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LITIGATION LINE 2015 A Review of all the Essential Case Summaries and Legislative Updates

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Contents... 1

December 2014.................................................................................................................. 6

Costs-Period 3......................................................................................................................... 89

Costs......................................................................................................................................... 6

The appeal would be allowed............................................................................................. 90

Costs – Order for costs............................................................................................................ 8

Summary Judgement............................................................................................................ 90

Judicial Review....................................................................................................................... 12

Human Rights Act................................................................................................................... 91

Mental Capacity.................................................................................................................... 14

Insurer Liability –Guernsey...................................................................................................... 92

Costs......................................................................................................................................... 16

Insurers Obligations – Privy Council....................................................................................... 96

Defective Premises................................................................................................................. 18

Claim Form Service................................................................................................................. 99

Mental Health......................................................................................................................... 22

Abstract................................................................................................................................... 22

Contempt of Court................................................................................................................. 26

Professional Negligence: Standard Letters Can be Dangerous....................................... 102

Abstract................................................................................................................................... 26

A Trustee to a Bankruptcy cannot be held Personally Liable for the Costs of Previous

Negligence.............................................................................................................................. 30

July 2015................................................................................................................................... 102

Hearings when pursuing an Appeal..................................................................................... 103

Damages: You Have to Prove Your Loss.............................................................................. 104

January 2015......................................................................................................................... 32

CPR Case Law Roundup....................................................................................................... 104

Harassment.............................................................................................................................. 32

How Prompt is Prompt When Applying to Set Aside? : Priestley v Dunbar and Co

Service of Claim Form............................................................................................................ 34

[2015] EWHC 987 (Ch)............................................................................................................ 105

Claim for Damages against Highway Authority................................................................. 36

Costs: Part 36, Partial Success and Entitlement?................................................................ 106

Breach of Duty........................................................................................................................ 38

Cost Budgeting: Pitfalls for Commercial Litigators.............................................................. 106

Damages in Contract............................................................................................................ 40

February 2015....................................................................................................................... 42

August 2015............................................................................................................................ 108

Coventry v Lawrence: A Sigh of Relief for Practitioners as the Supreme Court

Service of Proceedings.......................................................................................................... 42

Endorses the Old CFA Rules................................................................................................... 108

Strike out- Abuse of Process.................................................................................................. 44

Claim Forms Are For Service: Another Salutary Reminder................................................. 109

Discovery................................................................................................................................. 45

Court Bundles: Another Warning from Jackson LJ.............................................................. 110

Summary Judgment............................................................................................................... 48

Appeal Delays and New Guidance.................................................................................... 111

Indemnity Costs...................................................................................................................... 49

Statement of Truth: Not for the Office Cat.......................................................................... 111

Costs......................................................................................................................................... 50

Witness Evidence: Quality not Quantity Will Always Prevail.............................................. 112

Negligence.............................................................................................................................. 53

10 September 2015................................................................................................................. 114

March 2015............................................................................................................................. 56

Proportionality and Other Costs Issues................................................................................. 114

ATE Legal Expense Insurance................................................................................................ 56

Costs Budgeting: A Sanity Check......................................................................................... 115

Negligence.............................................................................................................................. 57

The Need for Expert Evidence: Proportionality and Necessity.......................................... 116

Costs......................................................................................................................................... 59

Litigation Can be Bad for your Health: Warning to Clients about Risks........................... 117

Relief from Sanctions.............................................................................................................. 60

Airline Delay Litigation: Recent Case law............................................................................ 118

Costs Budget........................................................................................................................... 62

Litigation Round Up................................................................................................................ 119

Costs- Refusal to engage in ADR.......................................................................................... 63

11 October 2015........................................................................................................................ 120

April 2015.................................................................................................................................. 66

Social Media and Litigation.................................................................................................. 120

Summary Judgment............................................................................................................... 67

Relief from Sanctions: Recent Cases.................................................................................... 120

Non –Delegable Duty of Care.............................................................................................. 68

Witness Evidence, Letters before Action and Pleadings................................................... 121

Limitation................................................................................................................................. 70

Delay and Abuse of Process................................................................................................. 122

Civil Court System Review: An Online Civil Court?............................................................. 123

Flight Delay Compensation: A Ruling from the ECJ........................................................... 124

Conflict of Laws....................................................................................................................... 73

May 2015.................................................................................................................................. 76

Case Management................................................................................................................ 76

12 November 2015.................................................................................................................. 126

Wasted Costs........................................................................................................................... 78

Costs Part 36............................................................................................................................ 79

Facts......................................................................................................................................... 126

Default Judgment.................................................................................................................. 80

Allocation To The Small Claims Court: Finacial Mis-Selling Cases..................................... 127

Relief from Sanctions.............................................................................................................. 82

Application To Amend Pleadings Ordered -Costs Penalty Due To Failure To Consent.. 129

Discount Rate CICA............................................................................................................... 85

CPR 36: Offer Letters............................................................................................................... 129

Costs Budgeting: A New Precedent Q................................................................................ 130

Insolvency Proceedings Exemption: Lord Justice Jackson Speaks Out........................... 131

June 2015................................................................................................................................. 88

Costs......................................................................................................................................... 88

Costs-Period 1......................................................................................................................... 89

Costs-Period 2......................................................................................................................... 89

Summary Judgment: Guidance From The Court Of Appealwith Disputed

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Section 1 December 2014

Costs Flood v Times Newspapers Ltd [2014] EWCA Civ 1574 In 2007, the defendant company, TNL, published an article in The Times, in which it made allegations concerning the claimant, F. F brought proceedings for libel. In the course of proceedings, TNL withdrew its defence of justification and, in 2013, F was awarded £60,000 in damages. TNL was ordered to pay all the costs of the action, including the costs of the trial of damages and the reserved costs of the trial of a preliminary issue concerning public interest privilege. There were no offers made under CPR pt 36 in the case, and so the judge had a discretion as to costs in accordance with CPR 44.2. The issue before the court was who ought to have paid for the costs of the preliminary issue. At first instance, TNL argued that F had sued over the publication of the article in its print edition and online. Each separate publication had given rise to a separate cause of action. TNL’s defence of privilege had succeeded in respect of most of the publications sued on, and it should therefore have had its costs of that issue, which it had won. The judge rejected that argument, holding that F was the successful party and there was no reason to depart from the general rule that, as such, he was entitled to the costs of the action. TNL appealed to the Court of Appeal, Civil Division. The issue for the court was whether the judge had exceeded the wide ambit of discretion given to her on the issue of costs. TNL contended that the judge had reached a decision that was plainly wrong, as she had not balanced the various factors that she considered fairly in the scale. TNL had won a substantial victory on the significant issue of privilege, and the judge’s decision that it should pay the entire costs of the litigation had been unfair and wrong. The appeal would be dismissed. There had been a number of important factors relevant to costs in the present case, as the judge had clearly recognised, and which she had carefully balanced in reaching her decision. Those were the overall outcome of the case, in terms of the award of damages to F and the vindication he had achieved by pursuing it; TNL’s success on the issue of privilege and the parties’ approach to settlement. Although

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the judge could have achieved the same decision as to costs by balancing the various factors, without declaring an overall winner, she had been entitled to regard F as the successful party in the litigation. Whether F had been the successful party overall or not, it was undoubtedly the case that TNL had won on a significant part of the case, comprising numerically the greater proportion of the publications. Where a party had succeeded on part of its case, even if that party had not been wholly successful, that was one of the factors to which the court would have regard when deciding what order (if any) to make about costs, as per CPR 44.2(4)(b). There was also no doubt that the judge had been fully aware of the importance of that point to the issue of costs and it was clear from her judgment that she had given the matter the most anxious consideration (see [34]-[36], [41], [53], [54] of the judgment). It could not have been said, after the trial of the preliminary issue, that the outcome had been sufficiently clear cut to merit making an order for costs of the privilege issue in TNL’s favour. By the end of the trial, TNL had, among other things, withdrawn its defence of justification, had conceded liability and had been ordered to pay damages to F. The judge could have made a different order on costs to the one that she had done, but her discretion had been wide. She had not erred in exercising it (see [51]-[54] of the judgment). John v MGN Ltd [1996] 2 All ER 35 applied; Loutchansky v Times Newspapers Ltd [2002] 1 All ER 652 applied; McCarey v Associated Newspapers Ltd (No 2) [1964] 3 All ER 947 considered; Roache v News Group Newspapers Ltd [1998] EMLR 161 considered; Clarke (t/a Elumina Iberica UK) v Bain [2008] All ER (D) 233 (Nov) considered. Flood v Time A B v Ministry of Justice [2014] EWHC 3934 (QB) Abstract Costs – Order for costs The present proceedings concerned the issue of costs arising from the inability of the parties to reach agreement following an earlier judgment relating to liability and quantum. The litigation had concerned the alleged failure of the defendant to provide relevant information and data to the claimant in breach of s 7 of the Data Protection Act 1998, following the death of his wife. Various remedies were sought, including compensation for damage and distress and, in a second claim, the destruction of certain data. Shortly before a pre-trial review, the claimant abandoned a number of his claims. At the ensuing trial, the claimant was awarded nominal damages together with £2,250.00 damages for distress. The parties’ respective positions in relation to the issue of costs were at complete variance. In effect each party submitted that they should receive most if not all of their costs of

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the litigation and trial from the opposing party. Neither of them proposed that the court should conduct a further hearing, and there was no evidence before the court as to the amount or timing of the incidence of costs. It was necessary to apportion the costs incurred both up to and including the pretrial review, and the costs incurred post pre-trial review. Consideration was also given to whether costs should be awarded against the claimant on the indemnity basis. Consideration was given to the general rule as to costs in CPR 44.2.2 and CPR 38.6 and also the range of orders that could be made in CPR 44.2.6. and CPR 44.2.7. The court ruled: The claimant had discontinued many claims pre-trial. It was not a situation where the claimant had simply decided not to deploy one or more legal arguments in favour of stronger ones concerning the same subject matter. On the contrary, the claimant had ceased to litigate about the vast majority of the material upon which he had hitherto chosen to do so. It was necessary to determine, as best possible in the circumstances, the costs incurred in litigating those claims which had been effectively discontinued or abandoned. In relation to the costs incurred by the parties up to and including the pre-trial review, it was appropriate that, whilst the defendant should receive a proportion of his costs from the claimant to reflect those parts of the original claim that were effectively discontinued or abandoned, the claimant should receive the costs of litigating those issues upon which he had been successful at trial. In relation to the post pre-trial review costs and those of the trial itself, I am of the view that as the successful party the claimant should receive his costs from the defendant. Although there were aspects of his conduct during the course of the litigation which could be open to criticism, ultimately they were not such as to satisfy the criteria for the making of an award on the indemnity basis (see [13]- [15], [18], [19], [22] of the judgment). The claimant was to pay 80% of the defendantâ&#x20AC;&#x2122;s costs on a standard basis. The defendant was to pay 20% of the claimantâ&#x20AC;&#x2122;s costs on a standard basis. The defendant was to pay 100% of the claimantâ&#x20AC;&#x2122;s costs on a standard basis after the pretrial review up to and including the trial (see [24] of the judgment).

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Judicial Review R (on the application of Thomas) v Hywel Dda University Health Board[2014] EWHC 4044 (Admin) The defendant decided to cease provision of in-patient beds at a hospital. The claimant sought judicial review. The issues for determination were: (i) whether the closure of the in-patient facility had amounted to a â&#x20AC;&#x2DC;substantialâ&#x20AC;&#x2122; change; (ii) whether the closure of the in-patient facility without consultation had been justified on the grounds of the risk it had posed to the health and safety of patients and staff; (iii) whether the defendant had properly satisfied its statutory requirement to consult; and (iv) whether the defendant had breached its common law duty to consult. The application would be dismissed.

(1)

In all the circumstances, the defendant had been entitled to find that the closure of the facility had not been a substantial service change (see [78] of

the judgment). R v Criminal Injuries Compensation Board, ex p Webb [1986] NLJ Rep 536 considered.

(2)

In taking the decision to close the in-patient facility, the defendant had

considered more than the short-term health and safety of patients and staff.

It had taken into account such matters as the strategic objective of moving

patients out of hospitals into the community where they would receive

appropriate support. When the evidence was looked at fairly and as a

whole, the decision to close the facility had, therefore, not been based

simply upon immediate health and welfare concerns that would render

consultation unnecessary. In any event, if the decision had been taken

simply on the basis of risk to health and welfare, the defendant would have

been bound thereafter to have conducted a consultation exercise, if such

an exercise would have otherwise been appropriate (see [87], [88] of the

judgment).

(3)

The defendant had not erred in law in the manner in which it had

approached its statutory obligations to consult or in the conclusion it had

reached that consultation over the prosed change had neither been

required nor appropriate. The defendant had been entitled to consider

the change not substantial and, having considered the material

considerations, it had been entitled to conclude that consultation had

neither been required nor appropriate (see [105] of the judgment).

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(4)

As there had been no statutory requirement to consult, there was no scope

to read in any additional common law obligation to consult, unless the duty

of procedural fairness had required it. In the present case, no foundation

for such an additional duty had been suggested. It was not suggested that

there had been a legitimate expectation in the form of a promise or

established practice to consult, that a failure to consult would result in

conspicuous unfairness or that there had been a breach of the common law

duty of fairness at all (see [109] of the judgment).

Mental Capacity Re CT [2014] EWCOP 51 Court of Protection CT was born in 1929. He was married and had two children: a son and a daughter (EY). In May 2013, CT suffered a right hemisphere stroke, which caused him to have hemiplegia and impaired vision. He was diagnosed as having vascular dementia. In June, CT executed a lasting power of attorney (LPA) for property and financial affairs, in which he, among other things: (i) appointed EY to be the sole attorney; and (ii) named nobody who was to be given notice of an application to register the LPA. The LPA was made, despite objections from the son. In July 2014, the Office of the Public Guardian (the OPG) applied for an order, under s 48 of the Mental Capacity Act 2005 for directions concerning CT’s mental capacity to make decisions relating to his finances and property. The application included a witness statement, which alleged that, among other things, CT had severed the joint tenancy of the matrimonial home and sought to register it in his sole name, and that EY had refused to allow the OPG to carry out inquiries as to CT’s mental state. In particular, she and her partner had prevented a special visitor from the Court of Protection to assess CT either in person or via a telephone call. EY objected to the application. She submitted that CT had had the capacity to make complex decisions at the relevant times. At a directions hearing, the court ordered that an expert’s report be obtained. The expert stated that, although CT had capacity when at his best, his capacities would be enhanced by disinterested advice. The Court of Protection held that CT had had capacity to sever the joint tenancy. EY sought an order for costs against the OPG. EY submitted that the OPG had conducted its investigation in a disproportionately heavy-handed way and without regard to the limits of its statutory jurisdiction, the available evidence or the presumption of capacity. It had acted in disregard of the Act and CT’s rights under the European Convention on Human Rights.

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The court ruled: On the evidence, the OPG’s conduct had not been disproportionate and did not even approach the necessary threshold. It had not acted in blatant disregard of the Act or in breach of CT’s rights under the Convention. In the circumstances, it would be unjust to penalise the OPG by way of a costs order. With regard to EY, the court took a dim view of anyone who obstructed a special visitor of the Court of Protection. There was no doubt that EY and her partner had refused to let the special visitor visit CT or speak to him. Her insinuation that a special visitor was neither impartial or independent was unwarranted and offensive. Further, the expert report stressed the need for CT be given ‘disinterested advice’ (see [44], [46]-[48], [56] of the judgment). In the circumstances, a departure from the general rule was justified. EY would be ordered to pay her own costs because her conduct, before and during the proceedings, had been aggressive and disingenuous, and had resulted in both sides’ costs being far greater than they would otherwise have been. The cost of the expert’s report would be equally divided between the parties (see [59], [60] of the judgment). G v E (Costs) [2010] EWHC 3385 (Fam) applied. Costs Greig v Stirling and another [2014] EWHC 4017 (QB) The proceedings concerned money claims made by the claimant against the defendants, which arose from dealings with Spanish properties (for the litigation history, see [3]-[33] of the judgment). During the course of the litigation, the second defendant signed an application notice seeking an order striking out the claimant’s claim on the grounds that, inter alia, the claimant had refused to obey an order that the estate of the late first defendant be served with the claim. The claim against the second defendant was subsequently struck out. The claimant applied to set aside: (i) an order dated 7 April 2014, which struck out his claim against the second defendant (the first order); and (ii) an order dated 18 June 2014, that the claimant pay the second defendant’s costs of the claim and his costs of the application for such costs (the second order). The claimant submitted, first, that the first order should be set aside because, inter alia: (i) the second defendant’s application to strike out had not been served on him; (ii) the application had been dealt with by the court without a hearing under CPR 23.8(c), but the court had failed to inform the parties that it had proposed to deal with the application in that way; (iii) the effect of CPR PD 23.11.2 was that the

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order was to be treated as one which the court had decided to make of its own initiative, pursuant to CPR 3.3(4), with the consequence that he enjoyed the right, under CPR 3.3(5), to apply to have it set aside; (iv) although the deadline for such an application was seven days after service of the order, the order had not been served on him by the court and/or not received by him until he had received a letter from the second defendant in July 2014, he had made his application shortly after he had received the order, and the court should extend time and hear his application to set aside the order; and (v) notwithstanding the procedural points, it should be set aside on its merits. Secondly, the second order should be set aside. The court ruled:

(1)

The first order had been one which had been made without a hearing, in

circumstances which had given the claimant a right, under CPR PD 23A and

CPR 3.3(5), to apply to have it set aside. It would be just to grant an extension

of time for making such an application, if one was necessary. Having

reconsidered the matter on the basis of evidence, which had included

facts that had not been before the judge who had struck out the claim,

the claim ought not to be dismissed. Standing back from the detail, it

seemed that, in all the circumstances, it would be unjust and

disproportionate for the court to respond to the breach, on the first occasion

it had been brought before the court, by dismissing altogether a claim

against the second defendant, which had to be assumed to be arguable

and which appeared to be substantial (see [2], [70] of the judgment).

Denton v TH White Ltd; Decadent Vapours Ltd v Bevan; Utilise TDS Ltd v Davies [2014] All ER (D) 53 (Jul) considered.

(2)

The second order had been parasitic on the striking out of the claim. Since

it had been made in the claimantâ&#x20AC;&#x2122;s absence, the court had had power,

under CPR 23.11(2), to re-hear it. Having done so, the second order would be

set aside, along with the first order (see [2] of the judgment).

Defective Premises Rendlesham Estates plc and others v Barr Ltd [2014] EWHC 3968 (TCC) The proceedings concerned two blocks of apartments built between 2003 and 2006. In total, there were 171 apartments. The developer, CWC, experienced financial difficulties. It put work out to tender, which was accepted by the defendant company, Barr. Barr carried out the construction work, but a large number of complaints were made by owners shortly after the apartments became available. CWC won an adjudication against Barr but, in February 2008, CWC

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went into administration, and it became very difficult for the owners to obtain any compensation. The owners had no contract with Barr. The claimants, being 120 of the owners brought proceedings against Barr under the Defective Premises Act 1972, alleging that their apartments had not been fit for habitation when completed. They claimed the full cost of the remedial works to the common and structural parts as representatives of all the owners of the apartments who were not parties to the proceedings. Three issues arose, relating to construction of s 1 of the Act. First, whether the relevant dwelling for the purposes of the Act was the individual apartment demised to the leaseholder, which could arguably include the balcony of which he enjoyed exclusive possession (but which did not form part of the demised property), or whether it was the entire building (or even both buildings) in which the apartment was situated. Their primary case was that the two blocks constituted a single ‘dwelling’ within the meaning of the Act; alternatively, that each block constituted a single dwelling. Secondly, what was meant by the words ‘… in connection with the provision of a dwelling’ in s 1 of the Act. Thirdly, what was meant by fitness for habitation. It was common ground that there was no cause of action under s 1 of the Act unless the building was not fit for habitation when completed. The court ruled:

(1)

For the purposes of s 1 of the Act, the ‘dwelling’ was the individual

apartment as described in the lease together with, possibly, those parts

of the building to which the occupiers of a particular apartment had

in practice exclusive access for living, such as their balconies (see [46] of the

judgment). Andrews v Schooling [1991] 3 All ER 723 considered; Uratemp Ventures Ltd v Collins [2002] 1 All ER 46 considered; Catlin Estates Ltd v Carter Jonas (a firm) [2006] All ER (D) 13 (Jan) considered; Bole v Huntsbuild Ltd [2009] All ER (D) 195 (Mar) considered.

(2)

It was an inescapable conclusion that the work done to the structural and

common parts of both blocks had been work done in connection with the

provision of each of the apartments in the two blocks, since the owner of

each apartment had an interest in and a financial responsibility for the

maintenance and repair of the structural and common parts of both blocks

(see [54] of the judgment).

Bole v Huntsbuild Ltd [2009] All ER (D) 195 (Mar) applied; Harrison v Shepherd Homes Ltd [2011] All ER (D) 140 (Jul) applied; Ashville Investments Ltd v Elmer Contractors Ltd [1988] 2 All ER 577 considered.

(3)

With regard to fitness for habitation, certain principles could be drawn from

the case law. The application of those criteria would be very fact-specific in

any particular case (see [82], [83] of the judgment).

Applying the relevant legal principles, a number of findings were made as to the different heads of damage including appropriate remedial work. Awards were made for residual blight on the value of the properties following remedial work, and for damages for distress and inconvenience (see [256]-[268], [300], [309] of the judgment) Bole v Huntsbuild Ltd [2009] All ER (D) 195 (Mar) applied; Harrison v Shepherd Homes Ltd [2011] All ER (D) 140 (Jul) considered. Mental Health Bradbury and others v Patterson and other companies [2014] EWHC 3992 (QB) Queen’s Bench Division Mr Justice Foskett 28 November 2014 Mental Health – Representation – Litigation friend – Claim being brought against

doctor for alleged negligent surgery – Issue arising as to doctor’s capacity to

give instructions – Official Solicitor being appointed as doctor’s litigation friend

– Official Solicitor being granted order discharging as litigation friend after

funding withdrawn – Claimants applying to strike out order discharging Official

Solicitor – Whether application to be granted – Whether power to compel

Official Solicitor to continue to act – CPR 21.7(1).

Abstract Mental Health – Representation. The proceedings concerned claims brought against a doctor for damages for negligent surgery for breast cancer. They raised a novel point about what the court should do when the Official Solicitor concluded that he could no longer continue to act as litigation friend for a protected party in litigation because the anticipated source of funding for the Official Solicitor’s costs ceased to be available. The Queen’s Bench Division held that the court could not compel an Official Solicitor to continue acting in circumstances where funding had been withdrawn. Digest The judgment is available at: [2014] EWHC 3992 (QB)

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The proceedings raised a novel point about what the court should do when the Official Solicitor concluded that he could no longer continue to act as litigation friend for a protected party in litigation because the anticipated source of funding for the Official Solicitor’s costs ceased to be available. The claimants were former patients of the first defendant doctor, P. They brought claims against him for damages arising from alleged negligent surgery for breast cancer carried out by him. At the material time, P was employed at a hospital as an NHS consultant by the third defendant NHS Trust (the Trust). P was initially represented by a solicitors’ firm (R). He became unwell and a psychiatric report supported the view that he lacked the capacity to give instructions for the purposes of the litigation. An Official Solicitor was appointed to act as P’s litigation friend, funded by the Medical Defence Union (the MDU), of which P was a member. The MDU subsequently withdrew its funding. As a result of that withdrawal of funding, the Official Solicitor applied to the court, pursuant to CPR 21.7, for an order that he be discharged as P’s litigation friend in each of the claims and R applied to come off the record. A judge granted the applications. Four of five claimants sought an order setting aside the order discharging the Official Solicitor as P’s litigation friend. The issue for consideration was whether the court could compel the Official Solicitor to continue to act as a litigation friend where, as in the present case, he had initially consented to act in that capacity. The Trust contended that it could as that was the effect of CPR 21.7(1), supported by CPR 21.8(3). The Official Solicitor contended that the power to order the termination of a litigation friend’s appointment was not restricted in the manner contended for by the Trust. Consideration was given to Practice Direction 21. The court ruled: Under the regime provided for by the CPR, there was no warrant for the conclusion that the consent of any person to act as a litigation friend was irrevocable. The court’s discretion to grant an application under CPR 21.7(1)(b) was a full one. However, in reality, there might be little room to manoeuvre when presented with such an application (see [30], [31] of the judgment). The Official Solicitor’s construction of the CPR was correct. The power to order the termination of a litigation friend’s appointment was not restricted in the manner contended for by the Trust. Because of the funding constraints to which the Official Solicitor was now exposed, the position of enforced continuation as a litigation friend would undoubtedly be unwelcome and uncomfortable. In all the circumstances, the judge had been entirely justified to make the orders asked of her relating to the cessation of the involvement of the Official Solicitor and R (see [27], [28], [29], [38] of the judgment). 24

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The proceedings would be transferred to a different judge for the resolution of the issue as to whether P lacked capacity to conduct the proceedings. If he did not, the issue of a litigation friend became irrelevant (see [45] of the judgment). E, Re [1985] 1 All ER 609 considered; D (A Child), Re [2014] All ER (D) 20 (Nov) considered. Contempt of Court Aziz v Ali and another; Jamil v Serwan and another company; Kazmi and another v Serwan an another company [2014] EWHC 4003 (QB) Queen’s Bench Division, Liverpool District Registry Mr Justice Lewis 28 November 2014

Contempt of court – Committal – Four individuals committing insurance

fraud and making statements of truth without honest belief in truth of

statements – Insurance company seeking committal to prison for contempt of

court – Whether individuals should receive prison sentence.

Abstract Contempt of court – Committal. Four individuals committed insurance fraud and made statements of truth without an honest belief in the truth of those statements. The insurance company sought their committal to prison for contempt of court. The Queen’s Bench Division sentenced all four individuals to terms of imprisonment. However due to the remorse of the fourth individual her term of imprisonment was shorter and was suspended. Digest The judgment is available at: [2014] EWHC 4003 (QB) Four individuals were found by the court to have made false statements in the course of proceedings brought by them for compensation for injuries sustained in two separate car accidents. The first was Mr Aziz, a private hire vehicle driver. He had a wife and four children. The second was Mr Jamil a taxi driver. He was married with six children all of whom lived at home. His father was elderly and had serious health difficulties. The third was Mrs Saleem, a woman of 47 years of age. She lived with her husband and had three children. Mrs Kazmi was a single mother of three children, two of whom lived at home with her. She was the only one of the four that showed remorse for her actions. In reality, the accidents never happened. The individuals never suffered any injuries. The claims were false when made and were

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known to be false. All four individuals admitted that they had made false statements, verified by a statement of truth, without an honest belief in their truth. The claims for damages were dismissed following a five day trial. The Civil Procedure Rules required that certain documents, including particulars of claim, be verified by a statement of truth (see CPR 22(1)). A statement of truth was a statement that the person putting forward the document or making the witness statement ‘believes the facts stated in the document are true’ (see CPR 22(4)). CPR 32.14(1) provided that ‘Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.’ There was an application for committal to prison for contempt of court made in respect of the four individuals by the second defendant, insurance company. The court ruled: The system of justice in United Kingdom required and depended upon people who brought claims and made statements in court proceedings acting truthfully and honestly. The dishonest making of false statements undermined that system of justice, public confidence in the justice system and struck at the heart of the fair administration of justice (see [14]-[16] of the judgment). The evidence demonstrated that a series of fraudulent claims had been made. The four individuals involved were motivated by greed and a desire to obtain money. The making of false statements as part of legal proceedings undermined the administration of justice. Courts had repeatedly emphasised the gravity of such conduct and had emphasised that those who made false claims should expect to be sent to prison. The appropriate sentence for Mr Aziz was one of six months imprisonment. The appropriate sentence for Mr Jamil and Mrs Saleem was one of eight months imprisonment. That would be suspended fo six months. In the case of Mrs Kazmi, her admissions and her real and genuine remorse meant that the sentence the court would impose could be shorter and could be suspended. The sentence would be 12 weeks imprisonment, that would be suspended for six months (see [see [13], [14], [18], [20], [24], [27] of the judgment). Unless released earlier, Mr Aziz, Mr Jamil and Mrs Saleem would spend half of their sentences in prison and will then be released (see [25] of the judgment). South Wales Fire and Rescue Service v Smith [2011] All ER (D) 39 (Oct) applied.

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Negligence Howmet Ltd v Economy Devices Ltd and others [2014] EWHC 3933 (TCC) Queen’s Bench Division, Technology and Construction Court Edwards-Stuart J 28 November 2014 Negligence – Duty to take care – Defective work or product – Claimant

bringing claim following major fire at factory – Claimant contending fire caused

by failure of probe manufactured by first defendant, EDL – Whether EDL

negligent or acting in breach of statutory duty – Electrical Equipment (Safety)

Regulations 1994, SI 1994/3260.

Statutory duty – Breach – Electrical equipment – Claimant bringing claim

following major fire at factory – Claimant contending fire caused by failure

of probe manufactured by first defendant, EDL – Whether EDL negligent or

acting in breach of statutory duty – Electrical Equipment (Safety) Regulations

1994, SI 1994/3260.

Abstract Negligence – Duty to take care. The Technology and Construction Court dismissed the claimant company’s claims in negligence and for breach of statutory duty against the manufacturer of a probe the failure of which it contended had been the cause of a major fire in its factory. Digest The judgment is available at: [2014] EWHC 3933 (TCC) In February 2007, there was a fire at the claimant, H Ltd’s factory which caused losses in excess of £20m. It was H Ltd’s case that the fire had been caused by the failure of a probe that was supposed to detect a loss of liquid in a hot water tank. The first defendant, EDL, was the manufacturer of the probe. H Ltd contended that the probe, known as a Therm O Level (thermolevel) had been negligently designed with the result that it was unreliable in service and, in any event, was not a ‘failsafe’ device. It also complained about the brochure produced by EDL which, it stated, contained misleading information as to the qualities of the product. The expression ‘failsafe’ was used in its engineering sense, namely that it described a system which, in the event of its own failure or maloperation, left the system it served in a safe or deactivated condition. EDL denied liability.

Consideration was given to H Ltd’s claims in negligence and for breach of statutory duty based on reg 14(1) of the Electrical Equipment (Safety) Regulations 1994, SI 1994/3260. The claim would be dismissed. On the evidence, H Ltd’s claim in negligence against EDL had to fail for want of proof of causation. In respect of breach of statutory duty, H Ltd had failed to prove that in the days immediately before the fire it had been relying on the thermolevel in the hot water tank to work properly and to act as a reliable safety device. In those circumstances, a claim based on EDL’s failure to provide a safe product had to fail. The principal findings of fact were set out in the schedule attached to the judgment (see [259], [278], [298] of the judgment). Lexmead (Basingstoke) Ltd v Lewis [1982] AC 225 considered; Trebor Bassett Holdings Ltd v ADT Fire and Security plc [2012] All ER (D) 153 (Aug) considered; Milton Keynes Borough Council v Nulty [2013] All ER (D) 164 (Jan) considered.

Section 2 January 2015

Harassment Al Hamadani and another v Al Khafaf and others [2015] EWHC 38 (QB) The claimants brought an action for harassment against the defendants and sought an injunction restraining them from further harassing behaviour. The Queenâ&#x20AC;&#x2122;s Bench Division applying established law found that the claimants had made out their case for an injunction to restrain the third defendant from harassing them and the injunction would be granted in substantially the terms sought. The claimants were professional antique dealers dealing in high value antiques and art. They were of Iraqi origin, as were all the defendants. The claimants, who were brothers, brought a claim for an injunction pursuant to the Protection from Harassment Act 1997. The claim arose from a dispute between the claimants and the first defendant, another antique dealer. That was alleged to have involved a course of harassing conduct instigated by the first defendant which culminated on the evening of 12 March 2014 in a visit to the claimantsâ&#x20AC;&#x2122; home in West London by the second, third, fourth and fifth defendants where it was said that, acting on behalf of the first defendant, they threatened and intimidated both the claimants causing them stress and anxiety. The claim sought an injunction to prevent future harassment. The claim was brought against five defendants but, the claims were settled as against the first four defendants and the trial was effective only against the third defendant. The issue was whether on the evidence the injunction should be granted against the third defendant. The application would be allowed. For a cause of action for damages for harassment to be made out, there had to be conduct on at least two occasions, which had been targeted at the claimant, which had been calculated in an objective sense to cause alarm or distress, and which was objectively judged to be oppressive and unacceptable. What was oppressive and unacceptable might depend on the social or working context in which the conduct occurs. A line was to be drawn between conduct which was unattractive and unreasonable, and conduct which had been described in various ways:

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‘torment’ of the victim. In principle, liability for harassment might be established on the basis that the defendant was part of a joint venture assisted a claimant, in a case where one defendant A aided and abetted another B, by spelling out that in such a case the conduct, knowledge, and purpose of B and what he ought to have known ‘shall be taken’ to be that of A (see [47], [48] of the judgment). The claimants had made out their case for an injunction to restrain the third defendant from harassing them, and the injunction would be granted in substantially the terms sought (see [55] of the judgment). Dowson v Chief Constable of Northumbria Police [2010] All ER (D) 191 (Oct) applied; Daniels v Metropolitan Police Comr [2006] All ER (D) 36 (Jul) considered.

Service of Claim Form Dunbar Assets plc v BCP Premier Ltd [2015] EWHC 10 (Ch) Chancery Division The proceedings concerned the service of a claim form by an alternative method, namely by email. The claimant was a banking institution concerned in lending money to organisations and individuals seeking investment for developments. The defendant construction management company offered advice to banks on proposed lending opportunities. The claimant issued a claim form on 18 December 2013 for damages for breach of contract and/or breach of duty of care and/or misrepresentation and/or deceit, plus interest, in respect of advice provided to it by the defendant during between June 2006 and December 2008. The sum claimed was £300,000. On 3 March 2014, the claimant’s solicitors sent a copy of the sealed claim form and a notice of issue to the defendant by fax and requested copies of certain documents. There were various exchanges in communication between the parties. The claimant requested an extension of time for service of the claim form and particulars of claim. The defendant’s solicitors referred the claimant to the Pre-Action Protocol for Construction and Engineering Disputes, which required an application to the court on notice for directions. Subsequently, it was agreed that the claimant would serve its claim form by 4pm on 3 April. That agreement was embodied in a consent order of the court. The claimant did not serve the letter of claim in accordance with the consent order. Instead, its solicitors emailed a copy of the claim form to the defendant’s solicitors and a monochrome copy of it was placed in the document exchange for delivery next day to those solicitors. The claimant’s solicitors later wrote to the defendant’s solicitors seeking agreement for an extension of time to provide the letter of claim. The defendant’s solicitors responded, stating that the claimant had not complied

with the consent order, that it was out of time for service of the claim form and that the request for an extension of time for service of the letter of claim was redundant. In April, the claimant applied to the court for an extension of time to serve the claim form on the defendant and for relief from sanctions, pursuant to CPR 3.9. A deputy master ordered that service of the claim form by email amounted to good service, pursuant to CPR 6.15. The defendant appealed. The issue for consideration was whether the deputy master had erred in holding that service of the claim form by email was good service, pursuant to CPR 6.15. The appeal would be allowed. It was evident from the language of CPR 6.15 that an application for an order permitting service by an alternative method or place would only succeed if:

(i)

it appeared to the court that there was good reason to authorise such

alternative service; and

the court decided to exercise its discretion in favour of permitting such

(ii)

alternative service (see [26] of the judgment).

The deputy master had been wrong to conclude that, on the facts, there had been a good reason to make an order under CPR 6.15. He had fallen into error by failing properly to take into account or examine why it was that it had come about that he had been asked to make the order sought. Had he done so, he would immediately have appreciated that the claimant had provided no explanation whatsoever for not serving the claim form properly in accordance with the rules. The present case fell far short of being sufficiently compelling for the court to permit the claimant to depart from the rules of service. The court would not exercise its discretion in favour of granting the order in circumstances where the claimant had given no explanation as to why it was that the order had not been served properly in accordance with the rules and in the light of the prejudice which might be caused by denying the defendant a limitation defence (see [32], [43], [44], [46], [47] of the judgment). Kuenyehia v International Hospitals Group Ltd [2006] All ER (D) 169 (Jan) applied; Brown v Innovatorone plc [2010] 2 All ER (Comm) 80 applied; Hoddinott v Persimmon Homes (Wessex) Ltd [2007] All ER (D) 321 (Nov) considered; Abela v Baadarani [2013] 4 All ER 119 considered.

Claim for Damages against Highway Authority Foulds and another v Devon County Council [2015] EWHC 40 (QB) The deceased was cycling his bike when he crashed over/through railings and was seriously injured. His estate brought a claim for damages against the defendant highway authority on the basis that it owed a duty of care to maintain railings sufficiently strong to act as a crash barrier. The Queenâ&#x20AC;&#x2122;s Bench Division, on the basis of established law, dismissed the claim. The deceased was cycling down a steep hill when he lost control of his bicycle and left the carriageway, continuing through/over ornamental metal railings which were on top of a low retaining wall, and falling down a large drop to a lower road. He suffered serious head and spinal injuries. Personal representatives of the deceased continued his action for damages. The case was that the defendant, as highway authority responsible for the road, owed a common law duty of care to the deceased to ensure that railings were in place of sufficient strength and structural integrity to prevent a pedestrian or cyclist from falling over the retaining wall to the ground below. Although the defendant had included the wall and railings on its highway inspection regime, it denied liability. The claimantsâ&#x20AC;&#x2122; submission amounted to a proposition that once a level of safety had been provided by a highway authority then a duty arose which meant that it had to be maintained. The claim would be dismissed. At common law a highway authority owed no duty to maintain the road or to make it safer. However, where a highway authority positively acted and created a trap or a danger which would not otherwise have existed it might be liable (see [39], [43] of the judgment). On the facts, the deceased was going too fast for the conditions ahead of him. The railings were in place to prevent a pedestrian falling over what would otherwise be a very low wall. However the railings were not stated to be a crash barrier or restraint system. There was a world of difference between a pedestrian stumbling and putting an arm on railings to steady him/herself and the sort of considerable force in the instant accident. It could not be said that the relevant act by the defendant was the prevention of the fall if a cyclist crashed in to the railings at speed. The defendant was not under a duty to provide a crash barrier or to regard the railings as in effect a crash barrier (see [22],[27], [27], [49] of the judgment). Stovin v Wise (Norfolk County Council, third party) [1996] 3 All ER 801 applied; Gorringe v Calderdale Metropolitan Borough Council [2004] All ER (D) 06 (Apr) 36

applied; Bird v Pearce (Somerset County Council third party) [1979] LS Gaz R 680 considered; Phelps v London Borough of Hillingdon, Anderton v Clwyd County Council, Jarvis v Hampshire County Council, Re G (a minor) [2000] All ER (D) 1076 considered.

Negligence – Causation AB v Chief Constable of X Constabulary [2015] EWHC 13 (QB) The claimant former undercover police officer within the defendant Chief Constable’s police force sought damages for psychiatric injury. The Chief Constable contended that the claimant’s adjustment disorder was attributable to his own misconduct in abusing cocaine. The Queen’s Bench Division, in dismissing the application, held that the chronic adjustment disorder from which the claimant suffered had been caused by the fact that he had been confronted with his own misconduct and that he had had to face the traumatic consequences of that. The claimant former undercover police officer was a member of the defendant Chief Constable’s police force. He was deployed to another region and tasked with the obtaining of intelligence in relation to a serious organised criminal group. During the period of his deployment undercover on the operation, the claimant misused cocaine on more than one occasion and did not make any report at the time that he had done so. That failure made it inappropriate for him to continue as an undercover officer and he was subsequently granted ill-health retirement. The claimant issued proceedings, seeking damages for psychiatric injury in the form of an adjustment disorder and consequential financial loss, which he said flowed from his having retired. The Chief Constable claimed that any psychiatric injury which the claimant had suffered was attributable to his own misconduct in abusing cocaine and his sudden fall from grace when that had been discovered. The application would be dismissed. The chronic adjustment disorder from which the claimant suffered had been caused by the fact that he had been confronted with his own misconduct and that he had had to face the traumatic consequences of that. There was no evidence that he had been suffering from any mental disorder before that confrontation had occurred, but when it had occurred, it had been sufficient to account for and was the only explanation of the mental disorder which he had then suffered (see [16] of the judgment).

Breach of Duty Altus Group (UK) Ltd v Baker Tilly Tax And Advisory Services LLP and another [2015] EWHC 12 (Ch) The claimant company brought proceedings against the defendant accountancy firm, contending that the defendant had been in breach of duty by failing to warn it about changes in the legislation. The claimant submitted that, had it been warned, it would have restructured itself. The Chancery Division, in dismissing the claim, held that the defendant had been in breach of duty. As it had held itself out as being a ‘top-end’ and very large firm of specialist advisers, it was reasonably to be expected to have much greater technical resources than an ‘ordinary’ firm of accountants. However, the claimant would not have restructured itself as proposed. The defendant was a large, ‘top-end’ accountancy firm. It provided advice to the claimant company. The claimant was part of a larger LLP structure. In December 2008, a Corporation Tax Bill was introduced in the House of Commons, which proposed a number of changes to the existing law. Among the proposed changes, at s 1263, was a plan to introduce the corporation tax regime already existing in the Income Tax (Trading and Other Income) Act 2005. The defendant did not advise the claimant as to the effects of the proposed legislative changes in 2009, at the time when the filing of the 2008 return was being carried out. In November 2011, the larger LLP structure, instructed the firm Ernst & Young (EY) to draw up a plan for dealing with the proposed legislative changes. EY proposed a new LLP structure (the new LLP proposal). In the event, the claimant decided not to impose the new LLP structure, because of administrative and practical concerns. The claimant brought proceedings against the defendant, claiming that it ought to have advised it as to the effect of the proposed legislative changes in 2009. The issues were, among other things:

(i)

whether the defendant had been in breach of duty in failing to advise as

to the effect of s 1263 in January 2009; and

whether, if correctly advised in 2009, the claimant would have

(ii)

implemented a restructuring akin to the new LLP proposal. Consideration

was given to, among other things, the fact that up to mid-2010, the larger

LLP had had an arrangement with PricewaterhouseCoopers (PwC) to

provide tax services where required.

The claim would be dismissed.

(1)

The defendant had been in breach of duty in January 2009. Although the

defendant had not become aware of the impending legislative changes,

it ought to have become aware of them. It had been under a duty

to bring that information to the attention of the claimant, because it

had been material to the risks associated with the filing position for the

2008 return and it had undermined the filing position in respect of future

returns. The defendant had held itself out as being a ‘top-end’ and very

large firm of specialist advisers. It was reasonably to be expected to have

much greater technical resources than an ‘ordinary’ firm of accountants

and, as a result, to be aware of relevant impending changes to tax

legislation (see [76], [80], [82], [181] of the judgment).

Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp (a firm) [1978] 3 All ER 571 applied; Credit Lyonnais SA v Russell Jones & Walker (a firm) [2002] All ER (D) 19 (Jul) considered; Herrmann v Withers LLP [2012] All ER (D) 255 (May) considered; Mehjoo v Harben Barker (a firm) [2014] All ER (D) 13 (Apr) considered.

(2)

On the balance of probabilities, the claimant would not have consulted

EY in 2009. If the defendant had advised as it ought to have done, advice

would have been sought from a different adviser. The reasons given on

behalf of the claimant for taking another course were unpersuasive.

It was more probable that PwC would have been consulted. On the

balance of probabilities, the advice PwC would have given, if it had been

consulted, would not have been along the lines of the new LLP proposal.

Among other things, there was nothing obvious or axiomatic about the

new LLP proposal to suggest that it would be devised in the face of s 1263

when it had not been before (see [88], [90], [92] of the judgment).

Accordingly, those findings of fact meant that the claim had to fail (see [94] of the judgment). Wisniewski v Central Manchester Health Authority [1998] PIQR P324 applied.

Damages in Contract Baxter v Barnes (trading as We Barnes Tree Surgeons and/or Up and Out Platform Hire) [2015] EWHC 54 (QB) Queenâ&#x20AC;&#x2122;s Bench Division The claimant, an arborist, hired a platform from the defendant in order to fell a tree. The platform collapsed and the claimant sustained serious injury. The claimant brought a claim in, inter alia, contract. The Queenâ&#x20AC;&#x2122;s Bench Division upheld the claim and ordered judgment for the claimant with damages to be assessed. The claimant was an arborist and his business was concerned with many aspects of the care of trees including their pruning and felling. In order to complete a pruning job, the claimant hired a platform from the defendant who was a tree surgeon who had equipment for use in that business. The defendant offered customers the option of hiring out such equipment with an operator who would set up, and operate, the platform. However, the claimant did not choose to hire the platform with an operator. During use the platform overturned and the claimant was badly injured. He brought a claim in contract against the defendant. The claimant alleged that the accident occurred because the defendant was in breach of the implied term of the hire agreement that the platform was of satisfactory quality and reasonably fit for the purpose for which it was hired. The defendant denied that the platform was defective and denied any breach of the implied conditions as to satisfactory quality and fitness for purpose. He contended that the platform toppled over because the claimant failed to position it on stable, level ground, contrary to instructions that the defendant alleged he had given to the claimant, when the platform was delivered to site, and contrary to the instructions set out in the manual provided with the platform. The claim would be allowed. The platform supplied to the claimant by the defendant had not been of satisfactory quality. The cause of the accident was the slippage of the foot of outrigger 3 upon its bearing plate. That slippage occurred because the plate was not of suitable quality for the application for which the plate was used. As a result of the findings, the claimantâ&#x20AC;&#x2122;s claim succeeded in contract. There would be judgment for the claimant with the quantum of damages to be assessed (see [92], [97], [98] of the judgment).

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Section 3 February 2015

Service of Proceedings Orb A.R.L. and others v Ruhan and others [2015] EWHC 262 (Comm) The proceedings concerned formal contracts, which had been executed in the form of a sale and purchase agreement and a headstay agreement between the parties. The claimants alleged that an oral agreement had been made in May 2003 between S, acting on behalf of the first and third claimants, the second claimant, acting on his own behalf and the defendant, R, acting on his own behalf, the object of which had been profit sharing between the first claimant, Orb, and R on a personal basis. In particular, R was to redevelop, restructure manage and/or dispose of assets within a hotel portfolio in order to maximise the financial benefit realised from such assets, and that he would pay a share of the net financial benefit to him realized from such activity to the claimants. A dispute arose following a payment of just under ÂŁ92m derived from the sale of a company, Sentrum Holdings Ltd, which the claimants contended had been owned by the second proposed defendant, as nominee for R. The claimants contended that the relevant sums had been disbursed at Râ&#x20AC;&#x2122;s behest and for his benefit. They alleged that R had breached his fiduciary duty and that he had been dishonestly assisted in doing so. They further alleged knowing receipt on the part of the second to the fifth proposed defendants. They further brought proprietary tracing claims against the defendants. The defendants contended that the alleged oral agreement was unenforceable for illegality as it had been intended to deceive Morgan Stanley. The claimants sought permission to amend a claim form and particulars of claim, pursuant to CPR 17.1(3) and 19.4(1), and to add four further defendants in addition to the original defendant. They further sought permission to serve the prospective second to fifth defendants out of the jurisdiction and a proprietary injunction against those defendants with ancillary relief. The issues for consideration were:

(i)

whether the application for amendment should be allowed; and

(ii)

whether service outside the jurisdiction and an injunction should be

allowed. Consideration was given to alleged recoveries made by

the claimants since having issued the claim and their alleged failure

to disclose to the court the value received for the disposal of some assets

for considerable sums as against the claim made.

The court ruled:

(1)

Permission to amend the amended claim form and the particulars

of claim to plead the additional facts relied on against R would be

granted (see [2], [58] of the judgment).

In relation to service out of the jurisdiction, there was a serious issue to

(2)

be tried in relation to the alleged oral agreement made, as contended

by the claimants, between S, acting on behalf of the first and third

claimants, the second claimant, and R. The defendants had powerful

points to make against the existence of any such agreement. It could

not be seen how a court could properly resolve the dispute without

hearing the evidence of the protagonists. On the evidence, the

claimants had recovered far more than any claim which they could

properly justify. Although the claimants might have realistic prospects

of success on the causes of action, the court should not countenance

permitting service out of the jurisdiction when full recovery had already

been made in respect of the claim for the profit shares alleged. However,

the failures, including to disclose to the court the value received for the

disposal of some assets for considerable sums as against the claim

made, stood out in the conduct of the proceedings by the claimants.

They went to the question of whether it was just and convenient to grant

the injunction and to the issue of â&#x20AC;&#x2DC;clean hands; on the party seeking

the injunction. The balance of convenience was wholly against the grant

of the injunctions in circumstances where the claimants appeared to have

made a substantial over recovery in respect of any wrong doing upon

which they had arguable prospects of success (see [4]-[6], [47], [49], [55],

[56] of the judgment).

Permission for service out of the jurisdiction on the second to fifth prospective defendants would be refused. No injunction would be granted (see [58] of the judgment)

Strike out- Abuse of Process Garnham v Millar and others [2015] EWHC 274 (Ch) The claimant had brought a claim against the defendants, which had been dismissed. He brought another claim, essentially based on similar allegations. The defendants applied to strike out the new claim and for a civil restraint order. The Chancery Division, in allowing the defendants’ application, held that the claim would be struck out as an abuse of process. Further, it was appropriate for an extended civil restraint order to be made. The proceedings concerned a probate claim that had been brought following the death of the deceased. The parties to those proceedings included the claimant, G, and the deceased’s sister, B. B had issued proceedings (the 2009 proceedings) against G and his wife, seeking damages for false representations, which it was alleged G had made to B. The 2009 proceedings were compromised by a settlement, the terms of which were reflected in a Tomlin order. B subsequently died. G applied to set aside the Tomlin order. That application was dismissed. G issued new proceedings (the 2012 proceedings) against the defendants, including B, the executors of her estate and a firm of solicitors. G asserted that the 2009 proceedings had been advanced and promoted by B and another by deliberate misconduct. He alleged conspiracy to defraud, among other things, and claimed to be entitled to monetary relief in the sum of £1,378,731.07. The defendants applied for the 2012 proceedings to be struck out. Judgment was entered in their favour and G was ordered to pay their costs on the indemnity basis. Permission to appeal was refused. G issued a new claim in 2014, which was essentially similar to his claim in the 2012 proceedings. It was contended that G had made some five claims or applications in respect of the defendants. The defendants applied, under CPR 3.4, for the new proceedings to be struck out and for a civil restraint order, under CPR 3.11. G accepted that his claims against the third and fourth defendants, the solicitors and the executors of B’s estate, could not be pursued. The defendants submitted that the statement of case disclosed no reasonable grounds for bringing or defending the claim and that it was an abuse of process or otherwise likely to obstruct the just disposal of the proceedings. The court ruled:

(1)

The present proceedings represented an abuse of the court’s process. On

any view, they involved a replay of matters on which G had already lost.

Whether or not the current particulars of claim could be said to

incorporate some cause of action that was not advanced in the 2012

proceedings, the two sets of proceedings covered very much the

same ground and were rooted in the same facts. The similarities

were evident. In all the circumstances, the present proceedings

involved unjust harassment of the defendants. Further, even if allowed to

go to trial, the proceedings would be bound to fail (see [27]-[29] of

the judgment) The claim would be struck out as against all the defendants. The claim would be recorded as being totally without merit (see [30] of the judgment). Gleeson v J Wippell & Co Ltd [1977] 3 All ER 54 applied; Johnson v Gore Wood & Co (a firm) [2001] 1 All ER 481 applied; Secretary of State for Trade and Industry v Bairstow; Re Queen’s Moat House plc [2004] 4 All ER 325 applied; Aldi Stores Ltd v WSP London Ltd [2007] All ER (D) 433 (Nov) applied.

(2)

G had issued at least five claims or applications that were totally

without merit and, hence, had done so persistently. In all the

circumstances, it was appropriate for an extended civil restraint order to

be made (see [43] of the judgment) (see [40] of the judgment)

An extended civil restraint order would be made (see [43] of the judgment). Lilley v Euromoney Institutional Investor plc [2014] EWHC 2364 (Ch) considered.

Discovery Rawlinson and Hunter Trustees SA (in its capacity as trustee of the Tchenguiz Discretionary Trust) v Director of the Serious Fraud Office and others [2015] EWHC 266 (Comm) Discovery – Production of documents. The proceedings concerned the property developer Vincent Tchenguiz, who had been investigated by the Serious Fraud Office (SFO). The claimant trustee of the Tchenguiz trust applied for permission to use certain documents disclosed in the main proceedings in a pending appeal a in separate proceedings in Guernsey. The Commercial Court dismissed the claimant’s application and allowed the SFO’s application for an order under CPR 31.22(2), in effect restoring the protection afforded under CPR 31.22(1) in respect of the relevant documents. The proceedings concerned a fraud investigation against T, by the Serious Fraud Office (SFO). The main claims had been settled. The claimant (R&H) applied in its capacity as trustee of a discretionary trust, pursuant to CPR 32.12, for permission to use certain documents disclosed, and extracts of witness statements served, in the 45

main proceedings in a pending appeal in separate proceedings in Guernsey (the Guernsey proceedings). Those documents included: (i) 78 documents disclosed by the SFO in the main proceedings; (ii) witness statements served by the SFO in the main proceedings; (iii) notes of various meetings held between the SFO and an advisory firm, GT (the GT documents); and (iv)various reports (the GT reports). The court had refused previous similar applications to use documents generated by the SFO in the course of the criminal investigation concerning T. R&H issued a further application (the public domain application) seeking a declaration that some 26 documents were already in the public domain by virtue of the exception in CPR 31.22(1)(a) and were therefore not caught by any prohibition against collateral use. The SFO cross-applied, under CPR 31.22(2), for an order re-imposing protection in respect of those documents. The issues for consideration were:

(i)

whether the application should be struck out in whole or in part on the

basis that they were an abuse of process;

(ii)

if not, whether the application should be granted; and

(iii) whether the SFOâ&#x20AC;&#x2122;s application should be granted in respect of the 26

documents. The SFO contended that R&Hâ&#x20AC;&#x2122;s applications should be

struck out where there had been delay and that the court had had to

deal with the applications on a piece-meal and fragmentary basis which,

in turn, had led to additional court time being used to the considerable

detriment of other court users.

The court ruled:

(1)

The court was very troubled by the repeated number of applications

that had been made by R&H in the present court, as well as the delay

in making such applications and the lateness of service of relevant

material in support of the applications. There was a strong argument for

dismissing the present applications as being an abuse of process or

simply to exclude a large amount of the material recently served on

behalf of R&H. However, having regard to all the circumstances, the court

would decide against taking such an extreme step (see [12] of the

judgment). It followed that the applications would be dealt with on their merits (see [12] of the judgment).

(2)

The SFO was a public body and there was a continuing public interest that

the workings of Government should be open to scrutiny and criticism. The

burden lay firmly on the applicant to show special circumstances which

constituted a cogent reason for permitting collateral use. There was

a strong public interest in preserving the integrity of criminal investigations

and protecting those who provided information to prosecuting authorities

from any wider dissemination of that information, other than in the

resultant prosecution. The requirement imposed on a non-party to disclose

documents, pursuant to CPR 31.17, constituted or might constitute a

serious invasion or intrusion into that partyâ&#x20AC;&#x2122;s privacy and confidentiality.

Such factors might constitute a relevant additional factor in the balancing

exercise which the court was required to perform under CPR 31.22 (see

[18], [21], [29] of the judgment).

In the present case, the burden had remained on R&H, under CPR 31.22, to persuade the court that there were special circumstances which constituted a cogent reason to justify the court making an order permitting the collateral use of documents. On the facts, R&H had failed to show special circumstances which constituted a cogent reason for permitting collateral use of any of the 78 documents. In respect of the witness statements, the balancing exercise came down against permitting collateral use of the extracts. In respect of the GT documents and reports, R&H had not met the burden, and the balancing exercise was against the grant of permission, under CPR 31.22 (see [35], [44], [60], [69] of the judgment). The application under CPR 31.22(1) and CPR 32.12 would be refused. No order would be made to permit the collateral use of the 78 documents, the witness statements, the GT documents or the GT reports in the Guernsey Proceedings (see [40], [44], [60], [73] of the judgment). Tchenguiz v Director of the Serious Fraud Office (HM Procureur for Guernsey) [2014] All ER (D) 14 (Nov) applied; Halcon International Inc v Shell Transport and Trading Co Ltd [1979] RPC 97 considered; Crest Homes plc v Marks [1987] AC 829 considered.

(3)

There were very good reasons for making an order under CPR 31.22(2) in

effect restoring the protection afforded under CPR 31.22(1) in respect of

the relevant documents. Among other things, the documents related to

the SFOâ&#x20AC;&#x2122;s criminal investigation and therefore engaged the strong public

interest against collateral use (see [88], [89] of the judgment).

The SFOâ&#x20AC;&#x2122;s application under CPR 31.22(2) would be granted. An order would be made under CPR 31.22(2) prohibiting the collateral use of the 26 documents (see [94], [95] of the judgment). 47

Scott (otherwise Morgan) v Scott [1911-13] All ER Rep 1 considered; Harman v Secretary of State for the Home Department [1983] 1 AC 280 considered; SmithKline Beecham Biologics SA v Connaught Laboratories Inc [1999] 4 All ER 498 considered; Lilly Icos Ltd v Pfizer Ltd [2002] 1 All ER 842 considered; NAB v Serco Ltd [2014] All ER (D) 144 (Apr) considered.

Summary Judgment Warner-Lambert Company, LLC v Actavis Group PTC EHF and others [2015] EWHC 223 (Pat) Practice – Summary judgment. The claimant company owned the patent for a drug. In earlier proceeding, its application for an interim injunction was dismissed on the basis that its infringement claim did not raise a serious issue to be tried. The defendants applied for the claim to be struck out or for summary judgment dismissing the claim. The Patents Court held that the proper course was to establish the facts at a trial before attempting definitively to determine the law in respect of subjective intention in respect of the patent in question. Accordingly, summary judgment dismissing the claim was not appropriate. The claimant company, W-L, owned the patent for a drug, Lyrica (pregabalin), which was also used for the treatment of pain. It brought a claim for patent infringement against the defendants, in respect of their alleged intended use of pregabalin medicine in the United Kingdom, under the trade mark ‘Lecaent’. In earlier proceedings (see[2015] All ER (D) 184 (Jan)), W-L’s application for an interim injunction was dismissed on the basis that its infringement claim did not raise a serious issue to be tried and that, even if it did, the balance of the risk of the injustice favoured refusal of the relief sought. The defendants (including Actavis) applied to strike out the claim for infringement of the patent, pursuant to CPR 3.4(2)(a). Alternatively, they sought summary judgment dismissing that claim. W-L applied for permission to amend its particulars of claim to plead a case of ‘subjective intention’. The issues for consideration were: (i) whether the particulars of claim or amended particulars of claim disclosed reasonable grounds for alleging subjective intention on the part of Actavis, in particular, whether Actavis intended Lecaent to be dispensed for treating pain; and (ii) whether the claim should be struck out. The court ruled:

(1)

The particulars did not support the inference that Actavis intended Lecaent to be dispensed for treating pain. Accordingly, the amended

particulars of infringement did not disclose reasonable grounds for alleging subjective intention on Actavis’ part (see [31] of the judgment). Three Rivers District Council v Bank of England [2000] 3 All ER 1 considered.

(2)

Although the amended particulars of infringement did not disclose

reasonable grounds for alleging subjective intention on the part of

Actavis, and subjective intention was required, that did not mean that

the claim was bound to fail. The court might be wrong about the requisite

mental element. In any event, it was a developing area of the law and

therefore the proper course was to establish the facts at a trial before

attempting definitively to determine the law. That was particularly so given

that the issue was one which was likely to be suitable for consideration

not merely by the Court of Appeal, but also by the Supreme Court (see

[60] of the judgment).

Summary judgment dismissing the claim would not be granted (see [60] of the judgment).

Indemnity Costs Siegel v Pummell [2015] EWHC 195 (QB) Costs – Orders for costs. Following judgment in his favour (see [2014] All ER (D) 196 (Dec)), the claimant sought indemnity costs and costs reserved against the defendant. The Queen’s Bench Division held that the conduct of the defendant’s expert, requiring the recall of the claimant’s expert, had been so out of the norm that it justified an order for indemnity costs with respect to the costs of the recall. Further, the costs reserved should reflect the outcome of the litigation and would be awarded to the claimant. In December 2014, judgment was entered for the claimant against the defendant (see [2014] All ER (D) 196 (Dec)). The order provided that the defendant should pay the claimant’s costs on the standard basis, to be assessed if not agreed. The present proceedings concerned the claimant’s application for indemnity costs from the date the defendant’s allegedly inappropriate conduct began and costs reserved, concerning an application which had resulted in orders dispensing with a joint statement. The claimant alleged that the defendant had engaged in inappropriate conduct by: (i) personal attacks against his medical legal experts; (ii) the experts’ inability to reach agreement on a joint statement; (iii) making allegations of dishonesty

against him without having properly pleaded them and without proper evidence to do so; (iv) serving late evidence and late witness statements in unsatisfactory circumstances; and (v) the fact that he had had to recall his expert to deal with the new basis upon which the defendant’s expert had presented his evidence. The court ruled: The complaints concerning the personal attack against the claimant’s medical legal experts, the joint statement process, the improper allegations of dishonesty and the serving of evidence did not justify the award of costs on an indemnity basis. However, the conduct of the defendant’s expert had been so out of the norm that it justified an order for indemnity costs. The costs of the recall of the claimant’s expert, occasioned by the defendant’s expert would be awarded on an indemnity basis. The costs reserved should reflect the outcome of the litigation and would be awarded to the claimant (see [20], [22], [27], [36], [38]-[40] of the judgment). Kiam v MGN Ltd (No 2) [2002] All ER (D) 65 (Feb) considered; Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hamer Aspden & Johnson (a firm) [2002] All ER (D) 39 (Jun) considered.

Costs Simpson v MGN Ltd [2015] EWHC 126 (QB) Practice – Pre-trial or post-judgment relief. Following the hearing of a preliminary issue in a defamation case in which the claimant was successful, the defendant submitted that the claimant should not be award any costs at all or alternatively that it should be reduced on the basis that a master had already set a cost budget which had not included the preliminary issue and that the claimant had failed to serve a costs schedule on the defendant. The Queen’s Bench Division held that there was good reason to depart from the costs budget however there would be a deduction to reflect the claimant’s failures. In a defamation case with a preliminary issue regarding the meaning of the words complained of, the court heard the claimant’s application to strike out the defendant’s plea of justification, and the defendant’s cross-application for permission to amend that plea. The court went on to decide the preliminary issue of what the defamatory meanings were (see [2015] All ER (D) 155 (Jan)). It struck out the plea of justification and refused permission to amend. The claimant applied for an order for costs in the sum of £24,096.20 inclusive of VAT, as set out in a statement of costs dated 16 January 2015 which had been filed with the court.

The defendant submitted that the court should not award the claimant any costs at all. Alternatively, quantum should be reduced as: (i) the claimant’s approved costs budget (approved by a master in a case management conference) had not included any sum in respect of the costs of the applications which were determined, and there was no good reason to depart from the budget (the costs budget point); and (ii) the claimant had failed to serve a costs schedule on the defendant, with the consequence that no costs order should be made, if it otherwise would be. Alternatively, that failure should be reflected in the court’s approach to what order as to costs should be made (the costs statement point). What had in fact happened was that the claimant had budgeted for a possible preliminary issue before the CMC. Although the master had reached no conclusion on that figure, he had not disapproved. The claimant did submit a revised budget for agreement, albeit prompted by the defendant to do so. It did so within three weeks of issuing its application and some six weeks before the hearing. The defendant’s solicitors failed to respond. The defendant submitted that there had previously been an approved costs budget for the claimant and since that budget had included no provision for the preliminary issue it followed that there should be no costs order in favour of the claimant. Consideration was given to CPR 3.18(a) which focused attention on budgets for phases of the litigation. The court ruled: If costs management was to work, conclusions reached upon reviewing costs budgets had to be adhered to, and not second-guessed at a later stage. The wording of CPR 3.18(a) focused attention on budgets for phases of the litigation. It was clear from CPR 3.18(b) that if a figure had been agreed or approved for a particular phase of proceedings the amount recoverable by the receiving party in respect of that phase would be capped at that figure, unless there was good reason to depart upwards. If significant developments took place which increased the cost of a phase, or added an element of cost, a revised figure should be discussed, and if not agreed submitted for approval, if time allowed. Equally, if a party’s budget for a particular phase had been reviewed and assessed at nil, there would need to be good reason to award any costs at all (see [19] of the judgment). The application of the wording of CPR 3.18(b) was not so straightforward in the circumstances of the case and on the facts, there was good reason to depart from the budget approved by the master for this phase of the litigation, by allowing recovery of some costs by the claimant. It was true that the claimant had failed to submit a revised budget, as required, for the court’s approval prior to the

hearing. However, having regard to the wording of CPR 31.18 what the defendant sought by way of a sanction for that failure, was that the claimant’s recoverable costs of success on the applications should be assessed at nil. That was not a sanction prescribed by the Practice Direction or the rule. That would be unjustly disproportionate and not sufficiently justified by the overriding objective, the need to enforce compliance with rules, practice directions or orders, or any of the other specific aims listed in CPR 1.1(2). In reaching that conclusion the court was influenced by several circumstantial factors (see [22] of the judgment). Taking the instant approach involved a sanction for the claimant’s failure to comply with the Practice Direction which was just and proportionate in the circumstances of the case, and one which in more general terms provided a sufficient incentive to parties to comply. That approach involved an assessment which made every assumption against the party which had failed to submit an amended budget, and properly compensated the defendant for the additional costs involved (see [20], [21] of the judgment). The claimant should recover 90% of the costs which would have been approved as reasonable had the claimant submitted his budget for approval in advance of the hearing, assessed on the assumption that the Master would have taken the most parsimonious approach possible within the bounds of what is reasonable; less a deduction to reflect the fact that the claimant’s failures caused the defendant to incur additional costs, beyond those it would have incurred if the claimant had sought and obtained prior approval from the Master (see [3] of the judgment).

ATE Legal Expense Insuranc McGraddie and another [2015] UKSC 1 Abstract Costs – Order for costs. Following his successful appeal (see [2013] All ER (D) 384 (Jul)), the claimant sought an order that the Scottish Legal Aid Board (the Board) pay his expenses, including his after the event insurance (ATE) premium. The Supreme Court held that, absent agreement or a specific statutory sanction to the contrary, a successful party to litigation could not recover an ATE premium, however reasonably incurred, as part of his costs or expenses of legal proceedings. Accordingly, the claimant would be awarded his expenses of the appeals to the Extra Division of the Inner House and to the court against the Board, but not the ATE premium. Digest The judgment is available at: [2015] UKSC 1

The court previously allowed the claimant’s appeal against the decision of the Extra Division of the Inner House (see 2012 Scot (D) 22/4) and reinstated the Lord Ordinary’s decision (see [2009] CSOH 142) in his favour (see [2013] All ER (D) 384 (Jul)). The defendants were legally aided in the Inner House and in the Supreme Court, but the claimant was not. Accordingly, the claimant sought an order that the Scottish Legal Aid Board (the Board) pay his expenses, pursuant to s 19(1) of the Legal Aid (Scotland) Act 1986. The claimant submitted that his £40,000 after the event insurance (ATE) premium should be recoverable as part of his expenses. The Board contended that the ATE premium was not an item of expenses or costs which was recoverable. The court ruled: As a matter of principle, in the light of the terms of the relevant court rules and on the basis of consistent judicial authority from England and Scotland, the law was clear. In the absence of agreement or a specific statutory sanction, either expressly or through valid delegated legislation, to the contrary, a successful party to litigation could not recover an ATE premium, however reasonable it had been to have incurred it, as part of his costs or expenses of legal proceedings (see [19] of the judgment). The claimant would be awarded his expenses of the appeals to the Inner House and to the court in the proceedings against the Board. However, those expenses would not include the ATE premium of £40,000 paid by the claimant (see [22] of the judgment). Callery v Gray, Russell v Pal Pak Corrugated Ltd [2001] 3 All ER 833 considered; Callery v Gray [2001] 4 All ER 1 considered; Callery v Gray [2002] 3 All ER 417 considered; McNair’s Executrix v Wrights Insulation Co Ltd 2003 Scot (D) 19/10 considered.

Negligence Coope and others v Ward and another [2015] EWCA Civ 30 Negligence – Duty to take care. A wall dividing the claimants’ and the defendants’ gardens collapsed. The claimants brought proceedings. The judge ordered, inter alia, that the parties owed to each other a measured duty of care in respect of the consequences attendant upon the collapse of the wall and that, in respect of any engineering or other solution which might be devised to deal with the consequences, the contribution of the defendants was to be a rateable proportion of the cost of such

solution. The Court of Appeal, Civil Division, in allowing the defendantsâ&#x20AC;&#x2122; appeal, held that, in the circumstances, the judge had been entitled to have found that there had been measured duties of care on both sides, but it had not been just and reasonable to have imposed on the defendants a liability to contribute to the cost of some unspecified engineering solution. Digest The judgment is available at: [2015] EWCA Civ 30 The first and second defendants owned a property, 62 Armstead Road. The claimants owned another property, 41 Orchard Lane. About one third of the back garden of 62 Armstead Road abutted the back garden of 41 Orchard Lane. At the end of the gardens of the Armstead Road houses there was a wall, part of which divided 41 Orchard Lane from numbers 58, 60 and 62 Armstead Road. In 2010, after heavy snowfall with snow accumulating on the ground, part of the boundary wall collapsed into the gardens of 60 and 62 Armstead Road. The claimants brought proceedings against the defendants. The judge found, inter alia, that: (i) the cause of the collapse of the wall had been the additional loading on the wall (on the Orchard Lane side) as the depth of earth behind it increased from four feet to nine feet; (ii) the trigger of the collapse had been the loading by the snowfall; and (iii) the claimants were not responsible for the addition of the loading against the wall and were not liable in nuisance. The judge made an order which declared, inter alia, that the parties owed to each other a measured duty of care in respect of the consequences attendant upon the collapse of the boundary wall and that, in respect of any engineering or other solution which might be devised to deal with the consequences attendant upon the collapse of the wall, the contribution of the defendants was to be a rateable proportion of the cost of such solution and, in any event, such contribution was not to exceed the cost of providing a wall capable of retaining land to a depth of four feet along the length of that part of the collapsed wall. The defendants appealed. The issues before the court were, first, whether the defendants owed to the claimants a measured duty of care which, in certain circumstances, might arise as between adjoining landowners in respect of a hazard arising on their land without their fault. The court considered Duke of Westminster and others v Guild([1984] 3 All ER 144) (Duke of Westminster). Second, the extent of any such duty and, in particular, whether it had been reasonable to require the defendants to contribute to the cost of reconstruction. The appeal would be allowed.

(1)

Whether such a duty of care existed was to be determined by the law

of negligence, not the law of property, and it was plain that such a duty

could exist where no question of easement arose. The fact that tortious

principles led to a liability when principles of property law would not

did not render the law incoherent. The Duke of Westminster did not

preclude the existence of any duty of care relating to lack of support (see

[37], [38], [90], [91] of the judgment).

The essence of the situation was that, after the collapse, there had been, on account of the defective condition of both properties, a real risk that damage would be done to both of them by the claimantsâ&#x20AC;&#x2122; land falling on that of the defendants, even if nothing was done, as well as if steps were taken to clear up the collapse that had already occurred. In those circumstances, the judge had been entitled to have found that there had been measured duties of care on both sides. At the very lowest, the defendants would be obliged to allow access to their land to enable the claimants to carry out any work that might be necessary to shore up their land or protect it from further falling (see [52], [53], [90], [91] of the judgment). Goldman v Hargrave [1966] 2 All ER 989 considered; Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] 1 All ER 17 considered; Westminster (Duke) v Guild [1984] 3 All ER 144 considered; Holbeck Hall Hotel Ltd v Scarborough Borough Council [2000] 2 All ER 705 considered; Abbahall Ltd v Smee [2002] All ER (D) 323 (Dec) considered.

(2)

It had not been just and reasonable to have imposed on the defendants

a liability to contribute to the cost of some unspecified engineering

solution. First, the cause of the collapse had been the overloading of 41

Orchard Lane over the years. Prima facie, it did not seem reasonable to

require the defendants to pay for what had been neither their fault nor

within their control. Second, it was unreasonable to require a contribution

to a solution which was entirely unspecified. Thirdly, there were a number

of difficulties with the judge having thought that a fair, reasonable and

just result had been reached by the limitation on what had been required

of the defendants to the cost of providing a wall capable of retaining

land to a depth of four feet. However, that did not mean that the

defendants could have no obligations on account of a measured duty of

care towards the claimants (see [75], [76], [78], [80]-[84], [90], [91] of the

judgment).

Section 4 March 2015

ATE Legal Expense Insurance McGraddie v McGraddie and another[2015] UKSC 1 The court previously allowed the claimant’s appeal against the decision of the Extra Division of the Inner House (see 2012 Scot (D) 22/4) and reinstated the Lord Ordinary’s decision (see [2009] CSOH 142) in his favour (see [2013] All ER (D) 384 (Jul)). The defendants were legally aided in the Inner House and in the Supreme Court, but the claimant was not. Accordingly, the claimant sought an order that the Scottish Legal Aid Board (the Board) pay his expenses, pursuant to s 19(1) of the Legal Aid (Scotland) Act 1986. The claimant submitted that his £40,000 after the event insurance (ATE) premium should be recoverable as part of his expenses. The Board contended that the ATE premium was not an item of expenses or costs which was recoverable. The court ruled: As a matter of principle, in the light of the terms of the relevant court rules and on the basis of consistent judicial authority from England and Scotland, the law was clear. In the absence of agreement or a specific statutory sanction, either expressly or through valid delegated legislation, to the contrary, a successful party to litigation could not recover an ATE premium, however reasonable it had been to have incurred it, as part of his costs or expenses of legal proceedings (see [19] of the judgment). The claimant would be awarded his expenses of the appeals to the Inner House and to the court in the proceedings against the Board. However, those expenses would not include the ATE premium of £40,000 paid by the claimant (see [22] of the judgment). Callery v Gray, Russell v Pal Pak Corrugated Ltd [2001] 3 All ER 833 considered; Callery v Gray [2001] 4 All ER 1 considered; Callery v Gray [2002] 3 All ER 417 considered; McNair’s Executrix v Wrights Insulation Co Ltd 2003 Scot (D) 19/10 considered.

Negligence Coope and others v Ward and another [2015] EWCA Civ 30 The first and second defendants owned a property, 62 Armstead Road. The claimants owned another property, 41 Orchard Lane. About one third of the back garden of 62 Armstead Road abutted the back garden of 41 Orchard Lane. At the end of the gardens of the Armstead Road houses there was a wall, part of which divided 41 Orchard Lane from numbers 58, 60 and 62 Armstead Road. In 2010, after heavy snowfall with snow accumulating on the ground, part of the boundary wall collapsed into the gardens of 60 and 62 Armstead Road. The claimants brought proceedings against the defendants. The judge found, inter alia, that: (i) the cause of the collapse of the wall had been the additional loading on the wall (on the Orchard Lane side) as the depth of earth behind it increased from four feet to nine feet; (ii) the trigger of the collapse had been the loading by the snowfall; and (iii) the claimants were not responsible for the addition of the loading against the wall and were not liable in nuisance. The judge made an order which declared, inter alia, that the parties owed to each other a measured duty of care in respect of the consequences attendant upon the collapse of the boundary wall and that, in respect of any engineering or other solution which might be devised to deal with the consequences attendant upon the collapse of the wall, the contribution of the defendants was to be a rateable proportion of the cost of such solution and, in any event, such contribution was not to exceed the cost of providing a wall capable of retaining land to a depth of four feet along the length of that part of the collapsed wall. The defendants appealed. The issues before the court were, first, whether the defendants owed to the claimants a measured duty of care which, in certain circumstances, might arise as between adjoining landowners in respect of a hazard arising on their land without their fault. The court considered Duke of Westminster and others v Guild([1984] 3 All ER 144) (Duke of Westminster). Second, the extent of any such duty and, in particular, whether it had been reasonable to require the defendants to contribute to the cost of reconstruction. The appeal would be allowed.

(1)

Whether such a duty of care existed was to be determined by the law

of negligence, not the law of property, and it was plain that such a duty

could exist where no question of easement arose. The fact that tortious

principles led to a liability when principles of property law would not

did not render the law incoherent. The Duke of Westminster did not

preclude the existence of any duty of care relating to lack of support (see

[37], [38], [90], [91] of the judgment).

The essence of the situation was that, after the collapse, there had

been, on account of the defective condition of both properties, a

real risk that damage would be done to both of them by the

claimantsâ&#x20AC;&#x2122; land falling on that of the defendants, even if nothing was

done, as well as if steps were taken to clear up the collapse that had

already occurred. In those circumstances, the judge had been entitled to

have found that there had been measured duties of care on both sides.

At the very lowest, the defendants would be obliged to allow access to

their land to enable the claimants to carry out any work that might be

necessary to shore up their land or protect it from further falling (see [52],

[53], [90], [91] of the judgment).

Goldman v Hargrave [1966] 2 All ER 989 considered; Leakey v National

Trust for Places of Historic Interest or Natural Beauty [1980] 1 All ER 17

considered; Westminster (Duke) v Guild [1984] 3 All ER 144 considered;

Holbeck Hall Hotel Ltd v Scarborough Borough Council [2000] 2 All ER 705

considered; Abbahall Ltd v Smee [2002] All ER (D) 323 (Dec) considered.