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Summary of Recent Cases, October 2015

21/10/15. 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

David Lee Barrett v Sandwell & West Birmingham Hospitals NHS Trust [2015] EWHC 2627 (QB)

A claim for personal injuries for loss of eyesight suffered as a result of alleged clinical negligence of hospital staff failed. The Court found that it was reasonable for a consultant ophthalmic surgeon to treat C's intraocular pressure medically rather than operating. C, who suffered from diabetes-related eye disease, had also failed to show that the delay in operating on his left eye had contributed to the loss of vision in his right eye.

The Court held that the surgeon's decision to pursue medical treatment was not negligent, and although the surgeon accepted he had not offered C surgery as an alternative option, C's evidence was that he would have followed medical advice. As the medical advice would have been to proceed with the medical treatment given, C had not established that the breach of duty in failing to advise him of the option of surgery had caused any loss or damage.

Sydney Gordon John Glasgow (By his Litigation Friend, Joan Diana Glasgow) v Hillingdon Hospitals NHS Foundation Trust, QBD (Master Roberts) 05/05/2015

An interim payment of £200,000 was ordered to be made to a Claimant who had sustained brain damage due to clinical negligence by the Defendant NHS Trust. Interim payments totalling £875,000 had previously been made, but the Claimant had suffered significant physical and cognitive impairments. A conservative assessment of the likely award was £1,193,916.

Judgment on liability had previously been entered in C's favour. C sought a further award of £220,000 to cover the costs of adaptations to a new house and ongoing therapy and case management. The Defendant NHS Trust submitted that an order for an interim payment in excess of £70,000 would be unreasonable.

The Court held that the correct approach was to conservative estimate the likely award at a final hearing and, in the event that an interim award was appropriate, order an interim payment of no more than a reasonable proportion of that final amount. The Court considered that a total award of at least £1,193,916 was likely, and considered that it was reasonable to order 90% of that amount on an interim basis.

Summary of Recent Cases - Costs

Mandy Wall (Personal Representative of the Estate of Stephen Wall, Deceased) v British Canoe Union, CC (Birmingham) 30/07/2015

Qualified One-Way Costs Shifting protection did not apply where an action was struck out when a claimant had shown no reasonable grounds for bringing the proceedings.

The court struck out a claim in negligence brought against the publisher of a canoeing guidebook by the widow of a canoeist who had drowned while crossing a weir. The guidebook stated that the weir could be crossed safely and did not contain any warning. C maintained that D was liable in negligence because her husband had relied upon the guidebook and sought damages on behalf of the estate under the Law Reform (Miscellaneous Provisions) Act 1934 and for herself and their daughter under the Fatal Accidents Act 1976. D applied for the claim to be struck out. The Court found that there was no relationship of proximity between the deceased and D and so there was no duty of care. C's statement of case therefore disclosed no reasonable grounds for bringing the claim and so would be struck out pursuant to CPR r.3.4(2). CPR r.44.13(1) provided that qualified one-way costs shifting applied to claims under the 1934 and 1976 Acts. However, CPR r.44.15 provided that orders made against a claimant could be enforced fully where the proceedings were struck out because the claimant disclosed no reasonable grounds for bringing the proceedings. The rule therefore allowed full enforcement of any costs orders made in D's favour in the proceedings, notwithstanding that C would not have been awarded any damages.

Clutterbuck & Ors v HSBC PLC & Ors, Ch D (David Richards J), 02/10/2015

D was awarded costs on the indemnity basis where C had failed more than once to provide a satisfactory draft of its proposed amended particulars of claim which included allegations of fraud, and where C had issued a notice of discontinuance one day before D's application to strike out the claim was to be heard.
The Court held that allegations of fraud were serious, and if they failed at trial costs should be awarded on the indemnity basis. If a claimant served a notice of discontinuance in a claim where allegations of fraud had been made, it was appropriate for the court to adopt the same approach. Applying Jarvis PLC v PricewaterhouseCoopers [2001] B.C.C. 670, fraud allegations which had been discontinued would generally justify costs on the indemnity basis.

Summary of Recent Cases - Civil Procedure

Halfords Media (UK) Ltd & Ors v Ponomarjovs (2015) Ch D (Newey J) 02/10/2015

A without prejudice email sent by an employee to his former employer that threatened blackmail lost its protection and was admitted in evidence in committal proceedings.

C, D's former employer, applied for without prejudice communication to be admitted in committal proceedings. D had emailed C accusing the company of criminal conduct and stating that D would post C's conditional information on various sites if C did not cooperate. C submitted that the email should be admitted as D's conduct amounted to blackmail and/or other impropriety, relying on Unilever Plc v Procter & Gamble Co [2000] 1 W.L.R. 2436.

Hallows v Wilson Barca LLP, Ch D (John Jarvis QC) 10/09/2015

C's solicitor's failure to disclose to a local authority when seeking pre-planning advice that the pre-planning advice was being sought in the context of litigation meant that the solicitor had waived litigation privilege and accepted that the advice provided could come into the public domain through the operation of the Freedom of Information Act 2000.

The Court held that the advice was prima facie protected by litigation privilege, but where a solicitor sought advice from a local authority, the solicitor should bear in mind that local authorities had duties under the Act to provide information to the public. Although the Act provided for an exemption for information protected by legal professional privilege, the local authority had been given no indication that the advice was sought for the purposes of litigation and so the privilege had been waived.

Elizabeth Gallagher & Ellen Robertson
Temple Garden Chambers

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