Legal Watch: Personal Injury 21st May 2014 Issue: 019
Employers’ Liability The case of Abbott v Cannock Chase District Council [Lawtel 16/05/2014] is a reminder that the burden of proving negligence
In This Issue:
is on the claimant. The claimant’s deceased husband had been employed by the
• Employers’ Liability
defendant as a bricklayer during the 1970s. In January 2014
• Civil Procedure/Service Of A Claim Form
he died from mesothelioma. Before his death, the claimant
• Costs
took down a written note of her husband’s allegation that he had been exposed to asbestos fibres and/or dust during
• Court Ruling On “Fundamental Dishonesty”
his employment with the defendant. The particulars of that
• Jackson/Mitchell
note formed the basis of the claim: that the deceased had been exposed to asbestos when, over the course of about a week, he had carried out work on the ceiling of a bricked construction in a cemetery. His account was that he had had to mix asbestos fibres with water to form a paste, which he then applied to the ceiling. The court heard evidence from those who had worked at and were familiar with the cemetery, and it had the benefit of a joint expert report and asbestos surveys carried out at the cemetery. The issue was whether the deceased had been exposed to asbestos fibres and/or dust while working at the cemetery.
‘...the claimant had not discharged the burden of showing that (the deceased) had used any form of plaster or decorative covering which contained asbestos...’
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Dismissing the claim, the deputy High Court judge held that the deceased had worked at the cemetery sometime between 1972 and 1977, and probably in 1976 or 1977, when he had applied some paste or decorative finish to the ceiling of one of the buildings there. The court was unable to determine what product he had used on the ceiling. It was satisfied that the note the claimant took down was the deceased’s best recollection of what had occurred and there was no doubt that he had genuinely believed that he had worked with asbestos whilst at the cemetery. The court was also satisfied that the ceiling the deceased worked on had not been altered or replaced since that time and that there were three separate asbestos surveys which had found no relevant asbestos. That evidence tended to suggest that no asbestos was present. In the circumstances, the court was driven to conclude that, whatever the deceased had genuinely believed, the claimant had not discharged the burden of showing that he had used any form of plaster or decorative covering which contained asbestos whilst working at the cemetery.
Civil Procedure/Service Of A Claim Form The following extracts from CPR are relevant to this report. 3.10 Where there has been an error of procedure such as a failure to comply with a rule or practice direction – (a) The error does not invalidate any step taken in the proceedings unless the court so orders; and (b) The court may make an order to remedy the error 6.4 (1) …the court will serve the claim form except where –
the court’s service of the claim form had been effective; (ii) CPR 7.6 applied in the instant case; (iii) if service had been effective, whether the district judge had erred in extending time for the service of the particulars of claim. Allowing the claimant’s appeal, the Court of Appeal held that it was necessary to begin by asking whether CPR 3.10 which dealt with the consequences of a procedural error, applied in the instant circumstances. The service of the claim form by the court, in disregard of the claimant’s notification that he had wished to effect service himself, was an error of
(a) A rule or practice direction provides that the claimant
procedure under CPR 3.10. There was no reason why the
must serve it;
rule should not apply where the error had been an error
(b) The claimant notifies the court that the claimant wishes to serve it; or (c) The court orders or directs otherwise.
of the court, the language was not confined to errors by a party and the policy considerations which underlay the rule seemed to be the same whether a procedural mistake was a party’s or the court’s responsibility. There was no reason
In Stoute v LTA Operations Ltd (2014) EWCA Civ 657 the
why CPR 3.10 should not be applicable where there had
appellant/claimant, a professional tennis player, had alleged
been a breach of CPR 6.4(1). The possibility of prejudice to
that he had been discriminated against by the respondent/
a claimant was not a reason for treating premature service
defendant on the grounds of race. After unsuccessful
by the court as a nullity. Insofar as a claimant might have
attempts to issue a claim form in the High Court and the
suffered some tactical disadvantage, the damage would
Central London County Court, he was incorrectly advised
have been done whether service was a nullity, so that it
that he had to issue the claim in the County Court Money
would have to be effected afresh, or not. Any procedural
Claims Centre, which contrary to his written directions,
prejudice could be addressed by the grant of an appropriate
served the claim form on the defendant, rather than
extension. However, if there was some important reason why
returning it to the claimant for service under CPR 6.4(1). He
in a particular case service had to be effected by a claimant,
notified the defendant that the claim form had been served
an order could be made under CPR 3.10(a) invalidating the
contrary to his instructions to the court and the defendant
court’s service. The court’s service of the claimant’s claim
consequently accepted that service was ineffective. It had
form had been effective service.
appeared that the claimant had not wanted to serve the
CPR 7.6 was not applicable in the instant case. That rule
claim form as he was awaiting the outcome of misconduct
applied to cases where service had not been effected within
proceedings that the defendant had brought against him.
the time limit under CPR 7.5, whereas in the instant case
He also applied to extend the time for service of the claim
CPR 3.10 was relied on to establish that service had been
form under CPR 7.6. A district judge’s decision holding
effected, albeit by the wrong person.
that the court’s service had been effective and granting the application for an extension of time for the service of the claim form was overturned on appeal. The claimant appealed against that decision. The issues were whether (i)
Notwithstanding the importance attached in guideline cases to a systematic approach being taken to factors identified in CPR 3.9, a decision was not automatically
bad in law because they had not been individually set out and considered. It was clear that the district judge had considered all the circumstances, including the particular CPR 3.9 factors that were relevant. The claimant’s failure to serve the particulars of claim could not be described as intentional; he had not served them as he had not believed that the claim form had been served. The district judge had been entitled to take into account the delay and confusion caused by the claimant’s misguided attempts to obtain an extension, but it did not follow that those considerations should have been decisive. He had been entitled to take the view that, however unsatisfactory the conduct of the claimant or his solicitors had been in that respect, it was outweighed by the reasons for granting permission.
Costs In Finglands Coachways Ltd v O’Hare (Protected Party)
were proportionate, all that was normally required was
(2014) EWHC 1513 (QB) we have an important decision on
that each item should be reasonably incurred. However,
the proportionality of costs under the cost rules applying
the use of the qualification “normally” made it clear that it
prior to 1 April 2013.
was not a hard and fast rule. Therefore, in assessing costs
The respondent/claimant had brought a personal injury action against the appellant/defendant which was later discontinued. The claim was originally estimated to be worth over £3m. The defendant’s bill of costs was approximately
under the old CPR a court could consider on an item-byitem basis whether the particular cost was proportionate and necessary even if costs were proportionate on a global basis. The judge had not misdirected himself in law.
£60,000. In his points of dispute, the claimant did not assert that the defendant’s costs were disproportionate overall. However, during the assessment of costs hearing his representative raised points about the proportionality of various individual items such as conferences with counsel. The judge commented on the “necessity” and “reasonableness” of some items and reduced the bill to approximately £37,800 plus interest. In its appeal the defendant argued that the judge had erred in applying a test of necessity, rather than reasonableness, when there had been no finding that the costs claimed were disproportionate. Dismissing the appeal, the High Court judge held that on a number of occasions in the course of the costs assessment the judge used the terms “necessary” and “need” indiscriminately. That was not fatal to his decision. The context suggested that he had used those terms in their ordinary sense to convey a notion of justification when enquiring whether the costs were proportionate. He should not be taken as applying the test of necessity. Even if the judge had applied the test of necessity, he was not wrong to do so. CPR 44.4(2) of the old rules meant that the court would, of its own initiative, disallow disproportionate costs even if the paying party had not raised the point. Further, even if a bill overall was not disproportionate, that did not preclude the judge from concluding that specific items were disproportionate and then applying the dual test of necessity and reasonableness to those items. It was contemplated in Lownds (2002) that if costs as a whole
‘CPR 44.4(2) of the old rules meant that the court would…disallow disproportionate costs even if the paying party had not raised the point’
Court Ruling On “Fundamental Dishonesty” One of the exceptions to Qualified One Way Costs Shifting (QOCS) is where the court makes a finding of “fundamental dishonesty” on the part of the claimant and an order for costs may then be made in favour of the defendant to be enforced against the claimant’s assets. The first report of such an order has arisen from the case of Gosling v Screwfix and Anor, (Cambridge County Court), in which the judge found the claimant had significantly exaggerated the extent of his injuries following a fall from a ladder. The defendants had adduced surveillance evidence which showed the court that the claimant had exaggerated his injuries. The County Court judge ordered the claimant to pay the defendants’ costs on an indemnity basis. He held that in significantly exaggerating the extent of ongoing symptoms the claimant’s conduct was dishonest and designed both to deceive and give a false impression. He also held that the dishonesty, which impacted on about half the value of the claim was “on any view” sufficient to be characterised as fundamental. As a result, he was satisfied on the balance of probabilities that the claim was fundamentally dishonest.
Comment As we begin to see the demise of cases funded under old style CFAs, the relevance of QOCS will increase and so will the need for defendants to take steps to mitigate its impact. Effective and early Part 36 offers will be the principle tool but costs orders obtained against the claimant during the course of the proceedings will also be important. A finding of fundamental dishonesty will be relatively rare, but as this case illustrates, defendants must be vigilant for cases where it is relevant.
Jackson/Mitchell The case of Hallam Estates Ltd and another v Baker (2014)
The claimants appealed and argued that the judge was
EWCA Civ 661 has already attracted widespread publicity
wrong to characterise their application for an extension of
and a good deal of comment. It confirms:
time as an application for relief from sanctions and that the
a) That parties may agree sensible extensions of time before a time limit has expired:
costs judge’s decisions allowing the extension and refusing to set aside that order, were case management decisions with which the judge was not entitled to interfere.
b) That the courts will approve such extensions provided that the conduct of the litigation would not be disputed and in particular any threat posed to an existing court date; c) That in these circumstances contested applications, which take up court resources and incur unnecessary costs should be avoided. The
appellants/claimants
had
brought
defamation
proceedings against the defendant/respondent, which were dismissed. They were ordered to pay her costs. The defendant served her bill of costs eight months late. Six days before the claimants were required to serve their points of dispute, they asked the defendant for a 21-day extension of time. She did not agree to it and on the day the claimants should have served their points of dispute they applied for an extension of time; their application was issued by the court the next day. The costs judge dealt with the matter ex parte and granted the extension. The defendant unsuccessfully applied for that order to be set aside and the claimants served their points of dispute within the extended
An application for an extension of the time … was not an application for relief from sanctions, provided that the applicant filed his application notice before expiry of the permitted time period. Allowing the appeal, the Court of Appeal (including Jackson LJ) held that the claimants’ application for an extension was made before the expiry of the time allowed for filing the
time for doing so.
points of dispute. Given CPR 23.5, the fact that the court
The defendant appealed against the costs judge’s refusal
day was immaterial. An application for an extension of
to set aside his order granting the extension. The judge, allowing the defendant’s appeal, found that the claimants’ application for an extension of time was issued out of time and therefore they were seeking relief from sanctions which the costs judge should not have granted as rules should be complied with. He set aside the costs judge’s order and therefore held that the points of dispute were not points of dispute at all and the defendant was entitled to a default costs certificate under CPR 47.9(4).
staff did not date stamp the application until the following the time to take any particular step in litigation was not an application for relief from sanctions, provided that the applicant filed his application notice before expiry of the permitted time period. That was the case even if the court dealt with the application after the expiry of the relevant period. That remained the case following the recent civil justice reforms. It followed that the costs judge was dealing with a straightforward application to extend time under CPR 3.1(2)(A) and the principles concerning relief from sanctions
in Mitchell did not apply. It was incumbent on the costs judge
the court gave permission. That was the only sanction under
to deal with the application in accordance with the recently
the rules. CPR 47.9(5) prevented the issue of a default costs
amended overriding objective, which he had. The claimants
certificate after the paying party had served its points of
had made a reasonable application for an extension of time,
dispute. That rule applied whether they were served before
which did not imperil any future hearing dates or otherwise
or after expiry of the permitted time for service. It therefore
disrupt the proceedings. The costs judge’s decision to grant
followed that if the receiving party wished to obtain a default
an extension was a proper exercise of his case management
costs certificate, he had to file his request after expiry of
discretion. The defendant’s application to set aside was
the time permitted for serving the points of dispute and
based upon the misapprehension that the costs judge had
before the points of dispute were actually served. That did
granted relief from sanction. His rejection of her application
not happen in the instant case and the judge did not have
to set aside, for which he gave sensible reasons, was
the power to direct that a default costs certificate be issued.
also a proper exercise of his case management powers. Accordingly the judge had erred in reversing that decision.
Comment
When the claimants asked the defendant to agree an
While on the face of it this is a sensible decision, it still
extension of time, they had given sensible reasons for the
leaves practitioners with a dilemma in certain situations.
request and the defendant should have agreed. Given her
One party is in a position to comply with a court direction;
own delays, she could hardly complain about that modest
the other is not. The first party considers that the second
extension. CPR 3.8 would be amended imminently. Once it
has no justification for requiring more time. The time limit is
was, parties would be able to agree a time extension of up
imminent. The second party requests an extension of time.
to 28 days without reference to the court, provided that it
What should the first party do?
did not put at risk any hearing date. Under CPR 1.3 parties had a duty to help the court in furthering the overriding objective, which included allotting an appropriate share of the court’s resources to an individual case. Therefore legal representatives were not in breach of any duty to their client when they agreed to a reasonable extension of time which neither imperilled future hearing dates nor otherwise disrupted the conduct of the litigation. On the contrary, by avoiding the need for a contested application they were furthering the overriding objective and also saving costs. Similarly, the courts should not refuse and CPR 1.1(2)(f) did not require them to refuse to grant reasonable extensions of time in such circumstances. (Obiter) The issue of whether the judge had erred in directing that a default costs certificate be issued did not arise. Nevertheless, the court addressed it. The defendants’ points of dispute would have become out of time once the judge reversed the costs judge’s decision. As a result the sanction in CPR 47.9(3) would have come into operation. The effect of which was that the paying party could not be heard further in the detailed assessment proceedings unless
If it refuses the extension the first party must make an application for more time before the deadline expires. If it fails to do so it will be obliged to apply for relief from sanctions and applying Mitchell may fail, providing the first party with a potentially massive tactical advantage. If the application is made in time, the court will consider it in the light of the overriding objective. If the extension is granted, the first party may find itself criticised for opposing it and suffer a penalty in costs.
Introduction into CPR of the ‘buffer provision’
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