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Summary of Recent Cases, July 2020

15/07/20. Here is a summary of the recent notable court cases over the past month. 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.

Summary of Recent Cases - Substantive Law

Barlow v Wigan Metropolitan Borough Council [2020] EWCA Civ 696

The Claimant was injured when she was walking along a path in a park and tripped over an exposed tree root. At first instance it was found that the tree root rendered the path dangerous and defective. This finding was not disputed on appeal. The question before the Court of Appeal was whether she had a valid claim against the Defendant Council, who were the owners and occupiers of the park. Whilst the Claimant's particulars of claim included allegations of common law negligence, these were not pursued at trial. Her claim could only succeed if she established a cause of action for breach of statutory duty under section 41 of the Highways Act 1980 on the basis that the path was a highway maintainable at public expense.

The park had been constructed as a public park in the early 1930s by the Defendant's predecessor. The paths were constructed by the Defendant or its predecessor, and predated the Highways Act 1959. The Defendant's records did not list the park as a public right of way. However, the public had enjoyed unrestricted access to the park. The Defendant's predecessor had been the highway authority for the area at the time when the park was constructed, although the Defendant denied that it was acting in that capacity when constructing the paths in the park.

Lord Justice Bean considered the law on highway maintenance, and section 36 of the Highways Act 1980 in particular. Section 36(1) provides that highways which were maintainable at public expense under the earlier Highways Act 1959, continue to be so maintainable. A highway can be created by statute, or by dedication and acceptance. Dedication can be express, deemed by the operation of s 31 of the Highways Act 1980, or inferred by common law. To fall within s 36(1), the Claimant had to prove that the path had been dedicated before 16 December 1949. Bean LJ also considered s 36(2)(a), which provides that highways which were constructed by a highway authority are maintainable at public expense...

On first appeal, Waksman J, found that the path had been constructed by a highway authority and saw "no reason of language or logic for an additional 'capacity' requirement" as was contended by the Defendant. Contrary to the judgment of Waksman J, Lord Justice Bean found that the path did not constitute a highway maintainable at public expense for the purposes of s 36(2)(a) of the Highways Act. He referred to and agreed with the reasoning and conclusions of Neuberger J in Gulliksen v Pembrokeshire County Council [2002] QB 825, regarding the interpretation of s 36(2)(a): "the notion of 'a highway constructed by a highway authority' means 'a highway constructed as a highway by a highway authority in its capacity as such'". Bean LJ accepted the Defendant's contention that its predecessor was not acting in its capacity as the highway authority for the area when it constructed the path. Accordingly, the path did not fall within s 36(2)(a).

Bean LJ proceeded to consider whether the path had been dedicated as a highway before 16 December 1949, and so fell within s 36(1). There was no evidence of express dedication, however there was ample evidence to support the implication or presumption of dedication at common law. The evidence established that the park was opened in the early 1930's and that the path was laid out soon afterwards. Ever since that time the public had had unrestricted and uninterrupted access to the paths. It was accepted that the common law presumption of dedication was retrospective, as held in the Privy Council decision of Turner v Walsh (1881) 6 HL 636. Thus, the dedication "is deemed to have occurred at the beginning of the period of continuous user, not at the end of it". Accordingly, the path was deemed to be dedicated since the early to mid-1930s, well before December 1949. The path therefore fell within s 36(1), providing the Claimant with a valid cause of action for breach of statutory duty under s 41 of the Highways Act 1980.

Singh and Macur LJJ agreed.

Summary of Recent Cases - Costs

With electronic bills, all parties attending detailed assessments can easily see where the figures are heading as the hearing progresses. As was highlighted in this recent case, it will therefore be ever more important to phrase offers carefully, and to keep in mind any steps that may be required in relation to open common law offers which remain on the table.

MEF v St George's Healthcare NHS Trust [2020] EWHC 1300 (QB)

The Claimant's clinical negligence claim in relation to a severe hypoxic brain injury sustained at birth settled and was approved by the court. Detailed assessment proceedings were issued in relation to the Claimant's total liability costs bill which amounted to £621,455.57. One month before the hearing of the detailed assessment, the Defendant made a Calderbank offer to pay £440,000 for the Claimant's costs, on condition that the Claimant paid part of the Defendant's costs of the assessment. This offer had no express time limit. At the end of the second day of the three-day detailed assessment before Master Brown, the Claimant's bill had been reduced below £440,000. Before the end of the day, the Claimant's solicitors sent an email and a letter, purporting to accept the Defendant's offer.

A dispute arose as to whether the Caldebank offer could be accepted once the detailed assessment had commenced, or whether it lapsed upon commencement of the hearing. The dispute was transferred to Costs Judge Master Rowley. The Defendant argued that CPR 47.20(4) imported provisions of CPR Part 36, with the effect that the Claimant required the court's permission to accept the offer once the hearing had started. The Claimant argued that the Calderbank offer was not a Part 36 offer, was not time-limited and had not been withdrawn. Therefore, it was open to be accepted. Master Rowley held that Part 36 provisions did not apply; rather the offer made was a common law offer which could not be assumed to stop at the door of the court. The Defendant had chosen to make a common law offer and had not applied a time-limit to it. Accordingly, he held that the Claimant's acceptance was valid. However, he granted permission to appeal, given that the matter involved an important point of principle.

Mr Justice Morris heard the appeal. Firstly, the Defendant argued that the Calderbank offer had ended after the lapse of a reasonable time which was no later than the start of the hearing, and/or that there was an implied term that it would lapse on the start of the hearing. Secondly, it was argued that the wording of the Claimant's acceptance was not sufficiently specific in relation to the payment of the Defendant's costs, and thus there was no meeting of minds. The Claimant's position was that the appeal simply concerned the application of law to the facts. Here, the Defendant had chosen not to withdraw their offer, or make it time limited and thus it remained open for acceptance. Further, the Defendant had chosen to repeat or renew an offer which provided ongoing costs protection. It was therefore not necessary to imply a term limiting the time for acceptance. As to the meeting of minds, the Claimant took issue with the fact that this argument had not been raised before Master Rowley. In any event, there had been a meeting of minds, as it was clear to both parties that the offer required agreement in principle to pay the Defendant's reasonable costs of the detailed assessment from a specified date.

Mr Justice Morris made the following findings in relation to the contention that the offer had lapsed...

1. Master Rowley was correct in finding that common law principles, rather than Part 36, applied in the instant case. However, he did not expressly address the contractual principle of lapse after a reasonable time.
2. The question of lapse after a reasonable time is a question of fact. To determine whether the offer lapsed at the start of the hearing, the court must consider whether a reasonable time for acceptance had expired at the commencement of the hearing or continued during the hearing. The following features supported the conclusion that the offer had not lapsed:
a. Due to the nature of detailed assessment proceedings, it is possible for the parties to know how well or badly they are doing as the hearing progresses. This distinguishes detailed assessments from other types of hearings where the ultimate outcome is not as clearly indicated during the progression of the hearing.
b. The Part 36 procedure, with its stricter rules, was available to the Defendant. However, the Defendant chose to make a Calderbank offer, and "there can be no direct "read across" from Part 36 procedure to the contractual position of a Calderbank offer." Whilst the court's permission must be sought to accept a Part 36 offer once the hearing has commenced, there is no provision in Part 36 by which the offer lapses at court. Part 36 cannot therefore be relied upon to support the contention that Calderbank offers lapse at the door of the court.
c. None of the Defendant's earlier offers had an absolute time limit. It was reasonable to infer that the offers were subject to the condition that if they were not accepted within a reasonable time, the Claimant would be responsible for the Defendant's costs. This condition was inconsistent with an absolute time limit upon acceptance.
d. The Defendant was aware that it could withdraw the offer made, but had decided not to do so.
3. Contrary to submissions on behalf of the Defendant, the Defendant's costs protection remained effective even if the offer was considered open for acceptance during the hearing. Further, it was not accepted that the offer remaining open during the hearing provided a perverse incentive as the Defendant may end up in a worse position than had it not made an offer. It was always open to the Defendant to put a time limit on the offer or withdraw it.

Mr Justice Morris further found that the Claimant's acceptance had given rise to a contractually binding settlement. A reasonable person would have understood that the condition of the offer was acceptance, in principle, to pay the Defendant's costs of the detailed assessment from a specified date, to be assessed if not agreed.

Accordingly, the appeal was dismissed.

Summary of Recent Cases - Civil Procedure

This recent case reinforces the need not only to obtain permission from the court to rely on expert evidence, but to ensure that such permission covers the scope of that evidence.

Tully v (1) Exterion Media (UK) Ltd (In Liquidation) (2) London Underground Ltd [2020] EWHC 1119 (QB)

The Claimant claimed damages for personal injury arising from an alleged accident at work. The Defendant disputed both liability and quantum. Both sides had permission to obtain expert evidence from the fields of orthopaedics and psychiatry. The Claimant was given an opportunity to serve an updated orthopaedic report by the date of exchange, but chose not to. It was noted by Master McCloud that this choice was made without consulting the expert as to whether he considered that his report needed updating given the passage of time and the availability of further evidence. Following the exchange of witness statements and experts' reports, the Defendant served surveillance footage, which they contended showed that the Claimant was far more mobile than he claimed. The parties agreed a consent order giving the Claimant permission to serve a statement responding to the surveillance footage, and providing for a further exchange of experts reports in both specialisms "limited to issues arising from the surveillance footage and the Claimant's witness statement". As a result of the consent order, the listed CCMC was vacated.

When approached for commentary on the surveillance footage and witness statement, the Claimant's expert stated that given the discrepancy between his original findings, and the surveillance footage and the Defendant's expert report, he would need a further interview and examination of the Claimant in order to confirm or refute the Defendant's evidence and discharge his duties to the court. The Claimant then proceeded to instruct their orthopaedic expert to conduct a re-examination of the Claimant and produce an updated report which addressed the Claimant's general medical condition as well as the surveillance and the Claimant's statement in response. The updated report was shared with the Claimant's psychiatric expert.

The Defendant argued that the Claimant was in breach of the consent order and had obtained an unfair advantage as a result. Even if it had been appropriate to re-examine the Claimant, the orthopaedic expert ought not to have been provided with the surveillance footage beforehand. In effect, the Claimant had managed to gain a sequential exchange of material, in that their expert had the opportunity to consider the evidence of the Defendant's expert when drafting his report. Further, the Claimant's psychiatric report in response was also tainted, as the psychiatric expert had been provided with the updated orthopaedic report.

As a result of the alleged breach of the consent order, the Defendant declined to proceed with the preparation of joint reports. The Claimant applied for an unless order to force the Defendant to proceed to the joint report stage, as well as relief from sanctions if the Claimant was found to be in breach...

At the hearing, the Claimant argued that it had been right and proper to have produced a fully updated report, and that the earlier opportunity to do so had reasonably not been used as there had been no advance notice of the surveillance and no reason to believe that the Defendant's orthopaedic expert would disagree with the Claimant's original orthopaedic report. The updated report enabled the expert to comply with his duties to the court and ensured a level playing field and it would not be right to dictate to an expert whether he should re-examine the Claimant, where he said that he needed to do so.

Master McCloud had regard to the rules concerning expert evidence set out at CPR 35, as well as the Overriding Objective. She made the following findings:
1. The Claimant had breached the consent order. The Defendant had served surveillance evidence in an appropriate manner, and a standard order was made for the experts to comment on the limited issues raised by that evidence and the Claimant's statement in response.
2. If the Claimant reconsidered the need for an updated orthopaedic report, he should have requested permission and relief from sanctions, explaining why an updated report had not been obtained previously. If permission was granted, the expert could then produce an updated report without sight of any surveillance evidence. Commentary on the surveillance evidence could then have been made separately, as had been the case for the Defendant's expert.
3. The material obtained by the Claimant went well beyond the permission granted and rendered the playing field uneven. The obligation on an expert to assist the court does not mean that a solicitor can "effectively expand the scope of an order for a report simply because the expert wishes to". The consent order need not have been signed if there were hopes of a wider report.
4. As to relief from sanctions, the breach was not trivial or immaterial. The impact on fairness by the updated report was considerable. There was also no good reason for the breach. Considering all the circumstances, the substantial impact on fairness was reiterated. The resources deployed to consider the issue had also been substantial and the trial timetable would be delayed.

For these reasons, the Claimant's applications were largely refused. However, Master McCloud was willing to consider some limited relief. She invited arguments as to whether some paragraphs of the updated report could be allowed to stand, and whether a new psychiatrist, without knowledge of the surveillance, might be instructed.

Olivia Rosenstrom
Temple Garden Chambers

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