piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Quantifying Future Loss of Earnings: Ward v Allies & Morrison Architects [2012] EWCA Civ 1287

At the quantum only trial of a personal injuries matter, HHJ Cleary held that he did not have sufficient evidence pertaining to the claimant’s level of likely future earnings and the likely duration therof. Nor was he satisfied that the claimant was disabled. Accordinly, the trial judge made a lump sum award of £30,000 to allow the claimant to retrain following Blamire v South Cumbria HA [1993] P.I.Q.R. Q1, in addition to some £24,000 in general damages and £19,750 for past loss of earnings. The Claimant appealed on the contentions (amongst others) that the Judge should have used the Ogden tables to calculate lost future earnings (expected to quantify a loss of £176,633.46 on the basis that the Claimant expected to become a theatrical model maker) rather than have made a broad brush Blamire award.   The Court of Appeal (Aikens LJ, Kitchen LJ & Sir Richard Buxton) held that whilst the Ogden tables should be the usual method of quantifying such loss, this depended on the court’s ability to make findings of fact as to the likely earning capacity of a claimant, which the Judge in the instant case was unable to do. It was re-emphasised that it is for a claimant to prove their loss in this regard. In the instant case it was held that the judge was entitled to hold that there were too many imponderables to have allowed a firm finding as to the Claimant’s likely career progression and thus her future loss of earnings award. Thus the Judge was entitled to make a Blamire award.  

Should the solicitor pay up?

Can a solicitor be liable for costs if he or she takes on a case for an impecunious claimant under a CFA where there is no ATE insurance policy in place and where he or she funds the disbursements necessary to allow the case to proceed?   Neil Hamilton famously sued Mohammed Al-Fayed for defamation over ‘cash for questions’, lost and was ordered to pay £1.3m in costs. Mr Al-Fayed then pursued Mr Hamilton’s financial backers (not parties to the litigation) for costs, lost and was ordered to pay their costs. Unsurprisingly there has not been as much media attention and public interest in the case of Tinseltime v Eryl Roberts [2012] EWHC 2628 which was a case in the technology and construction court. There was no personal injury involved: the claimant claimed that the defendant had created dust whilst demolishing a building and the dust had damaged machinery and caused a loss of profit. The claim was unsuccessful and the claimant was ordered to pay the defendant’s costs. The defendants applied for an order under section 51(3) of the Senior Courts Act 1981 and/or CPR 48.2 that the claimant’s solicitor pay the costs as a non-party funder. The claimant’s solicitor had entered into a CFA. He had been unduly optimistic about how straightforward the issue of liability would be. It was clear that he was aware that if the claimant lost it would not be able to pay costs. He estimated the overall costs likely to be incurred to be £20,000 and disbursements, £10,000. In the event disbursements amounted to £22,270 and so burnt a sizeable hole in his pocket. He had expected to recover the disbursements from the defendant (if successful). The judge concluded that the following were the correct legal principles to apply. The first question was whether it just in all the circumstances to make an order. Secondly, when considering a solicitor, had he acted beyond or outside his role as a solicitor conducting litigation? Thirdly, the fact that a solicitor is acting under a CFA and stands to benefit financial from the outcome does not mean he has acted beyond or outside his role as a solicitor. Fourthly, the starting point is that the position of a solicitor funding disbursements is no different from one who is not as both positions are legitimate and meet a legitimate public policy aim. The judge was of the view that, in order to be successful in applying for a non-party costs order there would have to be present either some financial benefit to the solicitor over and above the benefit which he could expect to receive from the CFA or some exercise of control of the litigation over and above that which would be expected from a solicitor acting on behalf of a client (or a combination of both). By way of example the judge suggested that a solicitor’s desire to achieve a successful outcome might cause him to take over the running of the litigation for his own ends. Another example was of a case where the damages claimed were modest in comparison to costs incurred so that the client had lost interest in the proceedings but the solicitor was wedded to them in order to recover his costs. The circumstances of a case might justify the conclusion that a solicitor was making all the decisions for his own benefit. The defendants argued that the claimant’s solicitor had acted improperly, unreasonably or negligently in his conduct of the case. The judge said this was the province of wasted costs (which were not awarded - although pursued in the alternative). He said courts should be astute to keep wasted costs and non-party costs separate. The claimant’s solicitor may have misjudged the case but he came out of the judgment rather well. The judge commented that he was not motivated solely by financial self-interest but with the laudable aim of providing access to justice to the claimant. He thought the claim was genuine and had written a file note stating “the company has been crippled by the defendant tortfeasors and needs assistance.” The judgment draws to a close effectively with a warning against letting financial self-interest get the better of you and an encouragement from a judge to practitioners to be motivated not solely by financial self-interest but by a concern for justice and access to justice. Such a consideration (and file-note for the record!) might well prove worthwhile… Photograph courtesy of freefoto.com

Court of Appeal tightens up on relief from sanctions

Jackson LJ considered case management decisions in his report on costs in civil litigation. He said:-   "...courts at all levels have become too tolerant of delays and non-compliance with orders. In so doing they have lost sight of the damage which the culture of delay and non-compliance is inflicting on the civil justice system. The balance therefore needs to be redressed."  Earlier this year, in Fred Perry v Brands Plaza Trading Limited [EWCA] 2012 Civ 224, the Court of Appeal agreed and applied CPR 3.9 in a way which attempted to redress that balance.   The Defendant had been in breach of a series of orders. Unless orders had been made, the Defendant had not complied and the defence was struck out. The Defendant applied for relief from sanctions. The Court of Appeal reiterated that the interests of the administration of justice - the first item on the CPR 3.9 checklist - requires that parties comply with court orders, and particularly so where the order in question is an Unless order. This is a welcome reminder that the interests of the administration of justice are not necessarily the same as the interests of justice.   The Court of Appeal was critical of the Defendant’s attempt to argue that the Unless should not have been made or was too onerous. It was inappropriate to make a collateral attack on the order in an application for relief from sanctions: if the Defendant did not like the order its remedy was to appeal, which it had not done. The judgment emphasised that the first instance judge has a wide discretion when considering an application for relief from sanctions. The Court of Appeal approved of the judge’s exercise of discretion, and noted that judges who made robust but fair case management decisions should be supported. Lord Justice Jackson was on the panel and made the further point that CPR 3.9 is due to change with effect from 1st April 2013. The familiar checklist is due to be replaced with the following:- "On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider the circumstances of the case, so as to enable it to deal justly with the application including the need – (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and court orders."  Lord Justice Jackson commented that after 1st April 2013, “litigants who substantially disregard court orders or the requirements of the Civil Procedure Rules will receive significantly less indulgence than hitherto”.  

Claim dismissed - but do appeal!

The unfortunate Ms Drysdale was injured on the first day of her tenancy when she was ascending the steps to the property she had rented. She fell on the middle of three steps which had been painted red by the landlady to improve their appearance. There was a low wall (9.5 cm) next to the steps and a 2.5 metre (8 feet) drop on the other side of the wall. Ms Drysdale fell over the wall and was seriously injured. The judge in Drysdale v Joanne Hedges (27th July 2012, Unreported) found that the drop was dangerous and a reasonable landlord ought to have raised the wall or provided a guardrail. He also found that the paint increased the slipperiness of the steps. Nonetheless he dismissed the claim commenting that he had considerable sympathy for Ms Drysdale but that her remedy could only be in another court. The judgment provides an interesting analysis of what duties are owed by a landlord to a tenant for personal injury and in what circumstances. The case was brought under the Occupiers’ Liability Act 1957 (‘OLA’), the Defective Premises Act 1972 (‘DPA’) and at common law. The judge considered that the OLA did not apply: at the time of the accident the tenancy and occupation had commenced. He held that parliament could not have intended s. 4 of the ‘DPA’ and s. 2 of the OLA both to define a landlord’s duty. In fact s. 4 of the DPA replaced s.4 OLA. The judge turned to s. 4 of the DPA. He noted that in order to show a breach of the tenancy agreement and s. 4 Ms Drysdale had to show the premises were ‘not in good repair’. The judge cited Alker v Collingwood[2007] 1 W.L.R. 2230 in which a claimant had argued that a glass panel in a door in rented premises was dangerous because it did not contain safety glass. Carnworth L.J. said that a duty to repair could not be equated with a duty to make safe. You could let out a house with a very steep stairway with no railings but s. 4 does not require you to make safe such a dangerous feature. The judge also referred to Quick v Taff Ely Borough Council [1986] QB 809 in which Lawton LJ said ‘a tenant must take the house as he finds it; neither a landlord nor a tenant is bound to provide the other with a better house than there was to start with’. Applying all of this the judge found that although the drop from the middle step to the basement was dangerous, it was not out of repair; the drop from the steps would not have been unusual at the time the house was built. He also concluded that the steps were not actually out of repair. Accordingly there was no breach of section 4. The judge then turned to the common law. He observed that Cavalier v Pope [1906] AC 428 decided that a landlord who lets premises in a dangerous condition owes no duty to remedy the defect and no duty of care to a third party injured as a result of the defect. That decision had been criticised and attempts had been made to limit its effect. The claimant in Lips v Older [2005] PIQR P14 suffered a similar accident to Ms Drysdale. He was successful but Cavalier v Pope was not mentioned. It was also not mentioned in Sowerby v Charlton [2006] 1 WLR 568 by the Court of Appeal. That case also involved similar facts but the case was about admission of liability and whether a judgment should be set aside and not whether such a common law duty was owed. The judge concluded that Sowerby did not bind him. In the end the judge took the view that he was bound by Cavalier so far as the unguarded drop was concerned and that the landlady had no duty to guard it. However he did consider that she owed a duty to take reasonable care to ensure that the application of the paint did not create an unnecessary risk of injury. Without such a duty a landlord would have carte blanche to act with impunity and create dangers which would not be caught by the 1972 Act. Even though he found there was a duty in relation to the steps and that the presence of the paint unnecessarily increased the risk, he did not find a breach. A knowledgeable person might have known that the B & Q paint would have increased the risk but not the ordinary man on the street. Accordingly it could not be said that the landlady had failed to take reasonable care. So, no duty under the Occupiers’ Liability Act where section 4 of the DPA applies. No breach of duty under section 4 of the DPA where there is no disrepair. No duty is owed at common law by a landlord who lets premises in a dangerous condition (Cavalier is still good law) but a landlord owes a duty to take reasonable care not to create an unnecessary risk of injury. It is not clear whether the Claimant will appeal – watch this space!

A Tale of Two Countries: applicable law in a claim against a foreign (French) insurer

Kira Middleton v Allianz IARD SA v Erika Lee Middleton [2012] EWHC 2287 (QB)     This matter arose out of a road traffic accident in France on 6 February 2002. The Claimant was a child born on 28 September 1999. The Defendant was an insurance company registered in France. The Third Party was the Claimant’s mother and became a party to the proceedings when a Part 20 (additional) claim was brought against her by the Defendant. The Claimant and the Third Party were British nationals. On 6 February 2002 they were in France; the Claimant lived there with her mother at the time (in the house of her grandmother near Bergerac, France).  A family friend (also a British national), was visiting the home of the Claimant’s grandmother. The friend was driving a Renault Espace vehicle and reversed at a time when the Claimant was behind her. The Claimant was struck and knocked to the ground by the reversing vehicle. The Claimant suffered a very significant brain injury, together with other injuries of the utmost seriousness. The Claimant was in a coma for 4 weeks. She was left with very significant care, medical, physiotherapy and accommodation/equipment needs. In the period since the accident the Claimant and her mother had returned to England where the Claimant was, by the time she issued proceedings, domiciled. It was common ground that the Claimant was entitled to bring proceedings directly against the French-registered insurer in the English Courts (being the Courts of the Claimant’s domicile) by virtue of section 3 of EU (Council) Regulation 44/2001 and the decision of the European Court of Justice in FBTO Schadeverzekeringen NV v Jack Odenbreit ECJ 13 December 2007 [2007] EUECJ C-463/06. The issue in the case concerned applicable law. The parties agreed that this issue was to be determined by reference to Part III of the Private International Law (Miscellaneous Provisions) Act 1995. The starting point was that French law – the lex loci delicti (the law of the place where the events constituting the tort occurred) – should be applied. However, the presumption that French law applied could be displaced where the Court was satisfied that it was, by reference to section 12 of the 1995 Act, “substantially more appropriate” to apply the law of another country in preference to the lex loci delicti.  The Claimant’s case was that French law, as the law of the place where the accident occurred, was applicable to the substantive issues in the claim and, by virtue of the same and the application of the French Loi Badinter, the liability of the tortfeasor (for which the Defendant was obliged to provide insurance indemnity) was strict. The effect of this would be that contribution from the Claimant’s mother would not be available. Unsurprisingly, the Third Party made common cause with the Claimant on this issue. The Defendant’s case was that it was substantially more appropriate that English law should be applied (in preference to French law). The question of the law applicable to the claim was tried as a preliminary issue by Griffith Williams J and a reserved judgment was handed down on 1 August 2012. The Claimant’s arguments prevailed and it was held that it was not substantially more appropriate to apply English law to the substantive issues in the case, including liability. Accordingly, French law applied (with the result that the Claimant would be able to rely on the Loi Badinter). The Judge applied the conventional three-stage process to the section 11/section 12 exercise in which stage one involves identifying the issue to which it is suggested the general (section 11) rule is not to be applied (for example, the issue of liability); stage two involves identifying the factors which connect the tort to the place where it happened (France) and the factors which connect the tort to the forum (England); and, stage three requires an assessment of the significance of these factors (as they connect the tort to each jurisdiction) to determine whether section 12 should be applied (see, Roerig v Valiant [2002] 1 WLR 2304 (CA)). The Claimant, her mother (the Third Party) and their wider family had a longstanding and significant connection with France (where they were living when the accident occurred) and, although they had moved back to England in the period since the accident, it is not surprising that their connection with France persuaded the Judge that it was not substantially more appropriate to apply English law. The significance of the decision lies in the Judge’s rejection of the following (somewhat novel) arguments advanced by the Defendant at trial. First, the Judge was not persuaded that the coincidence in the nationality of the Claimant, her Mother (Third Party) and tortfeasor should be given greater weight than the domicile of these parties – and the French insurer – at the time that the accident occurred (ie. they were all domiciled in France). It had been argued for the Defendant that nationality was a more stable feature than domicile (which could, as here, change over time) and so should be given proportionately greater weight. This argument did not succeed and represents, perhaps, a more or less subtle change of emphasis from the approach taken in Edmunds v Simmonds [2001] 1 WLR 1003 (QBD) (where the country of registration of the insurer was accorded less weight) and Harding v Wealands [2005] 1 WLR 1539 (CA) where, in the Court of Appeal (before the case was appealed on a different issue to the House of Lords), nationality of the tortfeasor was given considerable weight as a material factor. Second, the Judge was similarly unpersuaded that it was more appropriate for English law to be applied because, as a result of English authority (Harding Wealands [2007] 2 AC 1 (HL(E)), the Claimant’s damages would be assessed according to English law in any event because such assessment is governed by the law of the forum even where foreign law applies to the substantive issues (the Defendant had pointed out that, at odds with the conventional approach in continental legal systems, the English common law permitted different issues to be determined by the law of different jurisdictions and also recognised a distinction between the substantive issues (determined by the applicable law of the tort) and the procedural (determined by the law of the forum)). It was held, rejecting the Defendant’s argument, that the accident occurred in France where the Loi Badinter would apply and, by implication, the injured party (and insurer) would have a reasonable expectation that the Claimant would take advantage of this – a view that was consistent with interim payments and correspondence from the Defendant insurer which, contrary to its stance in the preliminary issue, had initially proceeded on the basis that the French Loi Badinter would apply (the Judge’s conclusions in this regard represent a departure from the approach taken in Dawson & Dawson v Broughton (2007) 151 Sol J 1167). This is, perhaps, one of the last cases where applicable law will be determined by reference to Part III of the Private International Law (Miscellaneous Provisions) Act 1995. Accidents which post-date 11 January 2009 are now dealt with by reference to the rather different considerations of the Rome II Regulation on applicable law (see, European Parliament and Council Regulation (864/2007) on the Law Applicable to Non-contractual Obligations).

Definitely a good walk spoiled: Hammersley-Gonsalves (A child by his litigation friend T Gonsalves) v Redcar & Cleveland BC

Some things simply make one feel old: the 90s revival, being older than your doctor, complaining about people playing music on public transport.  To this (abridged) list I can now add school games lessons.  Back in my day (a phrase that can be added to the aforementioned list) school sport largely consisted of being cold and taking part in team games in the winter (good character building stuff no doubt) or in the summer, a bit of cricket and then pretending that anyone cared about athletics.    What wasn’t contemplated was teaching the pupils how to play golf, and if Hammersley-Gonsalves (A child by his litigation friend T Gonsalves) v Redcar & Cleveland BC is anything to go by, a very wise policy that was indeed.  The decision in Hammersley-Gonsalves has just been handed down by the Court of Appeal.  The Claimant, who at the time of the accident was almost twelve years old, was being taught golf at his secondary school.  The school had given 22 boys six indoor golf lessons.  For the seventh lesson, the enterprising PE teacher had created a golf course in the school grounds. Quite properly, the teacher taking the lesson had told the pupils, who each had one club and one ball, not to use their club or hit anything until instructed to do so.  The pupils walked out onto the school grounds in single file.  However, boys being boys, one of the children decided to disregard the instruction and when having reached the school field, put his ball down and took a swing. Unfortunately, this resulted in C being hit in the face by the golf club.  Equally unfortunately, this not being a proper golf club, there wasn’t a collection of doctors in the club house bar. The Claimant succeed at first instance, with the judge finding that  the teacher could not see what the pupils were doing, and that he did not see the pupil swing the club that hit the Claimant.  As such, it was held that the lesson had not been adequately supervised and consequently that the Defendant local authority had not met the appropriate standard of care. The Court of Appeal had no trouble with the judge’s finding that the teacher could not see every pupil at every moment.  However, it was difficult to see how the Claimant could succeed absent an allegation relating to staffing ratios.  It was obvious to the Court of Appeal that one teacher could not be expected to see every action of 22 boys when walking in single file, however, on the judge’s finding a lack of adequate supervision was not made out. There had been no history of bad behaviour and the action of the careless young golfer was unexpected. Although the question of appropriate staffing ratios had not been argued, in the cricumstances closer and additional supervision was not required given the age of the children and the nature of the activity.  Also, even if the teacher had been negligent in not observing the boy swinging the club, it also had to be established that that failure was causative of the Claimant’s injuries.  The judge had not dealt with this and there was no finding that on a balance of probabilities any action by the teacher would have prevented the accident.All in all it would have been far better to stick with football.

The addition of a late expert: case note

Van Niekerk v Carnival Plc & Anor. [2012] LTL 13/6/12 (QB, HHJ Seymour QC)   This claim concerned further directions for a High Court trial that was listed a little over 2 months after a Pre-trial review in which further permissions for expert evidence were sought. The Claimant’s husband had died on holiday while he had been taking part in a diving excursion arranged by or through the Defendant cruise line operator. Liability, causation and quantum were all in issue. The Claimant brought a substantial claim for damages. The Claimant’s schedule of loss included, among other things, a claim for loss of financial dependency based on pension income. In correspondence, the Defendant had queried the calculation of this head of loss. Approximately, two months before the date fixed for trial of liability and quantum the Claimant applied for permission to obtain and rely on a report from an expert forensic accountant on the investment growth rates relating to the financial dependency claim. Each party had also obtained a medico-legal report on the cause of death. The Claimant's expert was a histopathologist. The Defendant's expert was a cardiologist with experience in the cardiological aspects associated with diving. The issues considered at the Pre-trial review concerned: (i) whether permission should be granted to adduce expert accounting evidence; (ii) whether directions should be given for a joint statement by the cause of death experts; (iii) the appropriate order for costs.HELD: (1) Permission was granted to obtain expert accounting evidence limited to the issue of investment growth rates - while this evidence was being sought at a late stage, it would likely assist in the accurate calculation of loss and would be helpful to the Trial Judge. (2) There was potential value in the cause of death experts producing a joint statement, despite the risk that it would simply repeat their individual reports (and in spite of the fact that they were experts in different disciplines). (3) Although the Claimant had succeeded on her application to admit accounting evidence, it had been necessary because there was a deficiency in her case which the Defendant had pointed out some months earlier, and she had sought to adduce additional evidence close to the trial and in circumstances where it raised serious questions about whether the trial could proceed in the event that permission were granted. The issue about a joint experts' report had been a serious issue. Taking those issues into account, the proximity to trial and the matters on which the parties had argued, it was appropriate to consider the hearing as a pre-trial review. In those circumstances, the appropriate order for costs was costs in the case.

Liability of a Motor Insurer for Criminal Acts

CASE REPORT:-      AXN & Ors v (1) John Worboys (2) Inceptum Insurance Co Ltd (formerly HSBC Insurance (UK) LTD) [2012] EWHC 1730 (QB)   The preliminary issues concerned whether, and to what extent, the claimants had, in addition to their claims against Worboys, valid causes of action against the defendant insurer as the provider of the compulsory motor insurance required by the Road Traffic Act 1988. His insurance policy provided cover for "social, domestic and pleasure purposes and for use for public hire".   The Court was asked to determine whether: (i) the bodily injuries suffered by the claimants "arose out of the use of Worboys’ vehicle on a road or other public place" within the meaning of s145(3)(a) of the 1988 Act; (ii) liability in respect of Worboys’ acts of poisoning and sexual assault was required by s145(3)(a) to be covered by a policy of insurance, and was covered by the policy issued by his insurer; (iii) Worboy's use of the vehicle at the material times was a use insured by the policy; (iv) the insurer was liable pursuant to s151 to pay to the claimants any sum payable pursuant to a judgment obtained against Worboys. Mr Justice Silber determined this preliminary issue in favour of defendant insurer. The Court held: (1) the claimants’ injuries were caused by the criminal acts of Worboys in administering sedatives and then in attempting to or actually assaulting the claimants, and did not arise out of the use of the taxi on a road; (2) as the injuries sustained by the claimants did not arise out of Worboys' use of a vehicle on a road and so they were not required by s145(3)(a) to be covered by insurance;  (3) if the essential character of the journey consisted of use for a criminal purpose then the vehicle would not be covered by its insurance (Caple v Sewell [2011] EWCA Civ 1948). By the time that the claimants were sedated and assaulted, the essential character or purpose of the journey was criminal and the use was not covered by the insurance; and  (4) therefore having regard to the answers to the first three issues, the insurer was not liable, pursuant to s151, to pay to the claimants any sum payable pursuant to a judgment obtained against Worboys.

What is it about Preston County Court?

The case of R (on the application of Sharing) v Preston County Court [EWHC 515] is perhaps a surprising one to comment on in a personal injury blog. It concerns wrongful eviction, rent arrears and judicial review. However it is of wider interest because the claimant, whose claim for damages was dismissed by the district judge and whose application for permission to appeal to the circuit judge was also refused, successfully had the refusal of permission to appeal quashed in the administrative court and remitted to a different circuit judge. Both this case and the case cited below came from Preston County Court and the circuit judge in concern ended up in the judicial stocks...   The facts of Sharing are, in brief, as follows. The claimant brought a claim for damages for unlawful eviction. The defendant relied upon two witnesses: a WPC and another tenant. At trial he said that the WPC had been served with a witness summons but had said she was unavailable - he was a bit cagy about it when pressed. The other witness was held out to be an independent witness. The trial judge found the independent witness to be essentially truthful and that the claimant had lied about a tenancy deposit. He dismissed the claim finding the police evidence favoured the defendant. The claimant then obtained a statement from the WPC to the effect that she had not received a witness summons, she had been available and that when she interviewed the ‘independent’ witness, she had assumed she was in fact the defendant’s partner because of the way they related to one another. The WPC also provided other evidence which undermined some of the defendant’s case. The claimant then sought permission to appeal on the basis of the WPC’s fresh evidence. That permission was refused and hence an application was made to the Administrative Court for judicial review. Wilkie J was troubled by the way the circuit judge had conducted the hearing saying that, from the transcript, it was apparent that he gave counsel for the claimant an ‘extremely rough ride’. He did not permit her to develop the main point she wished to make and he repeatedly said the case had been won or lost because the district judge had not believed the claimant. He found with great hesitation and regret that the circuit judge acted in such a way that a fair-minded and independent bystander would conclude that he had finally and firmly made up his mind from the outset of the application that he was going to refuse it, that he was going to refuse to admit the fresh evidence of the WPC and his repeated interruptions of counsel and the way he focused on the way in which the district judge had decided the case was the clearest possible evidence of apparent bias. The key case on applying for judicial review of the decision of a circuit judge is R (on the application of Strickson) v Preston County Court & Ors [2007] EWCA Civ 1132. There Laws L.J. said that before JR could be granted a defect much more fundamental than an error of law had to be established. He said ‘I think a distinction may be drawn between a case where the judge simply gets it wrong, even extremely wrong (and wrong on the law, or the facts, or both) and a case where… the judicial process itself has been frustrated or corrupted. This, I think, marks the truly exceptional case.’ He gave a number of examples: the court embarking on an enquiry it lacks all power to deal with, failure to enquire or adjudicate upon a matter which was its unequivocal duty to address, a substantial denial of the right to a fair hearing, a court acting ‘incomplete disregard of its duties’. Photo courtesy of Freefoto.com

A catastrophic getaway

  Mr O’Brien and his nephew Mr Joyce must be amongst the most incompetent thieves around. They stole a ladder from the front garden of a house and put it into the back of the van but could not close the door. Mr O’Brien drove the van off to make a speedy getaway whilst Mr Joyce hung onto the back of the van, standing on a footplate with the ladder under or over his right arm. He was holding onto the door or roof whilst a door was flapping around. The van lurched around a bend without reducing speed making Mr Joyce yet more unstable. Finally, on another bend he lost his grip, fell and suffered a severe head injury. Mr O’Brien seemed more concerned about trying to hide the ladders than helping his nephew. His excuses for the accident were inconsistent, ridiculous and not worthy of a schoolboy. He said that he did not know that his nephew was hanging onto the rear of the vehicle by the doors or ladders, that his nephew clambered through the back of the vehicle to secure the doors which had come open, that he was riding on the footplate as a ‘joke’ and that his nephew had got out of the van to secure the doors and was not on it at the material time. The judge commented that it was no surprise that nobody wished to call him as a witness or rely upon his evidence. The case was Joyce v Tradex Insurance Company Limited [2012] EWHC 1324;  the issue was whether Mr Joyce could recover damages for personal injury from Mr O’Brien when the claimant was injured whilst both were engaged in a joint criminal enterprise.   Cooke J found that Mr Joyce’s injuries were caused by the speed of the vehicle (essential to the getaway) and his position on the back of the vehicle (holding the ladders and the van whilst standing on the footplate). What Mr Joyce had done was so unusual as to be as causative of his injuries as Mr O’Brien’s driving. Accordingly the claim failed on causation. The claim also failed as a matter of general public policy: a participant in a joint enterprise theft which involves a speedy getaway in a van with a participant driving and the other clinging dangerously to the stolen items and the van cannot recover for injuries sustained in the course of that enterprise. The driver could not owe a duty to his co-conspirator and it was not possible to set a standard of care. What’s more, risk and danger were inherent in the enterprise. Accordingly Mr Joyce’s own criminal conduct precluded him from recovering. (Image Courtesy of Freefoto.com)