News Category 2
How (Not) to Consider Permission to Appeal and Applications to Re-Open Appeals: UCP Plc v Nectrus Ltd [2022] EWCA Civ 949 - Sebastian Bates, Temple Garden Chambers
22/08/22. In UCP plc v Nectrus Ltd [2022] EWCA Civ 949, the Court of Appeal addressed 'the circumstances in which judges should accede to an application to recuse themselves, and the process adopted in the Court of Appeal when parties apply to set aside permission to appeal and, separately, to re-open the final refusal of permission to appeal under CPR Part 52.30'.
Facts
Nectrus applied to the Court of Appeal for permission to appeal (PTA) from the High Court. Flaux LJ granted permission to appeal on a single ground, but recorded on the form that the matter was to be referred back to him after the Supreme Court ruled in Marex v Sevilleja [2020] UKSC 31; [2021] AC 39. He described his grant of PTA as ‘contingent’.
The Supreme Court subsequently gave judgment in Marex, reversing the judgment against which Flaux LJ had tested the High Court’s reasoning. Nectrus’ solicitors requested confirmation of PTA; UCP’s solicitors invited refusal of PTA. Faced with these written submissions, Flaux LJ decided on the papers to refuse PTA on 24 July 2020.
Nectrus’ solicitors wrote to the Civil Appeals Office on 28 July 2020, stating that they intended to apply to set this order aside under CPR 3.3(5) and requesting an extension of the seven-day time limit for this. They indicated that they would also be applying, in the alternative, under CPR 52.30. On 30 July 2020, the Office emailed that Flaux LJ had directed that any application would have to be served by 4pm on 31 July 2020.
An application under CPR 3.3(5) was made. This was refused without being issued.
Nectrus went on to make an application under CPR 52.30, accompanied by a skeleton argument and a request that the application be heard by a judge other than Flaux LJ. He nevertheless held an oral hearing on this application and dismissed it.
The Judicial Committee of the Privy Council then gave a judgment, in Primeo Fund v Bank of Bermuda [2021] UKPC 22, that indicated that Flaux LJ had been wrong to...
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A Reminder of the 'Generous Ambit' Of Potential Responses to Applications for Extensions of Time for Service of A Claim Form: ST v Bai (SA) [2022] EWCA Civ 1037 - Sebastian Bates, Temple Garden Chambers
19/08/22. The Court of Appeal has in ST v BAI (SA) [2022] EWCA Civ 1037 considered the approach to be taken to applications under CPR 7.6(2) for an extension of time in which to serve a claim form.
Facts
ST alleged that she had been sexually assaulted on a ferry operated by BAI (SA). Her claim was subject to a limitation period of two years. BAI (SA)’s domicile was France, where service could be effected without permission. The claim form had to be served within six months of issue under CPR 7.5(2).
Proceedings were issued in time and the deadline for service was 14 August 2020. On 4 August 2020, ST’s solicitors were told that service out of the jurisdiction would be economically infeasible because the relevant officials in Brittany had gone on holiday due to the judicial vacation. They applied under CPR 7.6(2), referring to the judicial vacation as well as pandemic-induced delays in obtaining medical records and arranging a medical examination. On 5 August 2020, an extension was granted through to 14 December 2020 by the Admiralty Registrar. On 7 December 2020, a further extension was granted through to...
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Damages Based Agreements Are Not Enforceable Against a Non-Counterclaiming Defendant: Candey Ltd v Tonstate Group Ltd & Ors [2022] Ewca Civ 936 - Grace Corby, Temple Garden Chambers
18/08/22. The appeal raised the novel question of whether it is lawful for a party against whom a claim is made (i.e. the defendant to a claim or counterclaim) to enter into an agreement that, if he succeeds in defending that claim in whole or in part, he will pay his legal representatives a percentage of the money or the value of the assets that he has resisted having to pay or transfer to his opponent.
The Court of Appeal determined such Damages Based Agreements (“DBA”)) could not be used between a solicitor and a defendant without a counterclaim.
The Facts
The Claimant solicitors acted for a client under a DBA, regarding a complex share ownership dispute. The claim settled with the client retaining 25% of his shares, such that the Claim had been successfully defended in part. Upon the client’s bankruptcy, the solicitor claimed that, under the DBA, they were entitled to a certain percentage of the contested shares that had been retained. Other creditors contended that this was not the case.
The Court of Appeal addressed whether it was lawful for a DBA to allow a solicitor to retain a percentage of contested assets in a successfully resisted claim.
Legal Framework
DBAs are unlawful at common law. However, they were legalised on a statutory basis in response to recommendations in Lord Justice Jackson’s report on civil litigation costs (“the Jackson Report”). This legalisation was done via an amendment to section 58AA of the Courts and Legal Services Act 1990 (“the 1990 Act”)...
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The Executor of an Estate Can Apply for Provisional Damages: Power v Hastie & Co Ltd [2022] EWHC 1927 (QB) - Anisa Kassamali, Temple Garden Chambers
17/08/22. Provisional damages can be awarded where a claimant’s prognosis is uncertain. By way of a provisional damages order (‘PDO’), a claimant is effectively given the right to return to court to apply for further damages if he or she suffers serious deterioration in the future as a result of the original injury.
The applicant in Power v Hastie & Co Ltd [2022] EWHC 1927 (QB) (22 July 2022)[1] asked the High Court to consider whether that right survives a claimant’s death. Put differently, can the estate of a deceased’s claimant take advantage of that claimant’s right to ask the court to award further damages on the ground that the claimant developed a condition or disease specified in the PDO.
Background
Mr Hammacott (‘the Deceased’) was employed by the Defendants for various periods between 1956 and 1977. In 1991, he claimed that the Defendants had been responsible for his exposure to asbestos. He was awarded damages of £5,000 plus interest on the assumption that he would not develop certain identified conditions, including a serious deterioration of his asbestosis or asbestos related benign pleural effusion or asbestos related pleural thickening.
The Deceased also sought an award of provisional damages under Order 37 Rule 10 of the Rules of the Supreme Court. Kay J heard that application and relevantly ordered that “The Plaintiff do have leave to apply (without time limit) for further damages pursuant to Order 37 Rule 10 if he does develop the aforesaid conditions or diseases or any of them.”
The Deceased’s nephew and executor of his estate said that the Deceased ultimately died of those identified conditions. He sought to be substituted as the claimant in an application for the according further damages.
High Court decision
Johnson J held that a beneficiary’s right to apply for further damages under a PDO...
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Judicial College Guidelines 16th Edition: Work-related Limb Disorders - Jim Hester, Parklane Plowden Chambers
25/07/22. The recent publication of the 16th Edition of the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases, has brought a number of changes for industrial disease practitioners, in relation to:
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Work-related limb disorders: Vibration White Finger (VWF) and/ or Hand Arm Vibration Syndrome (HAVS); work-related upper limb disorders (WRULD); and cold injuries.
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Noise induced hearing loss.
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Asbestos-related disease.
This article deals with the first of these: work-related limb disorders. Further articles in relation to noise induced hearing loss and asbestos-related disease will follow.
Chapter 8 – Work-related limb disorders
The guidelines for VWF and/ or HAVS and WRULD were previously in Chapter 7 (orthopaedic injuries). They now form part of a new Chapter 8 – Work-related limb disorders.
This new Chapter 8 comprises 3 parts:
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Vibration White Finger (VWF) and/ or Hand Arm Vibration Syndrome (HAVS).
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Work-related Upper Limb Disorders.
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Cold injuries.
Changes to Substance?
Other than finding a new home, there does not appear to be any specific changes to the text or guidelines for VMW/ HAVS or WRULD.
In common with the rest of the new guidelines, pre-Simmons v Castle figures have been removed (as very few such cases are still being dealt with in the courts). All figures have been increased in line with inflation (a 6.56% increase, before rounding).
Cold Injuries
Cold injuries are the third part of this Chapter and is a ‘wholly new section’. It is broken down into 3 parts.
The lowest level of injury (intermittent/ manageable symptoms) receives awards in the region of £15,000.
The middle category includes cases with aggravating features (dual site; unable to manage; continuous; additional immediate impact; effect on employability/ amenity). An example of a case affecting hands and feet with acute psychological conditions and acceleration of future joint problems, would receive around £32,500.
For more serious cases, the reader is directed to consider Chapter 9 (Chronic Pain).
It does appear that reference to previously decided cases will still be necessary to assess where on the scale any particular case sits.
Conclusion
Chapter 8 promises to be a section to which industrial disease practitioners frequently turn.
The move of the VWF/ HAVS and WRULD sections is largely organisational with no change as to the substance of how such cases might be assessed.
The inclusion of cold injuries is useful, though cases still probably need to be carefully compared to similar previously reported cases.
Next Article
In Article 2 – I shall look at the update to the Noise Induced Hearing Loss (NIHL) section including, for the first time, discrete award figures suggested for an acceleration in need for hearing aids.
This article was originally published at https://jimhester.me
Image: free use from https://pixabay.com/en/hammer-drill-site-hilti-smash-1742656/
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