviewing the caselaw, the Supreme Court helpfully...
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Andrew Reynolds v Chief Constable of Kent Police [2024] EWHC 2487 (KB) - Andrew Ratomski, Temple Garden Chambers
17/10/24. Date of judgment: 2 October 2024.
Mr Reynolds was found by HHJ Brown sitting with a jury at Canterbury County Court to have been falsely imprisoned by Kent Police for a little under six days and to have been assaulted by them. However, the judge also found Mr Reynolds to have been fundamentally dishonest and pursuant to section 57 of the Criminal Justice and Courts Act 2015 (“the 2015 Act”) dismissed his claim for damages.
Facts
Mr Reynolds was arrested by four police officers on 20 December 2015, allegedly for making threats to kill, and was taken to Tonbridge Police Station by police van and later to Pembury Hospital where he was treated for a fracture to his L3 vertebrae over six days. He was later found not guilty of two offences of assaulting a police officer with intent to resist lawful arrest. Following the jury returning its verdict, the judge found fundamental dishonesty, which had been pleaded in the Defence, made out and concluded that the Claimant had “lied about each matter on which the burden of proof rested on him”.
The Appeal
There were in total eight grounds of appeal and this note focuses only on the judge’s key ruling to over-turn the fundamental dishonesty finding in respect of the false imprisonment claim. The decision is a good example of the circumstances in which an appeal court will allow a party to pursue a ground of appeal on an issue that was not taken before the lower court and indeed, in this case, to succeed on that ground.
Ground three was that the first-instance judge was wrong to find that any dishonesty in relation to the cause of the Claimant’s back injury or use of force against him was...
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- Expert witnesses and apparent bias: Biggadike v El Farra & Anor [2024] EWHC 1688 (KB) - Philip Matthews, Temple Garden Chambers
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