Just before entering court, the parties reached an agreement and a Consent Order was signed. The claim settled for an award of damages which was a lot less than the real value of the claim. 

Subsequently, the claimant sought to set aside the Consent Order, but was refused.  She appealed. 

The Court of Appeal allowed her appeal, finding that the lower judge had erred in considering her capacity whilst making the decision to settle, whereas he should have considered her capacity to conduct the litigation process altogether. He went on to find that the litigation would have been conducted differently had the claimant had the benefit of a litigation friend, as settlement would not have been reached for such a low sum. The appeal was allowed.

The claimant was knocked down by the defendant motorcyclist, as she was walking across the road at a roundabout. She suffered severe brain damage as a result of which she underwent a change of personality and cognitive, emotional and psychiatric symptoms, and was under significant risk of deterioration without appropriate support and supervision.

She pursued a claim for damages without a litigation friend, the question as to whether she was ‘a patient’ was never asked. Her special damages claim was modest and included travel expenses and cost of care for two years. The claim eventually settled outside the court room for £12,500 which was a lot less than the real value of the claim.

Sometime later, the claimant applied for a declaration that the compromise (consent order) is set aside because she had lacked the capacity to enter into it, and she sought the court’s approval of the compromise. The court considered whether, in considering the claimant’s capacity retrospectively, its approach should be to limit itself to examining what decisions were in fact required of her, or to expand its consideration to include her capacity to make decisions which might have been required if the litigation had been conducted differently.

Silber J held that in carrying out a retrospective assessment of the claimant’s capacity, there was no reason why the court should expand its consideration to include decisions which might have been required. Otherwise, if a party had full capacity to agree to all steps which were taken in a particular piece of litigation, those steps could be set aside just because another step which could conceivably have been taken was beyond his capacity.

The claimant appealed this decision.

Ward LJ, giving the leading judgment allowed the appeal, holding as follows:

• The issue of capacity had to be determined in accordance with what the person concerned actually did and not what he might have done.
• Accordingly, when considering whether the compromise might be set aside on grounds of lack of capacity, the court was confined to examining the decisions in fact required of the claimant.
• It was accepted that there was a presumption in favour of capacity. The court had to perform a fact-sensitive inquiry to check how the claimant had behaved so it can assess what she was able to understand/did understand during negotiations that lead to the settlement.
• On the evidence, the claimant had understood what was explained to her when she decided to accept the settlement, and there was no evidence to rebut the presumption in favour of her capacity in respect of the events leading up to the settlement.
• The lower instance judge had erred because he only considered the question of capacity in respect of the negotiations leading to settlement, whereas the proper question was whether the claimant had the necessary capacity to conduct the litigation process.  As the compromise was not a self-contained transaction but an integral part of the proceedings, the question was not a narrow one but a broad one.
• Capacity to litigate involved the capacity to understand a large variety of issues that arose between deciding to litigate and up to the point of judgment. If a claimant was incapable of managing and administering her property and affairs but nonetheless brought a claim without having a litigation friend, any steps taken before she had a litigation friend would be of no effect, although the court had the power to order otherwise under CPR 21.3(4).
• If the claimant was found to be a protected party at the time when compromise was reached, then the court had to approve the compromise for it to be valid.
• If the claimant was found to be a protected party when proceedings were issued, the court could allow the proceeding steps which ought to have been taken with the assistance of the litigation friend to stand, but still refuse to approve the settlement reached.
• In the present case, it was necessary to determine whether the litigation would have been conducted differently. With proper advice the claimant’s claim would never have been advanced for the limited sums pleaded. Since capacity to litigate included the capacity to give proper instructions regarding the pleadings, the claimant had lacked that capacity. For her to have capacity to approve a compromise she needed to know what she was giving up, and she did not know that she was giving up a lot of money without which her mental disabilities were likely to increase.
• If the litigation had been conducted properly, it would have been concluded differently. Had the claimant been recognised to be a protected party, the compromise she had entered into would never have been approved by the court.

The appeal was allowed.

The defendant appealed, and the Court of Appeal held that the trial judge erred in his conclusion as there was no evidence that any warning given by the defendant would have prevented the accident, in view of the speed in which the motorcyclist was travelling. The appeal was allowed and the claim dismissed.

The claimant, Christopher Brown (Deceased) was an experienced motorcycle rider.  On the evening of the accident, at around 10pm, he was riding his 1000 cc motorcycle with another experienced rider.   They were travelling on a B road, with a speed limit of 60 mph.

At the scene of the accident there was a lay-by on the inside of a sweeping bend. At some point, the claimant accelerated away from the other rider. They overtook a car driven by a Mr Rose, who said that he was going at about 60 mph, and thought that the motorcycles were going at about 100 mph, but the trial judge found that in fact the other rider was travelling at about 65-70 mph and the claimant at about 85-90 mph, which was too fast for the road and “very well above the speed limit”. As he came around the bend, the claimant collided at speed with Mr Stangroom’s (the first defendant) tractor and trailer, and was killed.

It transpired that the first defendant had arranged to meet his employee, who was driving another tractor and trailer, at the lay-by where they exchanged vehicles. The employee drove his tractor, with its laden trailer, out of the lay-by and the first defendant waved him out, to make sure all was well. The first defendant then had to take his tractor and empty trailer out of the lay-by. In order to give himself more visibility, instead of exiting from the lay-by at the north end, he went over the grass verge between the lay-by and the road, since he perceived the danger of someone coming round the bend and finding his tractor and trailer blocking the road. As the tractor and trailer were diagonally across the road, the claimant came round the bend and collided with the tractor.

According to the police accident report, anyone travelling at 71 mph would have been able to stop, even assuming that the tractor and trailer were blocking the road.

The trial judge held that the major factor in causing the accident was the claimant’s excessive speed, but he nevertheless apportioned liability so that the first defendant was 25% negligent. The trial judge found the first defendant negligent on the following grounds:

1. Because of the direction of travel, he should have got his employee to wave him out, rather than the other way round.
2. He should have turned on his hazard warning light.
3. He should have sounded his horn.
4. He should not have crossed the grass verge, since by doing so he slowed his progress and blocked the road for a longer time than would otherwise have been the case.

The first defendant and his insurers appealed the trial judge’s decision; they argued he was wrong.   The first defendant was right to allow his employee to go first as he had a fully laden trailer, which would have been slower than his, and he had to travel up hill.  Moreover, there was no evidence that a pedestrian waving at the oncoming motor cycle would have been seen in time for him to halt, given his speed.  They also argued there was nothing to suggest that turning on the light above the tractor would have been seen any earlier than the tractor and trailer themselves, and a horn would not have been heard by a rider on a powerful motorbike.  Regarding the first defendant’s crossing of the verge, that was evidence of his care, not of negligence, and it was obvious that any reduction in the speed of the tractor and trailer would have been minimal, and could not have contributed to the accident.

The claimant argued that the first defendant should have switched on the warning light and ask his employee to guide him out.  The judge was entitled to make the findings he did and the appeal should be dismissed.

Burnton LJ found as follows:

1. There was no evidential basis for a finding that the hazard light could have been seen by the claimant any earlier than the tractor and trailer themselves. The judge erred in making this finding of negligence.
2. Sounding the horn would have made no difference; it was unlikely to have been heard.
3. It was unrealistic to think that a motorcyclist, travelling at the kind of speed that the claimant was, would have been alerted any more effectively by a pedestrian (waving a driver out of the lay-by) than by the presence of a substantial tractor and trailer.
4. The scene of the accident was not in itself a dangerous location; there was sufficient visibility for a motorist exceeding the speed limit by 10 mph to stop at the site of the accident.
5. There was no evidence that it would have improved the sightline available to the claimant if the employee would have stood nearer the bend in the road.
6. Accordingly, it cannot be said that the first defendant was negligent to emerge from the lay-by and cross the roadway as he did without assistance.
7. The first defendant’s decision to cross the grass verge was evidence of care, not of carelessness, and the judge had no evidence to suggest that a speedier emergence into the roadway would have been any safer or would have avoided the accident.

The appeal was allowed, and the claim dismissed. Longmore LJ and The Master of the Rolls agreed.

Legal proceedings were issued however, as the claimant’s solicitors lost contact with their client, they came off the record and the claim was struck out. 

We obtained a default costs certificate but were unable to trace the claimant, and we therefore sought recovery from the claimant’s ATE provider, but they refused to correspond with us. 

We successfully applied for permission to add the ATE provider to the proceedings, and were awarded £1,700 in costs.

This matter arose from a road traffic accident, whereby the claimant made a substantial claim for hire charges, recovery and storage charges, pre-accident value and miscellaneous expenses.

Proceedings were originally issued in November 2008, but the claimant’s solicitors subsequently came off the court record as they lost contact with their client, and the claim was struck out.

We obtained a default costs certificate and issued a warrant of execution which we could not serve on the claimant who had long ago left his last known address.  Our attempts to trace the claimant did not yield any results.

As the claimant’s claim was funded by way of a Collective Conditional Fee Agreement, we sought the relevant ATE provider, Templeton insurance, however they refused to correspond with us as they invoked a section of the policy which allows them to do so if we are not a party to the policy.  We therefore issued an application to bring Templeton into the proceedings pursuant to s.51 of the Supreme Court Act 1981.

Templeton contested our application and advised that they plan to void their policy as the claimant discontinued the action without informing them, and they have not cooperated with them.

Fortunately, we were successful in the hearing. We were permitted to add Templeton to the proceedings on the basis of the policy of insurance. Furthermore, as Templeton is registered outside of the UK, we were also permitted, retrospectively, to issue proceedings outside the jurisdiction.  Templeton was ordered to pay the defendant’s costs summarily assessed at £1,787.76.

The claimant appealed the first instance decision to the Court of Appeal, and this summary reports the result of the appeal. 

The claimant submitted that the first instance judge was wrong, but Davis LJ giving the judgment of the Court of Appeal, dismissed the appeal, holding that the legal test is not a counsel of perfection using hindsight, and added that “drivers are not required to give an absolute guarantee of safety towards pedestrians”.

We reported on this case, which was dealt with by partner Stuart Timmins, in the November 2011 edition of the Loop.  The matter concerned a pedestrian (the claimant), who was intoxicated at the time of the accident that had stepped onto the road in front of the defendant’s approaching car when it was not safe to do so. He was hit and suffered serious injuries which rendered him disabled.

The claimant alleged that the defendant should have foreseen his stepping into the road, and should have taken precautionary measures accordingly.

HHJ Davies however found as a fact that the defendant had seen the claimant standing by the road but to her he would have been simply someone waiting to cross.  He concluded that there was nothing unusual in the claimant’s conduct that would have made a reasonable and cautious driver think that there was a real risk he would suddenly step into the road, when it was dangerous to do so.  He added: “I accept that some cautious drivers might well have eased their foot off the accelerator as they came closer to the claimant, but I do not consider that it would have been negligent not to do so.”  Accordingly, HHJ Davies dismissed the claim.

The claimant appealed HHJ Davies’ decision, on the grounds that his decision was wrong.  He argued that the judge should have found that once the defendant had seen the claimant, she should have appreciated that there was a risk and should have taken precautionary measures.  He further argued that if the defendant reduced her speed to 35 mph and moved to the centre the accident would have been avoided, or at least the injury would not have been as serious as it was.

In the Court of Appeal, Davis LJ considered the parties’ arguments as well as the authorities placed before him, and noted that “…all these cases of this kind have to be decided on their own facts.”  He went on to say that he had no doubt the first instance judge reached a decision which he was right to make in view of the findings of fact.

He did not accept that the defendant should have taken her foot off the accelerator or that she should have steered towards the centre of the road, even if this would have been easy to do.  He agreed with HHJ Davies’ words that the legal test is not a question of the counsel of perfection using hindsight, and added: “…drivers are not required to give absolute guarantee of safety towards pedestrians. The yardstick is by reference to reasonable care…there was nothing here to require the defendant as a reasonably careful driver to act in any way other than a way in which she did act given the situation in which she found herself at the time.” 

Davis LJ concluded that HHJ Davies’ decision was justified for the reasons that he gave and there was no basis to interfere with the first instance decision.

The appeal was dismissed unanimously.

DDJ Hayes agreed with our assertion, after we provided him with the relevant correspondence. He held that the claimant was wrong to issue Part 8 proceedings, and he dismissed the claim, awarding us £600 in costs.

This was an MoJ case where the claimant issued Part 8 proceedings under CPR rule 44.12A seeking an order for detailed assessment.  We filed an Acknowledgment of Service indicating an intention to oppose the proceedings and the court listed the matter for a hearing.

We contended that a concluded agreement had been reached between the parties as to the amount of costs before the proceedings had been issued.  The claimant appeared to be saying that either there was confusion about whether an agreement had been reached, or that in any event they were entitled to issue proceedings to get payment.

We argued that the proceedings had to be dismissed.  We said that there were two reasons for this: Firstly, CPR 44.12A(4) contained a mandatory provision that proceedings had to be dismissed when they were opposed.  Secondly, the amount of costs had been agreed.  We said there was no doubt that an agreement had been reached, and that the court could not assess costs that had already been agreed.  The facts of the agreement meant that the whole basis of proceedings under CPR 44.12A had already collapsed because they can only be used where the parties fail to reach an agreement as to the amount of costs.  For all those reasons the court should dismiss the proceedings.

We handed all relevant correspondence to DDJ Hayes, and I submitted that it was clear from the correspondence that not only had we confirmed the agreement in writing, but that the claimant’s solicitors had acknowledged it and knew exactly what the balance cheque that we sent was for.  It was only later that we discovered the original cheque for costs had not reached the claimant and that was why there was a delay in making the final payment.  However, the claimant had clearly treated the costs as having been agreed and there could be no doubt that the proceedings were misconceived.

The claimant went through the correspondence from the claimant’s point of view and tried to argue that it was contradictory, and that the degree of confusion about whether the premium had been agreed or not was such that the claimant was entitled to issue Part 8 proceedings for detailed assessment.

DDJ Hayes agreed with us. He said there was no doubt that the amount of costs had been agreed and he did not accept that there was any ‘confusion’; the use of the Part 8 procedure was simply wrong.

In the circumstances he dismissed the Part 8 proceedings and awarded costs to the defendant in the sum of £600.00.

She was embarrassed to accept that her claim for communication costs in fact related to communications with…the fee earner in her office dealing with the claim!

She also got herself into quite a pickle in relation to liability, which had been contested throughout, as had the injury claim on LVI grounds.  Whilst she had claimed that she had been in no hurry, we managed to establish that the train (that her passenger boyfriend was due to catch) was to depart only three minutes after the accident took place, so they clearly had been running very late!

Happily, DDJ Street had no hesitation finding against her, and although the official finding was that the claimant was responsible for the accident, not the defendant, it certainly appeared that the Judge would have found in our favour in relation to her injury claim had he needed to.

DDJ Street also ordered her to pay the defendant’s costs in the sum of £8,602.

The claimant’s case was that she was stationary, waiting behind the defendant to turn right, when the defendant reversed into her vehicle.

The claimant suggested that she sustained whiplash, and that she attended upon her GP once and was advised to take painkillers.  Her symptoms remained intermittent for 10 weeks at which point they resolved.  She told the experts that prior to the accident she attended her local gym three times a week, but had been unable to attend for six weeks post-accident.

Whilst the claimant’s evidence was relatively consistent when it came to the accident circumstances and onset of injuries, there were several areas that made us suspicious regarding the nature of her claim. For example:

• There was very little damage to both vehicles, which did not correspond with the alleged injuries.  Repairs to claimant’s vehicle were £39, and only £30 to the defendant’s vehicle.
• The claimant’s medical records revealed that she did indeed attend upon her GP two days post-accident, but that this was a pre-arranged appointment for a foot injury!  She had attended her GP the previous month regarding a foot injury and had even had an x-ray. The post-accident appointment was simply a follow up appointment, in which the claimant also mentioned the accident.
• The claimant said that she refrained from attending the gym for a few weeks after the accident, yet her attendance records revealed that she attended the gym just two days after the accident.  She then attended regularly until well over 8 months post-accident, even though she contended that she was injured for 10 weeks.
• We also found out that the claimant actually worked for the firm of solicitors representing her, Imperium Law!  Although she claimed to be a mere Administrative Assistant, it became clear she was in fact studying to become a Legal Executive.  At no point had it been revealed by the claimant’s solicitors that she was a member of their firm.
• The Claim Notification Form was sent by the claimant’s solicitors only one day after the accident, so it was clear that the claimant was wasting no time making her claim!
• The claimant attended upon her GP twice approximately 8-9 weeks after the accident, within the alleged 10 week recovery period, but did not mention her injuries at all.

At trial, she gave evidence that the roads were wet. When asked whether they were also icy, as the defendant suggested, she said not. However, she had forgotten that her CNF had stated that the road was icy, and could offer no explanation as to why she seemed now to have “forgotten” that!

We knew that at the time of the accident she was on her way to drop off her boyfriend at the train station, and we obtained evidence that his train was due to depart only three minutes after the time that the accident had occurred. Thus, reluctantly, she was forced to accept that she had been in a hurry – a fact that significantly harmed her credibility.

Her credibility was further damaged when she confirmed, again reluctantly, that her claim for communication and travel costs in fact related to communicating with her solicitors, being her employers!

Finally, her explanation that she attended the gym two days after the accident simply to use the swimming pool and spa facilities did not wash.

DDJ Street said she found the claimant’s assertions difficult to believe and that the defendant’s evidence seemed entirely credible.  The defendant was a taxi driver of some experience and she found it difficult to believe that such an experienced driver would start to reverse without warning.

DDJ Street also commented that the Claims Notification Form and the gym attendance records did not assist the claimant at all. She found against the claimant, and ordered the claimant to pay the defendant’s costs of £8,602.

Hickinbottom J considered the relevant case law, as well as the expert evidence, and said that he was not satisfied that stress at work had been the cause of the claimant’s ongoing condition.  He went on to consider foreseeability and, reiterating the applicable test, held that there was nothing in the claimant’s job to trigger the defendant’s duty to take reasonable steps to avoid her suffering CFS.

The claimant was an HR Manager in the defendant company, a well-established financial services company.  Having worked for the defendant for just over a year, the claimant felt dizzy and ill at work, and left the office.  She has never returned to work, having been diagnosed as having Chronic Fatigue Syndrome (“CFS”), from which she still suffers 6 years later.

The claimant had health insurance through her employment which paid her an income until the office closed and, with the rest of the staff, she was made redundant.  She then pursued a claim against the defendant on the grounds that she developed CFS as a result of the amount and nature of her work.  She alleged that during the period of her employment, the indications of impending harm to her health arising from stress at work were sufficiently plain that the defendant, as a reasonable employer, realised or ought to have realised that it should take steps to prevent that harm from occurring.  Her claim for lifetime loss was valued at approximately £1.25m.

The claim was strongly opposed by the defendant.  It denied that the claimant’s CFS was caused by her work, and that it was foreseeable that she would become ill as a result of her work. The defendant asserted that it was not in breach of any duty as there were no indications of impending harm to the claimant’s health as a result of her work that triggered any obligation to take reasonable steps to avoid it occurring.

Hickinbottom J reviewed the relevant case law and stated that there were two questions to consider:

1. Was it reasonably foreseeable that the claimant would suffer the kind of harm that she has suffered as a result of her work?
2. Did stress at work cause the claimant’s CFS?

Mr Justice Hickinbottom found as follows:

• It is insufficient for a claimant to show that his/her employer knew or ought to have known that he/she had too much work on, or that he/she was vulnerable to stress as a result of overwork.  The claimant must show that his/her employer knew or ought to have known that, as a result of stress at work, there was a risk that he/she would suffer harm in terms of a psychiatric or other medical condition.
• It is insufficient for the employer to have actual or constructive knowledge that there was a risk that the employee might suffer in the future some other medical condition as a result of his work.  The employer must have knowledge of an imminent risk of the sort of collapse of health that in fact occurred.
• An employer is entitled to assume that an employee can withstand the normal pressures of the job unless the job is such that employees are known to be at particular risk of injury, or, the employer knows or ought to know that a particular employee is especially vulnerable to stress-induced illness.  Either of those may trigger a duty on the employer to consider taking steps to protect the health of the employee.
• An employer has a duty to act only when “the indications are plain enough for any reasonable employer to realise that he should do something about it”.  Where an employee keeps his difficulties, and any resulting stress and/or medical condition, from his employer, it may be difficult to blame the employer for failing to recognise the problem and what might be done to solve it.  An employer has no general obligation to make searching or intrusive enquiries, and may take at face value what an employee tells him.  “The foreseeability threshold in claims such as this is therefore high.”
• The claimant alleged that, but for the nature of her work, she would not have contracted CFS.  She contended that the overwhelming stress she suffered at work undermined her immune system, reducing her body’s ability to defend itself against infectious diseases, resulting in CFS being triggered by the chickenpox she contracted. She added that had her immune system not been undermined by stress, she would have recovered from chickenpox unexceptionally, without contracting CFS.
• The judge noted that the claimant’s argument on causation was bold.  It appeared uncontroversial that there was no proven causal link between stress or a deficient immune response on the one hand, and CFS on the other.
• On the evidence, he was not satisfied that stress at work undermined the claimant’s immune system, nor that her CFS resulted from a deficient immune response.  On the facts of the case, the expert evidence was, overwhelmingly and all but unanimously, against those propositions.
• On that basis, the claimant’s claim failed.
• The judge went on to say that even if he had been persuaded that the claimant’s CFS had been caused by her work, she would have faced the further task of showing that it was reasonably foreseeable to the defendant that she was at risk of suffering CFS.  There was nothing in the claimant’s job to trigger the defendant’s duty to take reasonable steps to avoid her suffering CFS.
• Even if the claimant worked harder than some, she was not the only one to have to face the challenges and indeed, she was in a better position than some, because of her background in HR. Moreover, whilst the experts agreed that the claimant’s psychiatric background had predisposed her to contract CFS, the defendant did not know of that background, nor was it suggested that they ought to have known. Accordingly, Mr Justice Hickinbottom dismissed the claim.

For more information, please contact: adi.frankovitch@horwichfarrelly.co.uk

Parker J held that a Part 36 offer cannot be accepted after the claim had been struck out. CPR 36.11(1) stated clearly that the acceptance of a Part 36 offer was to then stay the claim, but if the claim had already been struck out then there was no claim in existence and hence no claim to stay.

The claimant issued proceedings against the defendant. On 10/09/09 the defendant made a Part 36 offer in respect of the claim.

On 03/09/10 an Unless Order was made requiring the claimant to serve certain documents by 10/09/10. On the 09/09/10 the claimant’s solicitors sent the defendant’s solicitors a List of Documents and a witness statement. The defendant’s solicitors e-mailed the claimant’s solicitors, on 10/9/10, explaining that the disclosure statement was not signed by the claimant (rather by his solicitors) and saying that unless a list was received signed by him, they would apply to strike out the claim. The defendant’s solicitors also wrote, on the same day, to the court inviting it to strike out the claim. Before the strike-out application was heard, the claimant purported to accept the defendant’s Part 36 offer.

When the defendant’s application was heard, DJ Grosse ordered that the claim be struck out and she found the claimant’s attempt to accept the defendant’s Part 36 offer irrelevant due to the passage of time.

The claimant appealed.

HHJ Winstanley allowed the appeal, holding that the claimant did not breach the Unless Order.

The defendant appealed, and the appeal came before Mr Justice Kenneth Parker, who had to consider the following issues:

• Was there a breach of the Unless Order?
• Could the claimant accept the Part 36 offer, notwithstanding the strike out?
• Should the claimant have relief from the sanction?

Mr Justice Parker held that the claimant had breached the Unless Order as he was late serving the List of Documents. The list was posted first class on 09/09/10 and service was deemed to be effected on the next business day, that is, Monday, 13/09/10, three days late. The fact that the document was in fact received and even acknowledged as received by the defendant supposedly within time on 10/09/10 was not relevant.

The claimant argued that by acknowledging receipt of the list of documents, the defendant was “estopped” from taking the point that the list was not served on time. However, an express agreement between the parties to extend the relevant time limit could not be effective, and there is simply no room under CPR r 6.26 for any “estoppel” arising from conduct rather than by express agreement. Pursuant to CPR 6.26, service of the relevant list was effected on 13/09/10, a few days beyond the time stipulated in the Unless Order.

The defendant argued that where the claim has been brought to an end by a strike out order, the claimant can no longer accept the Part 36 offer. He submitted that CPR 36.11(1) which states: “If a Part 36 offer is accepted, the claim will be stayed” is based upon there being an existing claim to be stayed, and in this case the claim was no longer in existence as it was struck out.

Mr Justice Parker considered the overriding objective and whether an interpretation of the rules which precluded acceptance after a claim was at an end, although it had not been dismissed after a hearing and judgment had not formally been entered, would be in the spirit of the overriding objective. He came to the conclusion that there was no injustice to either party by reason of such an interpretation. The claimant has by his own conduct brought about the consequence that he cannot accept the Part 36 offer, by his failure to comply with the Unless Order.

The judge went on to say: “…in a properly functioning system of civil justice…“unless” orders should rarely be necessary to ensure that parties comply with applicable rules, orders and directions…and…relief from sanctions should be sought infrequently and in the most exceptional circumstances…Failure to comply with rules, orders and directions, is a serious problem in our system of civil justice, particularly in respect of relatively small claims where the proceedings ought to proceed, in accordance with the rules, in a speedy, inexpensive manner that does not involve disproportionate use of court resources…If a Claimant or Defendant appreciated that failure to comply…not only puts at risk his ability to continue the claim or defence…but also would preclude him from accepting a Part 36 offer, it could well be that there would be fewer “unless” orders, fewer breaches…and fewer disputes and applications following such alleged or actual breach.”

In respect of the issue of whether the claimant should have relief from sanction, Mr Justice Parker found that he should, as the breach was only minor and no real prejudice was caused as the defendant had in fact received the documents by 10/09/10.  He said: “There is, therefore, no inconsistency, ambiguity or obvious flaw that would vitiate the judge’s ruling on relief from sanction, and I see no good reason, therefore, why that ruling should not be allowed to stand and why the eventual order of this Court on the present appeal should not properly reflect a ruling lawfully made by the judge below in respect of a wholly self-standing matter that is not affected by the outcome on the other issues considered on this appeal.”

For more information, please contact: adi.frankovitch@horwichfarrelly.co.uk

An interesting feature of this claim is that although the claimant was struck by a car, she did not initially pursue the driver. When a claim was finally intimated against the driver, it was too late as the police report had been destroyed.

The claimant, 12 years old at the time of the accident (2001), was struck by a car when she crossed a busy dual carriageway together with a friend. The claimant suffered a serious head injury in the accident and had no recollection of its surrounding circumstances. She brought a claim for damages under the Occupiers’ Liability Act and in negligence.

The first defendant was a firm of house builders who had recently constructed a small estate of houses adjacent to the road where the accident happened. The second defendant owned and maintained the land between the housing estate and the road, and was the successor in title to the third defendant.

The road the claimant had been attempting to cross at the time of the accident was a busy dual carriageway, separated by a central reservation with a barrier, subject to the national speed limit. The claimant and her friend could have crossed the road using a footbridge or via a road with a pavement that passes underneath the spine road. Sadly, they chose instead to walk along a track towards the edge of the road bordered by a dense area of trees, scrub and undergrowth. At one point, there was a significant gap and the girls walked through it to reach the road. As the claimant stepped out she was struck by a car.

The claimant alleged that the first defendant had created a danger by removing a fence and enlarging the gap, and that the second and third defendant local authorities had failed to take steps to prevent visitors to the adjoining land from gaining access to the dual carriageway by failing to put up a fence.  The claimant relied on the evidence of a witness who claimed that the first defendant had removed the fence to erect an advertising sign and had not replaced it. He also claimed to have written to the council to notify them of the gap and the specific danger it posed to children.

HHJ Wood found as follows:

• At some point there had probably been a post and rail fence which had been removed, but the first defendant proved they had neither removed the fence nor put up an advertising sign.
• Whilst there was no evidence of complaint about the gap, the third defendant had constructive knowledge of its existence and the path leading up to it. The third defendant was reasonably expected to foresee that children, in their capacity as lawful visitors, might be tempted to use the path as a shortcut across the dual carriageway.
• The third defendant, as occupier, had impliedly consented to the path being used by lawful visitors, including the claimant. However, the injury had to be reasonably foreseeable as arising from the duty owed by the occupier to maintain the state of his land and dangers arising from it. In the present case, the danger did not arise from the state of the third defendant’s land but rather from the adjacent dual carriageway.
• The test of liability was whether what the claimant did had been impliedly consented to. The use of the path was consented to, and gave rise to the opportunity for her to enter onto the highway, but that opportunity was not created by any breach of the 1957 Act. The absence of a child-proof fence created an opportunity, but was not the cause of the accident.
• The cause of the accident was the disastrous act taken by the claimant in deliberately stepping in front of a car which was there to be seen. The absence of a child proof fence created an opportunity but was not the cause of this accident.
• Although there was no liability on the part of any of the defendants, HHJ Wood considered the issue of contributory negligence of a 12 year old, and said that if there had been a finding of a positive duty to erect a fence of the post and rail type previously in situ, the claimant’s conduct would have registered high in relation to both causal potency and blameworthiness and her contribution would have been assessed at 75%. Different considerations would have applied had it been found that a duty to erect a child proof fence existed. Such a breach would broadly reverse the relative blameworthiness and causal potency of the parties and her contribution would have been assessed as being 25%.

HHJ Wood dismissed the claim.

For more information, please contact: adi.frankovitch@horwichfarrelly.co.uk

We objected, arguing that there was no contract to breach, that in any event the claimant’s statement of case did not comply with the CPR, and consequently that the claim should be dismissed.

DDJ Smith accepted that no contract existed, and that the claimant’s solicitors issued proceedings for their own benefit (i.e. for their costs) rather than for the benefit of the claimant. She criticised the claimant’s solicitors for not acting like a reasonably competent solicitor, and summarily assessed our costs due to the claimant’s solicitors’ unreasonable conduct. We were awarded £1,191.36.

This was a small claims track trial, arising from a road traffic accident. The claimant’s vehicle had been damaged in the accident, and the claimant brought a claim for the repair hire charges.

The claimant’s solicitors sent a Letter of Claim setting out the various amounts that would be due depending on when the defendant’s insurers made payment.  The letter stated that “payment of damages will be deemed as acceptance of your consequential liability to pay costs which will be calculated pursuant to CPR 45 Section 2”. The defendant’s insurers eventually sent a cheque for an amount slightly lower than the amount that was due if payment had been made at the outset.  In the correspondence that followed the claimant’s solicitors made it clear that the cheque was not accepted in full and final settlement, but had been banked on account.

The claimant’s solicitors subsequently issued proceedings, contending that they had accepted Aviva’s cheque in full and final settlement subject to payment of costs, and that costs had not been forthcoming and therefore that the defendant was in breach of contract.  The proceedings contained an alternative submission that because the damages settled for more than £5,000.00 the claimant was entitled to costs in any event.

We denied the existence of a contract or any breach thereof.  We filed a Defence in which we stated that the claim was misconceived and amounted to an abuse of process.  We also stated that the claimant was in breach of CPR Part 16 and the relevant practice direction, in any event.

The court made an order directing the claimant to comply with the practice direction, but the claimant ignored it.  We filed a detailed skeleton argument in which we set out where the Particulars of Claim did not comply with the Rules. The claimant did not respond. Further orders were made by the court requiring documents to be filed, but these did not yield a response from the claimant either.

We were therefore somewhat surprised to discover that the hearing was opposed.  The claimant’s Counsel was quite surprised herself as she had been told by her solicitors that it was very unlikely we would turn up! It turned out she did not have sight of our schedule of costs or the skeleton argument. When she called her instructing solicitor to query this, she was told that indeed these documents were on file but had not been sent to her!

DDJ Smith was concerned about the way the claimant had presented the case.  She was concerned that none of the letters that were referred to in our skeleton argument were on the file before her, and she had to adjourn the matter so she could read the correspondence which was omitted from the court file.

When she called us back in she asked the claimant’s Counsel to make her submissions, and in particular, to deal with the issues that were raised in the skeleton argument.  The claimant’s Counsel said that her instructing solicitor had made it clear that any settlement would have to be subject to the payment of costs and the defendant had in fact agreed to this by sending the settlement cheque.

DDJ smith asked the claimant where it was exactly that their concluded agreement on damages was said to be found.  At each stage the judge considered the letters that had been sent and repeatedly said that there was not yet any concluded agreement.  It became clear that the claimant’s counsel had not persuaded the judge that any agreement on damages had taken place.  Eventually the judge called us in to give her judgment, without us having made our submissions at all. She said as follows:

“This is a claim by the claimant for £2,492.28.  It is described as a damages claim arising from a breach of contract but really it is a claim for costs on behalf of the solicitors.  The question for the court is where is the contract and what was it about? …It is clear from all the subsequent correspondence that that cheque was not accepted in full and final settlement…The correspondence doesn’t show any concluded agreement.  The claimant talked about wanting damages and costs but I have been through all of the correspondence and I can find no final agreement.  The claimant says that banking the cheque was the agreement.  This can’t be right.  Accordingly I find that there has been no breach because there has been no contract.”

She went on to say:

“Finally, the claimant says that because damages were in excess of £5,000.00 costs are payable in any event.  The claimant’s Counsel concedes that there is no authority anywhere in the CPR for this statement and accordingly I dismiss the claim.”

We then made an application for the claimants to pay the costs of the claim and for the court to summarily assess those costs because of the claimant’s unreasonable behaviour.  DDJ Smith said:

“…Any reasonably competent solicitors would not have reached the conclusion that the claim would be successful…The Particulars of Claim are unsatisfactory.  The claimants have never complied with CPR 16 practice direction.  The skeleton argument…was never addressed by the claimant’s solicitors…If the claimant wants to rely on an agreement then they have to evidence that agreement…there is unreasonable conduct in the way this case has been conducted and I am going to summarily assess the costs.  Having found that the claimant shouldn’t have brought the proceedings at all I am going to summarily assess the entirety of the cost of the proceedings.”

Costs were assessed as claimed in the sum of £1,191.36.

For more information, please contact: nicola.critchley@horwichfarrelly.co.uk