piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

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.   

A Good Winter for the Amateur Pothole Hunter?

The Sunday Times’ motoring supplement yesterday contained a cheery article entitled “Brace yourself for a winter of holey hell”. It was of course referring to what appear to be fast becoming a national obsession among many – potholes!   The article referred to the findings of an “army of amateur pothole hunters” recruited by the AA. (Perhaps this is seen as a less sedentary alternative to train/bus spotters?). Well, in what the Sunday Times has called "the most comprehensive audit yet of the state of the roads", some 1,100 people recorded some 24,000 defects bigger than 6” in diameter and 2” deep on Britain’s roads, in addition to defective manhole and utility covers.   The AA has helpfully suggested the findings of the survey suggest some form of infectious disease has infested the UK's tarmac. The President of the AA is quoted as saying “It shows that the UK has a pothole plague”. Mr King also proffered an equally helpful legal prediction by suggesting “compensation claims will soar when cold weather strikes and roads start breaking up again”.   Well, will they?        To add to the general doom and gloom, the paper references the Asphalt Industry Alliance as suggesting there is already a backlog of pothole work worth some £10.5 Billion!   So how will highways authorities cope with the unholy trinity of another harsh winter; depleted budgets; and road users increasingly informed and willing to bring claims against them when they damage their vehicles or themselves after hitting road defects?   One highways authority suspended regular inspections during the winter of 2009-10 so that they could focus on what I have described to many a district judge as “an unprecedented deluge of complaints”. My private personal view is that this is wholly reasonable in times of extremely poor weather and one which allows the highways authority to retain its special defence under section 58 of the Highways Act 1980. This seems to be the most reasonable, pragmatic and effective means of inspection, maintaining and repairing roads in such circumstances. The most significant defects on the busiest roads can be prioritised over undertaking annual or bi-annual inspections of lightly used local access roads. This seems to me to be the most practical way of minimising accidents, injuries and even loss of life in this situation.   However, the Court of Appeal almost a year ago in Wilkinson v City of York Council [2011] EWCA Civ 207, held that this approach was likely to land the highways authority as being unable to rely upon section 58. It was held that financial considerations are not a factor when looking at whether the authority had done what was "reasonably required". Under section 58 this required "an objective judgment based on risk." The section 58 defence was not designed for an authority which decided that it was preferable to allocate its resources in other directions because other needs were more pressing than doing what was reasonably required to make the roads safe.   So perhaps a highways authority will be better able to resist claims brought concerning accidents which occurred in periods of very poor weather by sticking to their regular inspection regimes rather than attempting to limit the damage? This may mean they face more claims brought against them, as the AA predicts, however they are more likely to have good section 58 defences to them.  

RSA Repair Costs - an end to the saga?

There has been a significant and until now unpublicised development in the long-running line of case concerning inflated repair costs claimed by RSA.   Well, as the judgment is on BAILII and publicised on the Judiciary Website, this is not quite an exclusive, but it is close!   Judgment was handed down in Kevin Fallows v Harkers Transport on Friday 2 September 2011. It came to my attention appearing at a trial the day before, when the district judge I was appearing before hinted very strongly that HHJ Platt in Fallows had come to a very firm decision in a case which should put this matter to bed. For what it is worth, the district judge in my case held that in his view these cases "were tantamount to fraud" and that counsel should go outside and "talk". The matter was settled by consent.   HHJ Platt, sitting at Romford County Court sought to clarify the situation as to various standard charges RSA was routinely claiming from defendant insurers, pursuant to an arrangement whereby their clients’ motor repairs were carried out by a subsidiary company. The judgment is somewhat scathing of this approach and suggests that simply this is a matter of the trite law of causation; reasonableness; mitigation and simply the obligation upon a claimant party to prove its loss.   The judge is also scathing as to the frequent refusal by RSA to disclose any proper invoices from repairing garages. The Judge held that by redusing to do so, the cases had little chance of settling without requiring a trial. At paragraph 60, the court held: “The court is left with the clear and unhappy impression that the provisions of CPR r 1.3 have simply passed by RSA and its solicitors unheeded both in this case as in others, and they remain in a mindset where the obligation to make proper disclosure is some kind of optional extra.”   Is this an end to the saga? HHJ Platt clearly intended his judgment to constitute some kind of final word. He held at the final paragraph that: “Although this is not a binding judgement in terms of the rules of precedent it carries a degree of authority which requires claimant's solicitors and advocates to carry out their professional duty to the court by bringing the judgement to the attention of any judge before whom they appear in any subsequent case in which these issues are litigated. Failure to do so may lead to costs orders under CPR 44.14.”   Read all about it at http://www.bailii.org/ew/cases/Misc/2011/16.html

Clinical Negligence Claims against the NHS Up 30%

The NHSLA published its annual report on 4 August 2011. Last year: (a)    it faced 8,655 clinical negligence claims, an increase from 6,652 the year before (up about 30.11%); (b)   of those,  5,398 cases were settled with only about 4% being resolved by litigation; and (c)    it paid out £729,100,000 pursuant to these, which was an increase from £651,000,000 the year before;   The report welcomes the introduction of the reforms recommended by the Jackson Review and laments the increased costs they have been facing claimed by claimant solicitors. It states: “We paid over £257m in total legal costs, of which almost £200m (76% of the total costs expenditure) was paid to claimant lawyers... we paid over £257m in total legal costs, of which almost £200m (76% of the total costs expenditure) was paid to claimant lawyers.”   The Report raises many issues. Two of note would be: (a)    Why has there been this recorded increase in claims? Are doctors becoming more negligent, or is our culture simply becoming increasingly litigious and the legal markets have facilitated this? Has the Recession contributed to this? (b)   Whilst they will undoubtedly assist in maintaining proportionality between damages and costs, how will the Jackson Reforms (particularly the irrecovarability of CFA uplifts from unsuccessful defendants), affect access to justice?   The Report is available at: http://www.nhsla.com/NR/rdonlyres/3F5DFA84-2463-468B-890C-42C0FC16D4D6/0/NHSLAAnnualReportandAccounts2011.pdf    

Ski, Riding and Now... Cycle Helmets

In my recurring theme as to contributory negligence and protective headwear (not to mention my citing of the most authoritative legal sources – this time “The Metro” 29 July 2011), there is a corpus of medical opinion which advises against making cycling helmets compulsory. This is on the grounds that such a law is likely to decrease cycling activity and that it is “inconclusive” whether helmets reduce injuries.   Certainly then, this is something that Clamant parties in cycling head injuries may wish to consider when faced with arguments as to contributory negligence.