News Category 2
What Is 'Unreasonable Behaviour' for the Purposes of Small Claims Track Costs? - Thomas Crockett, 1 Chancery Lane
01/05/17. If the most recently mooted Government reforms as to the financial limit of the Small Claims Track of the County Court go through, litigants will increasingly find themselves litigating within a regime with extremely tight strictures as to the recoverability of litigation costs. As all with experience of such cases will know, there is an exception per CPR 27.14(2)(g) to the effect that further costs may be assessed summarily in cases where one or other party has behaved “unreasonably”... whatever that means?
The Court of Appeal (Longmore and McFarlane LJJ) have provided some clarity to this oft cited but perhaps rarely met test in a joint ruling in the case of Dammermann v Lanyon Bowdler LLP [2017] EWCA Civ 269, where they refer back to the test for wasted costs in the well-known and now somewhat historic case of Ridehalgh v Horsefield. They urged caution however, reminding the County Court benches that floodgates should not be seen to have opened and that litigants should not be easily deterred from using the Small Claims Track due to the spectre of such findings.
Their Lordships put it best...
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Sanction for Counsel Allowed on Appeal - Cumming v SSE Plc - Catriona Hepburn, Brodies LLP
27/04/17. In the Sheriff Court (Scotland’s County Court) parties will not automatically recover the cost of counsel and must instead seek approval, or sanction, from the Sheriff. This case was an appeal against the sheriff’s decision to approve the pursuer’s (claimant’s) use of counsel. Despite the case settling for just £9,175 the Sheriff Appeal Court upheld the Sheriff’s decision that the use of counsel was reasonable.
Damages had been sought for pleural plaques developed due to exposure to asbestos during the course of employment. The pursuer had been employed as an electrician for just over 26 years. The liability for and value of his claim were in dispute, but the case ultimately settled in the sum £9,175. Counsel appeared for both parties in the original action (and, indeed, on appeal).
The recent court reforms impose a positive duty on the court to sanction the employment of counsel if it considers in all the circumstances it is reasonable to do so. This involves consideration of several factors including:
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The difficulty and complexity of the case...
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Editorial: Parenting and Personal Injury - Aidan Ellis, Temple Garden Chambers
27/04/17. Confronted by bad weather and overly energetic children, I recently gave in and took my family to an indoor soft play centre. Once inside, it transpired that many parents had had the same idea. It was full of adults sipping coffees whilst children swarmed and rampaged over the soft play equipment. I soon had the opportunity to take a closer look at the chaos because my daughter habitually gets stuck on the highest and furthest away section of soft play equipment. Carrying out a meaningful risk assessment must be almost impossible. Children are far too creative to use the equipment for the purpose for which it was designed; standing on the roof of the playhouse, climbing up the slide or trying to move the equipment must be hourly occurrences. And, as I tried to wriggle through a narrow tunnel, I reflected that the equipment has to withstand not only children, but adults climbing to the rescue as well.
Such attractions could easily be a magnet for personal injury claims, since the number of small children engaged in vigorous play must be conducive to a range of injuries. But there are surprisingly few reported cases. Perhaps they are settled quietly and confidentially. Or perhaps the Compensation Act 2006 has succeeded in making it easier to defend such claims. Soft play does encourage ‘desirable activities’ (thinking primarily of exercise not necessarily wet weather respite for parents) within the meaning of the Compensation Act 2006. Overly extensive liability would have a ‘deterrent effect’ on these small businesses. Most also seek to protect themselves by a range of waivers on entry, including the stipulation that parents are expected to supervise their children at all times.
Nevertheless, some claims would surely succeed. The collapse of a platform, for instance, would surely attract occupiers’ liability if nothing else. And there will always be more difficult cases. For instance, could the attraction be liable for injury caused to a toddler because older children were permitted to play in the under-3s section? It might be argued that a warning notice and a request for parental supervision discharges the venue’s duty of care. But, absent any effective restraint, it is surely foreseeable that older children would intrude and that they could, unintentionally, seriously injure a small child. In those circumstances, a soft play centre is not in the same position as a parent hiring a bouncy castle (cf Perry v Harris [2008] EWCA Civ 907). By its arrangement of the premises and its supervision, it is by no means clear that the Compensation Act would prevent a finding of breach of duty on appropriate facts.
Aidan Ellis
Temple Garden Chambers
Image: CC0 Public Domain
Deregulation of Health and Safety Law for the Self-Employed - Matthew Hodson, Farrar's Building
25/04/17. The Health and Safety at Work etc. Act 1974 (‘HSWA’) has been amended by:
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The Deregulation Act 2015, which came into force on 26th March 2015; and,
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The Health and Safety at Work etc. Act 1974 (General Duties of Self-Employed Persons) (Prescribed Undertakings) Regulations 2015, which came into force on 1st October 2015 (‘the Regulations’).
These amendments affect the responsibilities of the self-employed for those who are not their employees but might nonetheless be affected by their work.
Prior to the changes s.3(2) HSWA had required self-employed persons to ensure so far as reasonably practicable that persons other than their employees should not be exposed to risks to their health and safety.
Following the amendments, the duty is restricted to those whose self employed work is on a prescribed list set out in the Regulations (reg. 2(a) and the Schedule), or those carrying out and activity which (reg. 2(b)):
“may pose a risk to the health and safety of another person”
The Schedule of prescribed activities covers all those self-employed persons whose work includes: agriculture; asbestos; construction; gas; genetically modified organisms and railways...
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Third Parties (Rights Against Insurers) Act 2010: Winners and Losers - Marlene Henderson, Browne Jacobson LLP
21/04/17. The Third Parties (Rights against Insurers) Act 2010 (“2010 Act”) which came into force on 1 August 2016 is a clear victory for claimants wishing to pursue claims against insurers of dissolved companies or insolvent individuals. The 2010 Act is intended to resolve the problems which were encountered with the application of the Third Parties (Rights against Insurers) Act 1930 (“1930 Act”). A major problem which existed with the 1930 Act was a requirement for at least two sets of proceedings in order for any claimant to benefit from the provisions of the 1930 Act. The first set of proceedings being required to establish liability against the insured (which is already a dissolved company and would require preliminary proceedings to have the company restored to the register) and another set of proceedings to seek indemnity under the insurance policy. The 2010 Act resolves this problem by allowing a third party to bring proceedings to enforce rights transferred under the 2010 Act against the insurer of the “relevant person” without first establishing liability against that person (see section 2 of the 2010 Act). This is a major benefit for the claimants. However, claimants must not overlook some key points which will affect the benefits conferred.
The first of the key points is that the 2010 Act does not have retrospective effect and therefore the 1930 Act remains in force for liabilities incurred before 1 August 2016 and where the defendant becomes a relevant person before 1 August 2016. Under section 1(1) of the 2010 Act, the transfer right applies when...
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More Articles...
- PI Practitioner, April 2017
- Criminal Injuries Compensation: Time for Change - Neil Sugarman, Neil Sugarman, President of APIL
- Payment of the Incorrect Court Fee; Does It Give Rise to a Limitation Defence? (Answer: Almost Certainly Not) - Andrew Roy, 12 King's Bench Walk
- Court of Appeal in Sharp v Leeds CC Decides Fixed Costs 'plainly apply to the costs of a PAD application' in Ex-Protocol Cases - Marcus Coates-Walker, St John's Chambers
![Appeal judge rules that credit hire company has no costs liability following a finding of fundamental dishonesty in personal injury case: RSA v. Fastrack Solutions Limited [2023] 4 WLUK 92 - David Bowden, Erimus Chambers](/content/images/resized/images/stories/carkeys_72_72.jpg)
