piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

'Plebgate', budgets, relief from sanctions and a new kind of justice

The Court of Appeal have now finally had their say on the Jackson Reforms: "...we hope that our decision will send out a clear message". The message is that a "new more robust approach..." has arrived. Failure to file a costs budget in time will result in parties being "treated as having filed a budget comprising only the applicable court fees" and relief from sanctions will only be granted where there has been a "trivial breach" or where there is a "good reason". The new approach "will mean that from now on relief from sanctions should be granted more sparingly than previously". Mr Mitchell's case (Andrew Mitchell MP v News Group Newspapers Limited [2013] EWCA Civ 1526) provided the perfect vehicle for the Court of Appeal. The Sun newspaper had reported that Mr Mitchell had engaged in a foul mouthed rant against police officers. Mr Mitchell issued proceedings alleging defamation on 7th March 2013. A CMC and costs budget hearing was fixed for 18th June 2013. On 17th June Master McCloud sent an e-mail to the parties' solicitors noting there was no budget for the claimant. The budget was filed that afternoon with an estimated figure of £506,425. Master McCloud ordered that the claimant be treated as having filed a budget comprising only the applicable court fees and she adjourned the CMC and budget hearing to another date at which any relief from sanctions application would be heard. That date involved her moving another hearing which had been listed to deal with claims arising out of "asbestos-related diseases". At that hearing she refused the application for relief from sanctions. Amongst other things she said there was no evidence of particular prejudice to Mr Mitchell, she took account of the Master of the Rolls' speach on the Jackson Reforms which said that a tough approach was required so that justice could be done in the majority of cases. She said that the stricter approach under the Jackson reforms had been central to her approach. The Court of Appeal upheld her decisions. As to confining the claimant to court fees, it said that CPR 3.14 (confining the defaulting party to court fees) was not just directed to the case of a party who does not file a budget at all. Budgets being filed in time (7 days prior to the hearing) was important in order to enable the hearing to be conducted efficiently and for discussions to take place beforehand. The judge was therefore not wrong to apply the sanction. As to relief from sanctions, the Court of Appeal said that the provision in 3.14 "unless the court otherwise orders" involved the same considerations as relief from sanctions under CPR r.3.9. All the circumstances of the case should be taken into account but more weight should be given to the two factors listed in the new rule (directed at efficiency, proportionate cost and compliance with rules etc.). The Master of the Rolls cited and endorsed his speech on the Jackson Reforms about a more robust approach and taking account of the failures to comply on other court users (illustrated, as though almost by design, by vacation of the hearing of the asbestos-related claims). Guidance was given by the Court of Appeal: relief will only be granted where the default is "trivial" for example where there has been a failure of form rather than substance and where a deadline has been narrowly missed. Where it is not trivial the burden is on the defaulting party to persuade the court to grant relief and it will need a "good reason". Examples given were a document not being filed due to a party or solicitor suffering from a debilitating illness or an accident or where later developments in litigation show the period for compliance was unreasonable. Merely overlooking a deadline on account of work or otherwise was unlikely to be a good reason. A key point for practitioners in difficulties is that applications for an extension of time made before time has expired will be looked upon more favourably than applications for relief made after the event. The Court of Appeal found the perfect case to make their point. It involved a politician from one of the parties currently in government and which is presiding over the reduction of resources in the court system. The vacating of the asbestos-related claim illustrated the knock on effect of inefficiency and failure in one claim on other litigation. However the decision is extremely harsh: failure to comply by 7 days on the part of his solicitors has meant that Mr Mitchell will be unable to recover the costs of his action if he is successful. Those costs are estimated to be £506,425 - which suggests that the sanction is hardly proportionate to the breach. One wonders whether there is not in fact a much more appropriate sanction. Mr Mitchell's solicitors have said that they will carry on and that he will not be affected financially by the judgment. But in other cases it might well lead to a claim for professional negligence - a step which would clog up the court system with more complicated satellite litigation. Are judges really to second guess what impact a failure might have on the court system as a whole when for the most part they have little evidence to assist them with attaching weight to this factor?The Master of the Rolls said in his speech that "the achievement of justice means something different now" - the extremity of this decision begs the question whether one would still define it as "justice" or just a hard form of utilitarianism.  Photo courtesy of freefoto.com (Photographer: Ian Britton)

Accidents at sea: the limitation traps for claimants and defendants

The Athens Convention is notorious for catching out PI practitioners with its current two year limitation period* for accidents at sea. Indeed the few reported cases on it are mainly concerned with whether it is possible to extend time (Higham v Stena) or whether a cause of action exists outside the Convention (Norfolk v My Travel) – both resulted from a failure to issue in time. Judgment is shortly to be handed down in a case which may make life even more complicated for the personal injury practitioner. The issue is whether Article 16 of the Athens Convention extinguishes the cause of action or whether it bars the remedy. This fine distinction rarely troubles most personal injury practitioners but it has historically been a feature of our, and other, common law jurisdictions. In the UK we have, with exceptions, a system of limitation which stops a litigant accessing a remedy on the expiry of a period of time. Exceptions include claims relating to land and defective products. Other jurisdictions have a system of prescription which means that when time expires, the cause of action is extinguished. Why does this matter? Because under section 1(3) of the Civil Liability Contribution Act 1978 a party may claim a contribution from another tortfeasor who is liable for the same damage, except where the cause of action against that other tortfeasor has been extinguished. Where that is the case the contribution claim cannot proceed after the expiry of the time limit and there is no 2 year limitation period under section 10 of the Limitation Act 1980. In The Celtic Pioneer the judge heard arguments on the third party claim last week. The claimant was employed by the defendant and was seconded to another organisation. Whilst with that organisation she was injured on a boat trip. Her (former) solicitors missed the 2 year limitation period against the boat company and she sued the defendant (a strategic health authority). The defendant sought to bring in the carrier which successfully struck out the defendant’s claim on the basis that the cause of action was extinguished by Article 16 of the Athens Convention. The appeal was heard last week. The twist is that Article 16 is couched in the language of being a ‘Time-bar’ to an ‘action being brought’ which contrasts starkly with the equivalent provisions of the Warsaw and Montreal Conventions which refer to the cause of action being ‘extinguished’. The defendant argued that regardless of the language of a ‘time-bar’, Article 16 extinguishes the cause of action on the expiry of the 2 year limitation period. Claimants may miss the 2 year time limit but there is the potential that this judgment will catch out defendants wanting to bring third party proceedings and not realising that they must also bring their claims within 2 years of the accident. Indeed the same logic would apply to other international conventions given the force of law in the UK. Watch this space for the result... (John Ross QC and Ian Miller were counsel for the Appellant in The Celtic Pioneer).   *The limitation period may technically be suspended or interrupted up to a limit of 3 years under Article 16.3 or extended by agreement under Article 16.4F Photograph: Ian Britton FreeFoto.com

A defendant's nightmare?

  A Defendant’s Nightmare?   Sarah Davison would normally get to her desk by 6 a.m., work for twelve hours and often head out thereafter to meet and entertain clients. Sleep felt like it was secondary to achievement. She worked in a macho environment and her boss was a man who, in the words of Andrews J, “does not suffer fools gladly, or indeed at all”. But Mrs Davison was well-paid: at the time she left on maternity leave to have her first child she was earning over £200,000 a year. When, after giving birth to that child, she suffered a career-ending injury as a result of clinical negligence, the resulting claim was always going to be of the size that makes defendants and their insurers wake up in a cold sweat in the middle of the night.   Andrews J’s judgment on damages (Sarah Davison v Craig Leitch [2013] EWHC 3092 (QB)) makes interesting reading. A court called upon to assess loss of earnings in such a situation is engaged in a difficult exercise, perhaps best characterised, to borrow one of my favourite judicial dicta of Lindsay J, as “a glance at a crystal ball of, so to speak, only a low wattage” (see Douglas v Hello! Ltd (No.5) [2003] EWHC 786 (Ch)). There are often a number of variables and changing any one of them can have a significant effect on the ultimate award.   One approach is to consider a number of possible scenarios, determine the probability of each of them occurring, and then multiply that figure by what would have been earned in each scenario; that can sometimes be the only way to do justice, particularly where a person had a chance of a “big break” which, had it occurred, would have lead to very significant rewards. The kick-boxing claimant in Langford v Hebran [2001] PIQR Q13 is a good example of this approach being applied; it works best where there are a limited number of clearly defined possible scenarios; where they are more numerous, or the lines between them more blurred, the calculation can become unwieldy.   The more traditional approach, and the one adopted by the court in Davison, is simply to make a best guess as to how the claimant’s career would have progressed absent the tort. This will inevitably involve scrutiny of the claimant’s pre-accident career and abilities. Andrews J was clearly impressed by the evidence on this point of Mrs Davison’s ex-boss, a man so busy he had to give evidence “via video link ... en route to catching a plane”. There may also be a need, particularly in a volatile or cyclical industry such as financial services, to assess what the future demand would have been for a person’s services.   Andrews J broadly accepted the Claimant’s evidence on these two points; where she differed was as to the likelihood of the Claimant continuing in her pre-accident role as an equities trader once her three children were born, holding “it highly unlikely that when Mrs Davison returned to work after her maternity leave ... she would have had the appetite to return to the stresses of the trading floor and face the prospect of never seeing her three small children during the week ... However much she would like to believe otherwise, in my judgment it is far more likely that she would have moved to a less stressful position within the bank, involving shorter working hours.”   The judgment is also interesting for its award of £6,500 for loss of congenial employment. Given the description of Mrs Davison’s working life at the start of this post, one may well question whether it can really be described as “congenial”. Andrews J justified the award on the basis that Mrs Davison’s “future is uncertain and any work she does undertake in future is likely to be fairly solitary and considerably well paid”. This is curious reasoning. The fact that the Claimant was likely to be paid less was, of course, compensated by an award for future loss of earnings. It might be said that her earnings are relevant to what was in effect an award for loss of status, but here again surely one has to look at all the circumstances of her pre-accident employment. Andrews J found as a fact that the most likely future for the Claimant would be running her own small business, possibly as an interior designer. Of course, that would lack the stimulus and status of a job in the City, but it would also lack its stresses and uncertainties. Can it really be said, taking everything into account, that the Claimant’s overall quality of life would undoubtedly be the poorer? Less well-paid, certainly; but less congenial? - it is perhaps to be doubted. There is a danger that awards under this head will become routine in all cases where a claimant is unable to pursue their chosen career. Perhaps the Law Commission’s suggestion that this should not be a separate head of damage at all, but rather should be considered as part of the award for PSLA, deserves reconsideration.        

“Safe sex” – Part 3

Sex activity is “in every sense a personal choice”.   Ordinarily this truism might not find its way into legal submissions and certainly not submissions by the Solicitor-General of the Commonwealth of Australia. However, ordinarily injuries at work do not arise from a “vigorous” sex session in a motel bedroom.   Regular readers will recall the story so far in relation to this unfortunate “on the job” injury which raises important questions for personal injury and employment lawyers in the UK about the types of activities which can properly be said to arise out of or in the course of employment.    The respondent, a female public servant sued the Australian federal government after being injured while having sex on a work trip in a motel bedroom. The respondent’s partner’s evidence was that they were “going hard” when a glass light fitting came away from the wall above the bed striking her in the face and causing both physical and psychological injuries.   The appellant claimed compensation because her injuries were caused “during the course of her employment” as she had been instructed to travel to and spend the night in a motel in a small town in New South Wales ahead of a departmental meeting early the next day.   The respondent, Comcare, the Australian government's workplace safety body, rejected the claim on the grounds that sexual activity “was not an ordinary incident of an overnight stay like showering, sleeping or eating”. That decision was upheld by the Administrative Appeals Tribunal.   Nicholas J. allowed the appellant’s appeal - see PVYW v Comcare (No 2) [2012] FCA 395. Comcare appealed to the full court of the Federal Court of Australia (FCA) which dismissed its appeal – see Comcare v PVYW [2012] FCAFC 181.   In particular, the FCA rejected Comcare’s submission that an injured employee must show both that the injury occurred at a place where he or she was induced or encouraged by the employer to be and that the activity from which the injury arose was induced or encouraged by the employer or was implicitly accepted. It held that the potential conditions for liability were not conjunctive in the sense that an activity test should be super-imposed on a place test. There was no combined or two-stage test. There was a single test which may be satisfied in either one of two ways.   Comcare appealed to the High Court of Australia which on 30 October 2013 by a majority of 4-2 allowed the appeal and rejected the respondent’s claim for compensation – see Comcare v PVYW [2013] HCA 41.   The judgment of the majority was given by Chief Justice French AC. The essential enquiry in each case was “how was the injury brought about?” Sometimes the injury will have occurred at and by reference to the place where the employee was. Usually, however, it will have occurred while the employee was engaged in an activity.   The majority held at [38] that “when an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity?  When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment”.    It follows that where an activity was engaged in at the time of the injury, the relevant question is not whether the employer induced or encouraged the employee to be at the place where the injury ocurred because such inducement or encouragement is not relevant to the circumstances of the injury.   Put another way, an employer is not liable for an injury which occurs when an employee undertakes a particular activity if the employer has not in any way encouraged the employee to undertake that activity but has merely required the employee to be present at the place where the activity is undertaken.   Two justices dissented. Bell J. held at [106] that “consideration of the connection between the circumstances of the injury and the employment relation would be to add complexity at the cost of certainty and consistency”. Gageler J. agreed holding at [159] that “The particular activity in which the respondent was engaged at the time she was injured does not enter into the analysis”.     The High Court’s decision means that in Australia an employer will not become, in reality, an insurer for an employee in respect of any activity carried out at a place which the employee has been induced or encouraged by the employer to be. It also provides useful guidance to UK lawyers who may be called upon to deal with unusual work place related injuries.   The decision also restores certainty and structure to the law of employers' liability in Australia – something which was sadly lacking in the motel light fitting in question!  

Punching inanimate objects and common sense

In 2010 Lewis Pierce was nine and a half years old and one day was playing at school with his younger brother George; both boys went over to a water fountain and George sprayed Lewis with water. George, seemingly not seeing the funny side then attempted to punch his brother, who being a sensible lad moved out of the way. Lewis missed George and ended up hitting the water fountain, cutting his right thumb. Consequently proceedings were started with the local authority as the Defendant, it being alleged that the water fountain had a sharp underside which amounted to a real and foreseeable risk. The judge at first instance agreed with this holding that there was a real risk that children might skylark around and could easily trip and cut their heads against the underside of the fountain (you’ll note that this wasn’t what happened to Lewis!). As such, Lewis was awarded £3,215.16. The Defendant appealed and the Court of Appeal (MR, McFarlane LJ and Sharp LJ) has today handed down their decision (West Sussex CC v Master Lewis Pierce (A child by his litigation friend Mrs Annette Pierce) [2013] EWCA Civ 1230. The Court allowed the appeal with Lady Justice Sharp noting that the trial judge had failed to identify and then answer the correct legal question. The judge failed to mention the Occupiers’ Liability Act 1957 and proceeded on the flawed basis that “once he had determined that the underside of the water fountain was sharp and there was a possibility that an accident might occur, the defendants were liable for what happened unless they had conducted what the judge described as a properly considered risk assessment.” Sharp LJ helpfully set out the correct question in such cases: “The question which has to be addressed … is whether as a matter of objective fact, visitors to the School were reasonably safe in using the premises, including for this purpose, the water fountain, bearing in mind of course that children do not behave like adults, and are inclined to lark around.” The answer to the question in this case was “yes”, the water fountain was reasonably safe (or more accurately that the evidence did not establish that it was not safe). The Court did not consider the underside of the fountain to be sharp (having had the opportunity to look at it) but even if it were sharp is was said that “by no stretch of the imagination could it be said to constitute a danger to children. Certainly the edge could be have been bevelled, or padded, and had that been done the claimant might not have injured his thumb. But to say that misses the point it seems to me. The School was not under a duty to safeguard children against harm under all circumstances … as a matter of generality, the School was no more obliged as an occupier to take such steps in respect of the water fountain than it would be in respect of any of the other numerous edges … against which children might accidentally injure themselves …”. In conclusion Sharp LJ said “The law would part company with common sense if that were the case, and I do not consider that it does so”.

CRO's: When is it time to go for 'the General'?

Some of you in the world of personal injury and clinical negligence may have had the misfortune of encountering vexatious litigants. Those litigants where another file opens, before the last file is closed - where much time, money and energy is spent on claims and applications that are eventually struck out as being totally without merit.   Following the case of Russell West v Gary Taylor-Duncan & Ors [2013] handed down on 12 September 2013, I thought a brief post on Civil Restraint Orders might be called for. In my experience, these orders are being sought more frequently. However, one must be careful to ensure that they are applying for the correct type of order and that they pass the relevant hurdles. It can be all too tempting to apply for the most extensive order too soon.   ·         A Limited Civil Restraint Order binds the Claimant from making further applications in the index claim without first obtaining permission.   ·         An Extended Civil Restraint Order (which is not the most “extensive” order, despite what the name may suggest) prevents the litigant from issuing further applications or claims    ·         Lastly, the General Civil Restraint Order prevents the litigant from issuing any claim or application in any of the specified courts without first obtaining permission. It is long since accepted that these orders do not infringe Article 6 of the European Convention on Human Rights because it does not bar the subject of the order from litigating; it simply limits their freedom to litigate so that they must obtain permission before issuing. It is often tempting to rush for the General Civil Restraint Order. But these orders are made in very limited circumstances. The case of West v Taylor-Duncan (2013) helpfully demonstrates the point. Mr West had persistently issued unmeritorious claims and re-litigated matters. The Court had no trouble concluding that a Civil Restraint Order of some kind was appropriate. The Court carefully reviewed the seven unmeritorious claims and found that there was a “common thread” between them – thus suggesting that an Extended CRO was appropriate.  Indeed, in some respects there was a significant overlap between the claims (in terms of cause of action and the facts), which is why the Master had stated that some of them were wholly without merit. On behalf of the Defendants it was argued that some of the claims were wider than the index claim, and sought a General Civil Restraint order on the basis that Mr West was now issuing claims based on a wider factual and legal basis. The Court found that there was some force in the Defendants’ argument that some of the claims went wider than the index claim. However, the matter was borderline and the court had to be satisfied that an extended Civil Restraint Order would not be appropriate in order to make a General CRO. There was no doubt that if Mr West continued in the same vein and brought wholly without merit claims not caught by an Extended CRO, a General CRO would suitable; however, it was not yet appropriate. Accordingly, Mr West was made subject to an Extended CRO. This illustrates that you must be prepared for the court to closely examine the earlier claims and applications (simply evidencing that the claims were struck as totally without merit is not sufficient), and you must satisfy the court that the less extensive order is not sufficient. If the Extended CRO proves insufficent, it remains open to you to make a further application for a General CRO during the course of the Extended CRO. This could mean more time, cost and energy - but you just might get there in the end! concerning any matter involving and/or relating to and/or touching upon and/or leading to the index proceedings without first obtaining permission.    

Failure to file costs budgets: a recent example in practice

Pursuant to CPR 3.12 and 3.13, unless the Court orders otherwise all parties (unless they are litigants in person) in a multi-track case commenced after 1st April 2013 must file and exchange costs budgets. The date for doing so will either be prescribed by the Notice of Proposed Allocation served by the Court pursuant to CPR 23(1) or, in the absence of a specific date, they must be exchanged and filed 7 days before the first CMC. The sanction for not filing a budget is contained in CPR 3.14 and is extraordinarily draconian: "Unless the Court orders otherwise, any party which fails file a budget despite being required to do so will be treated as having filed a budget comprising only the applicable court fees". This sanction grabbed the headlines recently in the Andrew Mitchell MP case (Mitchell v  News Group (2013) EWHC 2355), since his solicitors failed to file a budget on time and Master McCloud applied CPR 3.14 to its full effect (albeit only by analogy since the claim was a defamation action not strictly governed by the new Part 3 regime). She also gave permission of her own motion for the Claimant to appeal to the Court of Appeal. In Maisuria v London Borough of Ealing (Uxbridge CC, 18th September 2013, unreported) the Defendant did not file a costs budget until the day before the first CMC. However, when the Court sent out the CPR 23(1) notice of proposed allocation, the Defendant  completed the attached directions questionnaire indicating that the appropriate track was in dispute. The Defendant's case was that, based upon the existing medical evidence, the time estimate for trial (1 day) and the pleaded claim for special damage, it was a fast track case. The directions questionnaire contained a box stating that parties should file a costs budget in precedent H if the claim was "likely to be allocated to  the multi-track". The Defendant did not think it was likely, or indeed that the evidence supported a claim in excess of £25,000, and therefore elected not to do so. Shortly before the CMC, the Claimant served additional expert evidence indicating that his injury had not recovered in accordance with the original prognosis and was more serious than had been anticipated. In light of this deterioration, the Defendant accepted that the case should now be allocated to the multi-track and filed a Costs Budget on the day before the CMC. The Claimant argued that, by analogy with the Andrew Mitchell MP case, the Defendant should be limited to a costs budget comprising its Court fees, pursuant to CPR 3.14. DDJ Sofaer concluded, however, that the Mitchell case was distinguishable on its facts. Whereas in that case the reasons for not filing a budget related to the solicitors being under pressure of work and experiencing unexpected delays, in this case there had been a genuine jurisdictional dispute as to whether this was a multi-track case at all, and the Defendant had been served with the relevant evidence late in the day. The Court had a discretion built in to CPR 3.14 ('Unless the Court orders otherwise') and it was not necessary for the Defendant to make a separate application for relief from sanction. Accordingly, the Court approved the Defendant's (and Claimant's) budget and did not apply the sanction.

Playing with fire

Do the Fire Services as employers owe duties under health and safety regulations or at common law, or does a  ‘fireground immunity’ exist? These questions were dealt with by Irwin J in the tragic case of the Wembridge Claimants and others v East Sussex Fire and Rescue Service and others [2013] EWHC 2331. Two fire-fighters were killed and a number of people were injured when a container containing fireworks (estimated to have the equivalent to 190/300 kilograms of TNT) exploded. A farm was used for the storage of fireworks near Lewes which has the reputation of the fireworks capital of the UK. Two Mr Winters ran the outfit. One of the Mr Winters was inserting a detonator into a firework when it went off. He dropped it and ran and it then set light to other fireworks in his van which exploded and set fire to other parts of the farm. Alarmed nearby residents heard massive explosions and called the fire brigade. The Mr Winters were acting in breach of the relevant licensing conditions. When fire officers arrived they spoke to Messrs Winter. One made it plain that if fire reached a particular container then no one should be around when it did. The other Mr Winter tried to cover up and said that his brother didn’t know what he was talking about and that the container only contained wood. The Winters were subsequently convicted of manslaughter by gross negligence and one was sentenced to 7 and the other 4 years imprisonment. It was argued on behalf of the Fire Service that as the obligations imposed on them under the Fire and Rescue Services Act 2004 were not intended to give rise to civil liability for breach, the same should apply to the regulations made under the Health and Safety at Work Act 1974. It was also argued that the health and safety regulations were ultra vires when applied to fire-fighters. This was rejected by Irwin J who was of the view that breach of regulations was actionable except when the 1974 Act expressly excluded them. The Act did not do so for fire-fighters but did do so for the police. Some narrow exceptions were expressly made for fire-fighters under the Work at Height Regulations 2005 which would not have been made if they did not apply generally to fire fighters. Of particular interest given the pending general abolition of civil liability for breach of health and safety regulations was the argument that the Framework Directive 89/3914/EEC excluded application of domestic legislation to fire fighters. This will prove particularly interesting when the Enterprise and Regulatory Reform Act 2013 is brought into effect: many emanations of the state will be sued for breaches of EU Directives rather than the UK regulations. The fire service will then be able to argue immunity. For the time being member states are able to impose more onerous duties than those required by EU Directives and thus this argument did not assist the Fire Service. As to the duty at common law, the judge rejected the concept of a ‘fireground immunity’. He relied heavily on the dicta of Hale L.J. in Sussex Ambulance Trust v King [2002] EWCA Civ 953 where she said that the starting point was that an Ambulance Service owed the same duty of care towards its employees as does any other employer. She said that there was no special rule in English law qualifying the obligations of others towards fire-fighters or police officers, ambulance technicians and others whose occupations in the public service were inherently dangerous. Such public servants accepted the risks inherent in their work but not the risks which the exercise of reasonable care on the part of those who owe them a duty of care could avoid. Irwin J. thought it better that judgments were made on the facts about finely balanced decisions taken on the ground and failure to follow established practices rather than the blanket application of an immunity. The Fire Service was found in breach of duty for failure to recognise the risk of fireworks stored in bulk. It was found that there was inadequate knowledge and training. Had that not been so the site would have been evacuated earlier and the deaths avoided. The case is part of a general trend of the courts over the past 15 years of shying away from general immunities. The Fire Services were represented by Lord Faulks QC of 1 Chancery Lane. (Photo by Ian Britton and courtesy of freefoto.com)

CPRwatch: relief from sanctions

Does the original checklist under rule 3.9 (relief from sanctions) have any role now? That question was considered by Hildyard J in Thevarajah v Riordan (9th August 2013, unreported). The Claimant sought to strike out the Defendant’s Defence for failure to comply with an unless order in relation to disclosure. The Defendant sought relief from sanctions under CPR r. 3.9. The Defendant admitted that he had failed to give disclosure as ordered and the judge found that there were serious failings. The judge found that, although the checklist of relevant considerations under r.3.9 had been removed and replaced, they were nonetheless matters which the court needed to consider as they enabled the court to consider whether relief from sanctions was appropriate under the new r.3.9. Lest there be any doubt that he was reverting to the old ways of doing things the judge emphasised that the new r. 3.9 was not less rigorous but more so: the court should be slow under the new r.3.9 to draw the conclusion that relief from sanctions was appropriate and just. Once non-compliance with an unless order was established, what was required for relief from sanctions was a material change in circumstances (Tarn Insurance Services Ltd v Kirby [2009] EWCA Civ 19). There was no material change in circumstances in Thevarajah; in fact the Defendant’s position had worsened. Further, the Defendant was unable to show he had taken reasonable steps to comply with the unless order and therefore no relief was granted. This case highlights the fact that fundamentally rule 3.9 has not changed. The most important part of the old and the new rule is the emphasis on the court considering 'all the circumstances' so as to deal with the application justly. The original checklist was cumbersome but nonetheless a helpful steer as to what circumstances might be relevant. The new checklist is much less helpful: it merely repeats what a court must already take account of under the overriding objective. A judge who only took account of the need for efficiency, proportionality and compliance with court orders would be failing to take account of all the circumstances. Judges know that they are supposed to be tougher, but ultimately what most of them consider to be just in 'all the circumstances' is unlikely to have changed despite the best efforts of Jackson L.J.

The Length of Judgments and the Cost of Litigation

For a number of reasons, the cost of litigation is a hot topic at the moment.   Lord Justice Mummery in giving the lead judgment of the Court of Appeal in Neumans LLP v Andrew Andronikou & Ors [2013] EWCA Civ 916, suggested a way that he and his brethren could assist in ensuring that legal costs are kept to a minimum by judges keeping their judgments as short as possible.   He held that this would (at paragraph 40 of the judgment) “stem the soaring costs of litigants when their advisers have to spend too long working out what the law is. They may be faced with a multiplicity of separate, complex, discursive and (increasingly, imitating the style of subordinate legislation) cross-referential judicial pronouncements at different levels of decision, or at the same level of decision, but sometimes leading to the same overall result.” In this case which concerned a solicitor’s costs generated by the liquidation of Portsmouth Football Club, the Court of Appeal upheld the judgement below of Mr Justice Morgan.   Lord Justice Mummery asked (at paragraph 36): “What sensible purpose could be served by this court repeating in its judgments detailed discussions of every point raised in the grounds of appeal and the skeleton arguments when they have already been dealt with correctly and in detail in the judgment under appeal? No purpose at all, in my view.”   He advocated (at paragraph 37) that courts should follow the “excellent lead” of Lord Wilberforce in Brumby v Milner (1975) 51 TC 583. In this case, Lord Wilberforce (with whom the rest of the court agreed) gave a single page opinion In a one-page tax opinion, stating that he would go no further in stating the law than the Court of Appeal had done below (who themselves affirmed the judgment of Walton J at first instance).    Lord Justice Mummery continued (at paragraphs 38-39):   “… The proper administration of justice does not require this court to create work for itself, for other judges, for practitioners and for the public by producing yet another long and complicated judgment only to repeat what has already been fully explained in a sound judgment under appeal. If the judgment in the court below is correct, this court can legitimately adopt and affirm it without any obligation to say the same things over again in different words. The losing party will be told exactly why the appeal was dismissed: there was nothing wrong with the decision appealed or the reasons for it.”    “… It can do so, as in an old style judgment, by setting out short legal propositions relevant to this case and the conclusions reached by applying them in this case. It does not begin to attempt to cover all the law on administration and liquidation expenses. That would not be a proper exercise in a judgment.”