News Category 3
Interrogation of draft judgments: Re (Care Proceedings: Fact-Finding) [2023] EWCA Civ 38 - Anisa Kassamali, Temple Garden Chambers
27/02/23. Re (Care Proceedings: Fact-Finding)[2023] EWCA Civ 38 considered the correct approach for parties to take in relation to draft judgments produced by the Court.
Background
The appellant mother appealed against findings of fact made in care proceedings. The appeal was ultimately dismissed, but the Court had concerns about the process leading to judgment.
The chronology of events was as follows. A fact finding hearing began on 7 March 2022. A draft judgment was sent to the parties on 25 May 2022. Written requests for various clarifications were submitted by the parents on 7 June 2022. The final judgment was handed down on 10 August 2022 (which contained seven annexes, including one entitled ‘clarification/amplification’).
Court’s observations
Baker LJ handed down judgment, upholding the first instance decision. However, he raised some concerns about the “prolonged and tortuous process” [37] that followed the fact-finding hearing. He relevantly observed:
“38. First, there was an inordinate delay before the production of the final version of the judgment. It was handed down over 18 weeks after the end of the hearing and 10 weeks after the circulation of the preliminary draft. In the intervening weeks, there were no fewer than six...
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Case Summary: H v S - Spencers Solicitors Limited
01/02/23. Accident Date: 13/01/2020
Settlement Date: 09/08/2022
TOTAL GROSS SETTLEMENT: £17,887.00
Liability
The Claimant, aged 40, was involved in a road traffic accident.
The Claimant was situated in her parked vehicle when the vehicle parked behind her, was struck by a passing vehicle. The parked vehicle was shunted into the Claimant’s vehicle, forcing her into the vehicle parked in front.
Liability was admitted.
Injury
The Claimant suffered neck and back injuries as a result of the accident and also developed tinnitus. The Claimant also became anxious and nervous when in a vehicle.
The physical symptoms improved partially over time but were still intrusive at times.
The Claimant was unable to do any heavy lifting around the home and was unable to train at the gym.
The Claimant had approximately 20 sessions of physiotherapy and received sports and deep tissue massage.
The Orthopaedic expert recommended that she stop the formal physiotherapy treatment and continue a home exercise programme given by the physiotherapist. With this, a prognosis was given of 26-28 months from the date of the accident for the neck and back injury. However, the tinnitus would be permanent and the anxiety was ongoing.
Quantum
The Claimant, aged 42 at the time of settlement, received £17,887.00.
This is broken down as follows:
Personal Injury £14,000.00
Special damages £3887.00 Includes massage and tinnitus therapy
Solicitors for the Claimant: Spencers Solicitors Limited
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If a claim is amended to add a personal injury component part way through litigation, QOCS protection still applies to the entirety of the matter - Grace Corby, Temple Garden Chambers
12/01/23. Munira Pathan v Commissioner of Police of the Metropolis [2022] EWHC 3244 (KB)
The Claimant (and Appellant) was arrested by police officers and then detained at a police station for 12 hours, before being released. The police took no further action against her. On 3 May 2019 she issued a claim form, drafted by her husband, alleging that her arrest and detention were unlawful. The particulars of claim said that she suffered high blood pressure and felt faint while in detention and that she "has suffered loss and damage", but she did not indicate that she was making a claim for damages for personal injuries.
A defence was served denying liability, stating: "In the event that the Claimant is seeking damages forpersonal injury, the Defendant will aver that any such claim ought to be struck out for non-compliance with the pre-action protocol, CPR 16.4 in Practice Direction 16”, as it did not give details of any injury or annexe a medical report.
The Claimant then obtained legal representation and after some delay, on 22 January 2021, she was granted permission to amend her particulars of claim, to include a claim for personal injury, alleging that the arrest and detention had precipitated a ‘depressive disorder associated with anxiety’.
The matter went to a three-day trial, following which HHJ Saunders ruled that the claim failed in its entirety as the arrest and detention were lawful. In relation to costs, he determined that the Claimant would be ordered to pay the Defendant’s costs, subject to the effect of QOCS. As to that he stated...
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Court’s Approach to Undertakings Given by Parties in the Settlement of a Claim - Anisa Kassamali, Temple Garden Chambers
16/12/22. Smith v Backhouse [2022] EWHC 3011 (KB) considers whether the Court can refuse to accept undertakings which a party has agreed to provide to the Court as part of the settlement of a civil claim. Nicklin J considered that “the consequences could be absurd” [28]if the Court had to accept any undertakings agreed between the parties and refused to accept certain of the undertakings in the parties’ agreement on the basis that they were “too vague/wide” [29].
Background
The claimant Dr Smith (“Dr Smith”) alleged that she had been the subject of a campaign of anonymous online harassment by the defendant Dr Backhouse (“Dr Backhouse”). She also claimed for the misuse of private information and for breach of her data protection rights.
Following various negotiations, Dr Backhouse accepted a Part 36 offer made by Dr Smith. The parties signed a consent order which incorporated undertakings from Dr Backhouse to the Court (see [9]).
Following further correspondence between the parties and the Court, the Court send an email to the parties in the following terms ([13]):
“There is no doubt that the parties to a civil claim can agree whatever terms of settlement they wish. However, when it comes to the Court accepting undertakings from one of the parties, the Judge is concerned to establish what the Court’s jurisdiction is when it is asked to accept undertakings by a party as part of a settlement. Can the Court refuse to accept undertakings on the grounds that the court would not, by injunction, grant such relief, (for example, terms too vague/broad) if so, what principles does the Court apply? Can the Court accept some of the undertakings or, respecting the contractual nature of the settlement, is the Court bound to either...
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A Reminder That Interlocutory Cost Orders Can Be Made Against QOCS Protected Claimants - Grace Corby, Temple Garden Chambers
14/12/22. Atmani & Ors v Royal Borough of Kensington & Ors [2022] EWHC 2618 (KB) - The court considered the costs consequences of the decisions made in a CMC. The court ordered ‘defendant’s costs in the case’, following some of the claimants’ unsuccessful applications. In doing so, the court affirmed that the QOCS regime did not prevent such interlocutory orders, it just prevented their enforcement.
Background
The claims themselves all relate to the Grenfell Tower fire on 14 June 2017 which caused loss of life to 72 people, and injury, suffering and trauma to many residents, occupiers or visitors who were in the Tower or the vicinity of the Tower, as well as to emergency responders dealing with the fire and its aftermath. The overall litigation involves many parties, with multiple claimant groups and approximately 1,125 claimants in total.
This costs decision simply concerned the costs of some applications following a CMC. In particular, the dispute was between the claimants represented by Bishop Lloyd & Jackson (“the BLJ Claimants”) and the defendant Royal Borough of Kensington and Chelsea (“RBKC”)...
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