Legal Watch:Personal Injury6th November 2014Issue: 039

Events

Plexus and Greenwoods hold a series of events which are open to interested clients. See below for those being held in the next few months:

The Major Bodily Injury Group (MBIG) | Spring Seminar | 28.04.15 | The Wellcome Collection, London

In This Issue:

• Jackson/Denton• Occupiers’ liability• Limitation

Jackson/DentonThe case of Abdulle and others v Commissioner of Police for the Metropolis [Lawtel 3/11/2014] undoubtedly shows a significant softening of the post Mitchell approach to the compliance with rules and orders.

The claimants had claimed that police officers had unlawfully detained and used excessive force against them. At a case management conference, it was ordered that the trial would start between 6 and 12 May 2014. It was also directed that both parties would have to fill out pre-trial checklists, which would be sent out by the court and that the claimants should file and serve trial bundles before the date fixed for trial. The defendant duly filled out and returned his pre-trial checklist, but the claimants failed to do so. When the claimants had failed to pay the required court fees a week before the trial window, the listing office attempted to serve a notice of default on them by fax. The trial window came and went following the claimants’ failure to file a checklist or pay the fee, as well as their failure to prepare a trial bundle. The defendant applied to strike out the claims automatically. The court declined to do so as there was insufficient evidence to show that the notice of default had been successfully transmitted to the claimants, but it ordered them to pay the costs of the defendants’ application. They failed to pay those costs.

The defendant re-applied and argued that the claimants’ case should be struck out because they had failed to prepare for trial, in particular by failing to pay the court fee contrary to Schedule 1 Civil Proceedings Fees Order 2008; failing to file a pre-trial checklist in breach of the directions and failing to prepare a trial bundle contrary to CPR 39.5. The claimants submitted that an application to strike out under CPR 3.4(2)(c) had to be considered in the light of the procedure under CPR 3.7(2), which required the court to serve a notice of default in respect of the fee and that it was therefore relevant that no such notice had ever been successfully served. They also contended that the date for lodging the trial bundle was

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unclear because there had been a trial window rather than a fixed start date.

Dismissing the defendant’s application, the High Court judge held that the claimants’ argument relying on the court’s failure to serve a notice of default had no merit. The CPR and the order clearly imposed obligations on the claimants to pay the checklist and hearing fees. Although CPR 3.7(2) was written in mandatory terms, where no notice was served by the court, a claimant nonetheless remained in breach due to non-payment. Insofar as the claimants suggested that had they been pressed for payment earlier, they may have paid the fee earlier, that merely underscored their ability to pay the fees and made more blameworthy their failure to do so. The payment of court fees was mandatory and claimants should pay them when they were due, not only when pressed to do so. The claimants’ solicitors were well aware of the importance of paying the fees and of the potential consequences of failing to do so. As to their contention that they had not known when to lodge the trial bundle, a start date had not been fixed for trial because of the failure to pay the fee. Where there was a short period during which a trial was set to start, and a timetable which was fixed by reference to a trial start date, the date for lodging bundles had to be calculated by reference to the first date of the period. Considering all the circumstances, including the fact that the failure to pay the fee was a serious breach with particularly significant procedural consequences, namely the loss of the trial window, as well as the need to enforce the rules of the court and only to allocate proportionate resources to each claim, on balance it was not appropriate to strike out the claim. Although the behaviour of the claimants’ solicitors was worthy of real criticism, the case was all but ready for trial and was not insubstantial. The appropriate course was to allow the claim to proceed, but to stay it until the claimants had paid the outstanding costs order, failing which their claim would be automatically struck out.

‘Although the behaviour of the claimants’ solicitors was worthy of real criticism, the case was all but ready for trial and was not insubstantial.’CommentThe most surprising aspect of this judgment is the fact that the claimants succeeded even through there was a clear impact on court resources: one set of court dates was lost; and another would need to be allocated to the case. The amendment to CPR 3.8 permits the parties to agree an extension of time where a sanction is in place ‘provided always that any such extension does not put at risk any hearing date’. When applying for relief from sanctions under CPR 3.9 the impression was given that an application would be looked at critically if additional time required by the applicant would disturb a trial date. This case suggests a watering down of that approach.

In the second case Robinson v Kensington and Chelsea Royal Borough Council and another [Lawtel 5/11/2014] the claimant was the mother of a child. The litigation had arisen from issues relating to the child’s education. The defendant had received a letter from the child’s GP on 9 April 2013 forwarded by the claimant, stating that the child could not attend school as he was under a lot of stress due to problems at school, that he had been referred to a clinic for psychological support and suggesting that he stay at home until he had had an assessment. The local authority’s Education Welfare Officer, the second defendant, wrote to the GP and sent a copy to the claimant. The letter stated that the child had been absent from school for a length of time and since receiving the GP’s letter she had liaised with the clinic who said it had not received a referral letter from the GP but had seen the child through the walk in clinic.

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The defendant stated that the claimant had received a formal warning that the child’s continued absence could lead to the issuing of a fixed penalty notice and, given the background, asked whether the GP was able to confirm if she had referred him to the clinic and that he was unable to attend school. The claimant wrote to the local authority in May 2013 threatening legal proceedings on the basis that its letter contained defamatory innuendo and implied that she was dishonest and guilty of fraud as she had forged the GP’s letter. The local authority, through a legal officer, replied that it was happy to offer the claimant an apology but did not agree that she had been defamed, that any action would be robustly defended and offered mediation which the claimant declined due to the expense. The local authority instructed a neutral third party, a barrister, for an independent evaluation. He concluded that the contents of the letter were subject to absolute privilege because it was an investigation into the possible commission of an offence and would not be regarded by the courts as defamatory. The claimant commenced proceedings without further notice to the local authority. She drafted a claim form issued in April 2014; it was defective in that it did not provide particulars of claim and a stay was ordered until June to ensure compliance. The local authority was served on 24 July. The legal officer was out of the office and on her return found an envelope addressed to the business manager. She took steps to instruct counsel by 11 August, by which time default judgment had been entered and it was only then that she noticed that it should have been filed by 8 August. She immediately telephoned the court to say that the local authority intended to defend the claim. The local authority filed the application to set aside in default of acknowledgment of service.

The local authority submitted that the default judgment against it should be set aside pursuant to CPR 13.3 as it had a real prospect of successfully defending the claim as the words complained of did not bear the meaning the claimant attributed to them to justify continuing the proceedings and that the breach was not so serious or significant.

Allowing the application the High Court judge held that the issues were whether the local authority had a real

prospect of successfully defending the claim and, if so, whether the failure to comply with the requirement to acknowledge service by 7 August was a significant failure in the current context and considering the overall justice. The words complained of had to be read in context. The defendant had made a number of references to the GP’s letter where she actually asserted its authenticity; there was nothing that cast doubt on its authenticity. Any publication to other healthcare providers and administrators would be limited as only a limited number would have access to the claimant’s and the defendant’s medical notes. No doubt would be cast on the claimant’s honesty in the eyes of such healthcare providers or administrators and they would infer that there were a number of explanations for the non-receipt of the referral from the GP including administrative mishap. The local authority had a real prospect of successfully defending the claim. In the circumstances, the failure to serve the acknowledgement of service was not serious and significant; the delay only amounted to five calendar days and the process had already been delayed by the difficulty the claimant had had in issuing the proceedings. The parties had been negotiating but the claimant had herself caused significant delay in failing to put forward a compliant claim form and particulars of claim. There was a further delay on her part by not serving proceedings until 24 July and she had not given any indication that the local authority should expect proceedings.

‘…the failure to serve the acknowledgement of service was not serious and significant…’Every case is on its own facts but the claimant in the commercial case of Frontier Estates v Berwin Leighton Paisner LLP [Lawtel 4/11/2014] received less sympathy from the court, even though the case was at an early stage.

The appellant/claimant appealed against a Master’s dismissal of an application for an order to extend the time for service of particulars of claim.

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The appellant/claimant had sought to issue a contractual and or tortious damages claim against the respondent/defendant solicitors’ firm in connection with a refinancing of the acquisition of land and property. In an earlier judgment, it had been held that the Master had erred in considering the claimant’s application to extend time, made prior to the original time for service expiring, under CPR 3.9 and not CPR 3.1(2)(a). It was common ground that the application to extend time had been an in time application.

Dismissing the appeal, the Deputy High Court judge held that it was the court’s task to exercise its discretion under CPR 3.1(2)(a) in accordance with the overriding objective, to ensure justice and that litigation was conducted at a proportionate cost under CPR 1.1(2). The instant case was one in which everything had happened last minute on the claimant’s side; the claim had been issued just before the expiry of the limitation period and the claim form had been served and an application made at the last moment. There had been no pre-action protocol letter in circumstances where the claimant had had sufficient information to enable it to do so. In fact, the claimant had had sufficient information to formulate the particulars of claim for some time and there was no adequate explanation why there had been a delay and why it had done everything at the last moment. The defendant had only been served a witness statement in draft form three days before the hearing. It was necessary to consider the prejudice to both parties. The defendant would suffer greater prejudice if the claim were to go ahead, particularly where the claimant had stated in its supplemental skeleton that there was no point to be taken in relation to a limitation period. The instant case was not one of the defendant getting a windfall in being able to rely on a limitation defence; a limitation period was there to protect a defendant from stale claims and to permit a defendant to move forward without the threat of litigation. The defendant would suffer the greater prejudice; there had been no satisfactory explanation or reasons for a six-month delay. The Master had been correct in his overall conclusion, and although he had erred in proceeding under CPR 3.9 rather than the appropriate provision, he had been troubled, like the instant court, by a lack of a satisfactory explanation for delay and the resulting prejudice.

‘The Master…had been troubled, like the instant court, by a lack of a satisfactory explanation for delay and the resulting prejudice.’

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Occupiers’ liabilityIn Butcher v Southend-on-Sea Borough Council [Lawtel 3/11/2014] the claimant had been visiting her parents who had lived for some years in sheltered housing owned by the defendant local authority. The parents’ accommodation overlooked the back entrance to the property and she used that entrance. When leaving she had walked along a tarmac path which ran diagonally from the entrance. Beside the path was an area of patchy grass. There was a difference in level between the path and the earth of just over two-and-a-half inches. The judge found that the edge of the path was clear and did not need to be marked. He found that the claimant had stepped half on and half off the path and fallen. Shortly after the accident the local authority inspected the area, concluded that dry weather had caused the earth to shrink from the edge of the path and instructed contractors to fill in the dip with topsoil to bring the surrounding aea up to the level of the path. The judge held that the defendant was in breach of its duty as an occupier, it was foreseeable that someone might lose their footing at the edge of the path, as had happened, because of the change of levels. The defect was obvious and easily remedied. The hazard would have been seen by the claimant if she had been paying attention. She was held 50% contributorily negligent.

The defendant appealed and argued that the judge had given insufficient weight to the fact that the manager and caretaker of the accommodation had a system of inspection and relied on Clerk and Lindsell on Torts where it was said that an occupier who reasonably acted on professional or semi-professional advice was likely to escape liability, whereas failure to perform an adequate risk assessment might well tip the balance in favour of liability.

Dismissing the appeal, the Court of Appeal held that the issue of a system of inspection was relevant where a hazard suddenly developed, such as a spillage of oil on the path. The hazard at the edge of the path had not developed within minutes or hours or even days. Nor was it the kind of hazard, such as the risk of branches dropping from trees, which

required a professional risk assessment. The drop at the edge of the path was obvious and had not been detected by the manager of the accommodation or the caretaker. The defendant relied on what was said in Clerk and Lindsell and on a disability discrimination audit which had not found anything wrong with the path. However, Clerk and Lindsell was not a checklist and no one knew what the state of the path and surrounding area had been when the audit was carried out. The local authority said that the judge had not carried out the balancing exercise required by Beaton (2002), but that case did not lay down any general principle. Each case turned on its own facts. It was a point in favour of the local authority that there had been no previous accident, but on the other hand the hazard had been rectified after the accident without difficulty or expense. The question for the judge was whether before the accident it was foreseeable that someone would inadvertently step off the path and lose their balance because of the drop. It could not possibly be said that the judge was wrong to find that that was foreseeable and to go on to find that the local authority had not taken such care as was reasonable in all the circumstances to see that visitors were reasonably safe. There was no error of law.

‘…the local authority had not taken such care as was reasonable in all the circumstances to see that visitors were reasonably safe.’

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LimitationAt a time when deafness claims are one again on the increase, the case of Platt v BRB (Residuary) Ltd (2014) EWCA Civ 1401 is a useful one for defendants.

The respondent/claimant had worked for the appellant/defendant for 35 years between 1953 and 1988 in a very noisy environment. He first consulted his doctor about hearing problems in 1982. He made further visits in the 1980s and 1990s. In 1997, he complained to his GP of tinnitus and hearing reduction. He was referred to an ear, nose and throat specialist who asked whether he had worked in a noisy environment and the claimant replied that he had. He did not go on to ask and was not told that he was suffering from noise-induced hearing loss. In 2010, the claimant read an article about industrial hearing loss which led him to contact solicitors, to consult an ENT surgeon and to make a claim in 2011. The judge found that the claimant was not affected in 1997 by constructive knowledge of the fact that his tinnitus and hearing loss were attributable in part to acts or omissions alleged to amount to the defendant’s negligence. He held that, applying an objective test, it was not reasonable to have expected the claimant specifically to ask the original ENT consultant about the cause of his hearing loss in 1997. He found that the claimant had actual knowledge after reading the article which was less than three years before he issued proceedings.

Allowing the defendant’s appeal, the Court of Appeal held that the judge had not paid enough regard to the words of S14(3) Limitation Act 1980 and to the test in Whiston (2010). The court had to consider what knowledge the claimant might reasonably have been expected to acquire from the medical advice which it was reasonable for him to seek. The proviso to S14(3) made clear that a person was not to be fixed with knowledge of something only ascertainable with expert advice so long as he had taken all reasonable steps to obtain and, where appropriate, to act on that advice. The claimant had taken all reasonable steps to obtain advice about his hearing loss. It was reasonable to expect

a reasonable person in his position to ask the original ENT consultant whether the history of noise exposure which they had discussed had caused or contributed to his symptoms. It was a natural and appropriate question to ask. The test imposed a demanding standard.

Applying the appropriate test in S14(3) and the guidance from Whiston, it was reasonable to expect the claimant to ask the consultant what had caused his hearing loss in all the circumstances of the case. It was not disputed that, had he done so, he would have been likely to have been informed that his tinnitus and hearing loss were noise-related.

Judgment was given for the defendant on the limitation issue on the basis that the claimant had constructive knowledge more than three years before the issue of his claim form.

‘…it was reasonable to expect the claimant to ask the consultant what had caused his hearing loss…’

The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 8 Bedford Park, Croydon, Surrey CR0 2AP. Parabis Law LLP is authorised and regulated by the SRA.

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