News Category 3
How to Resolve the Tricky Question of The Uncooperative Litigation Friend - Augustus Ullstein QC, Thirty Nine Essex Street
08/03/14. What are solicitors and counsel to do in a case in which they consider that the Litigation Friend is being uncooperative and/or failing to act in the best interests of the protected party? In the vast majority of cases the answer is relatively simple. An application can be made to the Court pursuant to CPR 21.7 to terminate the appointment of the Litigation Friend and appoint a new one. If the court is convinced that the Litigation Friend is unable to fairly and competently conduct the proceedings on behalf of the trial it will intervene. Generally, the Official Solicitor will be invited to be substituted as Litigation Friend.
However, in M v. Lambeth Borough Council[2014] EWHC 57 (QB), the Claimant’s legal team faced a much more difficult problem. M was born to Somali parents on the 29th February 2000. He lived with his mother in a third floor council flat owned by the Defendant. On the 24th May 2004, he fell out of the window and landed on the grass 50 feet below. Liability was compromised on the basis that the Claimant would recover 80% of his damages.
There was an issue between the experts as to whether the Claimant had suffered a brain injury. The Claimant’s experts believed that he had. The Defendant’s experts considered that there was no clinical evidence that he had done so. However, the Claimant’s neuropsychologist considered that it would be necessary to observe M at his school and to carry out further tests. M’s mother proved to be singularly uncooperative. She was convinced that there was nothing wrong with her son and, indeed, had not informed...
Image ©iStockphoto.com/BernardaSv
Vicarious Liability for Prisoners at Work: Cox v Ministry of Justice [2014] EWCA Civ 132 - Robert Weir QC, Devereux Chambers
06/03/14. In 1865 hard labour was introduced as a form of punishment over and above the punishment of deprivation of liberty. Its essence was that labour should be unproductive. Over time, penal policy changed and prisoners were put to useful work. This was seen to have a reformative element in itself. In 1895 the payment of wages to prisoners was recommended by the Gladstone committee. By the Second World War, it was established policy that all prisoners should engage in useful work, for which they could be paid.
In September 2007, one prisoner, Mr Inder, was engaged in work at HMP Swansea in the catering department when he dropped a bag of rice onto the back the catering manager, Mrs Cox, thereby causing her to suffer a back injury. Mrs Cox was in the service of the Crown and strictly speaking not an employee but treated as such. Mrs Cox sued the Ministry of Justice (‘MoJ’) on the basis it was vicariously liable for the negligence of Mr Inder. This posed the novel question for the court: could the MoJ be held vicariously liable for the negligence of a prisoner, engaged in useful work, being someone plainly not employed by the MoJ?
Image ©iStockphoto.com/powerofforever
Costs Budgeting II (The Sequel): No More Horror Stories? - Tom Gibson, Outer Temple Chambers
02/03/14. The High Court has ruled that a costs budget containing the “[Statement of Truth]” error should not be struck out – and indeed that a strike out for this reason would “bring the rules of procedure and the law generally into disrepute” (per Stuart-Smith J in The Governor & Company of the Bank of Ireland & Anr v Philip Pank Partnership [2014] EWHC 284 (TCC)).
Case Background
This case, in the Technology and Construction Court, involved a claimant whose costs budget had exactly the same “[Statement of Truth]” error that featured in the first article on this topic (http://www.pibriefupdate.com/content/law-journal-summaries/news-category-2-53514/2250-a-costs-budgeting-horror-story-tom-gibson-outer-temple-chambers).
Aside from this error, the Claimant’s budget had been filed in time. The Defendant pointed out the Claimant’s error 2 days before the CMC, prompting an application from the Claimant for relief from sanctions, if the Court did not accept that a valid budget had been...
Image ©iStockphoto.com/catenarymedia
Pedestrian Road Accidents at the Borderline of Liability - James Rowley QC, Byrom Street Chambers & Crown Office Chambers
28/02/14. We all think we know how to handle liability issues in pedestrian road accident claims. The recent case of Scott & Evans v Griffiths QBD 17.01.14 Lawtel (HHJ Oliver-Jones QC sitting as a Judge of the High Court) provides a number of salutary reminders when operating at the very borderline of primary liability or none.
Mr Scott was 39 years old and in the company of his mother Mrs Evans. They were walking towards an arterial A road, in a residential area on the edge of Wolverhampton, clearly intending to cross it. The road consisted of a single, moderately wide carriageway in each direction and the speed limit was 30 mph. It was at about this velocity that Mr Griffiths was driving. He saw them both, ahead to his left, as they crossed the grass verge and he reacted instinctively by [1] watching them to see what they would do [2] lifting his foot off the accelerator, dropping his speed by 2-3 mph [3] easing out as far as he safely could, given oncoming traffic, towards the centre line. Mr Scott and Mrs Evans both stopped right on the kerb edge and began to wait, Mrs Evans looking towards Mr Griffiths on her right and Mr Scott looking in the direction of traffic from the other side. Mr Griffiths thought the potential for them to cross in front of him had passed but Mr Scott then stepped purposefully into the road and crossed into collision with...
Image ©iStockphoto.com/Lya_Cattel
An Update on Anonymity Orders for Children and Protected Parties - Elizabeth-Anne Gumbel QC & Henry Witcomb, 1 Crown Office Row
25/02/14. The position in respect of the Court’s exercise of discretion in granting anonymity orders for children and protected parties who are claimants in personal injury and clinical negligence claims remains unclear. In the case of JXMX ( A child suing by his mother and litigation friend AXMX) v Dartford & Gravesend NHS Trust, Mr Justice Tugendhat refused to make an order that the Claimant’s name not be disclosed although he did make an order that the Claimant’s address not be disclosed. Mr Justice Tugendhat granted permission to the Claimant to appeal to the Court of Appeal and made an anonymity order pending the outcome of the appeal. The appeal remains outstanding.
In granting permission to appeal Mr Justice Tugendhat stated:
“Given the state of affairs described in this judgment, I granted permission to appeal because there is a real prospect of success, and in any event the uncertainty as to what judges should do in relation to anonymity applications in approval hearings is a compelling reason why an appeal should be heard.”
In the course of his judgment the Judge set out the position as follows...
Image ©iStockphoto.com/xrrr
![Appeal judge rules that credit hire company has no costs liability following a finding of fundamental dishonesty in personal injury case: RSA v. Fastrack Solutions Limited [2023] 4 WLUK 92 - David Bowden, Erimus Chambers](/content/images/resized/images/stories/carkeys_72_72.jpg)
