News Category 3
Editorial: Promptness and Applications to Set Aside Default Judgment - Aidan Ellis, Temple Garden Chambers
22/12/14/ As is well known, when the Defendant invites the Court to exercise its discretion to set aside default judgment pursuant to CPR 13.3, the Court must consider whether the application was made promptly. But what does promptness add to the Court’s analysis?
Rule 13.3(2) states that promptness is a matter to which “the court must have regard” on an application to set aside default judgment. This may be contrasted, for example, with CPR 39.3(5)(a), which states that an application to re-instate following a failure to attend trial can only be granted if the party applies promptly. On a textual analysis, the difference in wording is significant. It suggests that delay is not necessarily fatal to an application to set aside default judgment. This is the way that the Rule has often been applied in practice – recently in Mid-East Sales Ltd v Islamic Republic of Pakistan [2014] EWHC 1457 Comm, default judgment was set aside despite a...
Image ©iStockphoto.com/imagez
Court of Appeal Upholds Finding of No Residual Earning Capacity - Gordon Exall, Zenith Chambers
20/12/14. It is rare for the Court of Appeal to consider matters relating to loss of earnings. In the judgment in Ali -v- Caton and the MIB [2014] EWCA Civ 1313 the Court of Appeal upheld a finding of the trial judge that the claimant had no residual earning capacity.
THE FACTS
The claimant was injured in a road traffic accident. The trial judge awarded damages which, if they had been a global award, would have totalled £2.3 million. The defendant appealed on a large number of grounds, the claimant cross-appealed. Both the appeal and cross-appeal were rejected. Here we look at the arguments in relation to earning capacity. A large part of the argument centred on the fact that the claimant had passed...
Image ©iStockphoto.com/
Whiplash and Fraudulent Claims - Ian Miller, 1 Chancery Lane
17/12/14. The justice secretary spoke to the Association of British Insurers recently, telling them about the new panels of medical experts in whiplash claims, reported The Times today. The government’s plans for such panels have long been known about but he announced that accredited experts would be allocated randomly to cases going through the Portal. He said there was an expectation that there would be one report per case. Experts who are not accredited by April 2015 will be barred from providing reports in whiplash claims.
The difficulty of experts in personal injury cases providing reports which please/suit the party instructing is a long standing problem. The danger is that experts on these panels will decide the outcome of cases and that the courts will make it difficult to challenge their conclusions. If a panel expert finds that a claimant has not suffered any injury and the claimant obtains his own report which says the opposite, how receptive will courts be to an application to adduce evidence from the claimant’s expert? If there is an expectation of one expert per case, such an application may well not succeed.
Mr Grayling is also reported to have said that new rules were to be introduced so that claims could be dismissed in their entirety if the courts were satisfied that claimants had been fundamentally dishonest. This may be aimed at the Supreme Court decision in Summers v Fairclough Housing Limited [2012] 1W.L.R. 2004 in which a claimant was found to have fraudulently misstated his case as worth £800,000 but was awarded £88,000. The Supreme Court held that it had an inherent jurisdiction to strike out such claims but that the jurisdiction was to be used exceptionally. It would be interesting to know whether Mr Grayling had this decision in mind.
Ian Miller
1 Chancery Lane
Image ©iStockphoto.com/angelhell
The Importance of Evidence of Local Standards When Bringing a Holiday Claim - Joe Smith, Bartletts Solicitors
16/12/14. A recent Court of Appeal case has emphasised the importance of adducing evidence of local standards when bringing a slipping claim under the Package Travel, Package Holiday and Package Tours Regulations 1992 (the 1992 Regulations).
In Lougheed v On the Beach Ltd an appeal was allowed against judgment for the claimant under the Regulations on the basis that it was the claimant's evidential burden to prove his case which included showing what were the local standards. What's more, the hotel manager's evidence was insufficient in itself to prove that part of the case.
The background to the case was that the claimant went on a package holiday organised by the defendant. She stayed at a hotel in Spain. On 16 August 2009 she slipped and fell on some polished granite steps which had non-slip grooves cut into them. It was found at first instance that she slipped on some water.
The claim was based upon Regulation 15(1) of the 1992 Regulations which provides (among other things) that: “The other party to the contract is liable to the consumer for the proper performance of the obligations under the contract, irrespective of whether such obligations are to be performed by that other party or by other suppliers of services...”
Image cc flickr.com/photos/aigle_dore/5237981315/
A Review of the Case of Wall v Mutuelle de Poitiers Assurances [2014] EWCA Civ 138 - Rushmi Sethi
14/12/14. Matthew Chapman, and Robert Weir QC, successfully represented the claimant in both the high court and the court of appeal case of Wall v Mutuelle de Poitiers Assurances. This is an interesting claimant personal injury international law case because the Court of Appeal clarified the law on the issue of which expert evidence the court should order fell to be determined by reference to English law, the law of forum, rather than French law, the applicable law under Regulation 864/ 2007 art 15. Private international law for countries within the EU is set out in Council Regulation 864/ 2007 (Rome II) on the law applicable to non-contractual obligations. It has been in force since 11 January 2009.
The purpose of this article is to review this recent case and consider what observations can be made from this case.
Facts of the Case
On 14 July 2010, the claimant, who was English, had an accident whilst on holiday in France travelling on his motorcycle with a car which was being negligently driven by a French man, and who was insured in France by the defendant. The claimant sustained very serious injuries, including a severe spinal cord lesion, and now suffers from partial paraplegia. He can walk up to 400 yards on crutches but is otherwise in a wheelchair. On 21 May 2012, liability was admitted and judgment was entered for the claimant with damages to be assessed. The appellant insurance company appealed against a decision that, for the purposes of assessing the amount of damages payable to the respondent for injuries that he had sustained in France, the issue of which expert evidence the court should order fell to be determined by reference to...
Image ©iStockphoto.com/
More Articles...
- Heneghan v Manchester Dry Docks Ltd & Others - Nick Pargeter, BLM
- No Liability for Development of Sensitivity to Platinum: Greenway -v- Johnson Matthey PLC - Gordon Exall, Zenith Chambers
- Neutral Facilitation - Bill Braithwaite QC, Head of Exchange Chambers
- Schedules, Counter Schedules and the Gadget Generation - Simon Readhead QC, 1 Chancery Lane
![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)
