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Summary of Recent Cases, October 2017

15/10/17. 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

Darrell Baker (A Protected Party by his Litigation Friend Kerry Baker) v British Gas Services and J&L Electrics (Lye) Limited [2017] EWHC 2302 (QB)
The Claimant, an electrician, brought a claim for personal injuries arising out of an electric shock he sustained while repairing a light fitting. As a result of the shock he suffered a cardiac arrest and fell from a height, suffering a severe brain injury. The trial on liability centred on how the defect arose, and therefore if either Defendant was liable. D2 installed the wiring in 2004 and D1 was responsible for its maintenance and inspection (and was the Claimant's employer). The Judge found the ballast in the light fitting was original; the light fitting itself had not been removed; and, there was no likely explanation for the junction box to have been rewired. On the balance of probabilities the Judge was thus satisfied the fault arose at the time of installation. D2 was therefore liable. D1 carried out periodic inspections in 2009 and 2010 and failed to identify the fault. That was negligent, notwithstanding TUPE transfer issues that arose in the intervening period. The Judge found no contributory negligence attached to the Claimant. Although the experts agreed use of a volt stick would have been appropriate in the circumstances, his employers did not require him to use one. Therefore he was not acting in an unreasonable or unsafe manner. It was agreed that if the Judge found that D2 were responsible for the original wiring error, they would bear a greater share of liability. In the circumstances the Judge apportioned liability 25% to D1 and 75% to D2.

Thomas v Hugh James Ford Simey Solicitors [2017] EWCA Civ 1303
Mr Thomas brought a professional negligence claim against his previous solicitors for allegedly settling his claim in respect of Vibration White Finger for an under-value. He argued that he had not received proper advice in respect of special damages (in particular in respect of gratuitous care and assistance received) and so had accepted an offer made in relation to general damages alone. The Recorder at first instance dismissed the claim and found that there was no actionable breach of duty; the solicitors had advised generally in respect of special damages which was enough. The Claimant appealed on the grounds that the solicitors had been in breach by failing to provide an approximate value of the special damages claim, failing to inform him about the availability of interim payments and treating comments regarding evidential difficulties as concluding the special damages claim. The Court of Appeal dismissed the appeal finding that the failures identified did not constitute a breach of duty, as the solicitors' retainer merely required the solicitors to give advice about possible general and special damages claims. That had been done. It was significant that the claim was a low-value one which the solicitors were running as part of a high volume fixed-costs practice. In those circumstances the solicitors could not be criticised for failing to 'go the extra mile'. There had to be a sensible limit on what solicitors could be expected to do in those types of cases.

Jade Michelle Palmer v Portsmouth Hospitals NHS Trust [2017] EWHC 2460 (QB)
Clinical negligence case arising from deprivation of oxygen at birth. The issues were whether a midwife was negligent in not summoning a doctor earlier than she did, and, whether that failure caused the oxygen deprivation. Had a doctor been summoned earlier, they still may not have reached the Claimant in time to prevent it. The Claimant was left with brain damage which caused cerebral palsy. During trial breach of duty was admitted; the Defendant agreed the midwife should have called a doctor when she made the decision to move the mother to the delivery room and noted a pattern of decelerations in the foetal heartbeat. The first on call doctor was called and was in theatre. It took him 16 minutes to reach the delivery room. The Judge found on the balance of probabilities the second on call doctor was not called. Thereafter the Judge considered the Bolitho question of what would have happened if the second doctor had attended. The Judge concluded it would have taken between five and ten minutes for him to reach the delivery room. Thereafter the assisted delivery would have taken some time. In those circumstances, the Judge found that causation was not established; even if the second on call registrar was called the time of delivery would not have been materially different from when it actually took place and the Claimant would still have suffered injury.

XX v Whittington Hospital NHS Trust [2017] EWHC 2318 (QB)
XX sued the Defendant for clinical negligence arising out of a failure to diagnose cervical cancer causing the Claimant to become infertile and suffer significant ongoing bowel and bladder problems. The Claimant sought, amongst others, recovery of damages for surrogacy charges in California (where commercial surrogacy agreements are legal). In the first case of its kind the High Court awarded the Claimant damages for surrogacy costs resulting from the Defendant's negligence. In doing so the Judge declined to follow the dicta of Hale LJ (as she then was) in Briody v St Helens and Knowsley AHA [2001] EWCA Civ 1010. However, the Court declined to award damages on the basis of undertaking the procedure in California. Instead damages were awarded for two procedures undertaken in the UK at £37,000 each. In respect of general damages, the Claimant was awarded £160,000.

Magill (Executor of the Estate of Colin Magill, Deceased) v Panel Systems (DB) Limited [2017] EWHC 1517 (QB)
The Deceased contracted mesothelioma due to asbestos exposure between 1975 and 1978 while working for the Defendant company. The Deceased had also been awaiting coronary artery bypass surgery at the time of the diagnosis. The Judge held that the Deceased's life expectancy, but for the mesothelioma, would have been 19.5 years. That was the appropriate period for which the FAA damages could be calculated. The Court was not satisfied that the Claimant had lost the benefit of the Deceased's services in any meaningful way as the Claimant's evidence as to the care provided was inconsistent with the Deceased's pre-death behaviour. Further, the claim for the loss of the Deceased's care and attention was dismissed on the basis that was what the bereavement award was intended to cover, so no additional sums were recoverable.

JRM (by his litigation friend TMR) v King's College Hospital Foundation Trust [2017] EWHC 1913 (QB)
The Claimant suffered significant injuries to his spine during an assisted delivery by forceps. He alleged that the doctors were negligent in failing to induce labour earlier when it was noted there was elevated CRP blood test and negligent use of the forceps. The Judge concluded that the Claimant had failed to establish negligence in respect of the first limb of his case. There was debate about the significance and reliability of CRP readings. They were relevant but were only one factor which fed into the clinical decision-making process and should not be afforded significant weight. In respect of the second limb of the Claimant's case, the Judge concluded that the injury occurred at the time of his birth and was consistent with the use of excessive force and traction from instrumental delivery. Had the doctor examined the mother properly, he would have noted the Claimant was in the OL position rather than the OA position. The application of forceps in an incorrect position and the requirement of significant additional force caused the injury. The Claimant was thus successful in establishing liability and judgment was entered accordingly.

Summary of Recent Cases - Costs

RNB v Newham London Borough Council [2017] EWHC B15 (Costs)
The substantive case settled in January 2017. The most recent costs budget had been agreed in August 2016. During the detailed assessment following settlement, the allowable hourly rate for costs incurred prior to the Costs Management Order was reduced. The Defendant argued that the same reduction should be applied to the remainder of the costs in the costs budget. Deputy Master Campbell in the Senior Courts Costs Office held that a detailed assessment was the only occasion when a paying party had an opportunity to challenge the other side's hourly rates, and accordingly held that that was a good reason to depart from the last approved costs budget, in accordance with CPR 3.18(b). He also held that if he were wrong on the application of the "good reason" test, he would reduce the sums in the same way as they were disproportionate. The High Court has granted permission to appeal on the "good reason" point.

Higgins and Others v (1) ERC Accountants and Business Advisers Limited and (2) Granite Tax Ltd [2017] EWHC 2190 (Ch), [2017] All ER (D) 106 (Sep)
The substantive case alleged negligence and breaches of contract, statutory duty and fiduciary duty. The Defendants argued that the Claimants' solicitors had not properly served the Claim Form. The Claimants sought one of the following Orders, which would have the effect of remedying the defect: that the claim had been validly served; alternative service by an alternative method; dispensation of service; or an extension of time for service. The Second Defendant applied for an Order that the Claim Form and Particulars of Claim be set aside, and a declaration that the Court did not have jurisdiction to try the claim brought (having the effect of requiring the Claimants to begin fresh proceedings, thereby allowing the Defendants to rely on a limitation defence).

The First Defendant made an application for the same Order and declaration, but at the hearing attempted to remain neutral as regards the outcome of the applications. His Honour Judge Pelling QC noted that he had "little doubt" that the First Defendant would want to obtain the benefits if the application were successful, and was attempting to avoid an adverse costs order if the application were unsuccessful. He made it very clear that a party must either maintain or withdraw their application, and the costs consequences will flow accordingly. It is not open to parties to attempt to pin the costs consequence on another party whom they consider to be the 'ringleader'.

R (on the application of (1) Royal Society for the Protection of Birds (2) Friends of the Earth Ltd (3) Client Earth) v (1) Secretary of State for Justice (2) Lord Chancellor & Civil Procedure Rules Committee (Interested Party) [2017] EWHC 2309 (Admin), [2017] All ER (D) 51 (Sep)
Dove J considered the Court's powers to vary costs caps in Aarhus Convention Judicial Review claims under CPR 45.44. Whilst CPR 45.43 caps the parties' liability for costs in the event that they are unsuccessful, the Court has the power to vary these caps. Dove J clarified that the Court will expect any disputes or proposed variations in relation to the costs cap to be raised when the Defendant is acknowledging service, and therefore resolved at the earliest possible stage. Raising the issue at a later stage would be "too late... in the absence of good reason".

Summary of Recent Cases - Civil Procedure

ABC & Anor v Souter & Anor (unreported, 5 October 2017, Queen's Bench Division: Martin Spencer J)
Default Judgment - D1 was convicted of several sexual offences against young people. D2 was a local authority. The Claimants were two of his victims. The Claimants initially obtained default judgment against D1 after he failed to respond to the proceedings. D1 applied to set that judgment aside. The Court dismissed that application on the basis that there was a presumption that D1 was liable based on his criminal conviction. There was nothing provided to the Court to displace that presumption and D1 had been aware of the proceedings for some time. In addition, special measures were granted to the Claimants to give evidence behind a screen and not have any contact with D1 during the trial against the local authority.

Lachaux v (1) Independent Print Limited (2) Evening Standard Limited [2017] EWCA Civ 1327
Confidential Documents - Civil Procedure. The Court of Appeal upheld the granting of an injunction sought by the Claimant to prevent the use of a document protected by legal professional privilege which had been obtained by his wife. The Defendants argued that the document demonstrated the Claimant had lied in his witness statement and the public interest in the truth justified the removal of legal professional privilege. The Court of Appeal held there was no basis in interfering with the Judge's discretion in choosing to grant relief. The document was subject to LPP and was not created to further a fraudulent purpose as it predated the witness statement by over four years. In those circumstances the Judge was entitled to grant an injunction restricting the use of the material.

Briggs v CEF Holdings (unreported, 13 July 2017, Court of Appeal: Gross LJ, Asplin J)
The general rules under Part 36 of acceptance of a Pt 36 offer could not be displaced merely because prognosis at the time of offer was uncertain. The fact the Claimant delayed in accepting the offer because of that was not a reason to displace the usual position, and the District Judge had been wrong to conclude it had. A Judge considering whether to impose Part 36 consequences should not conduct a microscopic examination of the litigation. Part 36 offers were made against the risks of litigation in the usual way. The Appeal Court was unable to find any reason why it would be unjust to impose the usual costs consequences on the Claimant.

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