Tom Clark v Omar Elbana [2025] EWCA Civ 776 - Andrew Ratomski, Temple Garden Chambers

18/07/25. Date of judgment: 24 June 2025.

This sports negligence claim arises from a collision between the Defendant, and now Appellant, and the Claimant during an amateur rugby match. The Claimant suffered a serious spinal injury. Causation was conceded but the issue of breach of duty went to trial.

Permission to appeal was granted concerning the test to be applied to the Appellant’s alleged recklessness, adequacy of reasons, the relevant legal test when determining breach of duty in a sporting context and in regards the judge’s conclusions that the Appellant was reckless in the circumstances of a game of rugby.

The appeal was dismissed in short order on the basis of the Respondent’s Notice dated 9 April 2025 filed by the Claimant (Respondent to the appeal). The Claimant argued that in the sporting context the legal test in negligence was whether the Defendant had failed to exercise such degree of care as was appropriate and by reference to the evidence before the Judge, the Defendant was reckless which was a higher, more stringent legal test. It was further argued that it could not possibly be said that the Defendant was not negligent by reference to the same evidence before the trial judge.

At the hearing, the Defendant’s counsel was invited to address the issues raised in the Respondent’s Notice before the Court of Appeal indicated that it was satisfied that the Judge’s finding that the Defendant was reckless encompassed a finding of negligence. The Court also considered that finding was not erroneous and the Respondent’s Notice was in effect correct. It therefore followed that the appeal would be dismissed.

The case was brought on the basis that the index collision was unnecessary and negligently made by the Defendant with reckless disregard for the Claimant’s safety, all contrary to the laws of rugby. There was available a clear video recording of the collision and the Judge made numerous factual findings based on what the video purported to show.

The Court of Appeal considered the laws of ruby set by World Rugby and the prohibition under law 10.4(f) of playing an opponent without a ball. The Court of Appeal explained that the claim was brought in the tort of negligence. In this context, reckless was used as an adjective but recklessness was not required to establish negligence as the sporting authorities made clear. It followed that describing a play as “reckless” in a sporting context was a higher, more stringent test that encompassed a finding of negligence.

The Court of Appeal also rejected the Appellant’s arguments that the Judge had failed to address the issue of foreseeability and found the risk of injury was a significant one, it was courting at least a fracture which was a serious injury:

“The judge’s findings that the defendant ran directly at the claimant at full speed and in choosing to run so close to the claimant, the defendant was courting the risk that even a slight movement would result in a forcible contact with most of the kinetic energy being transferred to the claimant encapsulated the factual basis of foreseeability.”

The Court of Appeal also held that whilst the Judge did not use the word “negligent”, that was the pleaded basis of the claim and it was upon the pleaded claim that liability was found.

Discussion

This case illustrates the impact a well-crafted Respondent’s Notice can have, especially one that is grounded in the factual findings a trial has made. It is also essential reading for practitioners working on sports injury claims and wrestling with the line between play that is reckless versus negligent or the ingredients of foreseeability in sports injuries.

https://caselaw.nationalarchives.gov.uk/ewca/civ/2025/776

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Benjamin Hetherington v Raymond Fell & Anor [2025] EWHC 1487 (KB) - Philip Matthews, Temple Garden Chambers

15/07/25. In the case of Hetherington v Fell, the High Court dealt with a serious accident involving a cyclist, who was injured during a time trial event organized by the Ferryhill Wheelers Cycling Club.

Background

The accident occurred when the Claimant collided with a Mercedes driven by the Defendant, when the latter attempted to turn onto Butterwick Road from the A698 dual carriageway.

The Claimant alleged negligence against the Defendant, who denied liability. The Defendant subsequently brought a Part 20 claim against the cycling club, asserting that they were negligent in their risk assessment and safety measures during the event. The cycling club contested this claim, stating they had taken adequate precautions and denied any liability for the accident.

Issues

The Court identified several issues for determination:

1. Whether the cycling club owed a duty of care to the Claimant;
2. The scope and standard of that duty;
3. Whether the club breached that duty;
4. Whether any breach caused the accident; and
5. How liability should be apportioned between the parties.

Judgment

I: Duty

The Court found that the cycling club did owe a duty of care to Hetherington. Ritchie J emphasised that the club, as event organisers, had a responsibility to ensure that the risks posed by third-party drivers were adequately assessed and mitigated.

II: Breach

The Court examined the risk assessments performed by the club and concluded that they had been conducted appropriately. Ritchie J ruled that the risk assessments carried out in 2007 and 2018 were suitable and sufficient, and the club had taken reasonable steps to inform drivers of the cycling event through signage and marshals.

III: Causation

The court determined that even if the club had breached its duty of care, such breaches would not have causatively impacted the accident. The evidence showed that the Defendant had failed to observe the warning signs and did not take appropriate care when crossing the carriageway, which was the primary cause of the collision.

Ritchie J found deemed the Defendant’s evidence to be unreliable. In particular, it was noted that the Defendant had failed to see the Claimant, despite the cyclist being visible in the final moments before impact.

Decision on Liability

Ultimately, the Court dismissed the Part 20 claim against the cycling club, ruling that they had acted reasonably given the circumstances. Ritchie J highlighted the challenges faced by volunteer organizations like the club in balancing safety with the enjoyment of cycling events.

Conclusion

The judgment underscored the importance of proper risk assessment and safety measures in sporting events, particularly on public roads. While recognising the duty of care owed by the cycling club, the Court found that they had fulfilled their obligations adequately and attributed the accident primarily to the negligence of the Defendant, who did not observe his surroundings despite clear visibility conditions. Thus, the Court found in favour of the cycling club, dismissing the claims against them.

Benjamin Hetherington v Raymond Fell & Anor [2025] EWHC 1487 (KB)

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David Richardson & Ors v Slater & Gordon UK Limited [2025] EWHC 1220 (SCCO) - Andrew Ratomski, Temple Garden Chambers

13/06/25. Date of judgment: 19 May 2025.

This judgment concerned a group of 224 claims against solicitors, the Defendant, from which ten test claimants were identified. Senior Costs Judge Rowley was asked to determine nine preliminary issues in respect of conditional fee agreements entered into with the Defendant and the information provided orally and in writing when those agreements were entered into.

Evidence

The judge heard evidence from four of the ten test claimants (as six others did not attend the trial) and one witness on behalf of the Defendant. The judge considered the witness evidence at length and found there to be in material respects inconsistencies between the claimant witness’ statements and evidence given during cross-examination when each was taken to relevant contemporaneous documents. The judge also expressed doubts as to whether each witness statement was in a claimant’s own words with the final paragraph of each statement being singled out for criticism. These issues with the evidence made it more difficult for the claimants to make good their arguments about what information was and was not provided at the outset of the client/solicitor relationship.

Decision

The judge made a number of findings about the construction and effect of the agreements entered into. The most notable findings were these.

The judge rejected the argument that the agreements were designed to take 25% of a claimant’s damages “come what may” and found there was no direct evidence to support that contention. The deduction was understood as one “up to”25%.

As to the explanations given to the claimants when signing up to the retainers, the judge rejected the argument that information as to the detailed workings of the conditional fee agreements and other documents was needed by way of oral explanation up front. The judge held that the key points of the contract were provided by way of oral explanation with more detail then available in the documentation. Those points were pithily summarised as follows:

“101. The “main characteristics” of the service provided were plainly the legal services to bring the claim. In response, the claimant was obligated to pay the base fees, disbursements and success fees in the event the case was successful and subject to any sums capable of being recovered from the opponent. Such obligation to pay was limited to 25% of the claimant’s damages. In the event the claimant was unsuccessful, the claimant was under no obligation to pay the solicitors either in respect of their own charges or their disbursements.”

That is perhaps a model summary of how a standard conditional fee agreement operates.

As to the issue of whether claimants with issued claims had given their informed consent to the charging of sums in excess of those which the client had recovered from an opponent, the judge also rejected this challenge. The claimants did not need to provide informed consent and mere agreement to the fees paid exceeding the costs that might be recovered in a successful claim was sufficient:

“134. I have set out elsewhere in this judgment my view that a time spent or hourly rates agreement with a client is the most common basis for a retainer, even if a fixed fee is agreed with the client (and not simply potentially recoverable from an opponent.) As such, I do not consider such an agreement to be unusual in nature or amount.”

The judge also rejected the argument that the terms as to payment and the claimants’ liabilities were unfair within the meaning of section 62 of the Consumer Rights Act 2015.

As to the reasonableness of the success fees, the judge approached the issue as a trial judge assessing the risk of a CFA would:

“It has always been the case that a costs judge assessing the success fee needs to put themselves into the position of the solicitor when entering into the CFA. Hindsight in the form of seeing how the case turned out is not relevant. Here, I have been able to consider the documents filed in the bundle for each case at the time the onboarding process took place.”

The judge considered the circumstances of each claimant in some detail before concluding the success fees were reasonable (albeit for reasons particular to each claim).

Discussion

This is an important judgment that discusses a number of common features of conditional fee agreements and in this case, a set of agreements that were widely used. The decision indicates parties wishing to challenge those agreements face real difficulties where the court is satisfied that information made available “up front” was sufficient and readily comprehensible.

https://caselaw.nationalarchives.gov.uk/ewhc/scco/2025/1220?query=Slater+gordon

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