News Category 2
Partial Admissions and Tactics for Allocation - Aidan Ellis, Temple Garden Chambers
25/07/14. In a claim for credit hire charges (or indeed any special damages) which slightly exceeds the small claims track limit, can the Defendant avoid the cost bearing fast track by making a tactical admission for part but not all of that item of special damage? That was the issue before the Court of Appeal in Akhtar v Boland [2014] EWCA Civ 872. In that case, the hire charges of around £5,200 would, together with other special damages, have pushed the claim into the fast track. The Defendant admitted around £2,000 of the hire charges and persuaded the Court to allocate to the small claims track. The Claimant appealed, arguing that (1) the purported admission was inconsistent with other paragraphs in the Defence which appeared to put need and enforceability in issue in relation to all of the hire charges and (2) a partial admission in relation to a head of loss should not have been taken into account for the purposes of allocation.
In a decision remarkable for the brevity of its reasoning, the Court of Appeal concluded that the effect of the admission was that the Claimant could do no worse at trial than the admitted sum of £2,000. The claim was therefore correctly allocated to the small claims track...
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Sweet Relief: To Mitchell or Not to Mitchell, That Is the Question - Andrew Sugarman & Gareth Price, Parklane Plowden Chambers
21/07/14. Andrew Sugarman and Gareth Price take stock of the position on relief from sanction following Mitchell and Denton. “I'm just a soul whose intentions are good Oh Lord, please don't let me be misunderstood”. So said Nina Simone, then The Animals and more recently the Court of Appeal, albeit with less of an expectation of chart success. However, the Court of Appeal’s seminal judgment in Mitchell v. Newsgroup Newspapers Limited [2013] EWCA Civ 1537 has (apparently) been badly misunderstood. So says the Court of Appeal itself in Denton & Ors v. TH White Limited & Ors [2014] EWCA Civ 906. Indeed, the only other recent example of a misunderstanding on this scale was when Luis Felipe Scolari told his defenders to play without inhibition.
BACKGROUND
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The amendment to Rule 3.9 of the CPR in April 2013 resulted in the removal of the familiar checklist of factors and its replacement with a requirement that the court consider “all the circumstances of the case” so as to enable it act “justly” but specifically having regard to the...
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The Future Of Slipping & Tripping Litigation - Andrew Mckie, Clerksroom
20/07/14. Chapter 12 from the new book 'Occupiers, Highways and Defective Premises Claims: A Practical Guide Post-Jackson' by Andrew Mckie. As the reader will have noted from this book, slipping and tripping litigation, although sometimes on its facts may appear to be fairly straightforward, one can see that how the case law and statute have evolved, and that this is an area of law which is extremely complicated.
From a claimant’s solicitors’ perspective, the positive about slipping and tripping litigation is that in some instances the case does not always come down simply to the credibility of the claimant, but one can often look especially in occupiers cases and highways cases as to whether the system of inspection was reasonable.
One always has to be aware, that you are going to need...
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Dunhill v Burgin: Litigation Capacity - Sam Chandler, Pupil at Five Stone Buildings
18/07/14. Litigation capacity is a live issue for any practitioner working in the field of personal injury law. A party who has suffered an injury with adverse consequences on their short or long term mental ability may well fall short of the required capacity threshold. If so, they will require a litigation friend to conduct proceedings on their behalf in accordance with Civil Procedure Rules rule 21.2. Practitioners must therefore be familiar with the test for litigation capacity as formulated in the case of Masterman-Lister v Jewell [2002] EWCA Civ 1889, and refined in the recent Supreme Court decision of Dunhill v Burgin [2014] UKSC 18.
A party to proceedings must be: “capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings”. [75]
One will usually be making a capacity assessment prospectively, usually at the outset of litigation. However, Dunhill v Burgin concerned that test in circumstances where the...
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PI Practitioner, July 2014
16/07/14. Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. You can also receive these for free by registering for our PI Brief Update newsletter. Just select "Free Newsletter" from the menu at the top of this page and fill in your email address.
Andrew Groarke v Cecil Fontaine [2014] EWHC 1676 (QB)
Justice and fairness required permission to be granted in a last minute application to amend a defence to plead contributory negligence.
The Claimant ('C') had been riding his motorbike when the Defendant ('D') emerged from a side road and collided with C. D denied liability and alleged that C caused the
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More Articles...
- Rescued From an Error of Procedure - Ian Miller, 1 Chancery Lane
- Litigation Tips & Tactics in Highways Slipping and Tripping, Occupiers and Defective Premises Claims - Andrew Mckie, Clerksroom
- Referral Fee Ban Does Not Mean You Have to Become an ABS - Simon Gibson, SGI Legal
- Limitation; Calibrating Pre-Knowledge Prejudice - Andrew Roy, 12 Kings Bench Walk
![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)
