Is the Tide Turning? Sanction for Counsel Refused Again - Kate Donachie, Brodies

30/11/17. The Sheriff Personal Injury Court has recently issued two decisions refusing sanction; Sheriff Mackie’s in McKenziev McCormack and now an unpublished decision issued by Sheriff McGowan last week in McCracken v Kazanowski. McKenzie is the only published refusal of sanction since the new court was created two years ago and there were very few, if any, applications refused before that. These recent decisions are a sign that sanction is not always a given; and it may be that the direction of travel has changed.

McCracken v Kazanowski arose from a road traffic collision. The claimant was a passenger in a stationary vehicle that was involved in a rear end collision. Liability was admitted pre-litigation. The claimant suffered minor injuries and each party obtained reports by orthopaedic and engineering experts. The crux of the dispute was whether or not the collision had been significant enough to cause the claimant’s injury. In support of the argument that the pursuer had not been injured, the defender produced photographs of the claimant weight training in the gym shortly after the accident.

The case settled for £1,200 which had been offered by way of a defender’s tender (part 36 offer) made three days before the pre-trial meeting. The claimant had instructed counsel to represent him at that meeting. The claimant asked the Court to grant sanction for counsel. It was argued on his behalf that counsel was required because it was necessary to give advice in relation to conflicting expert evidence and to criticisms of the claimant’s credibility.

Sheriff McGowan refused the application. He was not persuaded that the case was of sufficient complexity to satisfy the statutory test found at Section 108(3)(a)(i) and (ii) of the Courts Reform (Scotland) Act 2014. Indeed, he concluded that the case, “would not have presented any difficulty whatsoever for a reasonably competent solicitor versed in basic Sheriff Court Practice.”

He also commented that, in arriving at his decision, it was useful to consider the decisions in Cumming, Brown and McKenzie where sanction for Counsel had been refused.

It is hoped that these recent decisions indicate a stricter approach from the bench of the use of counsel in straight forward ASPIC cases. Each case has to be decided on its merits and this issue is likely to be contested in future cases.

Brodies represented the defender in McCrackenvs Kazanowskiand appeared at the opposed motion hearing.

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FREE BOOK CHAPTER: The Basics of Advocacy (from 'Arguments and Tactics for Personal Injury and Clinical Negligence Claims' by Dorian Williams)

24/11/17. This is the complete Chapter One from our new book, ‘Arguments and Tactics for Personal Injury and Clinical Negligence Claims’ by Dorian Williams – The objective is to win the case fairly and at proportionate cost; that means ideally resolving before trial as the litigation risk of an adverse outcome is always present, although it can be limited. Much of this book will concentrate on efforts to avoid the trial process but if not, you must be prepared for that eventuality...

 CHAPTER ONE
THE BASICS OF ADVOCACY

1.1 Case Theory

1.1.1 The objective is to win the case fairly and at proportionate cost; that means ideally resolving before trial as the litigation risk of an adverse outcome is always present, although it can be limited. Much of this book will concentrate on efforts to avoid the trial process but if not, you must be prepared for that eventuality.

You should assume that the case may go to trial, so it must form part of a claimant’s case theory when carrying out a risk assessment. Is the claim viable and can it be proved at trial. If injury is not foreseeable, for example, should you be taking the case on? Does the defendant owe a duty of care. Do you have the correct defendant or has the NHS Trust contracted its radiology function to a private provider. Is the actual defendant a medical practitioner sub-contracted by the private agency. If you cannot prove negligence, or breach of statutory duty or that a defective product caused injury, then why are you taking the case on. You don’t want to find that Counsel (if so briefed) refuses to accept the brief because the risk of a loss is too great.

1.1.2 The danger is to suppose that with QUOCS (qualified one way cost shifting) applying, that there is no real costs risk to a claimant progressing a very weak claim to force a settlement. That could create a dangerous situation of lateral drift. Going through the motions, hoping that your Part 36 offer will be accepted or you receive a Part 36 offer ready to snap the other’s hand off. But it won’t happen because the opponent will have conducted their case assessment and will know of your weaknesses. By this stage you may be receiving offers to discontinue but your own work in progress will be substantial and you may be less inclined to throw in the towel.

The better way is to start off with confidence in your case and that means owning it or knowing how to prove the claim. If you think it can’t be done, speak with a colleague or counsel for their opinion.

Therefore, knowing the legal issues at the outset is as important as getting the facts right. Of course in a clinical negligence claim, you cannot know at the outset whether the case has merit until you have a breach of duty report.

1.1.3 Analysing the merits of a case requires an assessment of evidence as the court will makes it assessment based on relevant and admissible evidence. It does not follow that your evidence will be preferred on the balance of probability to that of your opponent’s evidence. Clearly anticipating your opponent’s evidence at the outset of a case will be difficult. But it forms part of a risk assessment in determining whether it is viable to continue with the claim.

1.2 Preparation and presentation

1.2.1 The first interview- take an initial statement. Dictate in front of client. Let client tell his story in his own words. Set out facts in chronological order. Compartmentalise the statement with subheadings, e.g. introduction, employment duties, accident, aftermath, injuries, impact, HSE investigation etc.

Draw up a list of issues – those likely to be agreed, those in dispute. What legal principles apply. Think about submissions or what you would like to include in a skeleton argument and how to prove the case.

Research the law. Comply with case management directions. Know trial procedure. Know the facts of the case.

1.2.2 Addressing the court

District Judges- Sir/Ma’m

Circuit Judges- Your Honour

High Court judges- My Lord/Lady

- Your Lordship/Ladyship

Addressing your opponent:

My friend (legal executive, solicitor)

My learned friend (counsel)

Or simply by name

1.2.3 Style of presentation

As advocate for your client, your job is to persuade the court to see things from your client’s point of view and to make it as easy as possible for the judge to find in your favour. You are assisting the court to help them understand your case and to help the judge overcome any objections or weaknesses in your client’s case. Indeed your first duty is to assist the court and not to mislead it, irrespective of any instructions given by your client.

You should aim to create a good first impression by being assured, organized and clear. Knowing your case by thorough preparation provides good reason to be confident, particularly if you have researched case law that will support your opponent’s case and know how to distinguish them.

To ensure that the message is not lost, personal presentation should take account of the following:

1.Be COURTEOUS to the judge, your opponent and all officers of the court. Even if others are impolite to you, retain dignity and composure. If the judge interrupts, let him speak. If there are constant interruptions, be apologetic and advise the court that you wish to assist further by making your point another way. Try to anticipate and answer the judge’s questions. Never lose your temper or be impolite.

2.Maintain CONTROL of the court and witnesses

3.Do NOT READ out your opening address or submissions. If nervous or have lost your line of thought, take a brief time to review the headings of your skeleton to refresh the issues, before addressing the court further.

4.Be CONFIDENT or act as if you are. Breathe deeply and speak slowly in a low or measured tone. Smart dress and good posture helps build confidence. Humility and confidence are key, rather than arrogance.

5.Use SIMPLE language and SHORT sentences. Avoid pomposity or verbosity as it is rare for an advocate to carry this off with charm.

6.Use PAUSES and SILENCE as part of your address as it can create EMPHASIS to the point you are making. It also allows the judge sufficient time to note up your submissions.

7.Avoid REPETITION and do not waste time. Be guided by the judge. If he tells you to move on, move on.

8.Remain OBJECTIVE and avoid expressing personal opinions. I ‘suggest’, ‘contend’, ‘submit’ rather than I believe, assert or it is the case that. The court is not interested in your opinion on the facts or whether you consider the law is good or bad.

9.EVIDENCE must be truthful, reliable and cogent.

10.Be TRUSTWORTHY; that means putting forward correct propositions in law and making appropriate concessions where there are any weaknesses in your case.

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Vicarious Liability Once Removed? by Way of TUPE - Lucile Taylor

23/11/17. Case Comment on Baker v British Gas Services (Commercial) Ltd and J&L Electrics (Lye) Ltd [2017] EWHC 2302 (QB).

The question addressed in Baker was whether liability for an injury sustained by an employee aftera TUPE transfer, due to a breach of duty committed by the transferor before the transfer, is imposed on the transferee.

Previous cases have concerned circumstances in which both the negligence and the injury occur before the TUPE transfer. The issue had been whether this accrued liability transferred to the transferee. It did.

Is the answer the same where liability is only contingent because, while the negligence took place before the transfer, the injury was only sustained after the transfer? The Defendant submitted that there was no authority for imposing liability on transferees for 'liabilities which are unknown to the employee or transferor – because they do not exist.' [65]

The answer given by Amanda Yip QC (sitting as Deputy Judge of the High Court) was a resounding yes: tortious liabilities transfer irrespective of whether they are fully accrued or contingent, following Martin v Lancashire County Council [2000] 3 All ER 544. [68]

The TUPE Regulations are not designed to protect transferees from unknown liabilities...

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