Have You Lost Your Appeal? - Charles Bagot, Hardwick

25/10/16.Charles Bagot provides a rough guide to changes to the rules on Appeals.

• Significant new appeal rules (via a new CPR 52) came into force on 3 October;

• The proposed changes to the threshold test for appealing have not been included;

• Important changes limiting the right to an oral hearing have been brought in;

• As have changes to the destination of appeals to lighten the Court of Appeal’s workload;

• Appeals from a Circuit Judge in the County Court will now be to a High Court Judge, not the Court of Appeal, whether the decision is an interim one (as before) or a final one (the key change). The exception is where the Circuit Judge’s decision is itself made on appeal in which case the Court of Appeal is still the destination for the (second) appeal.

• So to get a decision of the Court of Appeal in any case which starts life in the County Court will necessitate satisfying the high bar for permission for a second appeal (see further below) or a leap-frog (good luck). This will have a significant impact on the bulk of multi-track cases which are litigated in the County Court. It will become of even greater significance if and when proposals to increase the financial threshold for issuing in the High Court perhaps to over £0.5 million are brought into force.

• So we can anticipate an increase in satellite litigation where parties file an appeal in the wrong court at the last minute and thereby miss the deadline for an appeal to the correct court. There is provision whereby a court officer may notify a party in writing that the appeal court does not have jurisdiction (CPR PD 52A.3.9), but this may come too late to avoid missing a deadline, necessitating an application to extend time out of time.

• For appeals to the County Court, High Court and Court of Appeal, the first stage remains a decision whether to grant or refuse permission to appeal (if not granted by the judge being appealed) by a Judge, on paper, without an oral hearing;

• The test for permission to appeal remains, for first appeals, whether there is a real prospect of success or some other compelling reason for the appeal to be heard;

• For second appeals, the test remains the dual requirements of whether there is a real prospect of success, and whether the appeal raises an important point of principle or practice, or some other compelling reason for the appeal to be heard;

• For applications for permission to appeal to the Court of Appeal, the single Judge will decide on paper whether to grant or refuse permission to appeal;

• N.B. For appeals to the Court of Appeal, there is no longer a right to request reconsideration at an oral hearing. The judge considering the application for permission on paper may direct that the application be determined at an oral hearing, and must so direct if the judge is of the opinion that the application cannot be fairly determined on paper without an oral hearing. But gone is the right for the appellant to request an oral reconsideration if the judge does not direct one.

• If a judge decides to list an application for permission for an oral hearing as described above, this will usually take place within 14 days and before the same judge;

• For applications for permission to appeal to the County Court or High Court, if permission is refused on paper, the appellant can still request reconsideration at an oral hearing as of right;

• The exception is where a High Court Judge, Designated Civil Judge or Specialist Circuit Judge considers that the application is totally without merit and makes an order that the appellant may not request reconsideration at an oral hearing;

• CPR 3.3(5) (ability to apply to set aside an order made of the Court's own initiative) does not apply to a 'totally without merit' bar on requesting an oral hearing;

• Where the appellant's notice is issued before 3 October 2016 the previous rules still apply. Likewise where a request for a reconsideration is made before that date. So the old rules will remain relevant for some time to come.

For more detailed information about the new rules and transitional provisions, as with all things Civil Litigation, we recommend you consult our Hardwicke colleague, Gordon Exall's, ever helpful blog posts:

https://civillitigationbrief.wordpress.com/2016/09/27/new-appeal-rules-coming-into-force-on-the-3rd-october-2016/

https://civillitigationbrief.wordpress.com/2016/10/07/destination-of-appeals-the-new-rules/

Charles Bagot
Hardwicke

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What's Leading to the Reduction in Employer's Liability Claims? - James Barker, Kirwans

13/10/16. Recent statistics show that the number of Employers’ Liability (EL) claims have reduced in recent years, with Verdict Financials UK Personal Injury Litigation 2016 report identifying sharp declines in EL claims recorded in 2015-16.

The reasons for the reduction have not entirely been established, but there are a number of factors which may well have contributed to the change.

The implementation of the Jackson reforms in 2013 resulted in significant change for Personal Injury law. Costs associated with progressing a claim on behalf of a client, obtaining expert medical evidence, medical records and engineers’ reports, as well as the ever-increasing court fees, have all led to solicitors being reluctant to take on cases which can be considered to have borderline prospects of success.

However, it is not this legislation alone that has seriously affected the Personal Injury industry.

In October 2013, Section 69 of the Enterprise and Regulatory Reform Act 2013 came into force and the impact of such legislation has not gone unnoticed.

Prior to this Act, an injured employee could bring a claim against their employer for breach of health and safety regulations. However, the removal of employers’ civil liability for breach of health and safety regulations made it much more difficult for employees to bring a claim against an employer as the ‘strict liability’ concept was removed.

Just a few months ago, I progressed a claim for damages on behalf of an employee who was injured as a result of a defective piece of equipment at a major supermarket factory in North Wales. This supermarket denied liability throughout, but had the accident taken place before October 2013, then liability would no doubt have been admitted.

In this instance, I issued court proceedings. An offer of damages was made and the case was settled on favourable terms for my client. Even though he had been injured through no fault of his own - it was entirely his employer’s fault - the supermarket felt that it could deny liability under this new Act. Had I chosen another route, and decided not to commence court proceedings, then it could have been a very different story.

A further contributing factor could be the improvement of health and safety within the work place.

In trying to ensure that the workplace is as safe as possible for employees, the Health and Safety Executive are willing to levy fines and make owners accountable (even to imprison them under Section 33 of the Health and Safety at Work Act) if their premises are unsafe.

The penalties have, understandably, led to huge concerns amongst employers that they could be fined or struck off. As a result, most conscientious employers are doing their utmost to ensure that their premises and health and safety practices are compliant to avoid unwanted criticism should an accident take place.

Of course, the Personal Injury sector could be subject to even more changes once the UK leaves the EU. The Brexit effect could mean that employees might lose further rights if the English legal system decides not to adopt the EU Directives which allow certain categories of workers to bring a claim for damages if injured within their workplace.

Other concerns include the proposed raise to the small claims limit. Such a move would certainly reduce the amount of claims brought, because the economics and viability of bringing a claim for damages would mean that, more often that not, there would be little point in doing so.

Turbulent times, then, for the sector – and in particular for Employers’ Liability claims. But the legal industry is getting used to finding smarter ways of working, and I have no doubt that we will manage whatever challenges we continue to meet in this new, ever-changing world of Personal Injury.

James Barker
Kirwans

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No Duty to Warn of the Obvious - Jack Jarding, 1 Chancery Lane

13/10/16. The Court of Appeal handed down judgment today in the eagerly anticipated appeal in Edwards v London Borough of Sutton (2016).The claim concerned the duty owed by occupiers for structures present on their land. The Claimant was pushing a bicycle over a small ornamental footbridge which passed over a stream in a park owned and occupied by the London Borough of Sutton. The bridge was humped and had obviously low parapet sides. It was many years old and there was no history of any previous accidents. For reasons which remained unexplained and unproved at trial, the claimant lost his balance and fell over the edge, into the water below. As a result he sustained a serious spinal cord injury.

The trial judge at first instance found that the duty under the Occupiers Liability Act 1957 did not necessitate an enquiry into the objective safety of the premises but only into whether the visitor was ‘safe in using’ them. He considered that although the Defendant was not obliged to update the bridge by installing handrails in circumstances where there had been no standards or requirements which existed at the date of its construction, there was nonetheless an obligation on the Defendant, who had not properly risk assessed the bridge, to warn visitors of the presence of the low parapets and instruct them to take a different route through the park.

The Court of Appeal (McCombe LJ giving the lead judgment with whom Arden and Lewison LLJ agreed), held that the judge had failed to recognise that under the 1957 Act it was necessary to identify what the relevant danger (if any) is before considering whether the occupier is required to do anything about it. It noted that ornamental bridges with low walls were common features of public gardens and are regularly traversed without difficulty. Whilst it was possible, in principle, for the low parapets sides of the wall to constitute a ‘danger’, such a feature did not trigger a duty on the authority to take any further steps, for two reasons. First of all, the seriousness of the accident which had befallen the Claimant could not be equated with there being a serious risk of it occurring in the first place. There had been no previous accidents of any kind and any risk, if it existed, was remote. Secondly, relying on Staples v West Dorset (1995) PIQR 439 and other authorities, the court held that there was no duty to warn of obvious risks. The approach to the bridge was clear and its width and the height of the parapets was obvious. Furthermore, a risk assessment would have made no difference.

McCombe LJ concluded by noting that he found himself in agreement with the submissions of Counsel for the Defendant that “not every accident (even if it has serious consequences) has to have been the fault of another; and an occupier is not an insurer against injuries sustained on his premises”.

Andrew Warnock QC and Jack Harding, of 1 Chancery Lane, instructed by Clyde & Co LLP, acted for the successful local authority.

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