News Category 2
Caution given against misconceived appeals of case management decisions: Jennings v Otis Limited and Bristol City Council [2023] EWHC 2039 (KB) - Nancy Kelehar, Temple Garden Chambers
22/08/23. The appeal related to a case management order (CMO) made by Master Thornett at the RCJ in March 2023. The Master was critical of the pleadings and the Claimant’s Part 18 responses which, in his view, failed to adequately set out their case. The underlying claim related to an incident whereby the Claimant suffered a traumatic amputation of his arm when it became entangled in lift machinery on which he was carrying out maintenance.
The Claimant submitted that they would be prejudiced by the CMO which required a further reply to the Part 18 request and unilateral service of the Claimant’s witness evidence.
Decision
Cotter J held that the appeal was “misconceived” [11], that the Master was “very clearly acting within his discretion” [7], and that the court should “not be slow to rigorously apply” the provision at CPR PD 52A, paragraph 4.6 [10] which sets out the pragmatic approach the court should take in appeals of CMOs.
The court emphasised the importance of the parties being able to assess the issue of liability at an early stage and that, in order to do so, the other party’s case must be clear and “capable of being readily understood” [19]. Cotter J commented that it would have been “sensible, helpful and entirely in the spirit of the overriding objective” for the Claimant to have responded to the Part 18 request by disclosure of his witness statement [24]. The Claimant made reference in the Part 18 response to “a number of factors” which may have been at play in the incident, but the Defendants should not be left to guess what factors are being referred to [39].
Applying the test set out by Lord Neuberger in Global Torch Ltd v Apex Global Management (No.2) [2014] 1 WLR 4495, there was nothing “plainly wrong” with the approach of ensuring that the Claimant’s case was made clear before matters progressed further [42] and to make a CMO accordingly, even one which directs unilateral disclosure. It was not helpful to suggest that there should be mutual exchange of statements in the usual way as, in this instance, the Claimant was the only witness to the incident [40].
Comment
This case emphasises the importance of acting in accordance with the overriding objective even in high value claims, particularly with regards to making the case plain and clear to allow early identification of issues relating to liability.
Cotter J advised that a party aggrieved by a case management decision should “carefully assess whether an appeal is worth the candle” [42]. He also commented that directions are not a fait accompli just because they have been largely agreed between the parties; the judge does not have to make an order in the agreed terms [27].
Additionally, Cotter J did not accept that a solicitor’s policy of issuing all High Court personal injury and/or clinical negligence claims in the RCJ is “sensible, complies with the overriding objective or serves the interest of any party” [45]. A case-specific assessment of the suitable place to issue should be made to avoid the practical difficulties which will be created by issuing in London where a case has its “natural home” elsewhere [48].
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FREE CHAPTER from 'A Practical Guide to Respirable Crystalline Silica Dust Claims' by Helen Pagett
02/08/23. The HSE has identified silica as the greatest risk to construction workers after asbestos. Despite not only the risks of respiratory crystalline silica being well known, but also clear evidence that it is attributable to hundreds of deaths per year in the UK, to date, there has not been the level of litigation that may be suspected given the size of the problem.
Recently the work of the HSE, the All Party Parliamentary Group on Respiratory Health, combined with increasing litigation in the USA and Australia has shone a light again on the problems caused by respiratory silica. With increasing publicity and awareness, for both individuals and medical professionals, there is forecast to be an increase in litigation.
This book is a practical guide for both Claimant and Defendant lawyers involved in this litigation; covering all stages of the litigation process, including the historical knowledge of the problems caused by silica, injuries attributable to silica and how these claims can be brought.
CHAPTER THREE – A BRIEF HISTORY OF AWARENESS OF THE RISKS OF EXPOSURE TO RESPIRABLE CRYSTALLINE SILICA
Silicosis is not a modern disease; in 400 BC, Hippocrates, the founder of medicine, noted “breathlessness” in miners. The Industrial Revolution in the UK led to the rapid development of what are known today as “occupational” or “industrial diseases”. In 1843 Dr Charles Favell wrote about the well-known phenomenon of “grinders asthma” in the metal grinders of Sheffield; this would later be determined to be silicosis. The condition was named in 1870 by the Italian Achille Visconti from the Latin word silex or flint.
By the turn of the 20th Century, there was increasing evidence that many lung diseases were occupational in origin. As a result, unions pressed for occupational diseases to be included in workers’ compensation schemes. In 1906 a Departmental Committee on Compensation for Industrial Diseases was appointed by the UK Parliament to consider which diseases should be added to the Third Schedule of the Workmen’s Compensation Scheme1.
In 1915 Dr Edgar Collis, HM Medical Inspector of Factories, delivered the Milroy Lectures at the Royal College of Physicians, entitled: Industrial Pneumonoconiosis, with Special Reference to Dust-Phthisis2, which drew attention to the role RCS played in causing silicosis.
As a result of the growing awareness of risks and campaigning by unions, in 1918, The Workmen’s Compensation (Silicosis) Act 1918 was enacted in Great Britain. This Act gave the Secretary of State the power to make schemes for the payment of compensation to workers in specified industries or processes who were exposed to silica dust and suffered illness or death as a result. Over the next 20 years, various Schemes and variations were made to the Workers Compensation Act in respect of compensation for silicosis.
These Schemes were the forerunner to the National Insurance (Industrial Diseases) Act 1946, which was the forerunner to Industrial Injuries Disablement Benefit. Pneumoconiosis (including silicosis) remains a prescribed disease for the purposes of this benefit.
Unlike asbestos, specific regulations regarding RCS have not been enacted in the UK. In 1997 the International Research Agency for Cancer classified silica as a Group 1 carcinogen3; however, it was not until 2002 that a WEL for silica was introduced by the enactment of the Control of Substances Hazardous to Health Regulations 2002. This allowed a Maximum Exposure Limit (“MEL”) for silica of 0.3 mg/m3, expressed as an 8-hour time-weighted average (“TWA”). The Regulations provided no short-term workplace exposure limit (“STEL”). (STEL is a maximum level of exposure allowed over a period of 15 minutes).
In 2006 the WEL was reduced to a maximum MEL of 0.1 mg/m3, expressed as an 8-hour TWA; this level remains the same to date. In the USA the level is 0.025 mg/m3 and in Australia is 0.05 mg/m3.
In April 2020 the APPG for Respiratory Health, in conjunction with the not-for-profit organisation B&CE, following an extensive inquiry, published the report Silica – the next asbestos?4. The report made various recommendations including that silicosis was included as a reportable condition under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (2013) (“RIDDOR”) for those who are still at work, and to amend the Health Protection (Notification) Regulations 2010 to make silicosis notifiable through Public Health England, thereby creating a national silicosis register. They also recommended the Government introduced new legislation to bring the control of RCS into line with asbestos and the WEL was reduced to 0.05 mg/m35.
In January 2023 the APPG for Respiratory Health, after conducting further inquiries, produced a further report: Improving Silicosis Outcomes in the UK6. Following the first report, the APPG were contacted by several industry experts who suggested there was an incomplete consideration of the risk reduction strategies within the initial report. The recommendations in the 2nd report appear to be more watered down; for example, where initially it was recommended the WEL was reduced to 0.05 mg/m3, the later report recommended the HSE assess and determine if data and technology allow a reduction to this level. The recommendations continued to include increasing awareness for individuals who may have been exposed. It also continued to recommend silicosis was included as a notifiable disease in the Health Protection (Notification) Regulations 20107.
At the date of publication, there have been no changes in legislation to enact the APPG’s recommendations; however, the HSE continues to promote increased awareness of the risks of RCS and provide prescriptive guidance for those in control of, and those working in, industries which use silica8. Detailed guidance has also been produced on health surveillance for those exposed to RCS9 including respiratory questionnaires, lung function tests and consideration for baseline x-rays.
MORE INFORMATION / PURCHASE THE BOOK ONLINE
1The Development of Compensation for Occupational Diseases of the Lungs In Great Britain, Andrew Meiklejohn, British Journal of Industrial Medicine, 1954, 11, 198.
2Public Health, October 1915, 11 – 20
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‘The Denton Tests Do Apply to an Application to Set Aside Judgment’: FXF v English Karate Federation Ltd [2023] EWCA Civ 891 - Sebastian Bates, Temple Garden Chambers
31/07/23. As Sir Geoffrey Vos MR—with whom Nicola Davies LJ agreed and Birss LJ agreed in a short concurring judgment—explained at [1], ‘[t]his case highlight[ed] a controversial procedural issue that ha[d] arisen in the wake of’ the well-known Denton judgment, namely ‘whether the three-stage test described in Denton should be applied by the court when it is considering whether to set aside a default judgment under’ CPR 13.3 in circumstances where there were ‘authorities [. . .] said to point both ways’.
Summary
The Claimant sought ‘damages for personal injury for alleged serious sexual abuse by her karate coach over an extended period’: see [2]. As summarised by the Master of the Rolls at [3] and [9]–[12], the Second Defendant did not timely file its Defence and the Claimant obtained default judgment, which Master Thornett subsequently set aside for reasons given orally. The appeal to the Court of Appeal was against Master Thornett’s decision.
As quoted by the Master of the Rolls at [4], Master Thornett’s reasoning as to Denton was that ‘the familiar criteria of Denton are qualified because of necessary incorporation into the context and the express criteria under CPR 13.3: in particular, the criterion of “real prospect of successfully defending the claim”’.
The basis for the Claimant’s appeal was that, in her view, Master Thornett had erroneously failed to apply the Denton tests, which she contended would have counselled in favour of the default judgment standing; for its part, the Second Defendant contended that Master Thornett had correctly exercised his discretion: see [5]–[6].
Conclusion and Comment
Sir Geoffrey Vos MR’s conclusion (at [7]) was ‘that the Denton tests do apply to an application to set aside judgment, but [. . .] the Master understood that and exercised his discretion appropriately’ and so‘the appeal should be dismissed’.
After a thorough review of the authorities at [25]–[58], he concluded at [59] that they fell into ‘three categories’: ‘(i) cases where the rule or order expressly provides for the sanction that will apply on non-compliance [. . .], (ii) cases where the rule does not expressly state the sanction which applies for non-compliance, but permission of the court is needed to proceed [. . . ], and (iii) cases where a further step is taken in consequence of the non-compliance, such as the entry of a default judgment (as in this case)’.
Denton ‘applies directly to the first category’ and the case did not implicate the second, so it was not addressed: see [60]. It is now established (at [61]–[68]) that Denton applies to the third category.
Practitioners will wish to be mindful of the Denton tests in appropriate cases, as identified in this judgment, albeit they should also heed the warning (at [73]) that parties ‘may expect no indulgence from the court if they do not’ comply with the CPR.
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Interpreters’ fees can be recoverable under the fixed costs regime - Anisa Kassamali, Temple Garden Chambers
30/07/23. The fixed costs regime pursuant to CPR r.45 is very familiar territory to personal injury practitioners. In Santiago v Motor Insurers’ Bureau [2023] EWCA Civ 838, the Court of Appeal considered whether an individual can recover the costs of interpreters’ fees under that regime.
Background
The appellant had issued personal injury proceedings against an uninsured driver and the Motor Insurers’ Bureau (the “MIB”) following a road traffic accident. He spoke Portuguese and had a poor grasp of English. His witness statement was prepared in Portuguese and translated into English by his solicitors’ employee. The solicitors booked the services of an independent interpreter for the trial, but a settlement was reached in advance of this.
The appellant’s solicitors’ fees were fixed and calculated in accordance with CPR r.45 (and included the cost of translating the statement). The deputy district judge disallowed the interpreter’s fees as a disbursement on the basis that a person’s lack of linguistic ability did not fall within CPR r.45.29I(h). CPR r.45.29I(h) provides that claims for disbursements are allowed where they are ‘reasonably incurred due to a particular feature of the dispute’. That decision was, in her view, the application of the binding authority of Aldred v Cham [2019] EWCA Civ 1780).
The appellant appealed this decision.
Decision
The Court of Appeal allowed the appeal. It considered a number of factors when reaching its decision, including the following:
· Vulnerable witnesses: A party’s inability to speak or understand the language of proceedings fell within the approach to vulnerability as provided for in the report of the Civil Justice Council (the “CJC”) entitled “Vulnerable Witnesses and Parties within Civil Proceedings/Current Position and Recommendations for Change” (published after the decision in Aldred v Cham). It followed that the appellant was a “paradigm example of someone who should be treated as vulnerable (as that term is used in the CJC Report) and for whom steps would need to be taken to enable him to have effective access to justice” [36].
· Overriding objective: The Court of Appeal held that it was “clear beyond argument to the contrary” that an interpreter was required to assist a person who did not speak adequate English to participate fully in the proceedings or to give their best evidence at [56]: “By CPR r.1.2(b), the Court ‘must’ seek to give effect to the overriding objective when it interprets any rule. The first issue, therefore, is one of principle: does the overriding objective affect the interpretation that we should place upon sub-paragraph (h)? In my judgment it is clear that it does. Even before its amendment, rule 1.1(2)(a) and (d) established the objective of ensuring that the parties are on an equal footing and that the case is dealt with fairly. Now there is the added express obligation on the court to deal with a case, so far as practicable, so as to ensure that “the parties can participate fully in proceedings, and that parties and witnesses can give their best evidence”. It follows that the Court is obliged to seek to give effect to that objective when interpreting sub-paragraph (h). Subject to the MIB’s submission that the costs of the interpreter are included within the allowance made by Table 6B, it seems to me to be clear beyond argument to the contrary that an interpreter is essential if a person or witness who does not speak adequate English is to participate fully in proceedings or give their best evidence.”
· Access to justice: The fees of an independent interpreter were an additional expense that fell upon the vulnerable party or their solicitor and so acted as a financial disincentive to bringing proceedings. A witness who did not speak English well was precluded from having access to the court that would permit them to participate fully on an equal footing and to give their best evidence. The position had different in Aldred v Cham as the child’s access to justice was secured by the fact that they had the option of adopting or repudiating the settlement on attaining their majority.
· Statutory interpretation / effect of Aldred v Cham: The Court of Appeal observed that the conclusion that CPR r.45.29I(h) should not be interpreted so as to preclude the recovery of reasonably incurred interpreter's fees in this case would not justify allowing the appeal if the application of the normal principles of interpretation precluded it or the court was bound by Cham to take a different view. However, neither of those were the case ([61 – 64]).
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A reminder to practitioners about the importance of skeleton arguments: Masih & Anor v Royal Wolverhampton NHS Trust [2023] EWHC 1280 (KB) - Anisa Kassamali, Temple Garden Chambers
06/06/23. A judgment handed down by Ritchie J reminds practitioners about the appropriate role of skeleton arguments in proceedings.
The Appellant had been granted permission to appeal in relation to a “complicated clinical negligence case” [33]. However, permission had only been granted on a number of grounds. There were also a number of grounds in respect of which no permission was granted.
Comments in relation to the skeleton argument and speaking note
Ritchie J took the opportunity in his judgment to deliver comments which may be of broader interest to practitioners working on such claims. He observed as follows at [34] – [36]:
“34. On the day of the hearing the Appellants’ counsel sent my clerk (but did not C-efile) a document entitled “speaking note” which was used for his oral submissions. This did not separate out the grounds on which the Appellants had permission to appeal and concentrate on them, but instead dealt with all the original grounds, many of which, as set out above, the Appellants’ had no permission to appeal upon. The Appellants’ skeleton argument was not followed.
35. The ‘speaking note’ was of little assistance to the Court in this appeal save as to the bundle references therein. It was an attempt to put in a supplementary skeleton argument and to avoid the need for permission to do so.
36. I consider that the purpose of a skeleton argument is to argue out and fulfil the permitted grounds of appeal. It gives the Respondent notice of the case it has to meet. It informs the Court in advance of the arguments in the appeal. It is not a formality to be abandoned at the hearing by use of a speaking note.”
Comment
Ritchie J’s comments serve as a warning to practitioners about the role of the skeleton argument. This is not a document to be prepared in haste, but is a document which should comprehensively set out the party’s case.
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