piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

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.

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

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

Johnson v Unisys revisited: Monk v Cann Hall Primary School and Essex County Council [2013] EWCA Civ 826

  Mrs Monk was made redundant from her position as an administrative assistant at the First Respondent’s primary school, with effect from 31st August 2008. On 10th July, however, she was required to clear her desk before being publicly escorted from the premises. She brought a claim for psychiatric injuries. Her claim was struck out on the basis that it fell within the Johnson exclusion area. Since the House of Lords decision in Johnson v Unisys Ltd ([2001] UKHL 13) an employee may not recover damages at common law for loss caused by the fact or the manner of dismissal.   The appeal turned on the date of Mrs Monk’s dismissal. If her exclusion on 10th July constituted her dismissal, the manner in which it was carried out was probably too closely related to the dismissal itself to escape the Johnson exclusion area. If, on the other hand, it was merely an incident occurring during the period of her employment, which terminated on 31st August, the Court found it difficult to see how it could have been sufficiently closely related to the dismissal to fall within the exclusion area ([23]).   The Court relied on assertions made by the Council in contemporaneous correspondence that it did not intend to dismiss her on 10th July and the fact that it continued to pay Mrs Monk her salary and redundancy pay until 31st August in determining that it was arguable that her contract of employment continued until the later date ([27]).   Mrs Monk was therefore granted permission to amend her particulars of claim in order to contend that her employment was terminated on 31st August 2008 and her appeal against striking out of her claim was allowed.   Interestingly, from the point of view of future case law, the Court identified but left open the question of whether personal injuries sustained in the course of negligently escorting an employee off work premises would be regarded as independent of the dismissal (at [22]). Lord Dyson in Edwards v Chesterfield Royal Hospital NHS Foundation Trust ([2011] UKSC 58 at [52]) made clear that the Johnson exclusion area does not impinge on any cause of action which is independent of a dismissal. Given these comments, it is likely that the courts would allow such claims to proceed.   Lord Faulks and Marc Rivalland of 1 Chancery Lane represented the Respondents.    

Never say never again... "Never events" and NHS Performance

Most people don't know that the NHS has a list of "never events", being a list of preventable events that should never happen.  The October 2012 Never Events Policy Framework defines never events as "serious, largely preventable patient safety incidents that should not occur if the available preventative measures have been implemented by healthcare providers".  The Framework contains a list of 25 never events.  These range from wrong site surgery, retained foreign objects post surgery and misidentification of patients to entrapment in bed rails, misplaced naso or oro-gastric tubes and maternal death due to post partum haemorrhage following elective caesarian section.   There has been coverage in the news this week following the disclosure that there have been 750 such incidents reported in the NHS in the last four years.  The BBC website has produced an interactive table letting you explore the reported incidents by Trust: http://www.bbc.co.uk/news/health-22466496 What is more interesting in many ways is the breakdown of the number of incidents by "event".  The October 2012 Framework makes very interesting reading, containing a table of the 2011/12 results.  Of the 326 incidents for that year (which seems remarkably high considering the overall statistic for four years), the overwhelmingly common category was retained foreign objects post operation, with 161 reported incidents.  Wrong site surgery followed with 70 cases, then 41 cases of wrong implant / prosthesis.   https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/127087/never-events-policy-framework-update-to-policy.pdf.pdf  

Personal responsibility, unfortunate accidents and the liability of occupiers

Criminal lawyers are often asked how they can bring themselves to defend people who they know are guilty.  Actually, I am asked that not infrequently too...  But the more common dinner party accusation aimed at civil common law lawyers is: "Pft!  Nanny state!  People can sue for anything nowadays!  Don't people have to take some responsibility for themselves?"  I have two responses to this.  My usual one is to disappear behind my glass of wine before changing the subject.  The other is to say that yes, people bring some ridiculous claims, but it doesn't necessarily mean they win.  The newspaper reading nation has been shocked by publicity about some of the claims brought by police officers injured in the course of their duties that have been pursued.  I don't know any lawyers in our line of business who have.  One has the impression that the Court of Appeal were perhaps a little vexed by the case of Tacagni v Cornwall County Council and ors.  Judgment was handed down yesterday.  Ms Tacagni sued various parties.  Her claim was dealt with under the Occupiers Liability Act 1957.  After consuming eight drinks over a "long" evening Ms Tacagni was walking home in the dark with her partner.  They had no torch and she was wearing uncomfortable shoes.  The pair walked along a raised pathway that ran approximately two metres above and alongside a road until they decided that it was too dark and turned back.  Ms Tacagni's partner left her to go and call a taxi.  Ms Tacagni set off on her own, using a fence to guide her along the path. Following the line of the fence Ms Tacagni left the path, crossed 4.8 metres of grass and fell off the edge of the raised section onto the road below. The fence had been erected around an area of the pathway's retaining wall which had collapsed in 2001. The Court at first instance heard some evidence from the Defendant about concerns one of its employees had had about whether the fence was sufficient to protect cyclists and children.  The judge was obviously swayed by this criticism and found for the claimant, with a two thirds deduction for contributory negligence.  The Court of Appeal allowed the local authority's appeal and dismissed Ms Tacagni's claim.  Their lordships concluded that the evidence as a whole did not warrant the judge's finding that the local authority had unreasonably failed to guard against the risk of accident that in fact befell Ms Tacagni. It was hard to envisage that a person would be using the fence as a guide and that it would not have been obvious to them that they were departing from the path and crossing a significant portion of the grass. Accordingly, the evidence did not warrant the conclusion that the local authority had breached its common duty of care.  The judge had left out a material factor in his evaluation: the degree of care that was to be expected of an ordinary visitor under s.2(3) of the Act. So next time you find yourself at a dinner party being harangued about the state of the law and the fact that people are not expected to take care for themselves you can disappear behind your glass of wine secure in the knowledge that, for the purposes of the Occupiers Liability Act 1957 at least, from time to time the courts conclude that yes they do.   Image: © Bellemedia | <a href="http://www.dreamstime.com/">Dreamstime Stock Photos</a> & <a href="http://www.stockfreeimages.com/">Stock Free Images</a>  

"In Loco Parentis": the liability of schools when disaster strikes

Summer school trips were one of the high points of the year when I was a child. I don't think anyone wholly forgets the bubbling anticipation that comes with the prospect of a totally brilliant trip.  Some were better than others.  An adventure weekend to Windermere where we jumped out of canoes and walked rope bridges was amazing.  The day trip to Martin Mere Wetland Centre was less good.  We sat on the coach for an extra two hours because the driver got lost.  It rained.  I can barely express the excitement that accompanied the school Centenary special trip to Alton Towers.  School trip season is approaching again now that the summer term has begun and, as usual, I reflect on the current state of the law.  It distresses me when it is said that the law is making it impossible for schools to give the next generation the same opportunities we had.  Organising, planning and supervising trips is an intimidating task.  Whilst the law rightly expects schools to take their obligations seriously - planning trips with care - media hype about the perils of litigation is perhaps overstated.  As the Court of Appeal has demonstrated once again, even the most tragic of cases will not necessarily succeed if the school has done its job properly and the claimant cannot show that any errors that might be identified would have made any difference.  Judgment was handed down last Friday in Wilkin-Shaw (Administratrix of the Estate of Charlotte Shaw (Deceased)) v (1) Christopher Fuller; (2) Kingsley School Bideford Trustee Co Ltd [2013] EWCA Civ 410. On 4 March 2007 Charlotte Shaw was 14 years old and participating in a training event for the Ten Tors challenge as part of a team from her school.  The team had completed one day of the training weekend. On the second day their supervising teacher decided that they had proved themselves under supervision and that it was appropriate for the team to progress to remote supervision and carry out a planned walk unaccompanied, checking in at pre arranged points with teachers.  The group successfully completed the second leg of the day's planned journey and arrived at a check point about an hour earlier than expected.  The teachers who they expected to meet were not there.  The supervising teacher spoke to the leader of the group (a pupil) on the telephone and told them to wait.  It transpired that the two members of staff who were supposed to meet them had lost their way and missed the checkpoint. When the teachers contacted the supervising teacher they were told to return to their car. The supervising teacher then received a telephone call from a scoutmaster (T) who had encountered the children waiting at the checkpoint. He told the supervising teacher that the group was starting to get cold and should continue walking. The direct route to the next check point led across the Walla Brook, which was swollen with rain water and uncrossable at that point. The supervising teacher spoke again to the group by telephone and told them to start walking but not to cross Walla Brook but to go round its head.  After the children had started out on the next leg T became involved again and offered to show the group where he had crossed Walla Brook earlier. While attempting to cross, with T's assistance, Charlotte fell in.  She was swept away by the strong current and drowned.  At trial the case was against the school alleging vicarious liability for the supervising teacher's negligence.  That claim was dismissed. Last Friday the Court of Appeal gave judgment on the appeal.  The case on appeal was rather different than at first instance but the Court allowed it to be pursued.  It was argued on behalf of Charlotte's mother that the teacher who should have been present at the checkpoint to meet the children was negligent in getting lost and that had she been present the children would not have followed the advice of T, the scout master they met while waiting at the checkpoint. The Court of Appeal found that the teacher had been negligent, but concluded that it was highly speculative to consider what would have happened had she been at the checkpoint.  The Court considered the duties of a checkpointer and considered that she may well have checked the fitness of the children then sent them on their way, so that she would not have been present on their return when they met T.  Even had she remained at the checkpoint the intervention of T would have broken the chain of causation. Whilst it would be wrong to suggest that anyone should take cheer from a tragic case of this sort, schools should take comfort from the care and rigor with which this case was considered at both first instance and on appeal. I hope that the legacy of this case is to emphasise that exciting trips should be planned properly and carefully, with appropriate training and supervision, but happen they should. 

Cockbill v Riley: Youthful exuberance and the test of foreseeability

I turned 29 this week. As I reminisced about the days when hangovers were a mild inconvenience to be overcome within a matter of hours, my attention was drawn to a recent case arising out of an end-of-GCSE party, a paddling pool and an attempted bellyflop that went tragically wrong. On 20 July 2006, Ryan Cockbill went to a barbeque organised by a friend – Sarah Riley, armed with a 12 pack of Budweiser beer and 12 bottles of Vodka Kick. When he arrived, he saw that two paddling pools had been set up in the back garden at Sarah’s house; photographs taken at the time show that the larger pool came up to adult waist-height. The party was in full-swing, with a number of teenagers becoming boisterous but not behaving drunkenly. Sarah’s father decided it was time to serve up food and line a few young stomachs. Ryan had not taken swimming trunks with him but was offered a pair by a friend. Whilst everyone was eating, he changed into them in an upstairs bathroom. When he came back down to the garden, he said “watch me go” and went across to the pool intending to do a bellyflop. He doesn’t remember what happened after that. It appears that Ryan entered the paddling pool head first, which caused him to fracture his spine, rendering him tetraplegic. A claim was issued against Mr Riley, Sarah’s father, claiming that he had been negligent in, among other ways, not intervening earlier and more forcefully when six or seven boys were running and jumping into the pool. On 22 March, dismissing the claim, Mr Justice Bean held that it was reasonably foreseeable that someone would lose his footing and suffer minor injury. However, even after a number of boys had jumped into the pool feet first, it was not reasonably foreseeable that someone would attempt to carry out a dive or a belly-flop and thus suffer grave injury ([2013] EWHC 656 (QB) at [56]). This treatment of foreseeability is interesting. It could be argued that the accident, framed in more general terms was foreseeable – that teenagers would mess around in the pool at the risk of some personal injury – for example. Since the House of Lords decision in Hughes v Lord Advocate ([1963] 2 W.L.R. 779) the Courts have been encouraged to take a broad approach to the categorisation of damage. Therefore, whilst I agree with Mr Justice Bean’s conclusions as to breach of duty, he has defined the foreseeable risks in this case too narrowly, in my view.  

Shut out: The UK Supreme Court’s first "secret hearing"

Bank Mellat v HM Treasury UKSC 2011/0040     The Supreme Court held a hearing in secret today, for the first time in its history.   According to the BBC, the justices spent 45 minutes in a locked session with a security guard stood outside the door to prevent anyone from entering. The hearing was so sensitive that the justices had to leave one courtroom and set up in another which had greater soundproofing.   The hearing arises out of the Treasury’s decision in 2010 to ban an Iranian bank from operating in the UK, using powers under the Counter-Terrorism Act 2008. The government alleged that the bank had been indirectly involved in financing companies linked to the Iranian nuclear programme.   At first instance, Mr Justice Mitting permitted some of the government’s evidence to be adduced behind closed doors on grounds that it contained sensitive material that may compromise national security. The first instance judgment was therefore produced in two drafts, with only the redacted version being made available to the public.   A nine-strong panel decided that the court did have jurisdiction to consider the closed judgment, but would only do so if persuaded (on the basis of submissions in open court) that it was necessary for the purpose of fairly disposing of the appeal. At that stage the court was not so persuaded. Lord Hope described the government’s refusal to spell out even its basic national security case in open court as ‘cloak and dagger stuff’ that was ‘difficult to swallow’.   The court was reluctantly persuaded this morning that it was indeed necessary to consider the closed judgment and that this would necessitate a closed hearing. According to Lord Neuberger ‘unless and until an appellate court sees the judgment, it often cannot be sure its contents will be irrelevant or that its contents have been fully gisted’. He went on ‘no doubt in due course when we have completed the closed hearing...we will have quite a few things to say about this unhappy procedure.’   The court clearly has it in mind to use this episode to issue guidance to other courts faced with similar requests for a closed hearing. But whatever tests and safeguards are laid down, the use of secret courts is bound to become more widespread with the passage of the Justice and Security Bill.   Where litigants are prevented from seeing the State's evidence against them, hearing its submissions on that evidence, or understanding what part that evidence played in their claim being dismissed, the balance of justice is dangerously skewed. And far from being immune to these changes, PI litigation, employers’ liability in particular (for instance, claims by wounded servicemen against the MoD) may yet become the area of law most acutely affected.

Is dissatisfaction with bedroom performance a 'recognisable psychiatric illness'?

The Times reports today that ‘millions of people risk being labelled as mentally ill under new classifications which have prompted calls for a boycott by psychologists (The Times, March 20 2013). The fifth edition of the Diagnostic and Statistical Manual of Mental Disorders is due out in May and it is reported that dozens of new conditions have been created. Thus there is a Generalised Anxiety Disorder which includes everyday worries, a Minor Neurocognitive Disorder for forgetfulness in old age and Behavioural Addictions which, the report says, turn much of what people enjoy doing into a disorder. Professor Peter Kinderman who is the head of the Institute of Psychology, Health and Society at the University of Liverpool said that his favourite is the Female Orgasmic Disorder which is the temerity to complain about your husband’s ability to perform in bed. The Times goes on to say that a group of psychologists will launch a campaign today to boycott the new manual. In Page v Smith [1996] AC 155 the House of Lords made it clear that one of the control mechanisms in claims for damages for what used to be called ‘nervous shock’ was that they were only recoverable for a recognisable psychiatric illness. This control mechanism assumed that there was some agreement among psychiatrists as to what ‘recognisable psychiatric illnesses’ were. That consensus seems to be coming undone. It will be interesting to see whether some of the more controversial conditions and disorders will be pruned from the Diagnostic and Statistical Manual following a consultation period and prior to publication. (Image courtesy of Mr Lightman/FreeDigitalPhotos.net)

After pasties and caravans … CFAs and DBAs?

Is it just me or should we all be concerned about the way in which the legislation to implement Lord Justice Jackson’s recommendations is being introduced?   Why have there been so few announcements about what are, after all, radical and far reaching public policy changes? If we as legal professionals are unsure about the proposed changes, how can we properly advise the public after 1 April 2013?   Will legal professionals soon be joining bakers and caravanning enthusiasts in pointing out to the government the potential far reaching consequences of over hasty legislation?   In the foreword to his final report on costs in civil litigation dated 21 December 2009 Lord Justice Jackson wrote:   “ … I therefore propose a coherent package of interlocking reforms, designed to control costs and promote access to justice ...”   He went on to make a total of 109 separate recommendations some but not all of which have found their way into proposed new legislation. In particular the Conditional Fee Agreements Order 2013 (the CFA Order) and the Damages-based Agreements Regulations 2013 (the DBA Regulations) have now been laid before Parliament and were subject to a Motion to Approve debate in the House of Lords on 26 February 2013.   Both have been described by the General Council for the Bar (GCB) as “not fit for purpose”. The GCB also suggested that the proposed order and regulations “will deny access to justice, burden the courts’ time with unnecessary satellite litigation and limit the commercial use of DBAs”.    There are certainly grounds for concern. As we all know, the success fee under a CFA entered into after 1 April 2013 for proceedings at first instance will be capped at 25%. Article 5(2) of the proposed CFA Order provides that this will be 25% of “(a) general damages for pain, suffering, and loss of amenity; and (b) damages for pecuniary loss, other than future pecuniary loss” (my emphasis). However, in a lecture given on 29 February 2012, Lord Justice Jackson amended his view in response to submissions from a number of parties and proposed that the cap should be 25% of all damages. There must be a risk that in larger and more complicated cases which are difficult to cost budget and involve significant initial disbursements, limiting the cap to 25% of past losses will not promote “access to justice” as Lord Justice Jackson hoped but may in fact prove to be a disincentive to  taking on such cases in the first place.   Then there is VAT. As drafted, the proposed CFA Order provides that the “damages” to which the 25% cap applies are “net of any sums recoverable by the Compensation Recovery Unit of the Department for Work and Pensions”. There is no exclusion for VAT. But if VAT is included in such damages there is not only scope for uncertainty (what happens, for example, if the VAT rate changes after the CFA has been entered into but before a bill of costs is rendered?) but in the larger and more complicated cases this may be a further reason why those contemplating taking on such cases may decline to do so on the grounds that the unpredictability of the risk will not be properly compensated by the level of the CFA.   The same objections apply to the proposed DBA Regulations. As presently drafted, the cap for DBAs is inclusive of VAT but exclusive of damages for future pecuniary loss. In addition, the DBA Regulations do not allow for “hybrid” agreements i.e. agreements under which some costs are recoverable if a “win” does not occur rather than no costs at all. This is again contrary to what Lord Justice Jackson recommended and may prove a disincentive to the use of DBAs particularly in commercial cases.   Access to justice may not be as newsworthy as Cornish pasties and static caravans but in resource-intensive cases, the government’s aim of protecting the damages recoverable by claimants may actually result in some claimants being unable to obtain legal representation and thus recovering no damages at all.       Image – cornishpasties.com