Legal Watch: Personal Injury 6th November 2014 Issue: 039
Jackson/Denton The case of Abdulle and others v Commissioner of Police for the Metropolis [Lawtel 3/11/2014] undoubtedly shows
In This Issue:
compliance with rules and orders.
• Jackson/Denton
a significant softening of the post Mitchell approach to the The claimants had claimed that police officers had unlawfully
detained and used excessive force against them. At a case
• Occupiers’ liability • Limitation
management conference, it was ordered that the trial would
start between 6 and 12 May 2014. It was also directed that both parties would have to fill out pre-trial checklists, which
would be sent out by the court and that the claimants should file and serve trial bundles before the date fixed for trial. The defendant duly filled out and returned his pre-trial checklist, but the claimants failed to do so. When the claimants had failed to
pay the required court fees a week before the trial window, the listing office attempted to serve a notice of default on them by
fax. The trial window came and went following the claimants’ failure to file a checklist or pay the fee, as well as their failure to
prepare a trial bundle. The defendant applied to strike out the claims automatically. The court declined to do so as there was insufficient evidence to show that the notice of default had
been successfully transmitted to the claimants, but it ordered them to pay the costs of the defendants’ application. They failed to pay those costs.
The defendant re-applied and argued that the claimants’ case
should be struck out because they had failed to prepare for trial, in particular by failing to pay the court fee contrary to Schedule 1 Civil Proceedings Fees Order 2008; failing to file a pre-trial checklist in breach of the directions and failing to
prepare a trial bundle contrary to CPR 39.5. The claimants
submitted that an application to strike out under CPR 3.4(2) (c) had to be considered in the light of the procedure under CPR 3.7(2), which required the court to serve a notice of
default in respect of the fee and that it was therefore relevant that no such notice had ever been successfully served. They also contended that the date for lodging the trial bundle was
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unclear because there had been a trial window rather than a fixed start date.
Dismissing the defendant’s application, the High Court judge
held that the claimants’ argument relying on the court’s failure to serve a notice of default had no merit. The CPR and
the order clearly imposed obligations on the claimants to
pay the checklist and hearing fees. Although CPR 3.7(2) was written in mandatory terms, where no notice was served by the court, a claimant nonetheless remained in breach due to
non-payment. Insofar as the claimants suggested that had
they been pressed for payment earlier, they may have paid
‘Although the behaviour of the claimants’ solicitors was worthy of real criticism, the case was all but ready for trial and was not insubstantial.’
the fee earlier, that merely underscored their ability to pay
the fees and made more blameworthy their failure to do so.
Comment
The payment of court fees was mandatory and claimants
The most surprising aspect of this judgment is the fact that
should pay them when they were due, not only when
the claimants succeeded even through there was a clear
pressed to do so. The claimants’ solicitors were well aware
impact on court resources: one set of court dates was
of the importance of paying the fees and of the potential
lost; and another would need to be allocated to the case.
consequences of failing to do so. As to their contention that
The amendment to CPR 3.8 permits the parties to agree
they had not known when to lodge the trial bundle, a start
an extension of time where a sanction is in place ‘provided
date had not been fixed for trial because of the failure to
always that any such extension does not put at risk any
pay the fee. Where there was a short period during which
hearing date’. When applying for relief from sanctions under
a trial was set to start, and a timetable which was fixed by
CPR 3.9 the impression was given that an application would
reference to a trial start date, the date for lodging bundles
be looked at critically if additional time required by the
had to be calculated by reference to the first date of the
applicant would disturb a trial date. This case suggests a
period. Considering all the circumstances, including the fact
watering down of that approach.
that the failure to pay the fee was a serious breach with
In the second case Robinson v Kensington and Chelsea
particularly significant procedural consequences, namely the loss of the trial window, as well as the need to enforce
the rules of the court and only to allocate proportionate resources to each claim, on balance it was not appropriate to strike out the claim. Although the behaviour of the
claimants’ solicitors was worthy of real criticism, the case was all but ready for trial and was not insubstantial. The appropriate course was to allow the claim to proceed, but to stay it until the claimants had paid the outstanding costs order, failing which their claim would be automatically struck out.
Royal Borough Council and another [Lawtel 5/11/2014] the claimant was the mother of a child. The litigation had arisen
from issues relating to the child’s education. The defendant had received a letter from the child’s GP on 9 April 2013 forwarded by the claimant, stating that the child could not attend school as he was under a lot of stress due to
problems at school, that he had been referred to a clinic for psychological support and suggesting that he stay at
home until he had had an assessment. The local authority’s Education Welfare Officer, the second defendant, wrote to
the GP and sent a copy to the claimant. The letter stated
that the child had been absent from school for a length of time and since receiving the GP’s letter she had liaised with the clinic who said it had not received a referral letter from
the GP but had seen the child through the walk in clinic. 02
The defendant stated that the claimant had received a
prospect of successfully defending the claim and, if so,
lead to the issuing of a fixed penalty notice and, given the
acknowledge service by 7 August was a significant failure
formal warning that the child’s continued absence could background, asked whether the GP was able to confirm if she had referred him to the clinic and that he was unable to
attend school. The claimant wrote to the local authority in May 2013 threatening legal proceedings on the basis that
its letter contained defamatory innuendo and implied that she was dishonest and guilty of fraud as she had forged
the GP’s letter. The local authority, through a legal officer,
replied that it was happy to offer the claimant an apology but did not agree that she had been defamed, that any
action would be robustly defended and offered mediation
which the claimant declined due to the expense. The local authority instructed a neutral third party, a barrister, for an independent evaluation. He concluded that the contents of the letter were subject to absolute privilege because it was an investigation into the possible commission of an offence and would not be regarded by the courts as defamatory. The claimant commenced proceedings without
further notice to the local authority. She drafted a claim form issued in April 2014; it was defective in that it did not
provide particulars of claim and a stay was ordered until June to ensure compliance. The local authority was served
on 24 July. The legal officer was out of the office and on
her return found an envelope addressed to the business manager. She took steps to instruct counsel by 11 August, by which time default judgment had been entered and it
was only then that she noticed that it should have been filed by 8 August. She immediately telephoned the court to say
that the local authority intended to defend the claim. The local authority filed the application to set aside in default of acknowledgment of service.
The local authority submitted that the default judgment against it should be set aside pursuant to CPR 13.3 as it had
whether the failure to comply with the requirement to in the current context and considering the overall justice. The words complained of had to be read in context. The
defendant had made a number of references to the GP’s
letter where she actually asserted its authenticity; there was nothing that cast doubt on its authenticity. Any publication to other healthcare providers and administrators would be
limited as only a limited number would have access to the claimant’s and the defendant’s medical notes. No doubt
would be cast on the claimant’s honesty in the eyes of such healthcare providers or administrators and they would infer
that there were a number of explanations for the non-receipt of the referral from the GP including administrative mishap.
The local authority had a real prospect of successfully defending the claim. In the circumstances, the failure to serve the acknowledgement of service was not serious and significant; the delay only amounted to five calendar days
and the process had already been delayed by the difficulty the claimant had had in issuing the proceedings. The parties had been negotiating but the claimant had herself caused significant delay in failing to put forward a compliant claim
form and particulars of claim. There was a further delay on
her part by not serving proceedings until 24 July and she
had not given any indication that the local authority should expect proceedings.
‘…the failure to serve the acknowledgement of service was not serious and significant…’
a real prospect of successfully defending the claim as the
Every case is on its own facts but the claimant in the
attributed to them to justify continuing the proceedings and
Paisner LLP [Lawtel 4/11/2014] received less sympathy
words complained of did not bear the meaning the claimant
commercial case of Frontier Estates v Berwin Leighton
that the breach was not so serious or significant.
from the court, even though the case was at an early stage.
Allowing the application the High Court judge held that
The appellant/claimant appealed against a Master’s
the issues were whether the local authority had a real
dismissal of an application for an order to extend the time for service of particulars of claim.
03
The appellant/claimant had sought to issue a contractual and or tortious damages claim against the respondent/ defendant solicitors’ firm in connection with a refinancing of
the acquisition of land and property. In an earlier judgment,
it had been held that the Master had erred in considering the claimant’s application to extend time, made prior to the original time for service expiring, under CPR 3.9 and not
CPR 3.1(2)(a). It was common ground that the application to extend time had been an in time application.
Dismissing the appeal, the Deputy High Court judge held
that it was the court’s task to exercise its discretion under CPR 3.1(2)(a) in accordance with the overriding objective, to ensure justice and that litigation was conducted at a
proportionate cost under CPR 1.1(2). The instant case was
one in which everything had happened last minute on the
claimant’s side; the claim had been issued just before the
expiry of the limitation period and the claim form had been
served and an application made at the last moment. There
had been no pre-action protocol letter in circumstances where the claimant had had sufficient information to
enable it to do so. In fact, the claimant had had sufficient
information to formulate the particulars of claim for some time and there was no adequate explanation why there had
been a delay and why it had done everything at the last moment. The defendant had only been served a witness
statement in draft form three days before the hearing. It was necessary to consider the prejudice to both parties. The
defendant would suffer greater prejudice if the claim were to go ahead, particularly where the claimant had stated in its supplemental skeleton that there was no point to be taken in relation to a limitation period. The instant case was not one
of the defendant getting a windfall in being able to rely on a limitation defence; a limitation period was there to protect a defendant from stale claims and to permit a defendant to
move forward without the threat of litigation. The defendant would suffer the greater prejudice; there had been no satisfactory explanation or reasons for a six-month delay.
The Master had been correct in his overall conclusion, and although he had erred in proceeding under CPR 3.9 rather
than the appropriate provision, he had been troubled, like
the instant court, by a lack of a satisfactory explanation for delay and the resulting prejudice. 04
‘The Master…had been troubled, like the instant court, by a lack of a satisfactory explanation for delay and the resulting prejudice.’
Occupiers’ liability In Butcher v Southend-on-Sea Borough Council [Lawtel
required a professional risk assessment. The drop at the
had lived for some years in sheltered housing owned by
by the manager of the accommodation or the caretaker.
overlooked the back entrance to the property and she used
and on a disability discrimination audit which had not found
path which ran diagonally from the entrance. Beside the path
was not a checklist and no one knew what the state of the
between the path and the earth of just over two-and-a-half
carried out. The local authority said that the judge had
and did not need to be marked. He found that the claimant
(2002), but that case did not lay down any general principle.
after the accident the local authority inspected the area,
the local authority that there had been no previous accident,
from the edge of the path and instructed contractors to fill
the accident without difficulty or expense. The question
level of the path. The judge held that the defendant was in
foreseeable that someone would inadvertently step off the
someone might lose their footing at the edge of the path, as
not possibly be said that the judge was wrong to find that
was obvious and easily remedied. The hazard would have
authority had not taken such care as was reasonable in all
3/11/2014] the claimant had been visiting her parents who
edge of the path was obvious and had not been detected
the defendant local authority. The parents’ accommodation
The defendant relied on what was said in Clerk and Lindsell
that entrance. When leaving she had walked along a tarmac
anything wrong with the path. However, Clerk and Lindsell
was an area of patchy grass. There was a difference in level
path and surrounding area had been when the audit was
inches. The judge found that the edge of the path was clear
not carried out the balancing exercise required by Beaton
had stepped half on and half off the path and fallen. Shortly
Each case turned on its own facts. It was a point in favour of
concluded that dry weather had caused the earth to shrink
but on the other hand the hazard had been rectified after
in the dip with topsoil to bring the surrounding aea up to the
for the judge was whether before the accident it was
breach of its duty as an occupier, it was foreseeable that
path and lose their balance because of the drop. It could
had happened, because of the change of levels. The defect
that was foreseeable and to go on to find that the local
been seen by the claimant if she had been paying attention.
the circumstances to see that visitors were reasonably safe.
She was held 50% contributorily negligent.
There was no error of law.
The defendant appealed and argued that the judge had
‘…the local authority had not taken such care as was reasonable in all the circumstances to see that visitors were reasonably safe.’
given insufficient weight to the fact that the manager and
caretaker of the accommodation had a system of inspection
and relied on Clerk and Lindsell on Torts where it was said that an occupier who reasonably acted on professional or semi-professional advice was likely to escape liability, whereas failure to perform an adequate risk assessment might well tip the balance in favour of liability.
Dismissing the appeal, the Court of Appeal held that the
issue of a system of inspection was relevant where a hazard suddenly developed, such as a spillage of oil on the path.
The hazard at the edge of the path had not developed within minutes or hours or even days. Nor was it the kind of hazard, such as the risk of branches dropping from trees, which 05
Limitation At a time when deafness claims are one again on the
a reasonable person in his position to ask the original ENT
EWCA Civ 1401 is a useful one for defendants.
had discussed had caused or contributed to his symptoms.
increase, the case of Platt v BRB (Residuary) Ltd (2014) The respondent/claimant had worked for the appellant/ defendant for 35 years between 1953 and 1988 in a very
consultant whether the history of noise exposure which they It was a natural and appropriate question to ask. The test imposed a demanding standard.
noisy environment. He first consulted his doctor about
Applying the appropriate test in S14(3) and the guidance
1980s and 1990s. In 1997, he complained to his GP of
ask the consultant what had caused his hearing loss in all
hearing problems in 1982. He made further visits in the
tinnitus and hearing reduction. He was referred to an ear,
nose and throat specialist who asked whether he had worked in a noisy environment and the claimant replied that
he had. He did not go on to ask and was not told that he was suffering from noise-induced hearing loss. In 2010, the claimant read an article about industrial hearing loss which
led him to contact solicitors, to consult an ENT surgeon and
to make a claim in 2011. The judge found that the claimant
was not affected in 1997 by constructive knowledge of the fact that his tinnitus and hearing loss were attributable in part to acts or omissions alleged to amount to the defendant’s
negligence. He held that, applying an objective test, it was
not reasonable to have expected the claimant specifically to ask the original ENT consultant about the cause of his hearing loss in 1997. He found that the claimant had actual
knowledge after reading the article which was less than three years before he issued proceedings.
Allowing the defendant’s appeal, the Court of Appeal held that the judge had not paid enough regard to the words of S14(3) Limitation Act 1980 and to the test in Whiston (2010).
The court had to consider what knowledge the claimant might reasonably have been expected to acquire from the medical advice which it was reasonable for him to seek. The
proviso to S14(3) made clear that a person was not to be
fixed with knowledge of something only ascertainable with expert advice so long as he had taken all reasonable steps
to obtain and, where appropriate, to act on that advice. The claimant had taken all reasonable steps to obtain
advice about his hearing loss. It was reasonable to expect 06
from Whiston, it was reasonable to expect the claimant to the circumstances of the case. It was not disputed that, had
he done so, he would have been likely to have been informed that his tinnitus and hearing loss were noise-related.
Judgment was given for the defendant on the limitation issue
on the basis that the claimant had constructive knowledge more than three years before the issue of his claim form.
‘…it was reasonable to expect the claimant to ask the consultant what had caused his hearing loss…’
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