Recent Case Law

2015
Asking the court to adjourn a trial because a witness is not available

In the case of Levy v. Ellis-Carr (2012 (EWHC) 63 Guidance was provided of what was required to be successful when seeking an adjournement of a trial as follows:

1. Trial dates are expected to be kept and adjournment is a matter of discretion for the Court and a good reason has to be shown as to why the trial cannot proceed.

2. The overriding objective will be considered carefully by a Judge and if you lose your application it will be hard to appeal the decision.

3. The fact that the other side consent to the adjournment of the trial does not guarantee that a Judge will agree to the adjournment as the adjournment has cost consequences not just for the parties but also for the Court.

4. You need to make your application to adjourn the trial as soon as you realise there is a problem with the witness be able to attend.

5. Make sure you ask for an application before the Judge and not on paper.

6. It doesn't matter whether the witness is an expert or a lay witness what you will need to show the judge is that the trial cannot proceed fairly without them. The more important the witness is to the case the more likely you will be able to obtain an adjournment. You need to state clearly why the witness is important to the case.

7. You must support the application with relevant and supportive evidence i.e. If your witness is very ill you will need to provide medical evidence from a GP/Medical Expert and a statement from the witness.

8. The medical evidence must be up to date and not months out of date. A one line letter from a GP saying the witness is ill will not be enough. A letter from a GP/Medical Expert would need to include the following:

(a) Details of how familiar the doctor providing the medical evidence is with the witness's condition to include all recent consultations.

(b) Details of what the medical condition is and why it would stop the witness attending the trial, provide details of what the witness may be capable off and discuss whether they could give their evidence via video link.

(c) Provide a prognosis for their condition.

(d) There must be a sentence from the GP/Medical Expert confirming that their opinion is an independent one.

You may find yourself in the very difficult position of being informed that a Witness cannot attend a few hours before a trial. You will have no other choice but to turn up at the Court and explain the situation, a Judge can still insist that a trial proceeds so if you find yourself in this situation get as much information as you can before attending before the Judge.

2013
Will you be made to pay for refusing to cooperate with the claimant's/defendant's solicitors?

You could find it an expensive mistake if you refuse to co-operate with the Claimant's/Defendant's solicitors. In the case of Street & Anor v Larkins & Anor (2013) Ch D (Gaunt J QC), on the 8 March 2013 a Wasted costs order was made against the claimant because they unreasonably refused to consent to an adjournment of a trial date where it was virtually impossible to have the case prepared in time.

The Circumstances of the case are that directions were given in June 2012 for the preparation of a joint expert report. The trial was listed for 4.03.13. An expert was not instructed until December 2012 and his report was due by 22.02.13. On 8.02.13 the Defendant's solicitors wrote to the claimant suggesting the trial date be re-fixed to allow time for consideration of the report. They chased for a response on 15.02.13. The claimant consented on 26.02.13. The claimant accepted that the defendant had adopted a reasonable position in requesting an adjournment and that, at the time of the chaser letter on 15.02.13, it was virtually impossible to prepare the case in time for trial. The claimant's refusal to consent to the earlier request for an adjournment was unreasonable. The claimant was therefore ordered to pay the wasted costs between 16.02.13 and 26.02.13.

The moral of the story; if you can prove to the Court that you have acted reasonably you will not be penalised for costs.

2013
Making fraudulent claims in personal injury proceedings could result in your having committal proceedings served upon you.

We have warned you about the consequences of being dishonest in personal claim matters on various occasions but thought you should be aware that Insurers are not messing around and they are now bring committal proceedings pursuant to the new CPR 81 against Claimants who they believe have been dishonest. In the case of RSA v Kosky (2013) QBD (Sir Raymond Jack) 07.03.13 the first application of its kind made pursuant to the new CPR Part 81, the applicant insurer applied for permission to commence committal proceedings for contempt of court against the respondent because she caused her solicitors to sign a statement of truth in the Particulars of Claim knowing that it contained false statements (made by her). The particulars of claim did not reveal the respondent's relevant medical history. Further, the Schedule of Loss included claims for items that the respondent had already been compensated for in a previous claim arising from a previous injury. Though in this instance the Insurers were refused permission to bring the committal proceedings the Court did express its view that the case demonstrated the need for an applicant to identify precisely the allegedly false statements upon which reliance was placed and state in what way the statements were said to be untrue.

The Insurers are not going to allow this to lie and I am sure will ensure that next time they do identify precisely the allegedly false statements upon which reliance was placed so Claimants BEWARE, if you lie and it can be proved and the insurers can identify precisely the alleged false statements made by you an application for a committal hearing could be successful and you might be facing imprisonment.

2008
Trampolines are great fun for children, but accidents involving trampolines are common and if you invite friends and family around you need to consider their safety and whether you could be liable for any injury that occurs to them in the course of trampolining on your trampoline.

Research published in the journal Injury Prevention in 2006 found that trampoline related broken bones accounted for over one in 10 childhood fractures. This supports research by the Royal Society for the Prevention of Accidents (RoSPA), which found that 11,500 people in the UK went to hospital after a trampoline related accident in 2002 - an increase of over 50% over a five-year period.

About 75% of injuries occur when more than one person is on the trampoline, with the person who weighs less being five times more likely to be injured. Trampolines are not designed for the safe use of toddlers and babies and however there are trampolines that are specially designed for their age range and they should only be allowed on such a trampoline and should always be supervised. Don't forget head injuries can result in a child being permanently mentally impaired and a broken leg etc can lead to an amputation as can be seen in the unfortunate case of Michelle Hatfield.

The overriding approach is set out in the case of Perry & Perry v Harris (a minor) [2008] EWCA Civ 907.

Each case will need to be considered individually.

2008
Thinking of hiring a bouncy castle for your child this summer, you may end up with a personal injury claim against you.

Summer is a time when we want to get out in the garden and relax and have fun and what better way of making the kids happy than to hire a bouncy castle and having friends and family round.

Well, we don't want to be a killjoy but we would ask you to be careful otherwise you could end up with your child sustaining a nasty personal injury but with you being unable to bring a claim for personal injuries.

In the case of Harris v Perry & Perry 2008 Sam Harris, who was 11 years old at the time of the accident, had been playing on a bouncy castle set up in a field behind the home of Catherine and Timothy Perry. The Perrys had hired a bouncy castle and a bungee run for their triplets' birthday party. Sam, who was passing with his father, asked Catherine Perry if he could join in.

Whilst on the bouncy castle Sam was kicked in the head by a 15 year old boy doing a somersault. Sam's skull was fractured and he suffered a very serious and traumatic brain injury. As a result, he developed severe behavioural problems and requires round the clock care.

Initially the High Court agreed that the Defendants had, in fact, been negligent. However, this decision was overturned by the Court of Appeal, it was eventually referred to the House of Lords who supported the Court of Appeal's decision confirming that the defendants were NOT negligent.

Case Law research by Affordable Law For You | Harris v Perry & Perry 2008

Negligence, High Court, Court of Appeal, House of Lords

2011
Can you be liable if someone injures themselves whilst swimming in your pool?

Do you owe a duty of care to yourself?

The sun is out, it is a glorious day and everyone has been invited round to your pool party. What could go wrong? Well, sadly, quite a lot as can be seem from the recent case of Grimes v Hawkins [2011] EWHC 2004 (QB) where the defendant owned a house with an indoor swimming pool. On 04.08.06, he went away for the night, leaving his 18 year old daughter, Kylie, at home having agreed that two friends could stay with her that night. In fact, after an evening in a nearby pub, some 20 young people including the Claimant arrived around midnight, having (as the Judge found) been expressly or impliedly invited by Kylie. Kylie gave a swimming costumes to the Claimant and some other visitors.

The pool measured some 30 x 15 feet with a minimum depth of 34.6 in and maximum depth of 67.7 in. There were no warning signs or depth markers and several people jumped into the pool and began, 'bombing' others. The Claimant jumped in and spent around 30 minutes in the pool, swimming around and chatting while standing in the shallow end. She then dived into the centre of the pool, hit the floor and sustained serious injuries and was eventually diagnosed as tetraplegic.

The Claimant claimed that the Defendant was negligent and in breach of his duty under the Occupier's Liability Act because the pool was unsafe for diving so should have been locked to prevent access or alternatively, the Defendant, through his daughter Kylie, ought to have issued an appropriate warning or forbidden diving.

The Judge held that the Claimant had been allowed to use the pool so, as a lawful visitor, and the Judge agreed that indeed the Defendant had owed her a common law duty of care while she was using the pool however he found that the pool was not unsafe for diving. Though some people may have refused permission for the swimming pool to be used, this did not mean that a duty under the Occupiers Liability Act 1957 was owed to the Claimant and that Defendant should have made the pool inaccessible.

The Judge said that adults made a choice about their behaviour and exercised that choice. A householder with a private swimming pool should not have to prohibit adults from diving into an ordinary pool whose dimensions and contours could clearly be seen. The Judge qualified this statement by saying that it might be a different case where there was some hidden or unexpected hazard but in this instance there was none.

The Claimant was an adult and had done something that carried an obvious risk. She had chosen to dive when, where and how she did, knowing the risks involved. It would not have been fair, just or reasonable to have imposed a duty of care which required the Defendant to put the pool out of bounds or to have prohibited adults from diving into the pool.

You need to appreciate that as an adult you have a duty of care to yourself and if you do not act in a careful manner you may have no claim should you be injured due to acting in a manner in which there is a foreseeable risk of injury.

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Case Law research by Affordable Law For You | Grimes v Hawkins [2011] EWHC 2004 (QB)

Duty of care, safety in private pools, common law duty of care, occupier's liability

2001
Slipping and Tripping in the Workplace

In the case of Palmer v Marks and Spencer (2001) a water bar was about 9mm higher than the floor at the threshold of a door. The claimant tripped and it appeared that M&S would be strictly liable for their injury under regulation 12 of the Work (Health Safety and Welfare) Regulations 1992. The Court of Appeal said questions of suitability and risk in this regulation involved consideration of the degree of risk and likelihood of harm, was the risk foreseeable?

In the recent case of Brandon v Herts County Council, the claimant alleged that the wooden parquet floor at her library was inherently slippery. Two colleagues had also had similar slips and a risk assessments before and after the accident had noted that the floor was slippery.

The defendant said the previous accidents had not been reported, and therefore they did not know about the risk, and tried to prove that the floor was not slippery. The Judge confirmed that some quantifiable risk to health and safety before the accident had to be shown in order for a defendant to be liable under the Workplace Health Safety & Welfare Regulations 1992.

But, in this case the council was found liable for the accident because the risk could be shown and because the council had failed to act on the results of the risk assessment.

Initially the High Court agreed that the Defendants had, in fact, been negligent. However, this decision was overturned by the Court of Appeal, it was eventually referred to the House of Lords who supported the Court of Appeal's decision confirming that the defendants were NOT negligent.

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Case Law research by Affordable Law For You | Palmer v Marks and Spencer (2001) ~ Brandon v Herts County Council

2011
In the case of Edwards-Tubb v JD Wetherspoon, makes the necessity of obtaining good quality medical evidence at the outset of your claim clear. The Court of Appeal held that the court could not override privilege in an earlier expert's report, but could and would normally require waiver of the privilege as a condition of granting permission to adduce evidence from a different expert.

Key points:

• It makes no difference whether the change of expert occurred before or after proceedings were issued. In either case, a party will normally be required to disclose the earlier report in order to maximise the information available to the court and to discourage 'expert shopping'

• However, the court's power to require waiver of privilege only applies if it is making an order to which that condition can be attached, including the initial order granting permission for expert evidence. If a party can serve the new expert's report within the confines of an existing permission, it seems the court cannot require disclosure of the earlier report

• Where an expert has been instructed to advise a party privately at the party's own expense, rather than to prepare a report for the purposes of the proceedings, the court will not normally require privilege to be waived in the report

Practical implications:

• Where a party wishes to maintain flexibility to instruct a different expert if necessary, it is preferable to seek permission to serve expert evidence based on a particular discipline rather than a named expert. It may also be advisable to avoid naming a chosen expert for as long as possible, if this can be done consistently with any applicable pre-action protocol

• The judgment highlights the importance of testing a potential expert's views robustly before a decision is taken to instruct him or her for the purpose of the proceedings. There may also be merit in instructing a potential expert as an advisory expert only until it is clear that he or she will be able to support the case

• Where a party suspects that its opponent is shopping around for a favourable expert, it may wish to consider asking whether the opponent has obtained any reports from other experts, or indeed seek to persuade the court to grant permission for expert evidence only on condition that any prior reports be disclosed

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Case Law research by Affordable Law For You | Edwards-Tubb v JD Wetherspoon

2007
Succession

Birmingham CC v Walker [2007] UKHL 22, 16 May 2007. Mr Walker's mother and father had been granted a joint tenancy by the council in 1965. In 1969 the father died and the tenancy continued in the mothers sole name. In 2004, when she died, Mr Walker claimed the right to succeed to the tenancy. The council said that when the mother became a sole tenant on the death of the father that counted as a 'succession' because of Housing Act 1985 section 88(1)(b).

The House of Lords held that the definitions of 'successor' in the legislation could only apply to events occurring after the introduction of the concept of secure tenancies in 1980. The mother was not a 'successor' and Mr walker was entitled to the tenancy.

2009
Freeman v Islington LBC [2009] EWCA Civ 536 Waller

To succeed to a secure tenancy, the 'successor' must have resided with the tenant. The Court favoured a narrow construction of these words, requiring an intention to make a home with the tenant rather than simply live with him.

The appellant's (F) father was a secure tenant of the LA until his death in 2005, following which F claimed the right to succeed. F had stayed with her father at the property for 12 months prior to his death but had retained ownership of another flat, which she had kept as her address for correspondence. The Judge held that F had not 'resided with' her father so as to entitle her to succeed to his tenancy.

Held: The Court of Appeal favoured a narrow construction of the words 'resided with'. Mere temporary residence would not suffice as there had to be an element of 'home-making'; i.e. living in the property as a member of the tenant's household and making his/her home there. Although the retention of another home was not fatal to a claim in succession, it was a significant factor. Equally, the purported successor must intend to 'reside with' the tenant. This involved an intention to make a home with the tenant rather than simply live with them.

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Case Law research by Affordable Law For You | Birmingham CC v Walker [2007] UKHL 22, 16 May 2007 ~ Freeman v Islington LBC [2009] EWCA Civ 536 Waller

2009
Demoted Tenancies

Manchester City Council v Pinnock [2009] EWCA Civ 852

Following a demoted tenancy order, a Landlord's subsequent decision to seek possession was not open to review, save on procedural grounds. The court could not review the substance or rationality of the landlord's decision

The tenant (T) was a secure tenant of the LA. Following anti social behaviour by T's children, the secure tenancy was converted to a demoted tenancy. Following the demotion order, the children's behaviour did not improve and the LA sought possession.

Held: The obtaining of possession of a demoted tenancy was a two-stage process. The first stage, an application for demotion, involved the court considering the issues of reasonableness and proportionality. The second stage did not require the same level of scrutiny and restricted the court to consider only whether the procedure under s.143E and 143F had been followed. The court could only review the landlord's decision under the second stage if his decision amounted to Wednesbury unreasonableness (one that no reasonable person would consider justifiable).

Notice to Quit

Hussain v Bradford Community Housing Ltd [2009] EWCA Civ 763

A notice to quit that contained two possible dates of termination was not ambiguous as only one of the dates complied with the tenancy agreement

H and his ex-partner, K, held a weekly tenancy ending on a Friday. The tenancy agreement provided that the tenants should give the Landlord 28 days written notice if they wished to terminate the agreement. Following a break down in the relationship, K served a notice to quit with effect from the last Sunday of the month, the day on which a complete period of [the] tenancy expires next after the end of four weeks from the date of the notice. H argued that the notice was invalid due to ambiguity as it specified two alternative dates for termination.

Held: Although the notice to quit contained two possible dates of termination, only one of those complied with the terms of the tenancy agreement. There was no basis on which to construe the notice to exclude the 'catch-all' provision. It was obvious that the notice was intended to terminate the tenancy in accordance with the tenancy agreement.

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Case Law research by Affordable Law For You | Manchester City Council v Pinnock [2009] EWCA Civ 852 ~ Hussain v Bradford Community Housing Ltd [2009] EWCA Civ 763

2000
Barry v Davies (T/A Heathcote Ball & Co) and Others [2000] EWCA Civ 235

The claimant sought damages from an auctioneer who had failed to accept his bid, and withdrawn the items from the sale.

Held: In an auction without reserve the auctioneer was not entitled to withdraw an item on the basis that the highest or only bid was too low. To do so was to put himself in a position as if he was bidding for the seller, and that was not allowed save under the Act. The auctioneer himself was liable in damages to the disappointed bidder in a sum equivalent to the market value less the rejected bid.

Sale of Goods Act 1979 57(4)

Iman Abouzaid v Mothercare (UK) Ltd [2000] EWCA Civ 348

The defendant appealed a finding of liability under the Act. The plaintiff had hurt his eye assisting with a pushchair sold by the defendant. An elastic strap had rebounded into his eye. It was argued that the English Act went wider than the Directive in implementing it. Was the strap a defect within the Act?

Held: The statute must be interpreted in light of the wording and the purpose of the Directive so as to achieve the result which it has in view. The design permitted the risk to arise, and the product was defective: “though the case is close to the borderline, the product was defective within the meaning of the Act. The risk is in losing control of an elastic strap at a time when it is stretched and eyes are in the line of recoil. The product was defective because it was supplied with a design which permitted the risk to arise and without giving a warning that the user should not so position himself that the risk arose. Members of the public were entitled to expect better from the appellants. A factor in that expectation is the vulnerability of the eye and the serious consequences which may follow from a blunt injury to the eye.”

Consumer Protection Act 1987 2(1) - Council Directive 85/374/EEC Art 6

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Case Law research by Affordable Law For You | Barry v Davies (T/A Heathcote Ball & Co) and Others [2000] EWCA Civ 235 ~

Iman Abouzaid v Mothercare (UK) Ltd [2000] EWCA Civ 348