piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

A Handbook for Litigants in Person Published

The Judiciary of England and Wales have sought to pre-empt the predicted wholesale increase in litigants-in-person by publishing what it has modestly titled ‘A Handbook for Litigants in Person’. I say “modestly” as it runs to some 170 pages and appears on a first read through to be extremely comprehensive. Indeed the learned editors have gone so far as to provide the would-be amateur litigator with a brief history of the process of litigation (for example, a brief mention of the Saxon origins of the County Court!).  It appears to be a valiant effort in any event to proffer some valuable guidance into the process of litigating in England and Wales, which must appear to be Byzantinely-complex to many. The Handbook clearly requires an intelligent reader and one with pretty advanced literacy skills. This observation surely must not be a surprise to the said learned editors, but probably reflects the reality of the projected altering demographic of litigant in person in the courts. The Handbook is available online at:  http://www.judiciary.gov.uk/Resources/JCO/Documents/Guidance/A_Handbook_for_Litigants_in_Person.pdf

Suitability and work equipment: a new test and an even greater burden on employers?

On 23rd April 2013 the Enterprise and Regulatory Reform Act received royal assent. One of the most controversial changes that it will introduce is an amendment to the Health and Safey at Work Act 1974, the effect of which will be to abolish civil liability for breach of the various ‘six pack’ regulations which govern employer’s liability. The regulations can still be relied upon as evidence of a failure to exercise reasonable care, but the burden will rest with the injured employee to prove that the accident has been caused by the negligence of the employer.     The difference between liability for negligence at common law, and the stricter requirements of regulations emanating from Europe, was brought into sharp focus by the recent court of appeal decision in Hide v The Steeplechase Company (2013) EWCA Civ 545. The claimant was a self-employed jockey. He jumped the first hurdle at Cheltenham racecourse when his horse stumbled and fell. It careered sharply to the right, which caused Mr Hind to fall, hit the ground and roll sideways into one of the upright posts of the guardrails surrounding the track. The Defendant was able to produce quantities of evidence that the track had been audited and inspected by relevant regulatory bodies and found to be of the highest standard in terms of safety. Indeed, the Court of Appeal commented that the course had received consistently ‘glowing recommendations’ and that no concerns had ever been raised about the safety of the fencing or its proximity to the hurdle. However, the Claimant relied upon regulation 4 of the Provision and use of Work Equipment Regulations 1998. The argument, in simple terms, was that, applying Robb v Salamis (2007) ICR 175, work equipment which might foreseeably cause injury was not suitable. Accordingly, since the fence and hurdle were work equipment (a point which was not appealed) and since it was foreseeable that a rider might fall off a horse whilst negotiating a hurdle and strike the fence, suffering injury, the equipment was therefore unsuitable.  The trial judge found that the Claimant bore the burden of proving that injury was foreseeable. He held that no accident had ever taken place before, that this accident occurred in a truly bizarre fashion, the risk of injury and falling was inherent in horse-racing and  it was not reasonably foreseeable that the Claimant would suffer injury in the way that he did.   On appeal, the Court of Appeal reiterated that it was irrelevant that the precise mechanism of the accident was not foreseeable: only foreseeability of some injury was necessary. This was a point that the House of Lords had already emphasised in Robb v Salamis and, to this extent, the judgement takes the law no further. However, the Court went on to find, after a careful analysis of the Work Equipment Directive, which implements the 1998 Regulations, that: 1)      Once the Claimant shows that he has suffered injury as a result of contact with a piece of equipment which may be unsuitable, the burden shifts entirely to the Defendant. 2)      The Defendant can only escape liability by proving either that the accident was due to unforeseeable circumstances beyond its control or to exceptional events the consequences of which could not be avoided in spite of the exercise of all due care on his part. Somewhat bizarrely, therefore, the Court of Appeal has brought the fault of the employer back into the equation under Regulation 4 (whereas previously only foreseeability was relevant). However, at the same time, it has set the hurdle (no pun intended) so high as to make it extremely difficult, if not impossible, for the employer to discharge the burden in the vast majority of personal injury claims.  On the facts of the case, the racecourse had not shown the accident fell within either of the narrow exceptions above and liability was therefore established. The decision in Hide will no doubt be cited, by proponents of the new legislation, as a fine example of the reason that change is required. The judge at first instance, whose decision was overturned, regarded the Claimant’s arguments as demonstrating “the relentless logic of the personal injury lawyer”. The Court of Appeal plainly had some sympathy with this position but concluded that the Regulations simply “give rise to a form of liability which is a stricter liability than at common law”  It will be interesting to see what extent the same case would be decided differently after the new legislation comes into force.

CPR 3.14 - How Explicit and Draconian?

The notes in the White Book below Civil Procedure Rule 3.14 suggests the “rule is explicit and the consequences of failure to comply Draconian”. The rule itself provides that “Unless the court otherwise orders, any party which fails to file a budget despite being required to do so will be treated as having filed a budget comprising only the applicable court fees.” It has yet to be tested by way of an appeal to the Court of Appeal (despite the author’s best efforts on several occasions). However it would appear that guidance is likely to be forthcoming soon. In an interesting twist to an interesting case, the High Court limited costs awarded to Andrew Mitchell MP in his litigation against The Sun to applicable court fees only due to his "absolute failure" to discuss budget assumptions with the newspaper and failure to ask for additional time in advance. At a case management conference in June of this year, Mitchell and The Sun were ordered to exchange costs budges as per the new CPR regime. Mr Mitchell’s lawyers however failed to do so and thus the court, in accordance with the explicit and draconian wording of CPR 3.14, held that he would thus be "limited to a budget consisting of the applicable court fees for his claim". After hearing evidence about the reasons behind the non-compliance the sanction was not lifted. Master McCloud took a strict approach and is widely reported as holding that: “Budgeting is something which all solicitors by now ought to know is intended to be integral to the process from the start, and it ought not to be especially onerous to prepare a final budget for a CMC even at relatively short notice if proper planning has been done…", and that "The court must now, as part of dealing with cases justly, ensure that cases are dealt with at proportionate cost and so as to ensure compliance with rules, orders and practice directions…" The Master noted that it would have been "far more likely" that the sanction would have been lifted against Mitchell before the reform of the CPR in this regard. However she said that in "the absence of authority on precisely how strict the courts should be and in what circumstances", and "[i]t will be for the appeal court to determine whether such a strict approach is appropriate". That appeal would be "on the basis that the severe nature of the sanction which I have imposed in giving effect to [the costs reforms] ... are of necessity not backed by specific authority on point, and the risk of injustice if I were adopting too strict an approach is such as to provide 'some other compelling reason' for an appeal to be heard”.

Litigants in Person, the Judges and You!

      According to the government's own figures, 623,000 of the 1,000,000 people who previously received public funding each year ceased to be eligible for such assistance when the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 came into force on 1 April 2013.   On 5 July 2013 the Judicial Working Group on Litigants in Person (LIPs) published its report on how the judiciary proposes to deal with the massive increase in LIPs in courts and tribunals. It merits careful reading by all practitioners.    www.judiciary.gov.uk/Resources/JCO/Documents/Reports/lip_2013.pdf    The challenges are immense and will be further increased by the impending rise in the financial limit for the small claims track from £5,000 to £10,000. A doubling of this limit will inevitably mean more cases fall within the small claims track where public funding is not available. As for alternative sources of assistance, the Citizens Advice Bureau estimates that local advice and community based services will lose over 77% of their public funding.    In 2012, District Judge Richard Chapman, the immediate past president of the Association of Her Majesty’s District Judges observed that already:   “Judges like me are spending more and more of our time having to deal with litigants who simply do not know the law, have never heard of the Civil Procedure Rules 1998 or the Family Procedure Rules 2010 and have breached most of the case management directions”.    The report recommends that the Ministry of Justice and Her Majesty’s Court and Tribunal Service should devote the necessary time and resources to producing, with judicial involvement, appropriate materials, including audio-visual materials, to inform LIPs what is required of them and what they can expect when they go to court as well as reviewing the information that is currently publically accessible on the various judicial websites – see [2.8] and [3.49-3.52] of the report.   The Judicial College should also urgently assess the  feasibility of providing training on LIPs –  a sort of “Quick Lit” course for judges – together with developing a  “litigants in person toolkit” utilising the existing judicial guidance – see [2.9] and [4.9-4.19] of the report.   More far reaching proposals include:   1.      The inclusion in the CPR of a dedicated rule which makes specific modifications to other rules where one or more of the parties to proceedings is a litigant in person.  2.      The introduction of a power into Rule 3.1 CPR to permit the court to direct, where at least one party is an LIP, that proceedings should be conducted as a more inquisitorial form of process.  3.      The introduction of a specific general practice direction or new rule in the CPR to address, without creating a fully inquisitorial form of procedure, the needs of  LIPs in obtaining access to justice whilst enabling  courts to manage cases consistently – see [2.10] and [5.11] of the report.    The stark reality is that in some courts and tribunals LIPs will be the rule rather than the exception. This will inevitably slow down and drive up the cost of proceedings and take up valuable judicial time. Equally inevitably, the call will surely go out from the judges to practitioners at all levels for assistance in responding to the challenges that lie ahead.   Image – www.123rf.com

What is a Witness Statement?

What is a witness statement? What is it for? And what should it contain?   These are all questions which ought to be simple-enough to answer. However frequently it appears to those involved in litigation that the simple-enough answers are not always correct! Witness statements not infrequently go wildly beyond the confines of a lay witness’s actual knowledge of proceedings; opinions and hearsay are sneaked in; and witnesses sometimes appear to make sweeping legal submissions. It is not always easy to persuade a trial judge in a preliminary oral application ahead of a case to strike through offending paragraphs. One is often met with a rebuff that any offensive aspects of a witness statement will merely be judicially ignored.   A recent judgment of the Chancellor of the High Court, Sir Terence Etherton in J D Wetherspoon plc v Harris & Ors [2013] EWHC 1088 (Ch) may provide a litigator in such a situation with a useful authority, as well as affording guidance to anyone drafting witness evidence in a civil case.   In his judgment, the Chancellor exemplified the tenor of the latest round of CPR reform in advocating a back-to-basics and streamlined approach to witness statements.    The applicant (a firm which really does seem to have made a far greater than average contribution to the jurisprudence of personal injury law – now it seems, even from the Chancery Division) made the bold application to strike out the majority of a witness statement adduced by one of the defendant parties. This was upon the basis that the said witness statement contained little more than a recitation of facts based upon documents, commentary upon those documents, argument, submissions and expressions of opinion. In short, Wetherspoons thought the witness statement was improper and abusive.   Counsel for the two respondent parties submitted that as his clients were accused of dishonesty, and as neither party employed any personnel who had direct knowledge of the subject matter of the allegations of dishonesty, they were entitled to adduce evidence refusing the accusations with reference to the documents available in the case.    The Court disagreed and with reference to CPR 32.4 (and paragraph 7 of the Chancery Guide, 7th Edition), held that the witness could not give such opinion evidence orally at trial, nor could he comment factually upon events to which he had no first-hand knowledge or make submissions. Thus, it was held (whilst acknowledging that the said rules were not set in stone and in certain circumstances could be relaxed) that the witness could not give such evidence in written form as contained within the witness statement.  

Privatising the Courts - things can only get better?

“Err... sorry but, we have your skeleton argument, but the Judge says he doesn’t have any other documents from the Defendant. It seems half the court file has been lost”   This was the lament from a very long-suffering court usher to the author just yesterday morning ahead of a Fast Track trial. It is not an unfamiliar complaint in most barristers' experiences. Indeed, it is so familiar that many counsel take an entire copy of a trial bundle to court, in the expectation that something has gone awry with the papers. Even the district and circuit benches appear resigned to what are at times, ludicrous, failures in the administration of the court. Suffice to say, no castigation was meted out by the trial judge, who made do with a bodged-together trial bundle supplied by counsel on the day of the hearing.   It is not just the (apparently) endemic problem with court documents going missing, there are other examples of maladministration of the County Courts which are continuing sources of great annoyance, delay and – ultimately – expense to litigants. The late re-listing of trials is particularly frustrating. Most counsel have tales of how this has lost them countless working days. My opponent in a trial in a somewhat far-flung West County court, had flown down the night before and was enjoying an early beer in his hotel, only for him to be told – at five to six – that the matter was adjourned due to judicial non-availability (I am glad I planned to take the sleeper and was still in London!). This sort of thing was wholly available. After investigations by our respective clerks, it was known that the particular judge was not going to be available from at least the day before!   Whether the system is badly and inefficiently run due to incompetence or maladministration, or (as I have often been told after waiting on behalf of my client for two hours for a three line order to be drawn up) it is due to (what is usually non-specifically referred to as) ‘understaffing’ would appear to be a matter for debate. It certainly appears true that large numbers of court staff have been cut in the last few years. Though many of the more heinous failures in the system would not appear to necessarily be causally-related to this.   Up until now, nobody has questioned whether anything could be done, despite there being likely widespread support that something should be done. There has been a sense of resignation among judges, court staff and court users alike.   Well, what about the privatisation of some courts as suggested by Chris Graying, the Justice Secretary?   Such a move would establish the courts service as a commercial enterprise, with court buildings and staff (but not judges or magistrates) transferred to the private sector. An idea is mooted that the Court’s independence could be protected by a Royal Charter. The courts would be in-part funded by charging wealthier litigants higher court fees. It is predicted that the move could save the Ministry of Justice £1 billion a year.   Like with many of the reforms of the Government, things are looking as though they are to move on apace. Mr Graying will receive some proposed options for reforms in the next weeks and is thereafter expected to set a timetable for implementation, with some commentators expecting things to potentially happen this Autumn.   A problem for Mr Grayling is that (along with almost everything he does) the legal profession oppose any such moves, with the Chairman of the Bar and various heavyweight lawyer members of the House of Lords, protesting openly.   However is there anything fundamentally objectionable in principle with private companies administrating an arm of the state?   Assuming that there is not (perhaps a big assumption) – are things likely to be any better? Will those witness statements actually reach the court file? This must be far from certain, given the privatisation of court translation services, which has been widely reported as having been a fiasco. But then again, it would be hard for things in some courts to get very much worse!   Like with many things at this time of change in the legal world, sadly the conclusion is “watch this space”. But expect change to be rapid if it comes!  

Snails, Soft Drinks and Dissolving Rodents

Every law student who has sat through their first lecture on tort law is likely to come away remembering something about a Mrs Donoghue. She of course went to a cafe in Paisley and ordered a bottle of ginger beer to drink with an ice cream. As she poured out some of the drink, she alleged she found the remains of a decomposed snail. The rest is – as they say – history, as Lord Atkin promulgated his “neighbour principle” and the modern law of negligence was born.   A curious twist of course was that we will never know if there really was a snail in present in Mrs Donoghue’s giner beer as the case settled after the House of Lords remitted it for trial before the Outer House of Session.   Donoghue v Stevenson was preceded by another Scottish case of Mullen v AG Barr & Co Ltd. This concerned the finding, of dead mice in bottles of ginger beer by no less than three children of the same family. In Mullen the Scottish Court of Session dismissed the plaintiffs claims on the basis that there was no legal relationship between the drinks producer and the final consumer upon which to sue, but it is unclear if the mice were actually held to have indeed been present or not.   Despite what must be considerable advances in standards of manufacturing from 1920s Scotland, it seems that “animals in drinks” cases continue to be litigated.    Earlier this year, a Mr Ball of Edwardsville, Madison County, Illinois brought a lawsuit PepsiCo in negligence after he discovered the partially decomposed body of a mouse in a tin of Mountain Dew “soda”. He alleged he was violently ill after drinking some from the tin and discovered the mouse after he poured the remaining drink in to a cup. He was reported to have sought $50,000 in damages.   Quite aside from the fact that the bases for the law of negligence are settled, like the defendant parties in Donoghue and Mullen, PepsiCo denied the presence of the offending mouse. Their reasoning did not extend to the fastidiousness of the manufacturing process, when the drink was produced or bottled however. PepsiCo argued that Mountain Dew contains such acidic chemicals that any small animal in the tin, would have been all-but dissolved or at least reduced to an unrecognisable goo.   PepsiCo’s argument was that should a mouse be submerged in a fluid with the acidity of Mountain Dew would, after a week, “have no calcium in its bones and bony structures, the mouse’s abdominal structure will rupture, and its cranial cavity (head) is also likely to rupture”. Therefore, they argued that Mr Ball’s version of events could not possibly be correct as the mouse must have been in the tin for a period substantially in excess of a week.   An early advertising slogan for Mountain Dew in the 1960s was "Ya-Hoo Mountain Dew. It'll tickle you innards." One commentator has suggested that perhaps Pepsi ought to revive this slogan, however changing the word "tickle" to "dissolve"?    

Vicarious Liability for Sex Abusers: Catholic Child Welfare Society v Various Claimants (1) The Institute of Christian Brothers (2)

Just this morning, the Supreme Court has given judgment in the historic child abuse case of Catholic Child Welfare Society v Various Claimants (1) The Institute of Christian Brothers (2) [2012] UKSC 56. A fuller report will appear on the PiBlawg, no doubt in due course.     Lord Phillips, giving the sole judgement of the Court held that there are two stages in establishing vicarious liability: (a)    first whether the relationship between the abuser and the defendant was capable of giving rise to vicarious liability; and (b)   secondly examination of the connection that linked the relationship between them and the abuser’s wrongful conduct. Applying this test, the Institute, an unincorporated association, was vicariously liable for the acts of abuse committed by its members who worked in a school under a contract of employment with a third party.   This case may be of inadvertent pertinence in the coming years in light of what the Press suggest it likely to be a veritable avalanche of civil claims brought by victims of child abuse, brought in the wake of the allegations made against Jimmy Savile and others working at the BBC and other institutions. The nature of the employment is likely to be of paramount importance in such cases, especially in those where the alleged abuser is deceased and/or impecunious.   Lord Faulks QC and Alistair Hammerton of 1 Chancery Lane appeared for the Second Respondents.  

RTA Fraudsters Beware!

As I expect many will agree, there has been a recent upsurge in the past 12 or so months in cases of alleged fraudulent accidents coming before the courts. Are these sorts of accidents becoming more common? Or are insurer’s simply getting tougher and more bullish in alleging fraud? I think the answer is possibly “both”. There are some typical hallmarks of these sorts of fraud which can often be easily observed on a reading of the papers. Further research into a party’s (and often their relatives’) claim history can be very illuminating.   But of course such fraudulent claimants should be aware, it seems that the High Court also wishes to send a message out to them that they too are getting tougher on ‘this sort of thing’.     The Administrative Court (Sir John Thomas and Silber J) gave judgment yesterday in Liverpool Victoria Insurance Company Limited v Bashir & Ors. This case was a fairly standard sort of fraudulent motor insurance claim – a contrived accident between parties (a husband and wife inviting the involvement of acquaintances) who agreed to share any profits from the multiple claims for personal injuries and special damage. What was slightly more unusual in this case (and from some experience, I stress the “slightly”) was that the parties were prepared to involve their two children, one of whom was only 4 months old.   What perhaps is genuinely more unusual is that in the course of the proceedings, the Respondents admitted the claim was fraudulent.   In a move which could only be welcomed by insurers, the court held that it had no option but to impose an immediate custodial sentence upon the fraudulent (adult) parties, in the interests of the public at large and in deterring such conduct in the future. The court would have imposed a sentence well in excess of 12 months but took into account the fact that the Respondents’ admitted the fraud, and that the husband and wife assisted Liverpool Victoria with the disclosure of documents. On these Respondents, the court imposed a sentence of 6 weeks imprisonment. On the other Respondents the same sentence was imposed, but was however suspended to reflect the fact that the husband and wife had induced them into being involved.

Government U Turn on the office of Chief Coroner

Those of you who have any regular involvement in or contact with the coronial process will no doubt have shared my sinking feeling when it was announced during the bonfire of the quangos that the office of Chief Coroner was not going to be implemented.  I was surprised and pleased to see that yesterday Ken Clarke announced a u-turn on this issue, although in limited form. The background to this development is that the Coroners and Justice Act 2009 provided for the appointment of a Chief Coroner and Deputy Chief Coroner.  The purpose of these roles was to provide national leadership for the coronial system in England and Wales, with aims to improve standards.  The Chief Coroner was also intended to provide a new route of appeal from inquests, removing the cumbersome and expensive requirement to judicially review decisions, however small.  In October 2010 the government announced that, in the current economic climate, plans to implement the office of Chief Coroner would not proceed.  The government proposed to abolish the office of the Chief Coroner and to transfer some of the Chief Coroner’s functions to alternative bodies.  The Public Bodies Bill was the means by which it was intended that the office would be abolished, although the provision enacting this power was defeated in the House of Lords in December 2010.  Thereafter the plan became not to abolish the office, but to provide that the functions could be transferred elsewhere.  The plan not to enact the office of Chief Coroner has been very unpopular and heavy opposition has been mounted by charities such as the Royal British Legion.  Yesterday Mr Clarke said in a statement: "Over recent months I have listened to and reflected on the concerns raised across Parliament, by families and by other groups, including the Royal British Legion, that a single figure needs to be responsible for the coroner system. "I am prepared to have one last try to meet those arguments and so have taken the decision to implement the office of the chief coroner. "The existing mechanisms for challenging a coroner's decision will remain in place and will avoid the need for expensive new appeal rights. The new post will be focused on working to deliver the reform to coroners' services that we all want to see and which I previously argued should be delivered by the Lord Chief Justice and myself. "Everyone is agreed that the priority is raising the standards of coroners' inquiries and inquests to ensure that bereaved families are satisfied with the whole process. "I am therefore giving the chief coroner the full range of powers to drive up standards, including coroner training, as well as setting minimum standards of service through the new Charter." So... partial good news then.  The central oversight of the coronial system that is so desperately needed will be implemented.  Unfortunately however, we are stuck with JR for the foreseeable future as the route of appeal against controversial decisions.