News archive

High Profile JR challenge to use of Do Not Resuscitate orders at Addenbrookes fails

Following a lengthy hearing to establish findings of fact and subsequent legal argument, Nicola Davis, J, sitting in the Administrative court on 21 December 2012 rejected submissions from counsel for David Tracey that their high profile challenge to decisions by clinicians at Addenbrookes hospital in Cambridge to place ‘Do Not Resusitate’ orders on the medical records of his late wife should continue following the court’s findings of fact. The Judge held that the breadth of the JR sought by the Claimant went far beyond the findings on the causative facts (neutral citation [2012] EWHC 3670 (Admin)) . As stated in R. (on the application of Burke) v General Medical Council [2005] EWCA Civ 1003, [2006] Q.B. 273, it was not the task of a judge when sitting judicially, even in the Administrative Court, to set out to write a text book or practice manual or to act as an advice centre.If the court had proceeded to hear the full legal argument as submitted by the Claimant the court would have to decide on policy matters. Although there was a wider public interest in such a hearing, the public interest would not be served by a wide-ranging enquiry based on such limited findings of fact. She therefore held that a substantive JR hearing would not be appropriate or proportionate and the court would not order such a hearing.Case Name: R(Tracey) v Cambridge University Hospitals NHS Trust & Secretary of State for Health, Equality and Human Rights Commission intervening [neutral citation not yet available].Lord Faulks QC and Simon Murray acted for the First Defendant – Cambridge Universities NHS Trust (Addenbrookes)

Bulic v Harwoods: High Court lowers threshold for 'disinstruction' of single joint experts

In a judgment handed down today ([2012] EWHC 3657) Eady J, hearing a QB Appeal, has given useful guidance on the circumstances when it is appropriate to allow a party to disinstruct a single joint expert and to give permission to that party to rely upon their own evidence. The Judge considered in detail the comments of Lord Woolf in the well known case of Daniels v Walker (Practice Note) [2000] 1 WLR 1382 (see the notes in the White Book 2012 at paragraph 37.7.6) and the subsequent comments of the judge in Kay v West Midlands Strategic Health Authority, QB unreported (2007). The Judge concurred with submissions of the Claimant, who was the Appellant, that the reliance placed on Kay by the judge below, to the effect that the circumstances had to be “exceptional”, was misplaced.  A much lower test was appropriate and in accordance with the comments of Lord Woolf in Daniels which suggested that the reasons for such an application should be “more than fanciful”. The Judge also made it clear that each such application had to be carefully considered on its facts – particularly where the evidence was fundamental to the claim, as in the instant case, and considerations of the ‘substance’ of the claim were irrelevant to such an exercise.

Simon Murray acted for the successful appellant.

Court of Appeal gives judgment in Nationwide v Davisons [2012] EWCA Civ 1626

An innocent but duped solicitor who has acted reasonably can obtain relief under section 61 of the Trustee Act 1925. The Court of Appeal has reversed the decision of the Judge. Davisons acted for a purchaser and lender. The seller allegedly instructed Rothschild, a firm of solicitors with a branch in Small Heath, Birmingham. R existed but had no branch in that location. 

(1) The person pretending to be the Small Heath solicitors had given a sufficient undertaking by providing requisitions to title albeit not on the correct form but nevertheless confirming that R would comply with the Law Society’s Code for Completion by Post. Davidsons had obtained the benefit of an undertaking from a firm they reasonably believed to be the seller’s solicitors. Davisons were honest, had acted reasonably and it was fair for the court to relieve them entirely of liability for breach of trust.

(2) The lender argued that there was an absolute obligation on a solicitor to procure on completion redemption of all existing charges and a fully enforceable first charge. It relied on paragraph 5.8 of the CML Handbook which requires a solicitor to obtain this. That would impose the equivalent of a guarantee on D. Paragraph 5.8 imposes an obligation to exercise reasonable skill and care in seeking to procure the outcome it refers to. There was no breach of retainer.
There is a longer article on this case by Karen Shuman in the 1 CL Professional Negligence briefing and a blog on www.pnblawg.co.uk.

Supreme Court gives judgment in historic child abuse case

The Supreme Court has given judgment in the historic child abuse case of Catholic Child Welfare Society v The Institute of Christian Brothers. 

The Court held that there were two stages in establishing vicarious liability: first whether the relationship between the abuser and the defendant was capable of giving rise to vicarious liability; and secondly examination of the connection that linked the relationship between them and the abuser’s wrongful conduct. Applying this test, the Institute, an unincorporated association, was vicariously liable for the acts of abuse committed by its members who worked in a school under a contract of employment with a third party.

Lord Faulks QC and Alastair Hammerton of 1 Chancery Lane acted for the Respondents.

Proprietary Estoppel: Joyce v Epsom and Ewell BC

The Court of Appeal has confirmed that a more flexible approach can be appropriate in a proprietary estoppel claim if the Defendant has encouraged the Claimant. Crabb v Arun DC [1976] 1 Ch. 179 has long stood out as a case which shows how flexible the doctrine of proprietary estoppel can be. In that case the plaintiff succeeded in establishing an entitlement to a right of way by proprietary estoppel despite the fact that the defendant had gained nothing from the plaintiff’s conduct and did not know that the plaintiff had sold off part of his land.This flexible approach has been affirmed by the Court of Appeal in Joyce v Epsom and Ewell BC [2012] EWCA Civ 1398. The Claimant’s predecessor in title had been led to believe that he would be granted access rights from the rear of his land over a private road and had carried out works to facilitate such access. When the Claimant, a property developer, entered into correspondence with the Defendant regarding the access the Defendant demanded the sum of £5,000 for the right.The Court of Appeal, allowing an appeal by the Claimant, affirmed that knowledge of detrimental reliance is not an invariable requirement of a proprietary estoppel claim if there has been encouragement rather than acquiescence.There was however a sting in tale for the Claimant; the right of way he was entitled to was limited to a right serving a single house.

1 Chancery Lane's Successes in Chambers and Partners 2013

We are delighted to be ranked by Chambers and Partners as the leading set for Travel Law in the UK and one of the leading sets for Clinical Negligence, Professional Negligence, Personal Injury and Police Law.

Members of Chambers are also listed as leading practitioners in the fields of Civil Liberties and Human Rights, Education, Local Government, Professional Discipline and Regulation and Real Estate Litigation.

All 5 of the QCs in Chambers are listed as leading silks, while 14 members are ranked as leading juniors.

Financial Misselling: Charmaine Emptage v. Financial Services Compensation Scheme Ltd [2012] EWHC 2708 (Admin).

Re-mortgage of English property to purchase Spanish investment property: basis of compensation from Financial Services Compensation Scheme.

The Administrative Court has just decided an important case upon a mortgagor’s entitlement to compensation under the Financial Services Authority Compensation Scheme (‘the Scheme’) that is likely to have widespread implications in financial misselling cases.

The mortgagor (‘E’) owned an English property, subject to a repayment mortgage with an outstanding balance of £39,633.  She sought advice from a mortgage broker (‘X’) about reducing the mortgage balance and term.  X advised E to re-mortgage with an interest-only mortgage for £110,000 and invest the balance by acquiring a Spanish property to provide income and capital gains to discharge the outstanding mortgage and provide her with a surplus.  E followed that (negligent) advice.  The Spanish property market collapsed and E had no means of repaying the outstanding (increased) mortgage.  X was insolvent without professional indemnity insurance.  A claim was made for compensation to the Financial Services Compensation Scheme (‘FSCS’).  After eventually admitting that X’s advice was negligent, the FSCS eventually awarded E compensation of £11,522 – a sum that she considered inadequate.  E applied for judicial review.  The Court (Haddon-Cave J) quashed the FSCS’s decision and ordered it to reconsider the amount of compensation payable.

The basis of the Court’s decision is extremely interesting.  After setting out the ‘labyrinthine’ legal and regulatory framework (Paras. 28-59 of the Judgment) and the case of R. v. Investors Compensation Scheme Ltd, ex parte Bowden [1996] 1 AC 261 it went on to summarise the principles and approach to the assessment of compensation as follows:

(i) The FSCS had a broad discretion to compensate claimants with valid claims under the Scheme (only) to the extent that it considers that the payment of compensation is essential in order to provide the claimant with ‘fair’ compensation.

(ii) It is for the FSCS to determine, in its discretion, which elements of the claim it considers essential in order to provide ‘fair’ compensation and to exclude those elements which do not meet that requirement.

(iii) ‘Fair’ compensation means compensation which fairly compensates for the mischief and loss caused by the particular breach in question.  This requires a classic two-stage analysis, viz. (i) first, identification of the precise nature of the breach complained of and (ii) second, assessment of the actual losses directly flowing from that particular breach.

(iv) ‘Fair’ compensation for negligent or bad advice designed to return a claimant, so far as possible to the position the claimant would have been had the breach not occurred means what it says, i.e. that losses should be calculated in such a way as to restore the claimant so far as possible to the financial status quo ante.

On the facts, the FSCS had failed to properly compensate E for X’s negligent advice which left her with a large mortgage, which she was unable to repay, and failed to properly restore her to the position that she would have been had the negligent advice not been given.  The FSCS should have regarded X’s negligent advice as an indivisible ‘package’, i.e. mortgage advice which included investment advice (the latter being an essential element of the former because, without it, the mortgage was not feasible). 

Nicholas Yell of 1 Chancery Lane is a barrister who has been instructed in a number of financial misselling claims.

Simon Readhead QC appointed Bencher by Middle Temple

Chambers is delighted to announce that Simon Readhead QC was recently appointed a Bencher by Middle Temple.  Other Benchers in Chambers are Lord Faulks QC, John Ross QC, Alastair Hammerton and Andrew Goodman.

RS (By his father and litigation friend TU) v Newham University Hospital NHS Trust

The Court has approved the settlement of a claim by a 16 year-old boy suffering from cerebral palsy resulting from a negligent delay in performing a Caesarian Section. The Claimant had previously established liability at a trial of a preliminary issue. The Claimant was to recover : (i) a lump sum of £1.8m; (ii) an annual periodical payment linked to RPI for life starting at £45000; and (iii) an annual periodical payment linked to ASHE 6115 80th centile for life commencing at £140000, increasing to £185000 on December 15, 2015.

RS (By his father and litigation friend TU) v Newham University Hospital NHS Trust, Swift J., QBD 15.10.12

Mr Nicholas Yell, instructed by Simpson Millar LLP, represented the successful Claimant

Court of Appeal Modifies 10% Increase to Damages Ruling

On 10th October the Court of Appeal modified its ruling in Simmons v Castle as to how the 10 per cent increase in general damages recommended by Lord Justice Jackson will be applied.

The Court of Appeal made clear that Claimants who entered into CFAs before 1st April 2013 (who have the benefit of the current funding regime) will not benefit from this uplift.

The modified judgment now reads:-

“Accordingly, we take this opportunity to declare that, with effect from 1 April 2013, the proper level of general damages in all civil claims for (i) pain and suffering, (ii) loss of amenity, (iii) physical inconvenience and discomfort, (iv) social discredit, (v) mental distress, or (vi) loss of society of relatives, will be 10 per cent higher than previously, unless the claimant falls within section 44(6) of LASPO.

“It therefore follows that, if the action now under appeal had been the subject of a judgment after 1 April 2013, then (unless the claimant had entered into a CFA before that date) the proper award of general damages would be 10 per cent higher than that agreed in this case, namely £22,000 rather than £20,000.”

Court of Appeal gives guidance on fire damage

The Court of Appeal gave important guidance on the application of the rule in Rylands v Fletcher to damage by fire on 4th October 2012.

In Stannard v Gore [2012] EWCA Civ 1248 the appellant had stored over 3,000 tyres at his premises when a fire broke out causing damage to the respondent’s property.  At first instance Recorder Potts found the appellant liable under the rule in Rylands v Fletcher.

Having taken a “quick canter over what is undoubtedly tricky terrain” Ward LJ concluded that cases of fire damage were “very difficult” to bring within the rule because, “(1) it is the “thing” which had been brought onto the land which must escape, not the fire which was started or increased by the “thing”. (2) While fire may be a dangerous thing, the occasions when fire as such is brought onto the land may be limited to cases where the fire has been deliberately or negligently started by the occupier or one for whom he is responsible...(3) In any event starting a fire on one‘s land may well be an ordinary use of the land.”
As the tyres themselves had not escaped Mr Stannard was not liable under the rule.

Stannard will now be the starting point for anyone considering the various potential causes of action available to the victim of fire damage and repays close reading for Lewison LJ’s lesson in legal history and use of a quote from 1189:

“the only plagues of London are the immoderate drinking of fools and the frequency of fires.”

Detainee's death held not to have resulted from events in custody

In a narrative verdict given in the inquest into the death of Christopher Allen deceased, the Deputy Assistant Coroner for West Sussex concluded that the deceased had died in 2008 of pneumonia, the onset of which had been contributed to brain injuries sustained during his lifetime.

The inquest was an Article 2 Middleton inquest in light of the fact that one such brain injury had occurred around the time that Mr Allen was arrested in 2006 and taken to Crawley police station by Sussex police officers for being drunk and incapable after having been found wandering on a main road, having discharged himself from the Royal Sussex hospital after having earlier been taken there in a drunken state with a head injury.  Mr Allen was later found to be in a collapsed state in his cell and an ambulance was summoned. 

There was criticism of the care home at which Mr Allen had died in 2008 for failing to seek medical treatment timeously during his last days.  The Coroner indicated that rule 43 recommendations would be made to the home and to the Care Quality Commission.  As to events in custody in 2006, the Coroner ruled that a brain injury “had become manifest in police custody but it had not been caused or exacerbated by any action or inaction by the police or custody staff”.

Paul Stagg of 1 Chancery Lane represented the Chief Constable of Sussex.

Frances McClenaghan returns to full-time practice

Chambers is pleased to announce that Frances McClenaghan has returned to full-time practice after working for a year as Judicial Assistant to Lord Kerr at the United Kingdom Supreme Court.

As one of eight judicial assistants, she had the opportunity to work closely with the Justices on cases such as the Employers’ Liability Insurance “Trigger” Litigation BAI (Run Off) Limited (In Scheme of Arrangement) and others v Durham and others [2012] UKSC 14. She looks forward to resuming her common law practice, applying the lessons she has learnt through this experience

Tenancy Announcement: Current Pupils offered Tenancy

Chambers is delighted to announce that both of its current pupils Rhiannon Lewis and Thomas Collins will be taken on as tenants on 1st October this year.

Rhiannon sat with Paul Stagg, Karen Shuman and Ian Miller during her pupillage and Thomas sat with Matthew Chapman, Zachary Bredemear and Sophie Mortimer.  They receive instructions spanning Chambers' main areas of expertise.

The London Legal Walk 2012

On 21 May 2012, the Supreme Court team, including Frances McClenaghan, completed the London Legal Walk, raising a total of just under £2,200. A number of members of 1 Chancery Lane generously contributed. Further donations may be made online, please see:

http://uk.virginmoneygiving.com/fundraiser-web/fundraiser/showFundraiserProfilePage.action?userUrl=TheSupremeCourt&isTeam=true

 

Record infant approval settlement valued up to £14.3 million

In an Infant Approval Settlement hearing in which the Claimant was directed to be referred to as ‘NO’ and his mother and litigation friend as ‘PQ’, the Court approved a settlement of the claim by a 6 year old boy who suffered cerebral palsy as a result of an episode of hypoxia at birth resulting from a negligent delay in delivery.  Liability was admitted, but causation remained in issue.  There was a considerable difference in expert opinion as to what NO’s life expectancy was.  (NO’s expert put it at 63.5 and the NHS Trust’s expert at 35).  The NHS Trust agreed to pay a lump sum of £2.75m (less interim payments and CRU) and annual ASHE index-linked periodical payments for life commencing at £75,000 pa on 15.12.12 increasing by stages to £202,500 pa on 15.12.25 and thereafter annually for life.  The award of damages made (lump sum and periodically payments) is believed to be one of the highest for claims of this kind.

NO (by his mother and litigation friend PQ) v. Queen Elizabeth Hospital NHS Trust, Queen’s Bench Division, May 8, 2012 Spencer J.  

Nicholas Yell, instructed by Simpson Millar LLP, acted for the successful Claimant.

Lords Faulks QC Commissioner of Bill of Rights Commission

Lord Faulks QC has been appointed Commissioner of the Commission on a Bill of Rights set up by the Deputy Prime Minister and the Ministry of Justice.

XVW & YZA v X School for Girls & Adventure Lifesigns Ltd [2012] EWHC 575 (QB)

This action was brought by two Claimants and arose out of a school trip/expedition to Belize in July/August 2005. The Claimants were pupils at the D1 school; they were aged 16 years and 15 years respectively. D2, a UK company, assisted with the planning of the expedition, as well as providing two ex-military adult staff to accompany the same. The expedition was a developmental training experience for the participants; it was not a holiday. The young women who participated were actively involved in the choice, selection, planning and budgeting for the index expedition. A teacher from D1 also accompanied the expedition. During the course of the expedition it was necessary for the planned itinerary to be altered as a result of a hurricane which affected the area (Mexico) to which the group intended to travel. The young women participating in the expedition were actively involved in the change of plan and the arrangements for alternative accommodation. A local Belizean company provided accommodation to members of the expedition party in return for work undertaken by the participants and an agreement to undertake trips with the Belizean company to be paid for by the participants from funds held by them. A local man (A) was the son of the owner of the Belizean accommodation and might have been co-owner of the resort where the group stayed. During the early hours of the morning of 1 August 2005 A raped the Claimants and another of the young women on the expedition who was staying in the same cabana accommodation at the resort. The Claimants alleged that they had sustained psychiatric injury as a result of the sexual assaults. They brought proceedings against the Defendants in respect of the alleged intentional wrongdoing of A. The Claimants’ case was that D1 and/or D2 were vicariously liable for the conduct of A. Alternatively, it was submitted on their behalf that the scope of D1 and/or D2’s duty of care extended to the intervening criminal conduct of A (which was, the Claimants alleged, foreseeable) and that there had been a number of causally relevant breaches of duty by D1 and D2 with respect to the planning of the expedition, the supervision of the expedition, the vetting of A and the security of the Claimants. The Claimants relied on a number of alleged incidents of inappropriate behaviour by A prior to the assaults (although it was denied that these incidents had come to the notice of D1 or D2’s staff).

The trial took place before Mackay J on 27 – 29 February and 1 March 2012. The Claimants’ claims were dismissed and it was held: (1) A was not an employee of D1 or D2 and his involvement, such as it was, in the expedition was sufficiently limited that it was not just and fair to describe him as a person for whose actions D1 or D2 were vicariously liable (Lister v Hesley Hall Limited [2002] 1 AC 215 (HL(E), JGE v The English Province of Our Lady of Charity & Anor. [2011] EWHC 2871 (QB) and EL v The Children’s Society [2012] EWHC 365 (QB) considered, among other cases; (2) The scope of the duty of care was to be determined by application of the Caparo test: was it fair, just and reasonable for the duty to extend as far as the Claimants contended; (3) There was no causative breach of duty in this case. It was not alleged that A had a criminal record which went undiscovered or that Belize had a UK-style system of CRB checks. The local police would, if they had been consulted in advance, probably have given A a good character reference. The school party was continuously supervised by 3 experienced adults and, short of placing a guard outside each cabana occupied by the school party at the resort, there was no means by which to defeat A’s assault (he had been careful to keep his conduct towards the young women, prior to the assaults, hidden from the adult staff). 

D1 was represented by John Norman (Instructed by Clyde & Co.)

D2 was represented by Matthew Chapman (Instructed by Hill Dickinson)

D R Sheridan v Higgins & another [2012] EWHC 547 (ChD)

Dispute between first and second executors. Second executor had withdrawn her instructions from the claimant firm. From that date the file was held exclusively to the order of the first executor. Second executor entitled to documents of a non-controversial nature which related to the estate.

(Karen Shuman acted for the Second Defendant.)

New Silk Announcement

Chambers is delighted to announce that Andrew Warnock has been appointed Queen's Counsel. The silk ceremony will take place on 30th March 2012.

Court of Appeal reverses award of HRA damages to prisoner whose Parole Review was delayed

In R(Sturnham) v Parole Board & Secretary of State for Justice [2011] EWHC 938 (Admin) Mr Justice Mitting ordered that the Secretary of State for Justice pay damages to the prisoner claimant in accordance with section 8 of the Human Rights Act 1998 (HRA), in the sum of £300, on account of the distress and frustration caused to the prisoner by a 6 month delay in his being provided with a parole review, such delay having violated his Article 5(4) ECHR right to a ‘speedy’ review of his detention.

This was the first time such an award of damages had been made by the High Court in circumstances to prisoner (a) who would not have been released at the delayed parole review and (b) who had not suffered any physical injury as a consequence of the delay.

Unchallenged the decision plainly would have had significant consequences for future damages awards in HRA claims brought by prisoners against either the Secretary of State or the Parole Board in circumstances where a parole review was delayed.

The Secretary of State successfully appealed against the award of damages. The appeal was heard on the 23 February 2012. Laws LJ, giving the lead judgment, allowed the appeal against the award of damages, and held, following analysis of both domestic and Strasbourg case law, that awards of damages under the HRA are not recoverable for anxiety and distress and the prisoner had received “just satisfaction” in the declaration granted by the court alone and an award of damages was not necessary.

Simon Murray acted for the Secretary of State, instructed by the Treasury Solicitor.

Hugh Southey QC and Philip Rule appeared for the prisoner and David Manknell appeared for the Parole Board.

Attorney General appoints Simon Murray as Junior Counsel to the Crown (B Panel)

Simon Murray has recently been appointed to the Attorney General’s B Panel of Junior Counsel to the Crown (to do civil work on behalf of government departments).Simon has been a member of the C Panel since 2006. In particular he will continue to represent various government departments in cases involving public law and human rights.

Heathrow Airport successfully defends airside employee health and safety claims

By a judgment handed down at Central London County Court on 10 February 2012 (Jones / Lucas v British Airways Limited (1) Heathrow Airport Limited (2)) Heathrow Airport Limited, represented by Laura Johnson, successfully defended claims by employees of British Airways that the paint used for ground markings on the airside aprons was unsuitable from a health and safety perspective.  Both claimants worked on the stands during the turnaround of British Airways aircraft between arrival at the airport and taxiing to the runway for takeoff.  Despite Heathrow Airport Limited using paint of an industry standard and utilised in airports throughout Europe, it was alleged that the stand markings were unacceptably slippery when either wet or contaminated by viscous substances and that they posed a danger to airside airport workers.  Evidence was called by leading experts on slip resistance testing.  Allegations were also made about the inspection and cleaning regimes at the airport.  Although the claimants succeeded for other reasons against their employer, British Airways, all allegations made against Heathrow Airport were rejected and claims against it by both the Claimants and British Airways were dismissed. Laura Johnson was instructed by John Palmer of DWF LLP.   

Jury returns lawful killing verdict in Michael Fitzpatrick inquest

Following a five day hearing, on February 3rd 2012 a jury returned a verdict of lawful killing in the inquest into the death of Michael Fitzpatrick.  Mr Fitzpatrick was shot dead by a Sussex police officer when he was confronted by armed officers who were intending to arrest him on suspicion of armed robbery on February 10th 2010.  Mr Fitzpatrick had pulled out a carbon dioxide pistol and presented the weapon at the officers.  In their narrative findings, the jury concluded that the operation for the arrest of Mr Fitzpatrick had been properly planned and that the first aid given to Mr Fitzpatrick by the officers had been “exemplary”.

Paul Stagg of 1 Chancery Lane represented the Chief Constable of Sussex.

Claim against local authority in relation to health and safety inspections fails: Ryan v Shropshire Council

Claim against local authority in relation to health and safety inspections fails: Ryan v Shropshire CouncilJudgment was handed down today by Mackay J following a six day trial of a claim by the owners of a shooting range for damages against Shropshire Council.  The claimants’ case was that a health and safety inspector employed by the council’s predecessor, South Shropshire District Council, was guilty of misfeasance in public office and breached the claimants’ Convention rights in carrying out inspections of the ranges in 2002 and 2005 when not lawfully authorised to do so, and in requiring the claimants to carry out wholly unnecessary works to the ranges.

Dismissing the claims, Mackay J held that the inspector was duly authorised on a proper construction of the council’s constitution in force at the material times and the Health and Safety at Work etc Act 1974, and had on the evidence acted in good faith at all times in carrying out his duties.  He had not purported to require the claimants to carry out works to the ranges and the claimants had done so as a matter of choice.  The Convention claims were dismissed as time-barred.

Paul Stagg of 1 Chancery Lane represented the defendant, instructed by Weightmans LLP.

Supreme Court Decision: Jones v Kernott [2011] UKSC 53

The Supreme Court handed down judgment in Jones v Kernott [2011] UKSC 53 on 9 November 2011. The long awaited decision overturned the Court of Appeal majority and restored the initial division of the beneficial interests: 90% to Ms Jones and 10% to Mr Kernott. The couple purchased a family home in joint names and separated 8 years later. Lord Walker and Lady Hale in a joint judgment have restated the principles to be applied in cases where one of the joint legal owners is seeking to depart from the presumption of joint beneficial ownership. They emphasised that the court’s task is to search for what the parties actually intended, deduced objectively from their words and actions. In a case where it is clear that the parties did not intend joint beneficial ownership but their actual intention as to the shares cannot be determined, whether directly or inferentially, “each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property” per Chadwick LJ in Oxley v Hiscock. If there was any doubt the Supreme Court has made it clear that the presumption of a resulting trust arising from unequal contributions to the purchase price has no place in a case concerning a family home. However there was no consensus on the difference between inferring and imputing intention. In a persuasive judgment Lord Kerr considered that on the evidence it was impossible to infer that the parties intended that their shares be apportioned as determined by the judge but that such an intention should be imputed, it was eminently fair to do so. 

An analysis of the judgment by Karen Shuman will be available by e-bulletin. 

 

Chambers Announcement: Her Honour Judge Paneth

Chambers is delighted to announce, Sarah Paneth has been appointed as a Circuit Judge by the Lord Chancellor following a recommendation from the Judicial Appointments Commission. Called to the Bar in 1985, Her Honour Judge Paneth has been assigned to the South Eastern Circuit, based at Snaresbrook Crown Court with effect from Monday 31 October 2011.Chambers congratulates Judge Paneth on her appointment and wishes her every success in her judicial career.Commenting on her appointment Senior Clerk, Clark Chessis said “We are delighted for Sarah, although disappointed that we are losing one of our leading barristers”.

 

JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust

A judge has ruled that a Diocesan Bishop in the Roman Catholic Church is vicariously liable for sexual abuse committed by a priest.  In JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust MacDuff J held that the test of whether vicarious liability attaches to a relationship (which is not a relationship of employment) depends on the “closeness of the connection” between the tortfeasor and the person alleged to be vicariously liable. He acknowledged that the existence of a close connection may be easier to recognise than to define. The case has significant ramifications for the Roman Catholic Church and other religious institutions and orders. Recognising this, the Judge gave the Diocesan Trustees permission to appeal. Lord Faulks QC appeared for the Diocese.

New Edition of the Ogden Tables (Ogden 7)

Significant changes to life, earnings and pensions multipliers

The new edition of the Ogden Tables (Ogden 7) was released yesterday (10 October 2011) by the Government Actuary’s Department (GAD). Key points (Ogden 6 to Ogden 7) include: 

1.      The use of updated mortality tables. This results in an increase in life expectancies for both males and females. Some increases are very significant e.g. for males age 75 the increase is just under 15% and for females it is just over 14%.

2.      There are corresponding increases in life multipliers for all ages. At a 2.5% discount rate the increase from Ogden 6 to Ogden 7 for males is just under 2% at age 25 and at age 50 it is 4%. For females the increase is about 1.5% at age 25 and just over 3% at age 50. The life multiplier for a male aged 50 in Ogden 6 was 21.86 and in Ogden 7 it is 22.69. The corresponding female life multipliers are 23.37 in Ogden 6 and 24.14 in Ogden 7.

3.      There are significant increases in pension multipliers. For a male aged 40 with a loss of pension commencing at age 65 the increase is just under 8.5%. For a female with a loss of pension commencing at age 60 the increase at age 40 is just over 5.5%.

4.      The definition of “disabled” has changed.

5.      For fatal accidents the Working Party notes that by section 7(1)(d of the Damages (Scotland) Act 2011 in Scotland, unlike in England, the multiplier is now calculated at the date of trial not the date of death. This is the recommendation in Ogden 7.

6.      Most controversially Ogden 7 now includes discount rates ranging from -2% to + 3% presumably to allow for a possible change in the prescribed discount rate as a result of the review currently being undertaken by the Lord Chancellor.

For a more detailed commentary on the key points see the article by Simon Readhead Q.C. on our blog:

 http://www.piblawg.co.uk/

piCalc subscribers will be pleased to hear that piCalc is already full loaded with the new Ogden 7 data. Users will see that the “Edit Client” facility now includes an option to select and use Ogden 7. 

1 Chancery Lane member shortlisted Personal Injury Barrister of the Year

Andrew Warnock has been shortlisted for the Eclipse Proclaim Barrister of the Year award. The winner will be announced on 24th November at The River Bank Park Plaza Hotel.

Tree branch judgment handed down in Court of Appeal

The Court of Appeal (Mummery LJ, Patten LJ and Hedley J) gave judgment on 28th July 2011 in the case of Micklewright v Surrey County Council [2011] EWCA Civ 922, in which Angus Piper appeared for the Defendant/Respondent. The Claimant’s appeal was dismissed. The claim concerned a tragic fatal accident when a large oak tree branch fell on Christopher Imison (deceased) whilst he was unloading his bicycle from the family car on a road in Windsor Great Park.  The trial judge held that the Defendant did not have an adequate system of inspection in place for its highway trees, but the claim failed and the Defendant was not liable to compensate the Claimant, because the defect in the tree would not have been detected even if there had been a reasonable system of inspection in place.  The CA (Hedley J gave the judgment of the court) agreed that the court had to consider (i) what sort of inspection would have been required (ii) what it would have revealed if carried out and (iii) would that inspection have resulted in the removal of the offending branch. Equally, they agreed that it was open to the trial judge to find on the evidence before him that the material defect would not have been revealed upon reasonable inspection, such that the claim failed. In the final paragraph of his lead judgment (with which his brother judges agreed)

Hedley J stated that It is always discomforting where a family without any culpability, having suffered catastrophic loss are forced to do so without compensation but this is the inevitable result of a law which ties compensation to proof of negligence. For the reasons I have set out, I have come to the conclusion that this appeal should be dismissed.”.

Claimants succeed in cruise line accident claim: Williams & Debling v Fred Olsen Cruise Lines Ltd

The Admiralty Court recently handed down judgment in this case in which a claim was brought by 4 Claimants against a cruise line company.

While re-joining the cruise liner while it was alongside in Bilbao, two of the Claimants fell into the sea from the gangplank when the mooring lines on the vessel failed and it swung out from its berth. The claim was defended on the basis that the failure of the mooring lines was the result of an entirely unexpected and unforeseeable extreme weather in the form of a severe gust of wind. Both parties relied on expert opinion evidence from Master Mariners. The Claimants were successful in establishing liability. It was found that the Claimants could rely on article 3(3) of the Athens Convention and on res ipsa loquitur. However, it was also found that they had succeeded in proving that negligence or fault was the cause of their injuries quite apart from the assistance of article 3(3) and the evidential maxim.

Matthew Chapman represented the Claimants.

Court of Appeal rejects pupil's claim in respect of slipping accident: Hufton v Somerset County Council

The Court of Appeal has dismissed an appeal by Ms Maddison Hufton, a former pupil at Ansford Community School in Castle Cary, against the dismissal of her claim for damages.  Ms Hufton suffered a knee injury when she slipped on a small area of water in the school assembly hall during breaktime.  The trial judge had concluded that a reasonable system was in place for preventing water being brought into the hall during wet breaks.
 
Jackson LJ gave the only substantive judgment, with which Elias LJ and the Chancellor agreed.  He concluded that although section 2(3)(a) of the Occupiers' Liability Act 1957 requires an occupier to be prepared for children to be less careful than adults, at the age of fifteen the claimant was "almost an adult and would be expected to take reasonable care for her own safety" (para 6).
 
The court considered two substantive challenges to the judge's decision rejecting the claim (other grounds of appeal not having been seriously pursued).  The first was that there was an inadequate system for preventing water being brought in during wet breaks.  The judge had concluded that the system which had been put in place six years previously after a risk assessment undertaken when a teacher slipped in the hall kept pupils reasonably safe.  The court reminded itself that "it is not possible, and the law does not require, the occupier of premises to take measures which would absolutely prevent any accident from ever occurring" (para 28).  The judge had been entitled to reach the conclusions that he had reached (para 31).

The second ground of attack was the judge should have concluded that there was no reasonable system in place for clearing water from the floor when it was there.  The claimant relied on the well-known decision in Ward v Tesco Stores Ltd [1976] 1 WLR 810 and suggested that it was for the council to show that there was a reasonable system in place for clearing water, which they could not do.  Jackson LJ distinguished Ward in terms which may be of assistance to defendants in other cases.
 
"36. .... In this case, unlike Ward, the evidence does not show that liquid gathering on the floor was a frequent problem or that there needed to be a special system to ensure prompt mopping up. What the defendant put in place in the present case was a proper system to prevent water being deposited on the assembly hall floor. Unfortunately that system did not prove effective on 11 October 2006.

37. The water on which the claimant slipped was about the area of an A4 sheet of paper and cannot have been on the floor for very long. The mid-morning break began at 10.45a.m. It was not raining then. The claimant's accident occurred about half way through the break. I do not regard it as realistic to say that the school should have had a system in place whereby that small area of water should have been spotted and mopped up during the brief period of time between its arrival and the moment when the claimant slipped."
 
It is often thought that Ward has the effect of placing a burden on the defendant to demonstrate the existence of a reasonable cleaning system whenever there is some substance on a floor.  As these paragraphs show, that is not the case.  It must be shown that spillages or deposits of the slippery substance are a frequent problem, such as to call for an adequate cleaning system.
 
Paul Stagg of 1 Chancery Lane represented the defendant, instructed by Darren Salter of Veitch Penny LLP.

Hastings & Hastings v Johnsons Estates Ltd & Another: claim for return of deposits successful

A claim by 15 purchasers of off-plan apartments for the return of deposits paid to the developer succeeded where there had been an unreasonable delay (35 months at the date of termination) by the developer in completing the development. Judgment was also obtained against the developer's solicitors for releasing deposits held as stakeholder when not entitled to do so. The developer is thought to be insolvent. (Hastings & Hastings and Other Purchasers v Johnsons Estates Ltd and Bennett & Ryan; Chancery Division; Mr J.Baldwin QC sitting as a Deputy High Court Judge; June 21, 2011).

Nicholas Yell represented the Claimants under a CFA.

Judgment handed down in high profile case of Johnson v Le Roux Fourie

The judge held that general damages of £80,000 should be awarded to Penny Johnson in this clinical negligence claim which has been covered extensively by the press over the last few days.  Loss of earnings were also awarded but well below the level claimed.  A full summary of the case and the judgment can be found on Lawtel.

Dreamspace Litigation: Events Company Liable

In a judgment handed down on 16th May the High Court has found a Liverpool events company to blame for the Dreamspace tragedy (Furmedge & Others v Chester-le-Street District Council & Others [2011] EWHC 1226). Foskett J has found Brouhaha International Limited 55% to blame for the incident which saw a large, tent like, inflatable art structure designed by artist Maurice Agis take off in July 2006, killing 2 and injurying many more. The finding was made in contribution proceedings brought by Chester-le-Street District Council, the apportionment of blame being as between those two parties only. Had the now deceased artist, Maurice Agis, been a party to the proceedings it is likely he would have carried most of the blame. However, he was uninsured and had no assets.

Lord Faulks QC and Andrew Warnock of Chambers acted for the Council instructed by Barlow Lyde & Gilbert.

R (Omoregbee) v Secretary of State for Justice & Governor of Hewell Prison: immigration status of prisoners

In R.(Gregory Omoregbee) v Secretary of State for Justice & Governor of Hewell Prison [13/4/2011 – reported on Lawtel] the Court of Appeal have now clarified, following a string of judicial review claims brought by foreign national prisoners regarding their transfer to open conditions (Category D prisons) that the reference to "paramount" in the Prison Service Order (PSO) 4630 para.14.4 [which stated, in relation to foreign nationals, that each case had to be "individually considered on its merits but the need to protect the public and ensure the intention to deport [was] not frustrated [was] paramount"] did not mean that the immigration status of the prisoner rendered all other considerations otiose. The appellant had sought judicial review of a decision to review his categorisation decision on the basis that impermissible reliance had been had on his immigration status and insufficient regard had been had to his good behaviour in prison and his low risk of reoffending.
 
It was said by the appellant that the undue focus immigration status was derived from the paragraph of the Prison Service Order (PSO) 4630  quoted above, and in particular the word ‘paramount’. The appellant contended that the word "paramount" in para.14.4 withdrew any discretion or individual consideration of whether an individual prisoner subject to deportation should be categorised a Category D prisoner as his immigration status effectively superseded any other consideration. In the High Court the judge below had held that para.14 did no more than emphasise that the risk of absconding was a consideration relevant to every categorisation decision but that it had a heightened importance when the prisoner was liable to deportation, and that in such cases the risk had to be examined with particular care.

The Court of Appeal agreed that the use of the word "paramount" in its context did not remove individual consideration of all the various factors surrounding categorisation decisions. Immigration status was obviously relevant to the risk of absconding and/or further offending by foreign national prisoners if transferred to open conditions and therefore it was something the decision maker properly could consider. It was clear from the opening words of para.14.4 that the classification in each case had to be individually considered on its merits so that the immigration status of a prisoner could not in itself be determinative of the matter.

Simon Murray acted for the Secretary of State both at first instance and in the Court of Appeal

Curtis v Curtis & SRMHC: Permission to Appeal Granted

PERMISSION TO APPEAL GRANTED IN UNDUE INFLUENCE CLAIM AGAINST SELF-REALIZATION MEDIATION HEALING CENTRE (SRMHC)

The Court of Appeal (Mummery LJ) has granted SRMHC permission to appeal against a judgment in an undue influence case heard in the Chancery Division in Cardiff.  The case had unusual facts and attracted considerable publicity.

Mr. Curtis made a declaration of trust giving his beneficial interest in his house to SRMHC.  The Court found that SRMHC was in the relationship of spiritual advisor to Mr. Curtis and that a presumption of undue influence arose at a time that he made a declaration of trust which SRMHC was unable to rebut.  The declaration of trust was set aside.

The case raises important questions as to the recoverability of gifts made to religious, political or charitable organisations many years after they were made.

Nicholas Yell acts for the SRMHC and is instructed by Carter-Ruck.

R (Burke) v Independent Police Complaints Commission (Defendant) & Commissioner of Police for the Metropolis (Interested Party)

Judgment in the above case was handed down last week.  The Judge held that the IPCC was entitled to refuse to extend time for appealing against a determination by a police commissioner that a complaint against police officers was unfounded where the complainant had allowed 16 months to expire after the decision letter had been sent before making inquiries as to whether the police inquiry had concluded.

Causes and effects: The Supreme Court decision in Sienkiewicz and Willmore

The Supreme Court today handed down its judgments in two linked mesothelioma appeals: Greif (UK) Ltd v Sienkiewicz and Knowsley MBC v Willmore [2011] UKSC 10.  In doing so it made a number of important findings on the law of causation in tort generally as well as the special Fairchild rule applicable in mesothelioma cases.  It also doomed counsel appearing in future industrial disease cases to the embarrassment of likely mispronunctiation of the name of the claimant in the Sienkiewicz case.

The feature shared by the two cases was that the claimant identified a single environment in which he was exposed to low levels of asbestos by the actions of a single defendant.  Such cases are termed, potentially misleadingly, "single exposure" cases.  They are to be contrasted with "multiple exposure" cases in which a claimant is exposed, either concurrently or consecutively, to exposure in different environments and/or for which different defendants are responsible.

As is well-known, in Fairchild the House of Lords concluded that it was impossible in the current state of scientific understanding (as is still the case) to prove on the balance of probabilities that a particular defendant caused mesothelioma in multiple exposure cases.  That therefore justified a departure from the normal requirement to prove that it was more likely than not that the defendant caused or contributed to the onset of a disease, and led the House to rule that demonstrating that a defendant had materially increased the risk would establish liability.

In Barker, the House decided that the logical consequence of this was that a defendant should only have to pay an aliquot share of damages in line with the degree to which, in multiple exposure cases, he had increased the risk of contracting mesothelioma.  However, Parliament swiftly intervened to provide, by s3 of the Compensation Act 2006, that a defendant would have to pay full damages.

Causes and effects: The Supreme Court decision in Sienkiewicz and Willmore

On 9th March the Supreme Court handed down its judgments in two linked mesothelioma appeals: Grief (UK) Ltd v Sienkiewicz and Knowsley MBC v Willmore [2011] UKSC 10.  In doing so it made a number of important findings on the law of causation in tort generally as well as the special Fairchild rule applicable in mesothelioma cases.  It also doomed counsel appearing in future industrial disease cases to the embarrassment of likely mispronunciation of the name of the claimant in the Sienkiewicz case.

The feature shared by the two cases was that the claimant identified a single environment in which he was exposed to low levels of asbestos by the actions of a single defendant.  Such cases are termed, potentially misleadingly, "single exposure" cases.  They are to be contrasted with "multiple exposure" cases in which a claimant is exposed, either concurrently or consecutively, to exposure in different environments and/or for which different defendants are responsible.

As is well-known, in Fairchild the House of Lords concluded that it was impossible in the current state of scientific understanding (as is still the case) to prove on the balance of probabilities that a particular defendant caused mesothelioma in multiple exposure cases.  That therefore justified a departure from the normal requirement to prove that it was more likely than not that the defendant caused or contributed to the onset of a disease, and led the House to rule that demonstrating that a defendant had materially increased the risk would establish liability.

In Barker, the House decided that the logical consequence of this was that a defendant should only have to pay an aliquot share of damages in line with the degree to which, in multiple exposure cases, he had increased the risk of contracting mesothelioma.  However, Parliament swiftly intervened to provide, by s3 of the Compensation Act 2006, that a defendant would have to pay full damages.

New Silk Announcement

Chambers is delighted to announce that Edward Bishop has been appointed Queen's Counsel.  The silk ceremony will take place on 7th April 2011.

Proportionality and Possession Proceedings

The Supreme Court has unanimously ruled in the conjoined appeals of London Borough of Hounslow v Powell; Leeds City Council v Hall;Birmingham City Council v Frisby  [2011] UKSC 8 that a court must have the power to consider the proportionality of making possession orders under the homelessness and introductory tenancy schemes of the Housing Act 1996.  In Manchester City Council v Pinnock [2010] UKSC 45 the Supreme Court ruled that Article 8 of the European Convention on Human Rights required that a court, which was being asked to make a possession order against a person occupying under the demoted tenancy scheme in Part V of the Housing Act 1996 Act, must be able to consider whether it would be proportionate to do so.  The Powell judgment confirms the proportionality consideration now applies to all cases where a local authority seeks possession in respect of a property that constitutes a person’s home for the purposes of Article 8.  

Heaven v Ministry of Justice: landmark settlement for prison officer

The Claimant, an ex-prison officer, brought proceedings against the MoJ for severe psychiatric injuries which he suffered during the course of his employment at HMP Grendon, a category B prison. The Claimant was stationed on a wing that housed inmates convicted of serious sexual offences. As part of their rehabilitation, inmates underwent “therapeutic counselling” in which they were encouraged to speak openly about their offences.

The counselling sessions were held by prison officers and the Claimant was required as part of his employment to sit in the sessions and listen to the inmates talk in the most graphic terms about their offences. He had no training in counselling.  He struggled mentally to cope with the sessions and was eventually dismissed on grounds of ill health.

The MoJ admitted that the Claimant suffered an injury, namely PTSD and depression, but denied breach of duty. The issues in the claim were complex. Recently the MoJ settled the claim for a large undisclosed amount. The claim has been widely publicised in the national media.

Kiril Waite represented the Claimant.

New PI Blog launched

1 Chancery Lane is delighted to announce the launch of a new PI Blog, www.piblawg.co.uk.  The blog is a joint endeavour between Chambers and piCalculator, an online tool for calculating personal injury losses.  It features latest news in the fields of Personal Injury and Clinical Negligence and is updated on at least a weekly basis by members of Chambers specialising in these practice areas.

TBE v Royal Berkshire NHS Trust: £7.85 million awarded to child with severe cerebral palsy

TBE was born on 15 September 2000 at The Royal Berkshire Hospital and is now 10 years old.

TBE's mother, SB, had a caesarean section delivery with her first child in 1998. Her pregnancy with TBE progressed normally and TBE was due on 19 September 2000. It was agreed with her doctor that she would attempt vaginal delivery of TBE but that should the baby's heart rate start to show abnormality, she and the baby should be continually monitored by CTG and the baby would be delivered. On 15 September 2000, S.B went in to labour and was admitted to the Royal Berkshire Hospital.
 
From the outset of labour, the CTG recording showed abnormalities indicating a decelerating heart rate without a return to the original baseline. This was not recognised by the midwife and not reviewed by the obstetrician. The CTG monitoring was discontinued for 20 minutes to allow transfer to the delivery suite. When it was recommenced it showed deep early decelerations in the baby's heart rate with increasingly delayed returns to the baseline heart rate, indicating fetal distress. SB was advised to start pushing with no progress. An epidural was attempted to aid a forceps delivery but this was abandoned in favour of a general anaesthetic and an emergency caesarean section after the baby's heart rate dropped to a persistently low level. TBE was born in a very poor condition, requiring intubation, and was transferred to the Neonatal Unit where he began to suffer from seizures. He was subsequently diagnosed with dyskinetic quadriplegic cerebral palsy. He is severely disabled having lost all useful function of his limbs and he is unable to speak, communicating with facial gestures and through communication aids, and is fed via a gastrostomy. He has delayed cognitive function but is a bright little boy with a brilliant sense of humour.

The evidence showed that, in the context of SB's previous caesarean scar and the abnormalities on the CTG trace that could indicate imminent rupture of the womb, which would be life threatening to both mother and baby, there was a negligent delay in TBE's delivery. This caused him to suffer a deprivation of oxygen and sustain a severe hypoxic ischaemic brain injury within the last hour of labour. This could have been avoided had the hospital staff recognised the abnormalities on the CTG trace in the background of a previous caesarean scar and taken the appropriate action to deliver TBE sooner.

The agreed settlement award is a lump sum payment of £3,660,700 plus annual payments index linked to ASHE 6115 of £140,000 to age 19 and £225,000 from age 19 for life.  The capitalised current value of the claim is £7,850,000.

 Simon Readhead QC acted for the claimant, instructed by Darbys Solicitors.

No liability for stressful disciplinary process: Dermott v London Borough of Harrow

In a judgment handed down on 21 January 2011, McKay J dismissed a claim for psychiatric injury suffered by the claimant during a protracted disciplinary process. The claimant alleged a large number of breaches of his employer’s duty to take reasonable care to protect his health and a breach of the implied term of trust and confidence.

The judge applied the guidance in Eastwood v Magnox [2003] 1 AC 403 and Hatton v Sunderland [2003] 1 AC 503. He dismissed all of the allegations bar one. He found that a lie told by the defendant to the claimant about the reason for a change in the composition of an appeal panel was sufficiently serious to amount to a breach of the implied term of trust and confidence. However, this single breach had not caused or made a material contribution to the Claimant’s injury.

Andrew Warnock and Rebecca Grant of 1 Chancery Lane acted for the Defendant.

Amberley (UK) Ltd v West Sussex County Council: Local authority not liable for increases in care home fees

On January 20th 2011, the Court of Appeal [2011] EWCA Civ 11 dismissed an appeal by Amberley (UK) Ltd, the operator of a care home in Sussex, from the decision of Field J [2010] EWHC 651 (QB) dismissing a claim for unpaid fees against West Sussex County Council.
 
The council had become subject to the contractual liabilities of a number of residents at the home from April 2002 under section 50 of the Health and Social Care Act 2001.  The primary issue for consideration was whether the company had a contractual right to make unilateral increases in the amount of fees charged.  The court, considering existing authority on the interpretation of contracts, confirmed that since such a right was unusual in nature, it would require clear words to create it.  It was no answer that such a right would ordinarily be subject to implied limitations that it would not be exercised dishonestly or capriciously.  Since the words relied upon, in their context, were not sufficiently clear to confer such a right, the company had no right to increase the charges levied under the agreement without the council's agreement, which had not been forthcoming.  Accordingly, Field J had been correct to conclude that the company's claim failed.
 
The court also dismissed the company's appeal in respect of the fees relating to certain residents who had not had written contracts and who were therefore obliged to pay a reasonable sum.  The court decided that Field J's finding that the fees offered by the council represented reasonable remuneration could not be impugned.
 
Paul Stagg of 1 Chancery Lane represented the council.

Liability for Murderous Assault: Everett v Comojo Ltd

Everett & Another v Comojo UK Ltd T/A The Metropolitan & Others

Judgment was handed down in the Court of Appeal on 18th January 2011 in the above case.  The case concerned an assault in a nightclub.  The facts were that a waitress working in the nightclub was allegedly assaulted by two men who were in the nightclub.  Another patron of the club witnessed the assault and sent for his driver who, on arrival, attacked the men in question with a large knife and very nearly killed both of them.  The driver was sentenced to life imprisonment for the assaults and the badly injured men sued the nightclub for failing to prevent the murderous assaults.

The key question in this case for the court to decide was whether or not the nightclub owed any duty in relation to the acts of a third party and, if so, whether the club was in breach of that duty on the particular facts.  LJ Janet Smith in her leading judgment in the Court of Appeal decided that the nightclub did owe a duty in relation to the acts of third parties but that, whilst it had a duty to take reasonable care, on the facts of this case there was no breach of duty as there was little the nightclub could do in the circumstances and it was not foreseeable that there would be an assault in an upmarket nightclub such as this one.  This judgment is worrying for nightclubs and hotels as it means that, depending on the nature of the establishment, there may be cases in the future where such establishments will be held liable for the acts of third parties on their premises.  While the standard to be applied is realistic there is still undoubtedly a duty owed by clubs and hotels and they will have to decide how they need to behave in order to respect that duty.  

Lord Faulks QC acted for the nightclub.

Qualified Privilege and the HRA: Clift v Slough Borough Council

Judgment in the above case was handed down recently in the Court of Appeal.
The local authority placed the Claimant on its register of potentially violent people, which it circulated to certain of its employees and partner organisations providing services on the council’s behalf. The council contended there was qualified privilege, arguing that the publication was limited to people within an existing relationship that required the free and frank flow of information.

The Court of Appeal held that the law of qualified privilege has been modified by the Human Rights Act such that each publication has to be necessary and proportionate.

This decision is very significant: local authorities will now have to ensure that an individual assessment is carried out in each and every case where similar information is going to be published to be able to rely on qualified privilege. 

Lord Faulks QC and Andrew Spencer acted for the local authority.

The local authority is seeking permission to appeal to the Supreme Court.

R(Pewter) v Commissioner of Police of the Metropolis: Judicial Review and Public Interest Immunity

On Friday 3 December 2010 Wilkie J sitting in the Administrative Court, held, dismissing the claimant’s JR Claim, that the disclosure by a police officer of the existence of a prison report which attracted public interest immunity by virtue of being part of the multi-agency public protection arrangements scheme (MAPPA) was not capable of interfering with the report’s public interest immunity status.

The claimant had been convicted of rape and was sentenced to 14 years' imprisonment with a four-year extended licence period and, at the time of decision under challenge, he was approaching tariff expiry and possible release. The claim was for judicial review of a decision by the defendant commissioner not to disclose a report prepared by the prison service which had been erroneously referred to in a letter from a police officer which the officer had written to solicitors acting for the claimant’s wife. The claimant had obtained a copy of that letter and complained to the Independent Police Complaints Commission IPCC about the officer who had written the letter. His allegation was that the detective constable had acted in bad faith, as the impression given was, he said, misleading to the county court and inconsistent with the prison report. The detective inspector who dealt with the IPCC complaint concluded that the observations within the letter were fact and that there had been no breach of the police discipline code or the criminal code. The claimant did not exercise his right to appeal as, he said, he had no faith in the IPCC appellate process. Instead, he wrote a letter to the detective constable asking to see a copy of the report. The defendant commissioner refused. The claimant sought a judicial review of that decision.

The report in question was prepared about the claimant by prison officers, hence the involvement of the Secretary of State as an interested party, as a contribution to the MAPPA in preparation for the claimant’s then pending release. As such the report was covered by PII. 

The claimant submitted that although the report was subject to public interest immunity, because part of it had been disclosed its immunity had been stripped away and therefore in balancing the interests of justice and the protection of confidential information, the balance had tipped in favour of disclosure.

The defendant commissioner submitted that P's application for judicial review was premature; that he should have appealed the IPCC decision first; and that the decision not to disclose was correct.

The interested party also resisted disclosure on the basis first that there were no valid public law grounds for challenge to defendant commissioner’s decision not to disclose the report; and secondly that, in any event, the erroneous disclosure did not amount a waiver of PII and the court should, in the exercise of the discretion, be very reluctant to disclose documents of this type.

Wilkie J held, dismissing the claim, that there were no public law grounds of challenge.  In particular the JR was premature since the Claimant should have appealed the IPCC decision. The claimant’s lack of confidence in the IPCC’s appellate process was not reason enough to short-circuit the regime; furthermore, although it was clear that the detective constable had wrongly disclosed certain information, his wrongful disclosure of that information and effective placement of it into the public domain could not affect the report’s public interest immunity status.

The Secretary of State was represented by Simon Murray.

Goncalves v Newham University Hospital Trust: how quickly should an emergency C-section be performed?

The cerebral palsy case of Goncalves v. Newham University Hospital Trust (QBD, Mr. John Leighton Williams Q.C. sitting as a Deputy High Court Judge 24.11.10) discusses the important question of how quickly an emergency caesarean section should be performed. 

Tenancy Announcement: Chambers is delighted to announce that Ian Clarke will be joining Chambers later this month

Chambers is delighted to announce that Ian Clarke will be joining Chambers later this month as a new tenant.  Ian comes to Chambers from Tanfield Chambers having previously worked for 4 years in the Professional Indemnity Department at Berrymans Lace Mawer.  He has experience in the fields of Professional Negligence, Personal Injury, Education and Insurance. He was called to the Bar in October 2004. 

New Edition of Chambers & Partners: Chambers retains all previous listings and increases presence in personal injury and real estate litigation

Chambers is delighted to announce that it has retained all of its previous listings in the 2011 edition of Chambers & Partners as well as increasing its presence in the fields of Personal Injury and Real Estate Litigation.  It is also pleased to announce that Lord Faulks QC is now listed as a leaded silk in the Local Government section.  Paul Stagg is newly recommended as a leading junior at the Personal Injury Bar and Karen Shuman as a leading junior at the Real Estate Litigation Bar.

 Chambers' full listings can be found below. 

St William's litigation: appeal dismissed in one of Britain's biggest sex abuse claims

Claimants, in what has been described as one of Britain’s biggest sex abuse compensation claims, have failed to establish liability against a lay religious order providing Brothers to work at a residential institution known as St William’s, Market Weighton.  The 150 Claimants failed to establish that the De La Salle Order was vicariously liable for the alleged acts of abusers at St William’s during the period 1965 to 1992. 

At a Preliminary Issue Hearing the judge had held that the managers of St William’s, a committee of lay men and women and the employers of all staff, ran the approved school between 1965 and 1973 and therefore were vicariously liable for alleged acts of physical and sexual abuse by staff during this period.  He had also held that the Diocese of Middlesbrough’s children’s societies, which became the statutory responsible organisations for St William’s following its change of status to a Community Home in 1973, were vicariously liable for abuse by staff from 1973 until its closure in 1992. In addition, all liabilities of the managers of the approved school were statutorily transferred to these societies. 

The Court of Appeal dismissed appeals by the Claimants and the Diocese of Middlesbrough’s children’s societies

Lord Faulks QC and Alastair Hammerton acted for the De La Salle Order, instructed by Cumberland Ellis LLP.

Causation and tree branch claims: Micklewright v Surrey County Council

His Honour Judge Reid QC handed down judgment on 20th October 2010 in the case of Joanne Micklewright (as Executrix of the estate of Christopher John Imison, Deceased) v Surrey County Council in the Guildford County Court.

The Claimant was the executrix of the Deceased, who had tragically been killed when struck by a large branch which fell onto him from an oak tree on the verge of Wick Road, Virginia Water, as he unloaded a bicycle from his car parked in an adjacent lay-by. The Defendant, which accepted that it was responsible for the tree in question for the purposes of the trial, instructed Veitch Penny solicitors and Angus Piper of counsel to represent its interests at the trial.

The main issue at trial concerned the condition of the tree prior to the failure of the branch (which failure occurred on a still, dry, sunny August day in 2007). Damages were agreed at £500,000, subject to liability.

Chambers welcomes new tenants Frances McClenaghan and Thomas Crockett

Chambers is delighted to announce that Frances McClenaghan and Thomas Crockett have become tenants following successful completion of their pupillage.  Frances' and Thomas' tenancies means that 1 Chancery Lane now has 41 members of Chambers.  Both tenants already have busy practices and accept instructions across the spectrum of Chambers' practice areas.

Legal 500 2010: Chambers improves its rankings

Chambers has retained its rankings in all of its core practice areas and has improved its rankings in a number of areas in the new edition of The Legal 500.  Most notably, members of Chambers are newly listed in the Administrative and Public Law section.  We now have 10 members of Chambers recommended in the Clinical Negligence and Healthcare section and 9 members of Chambers are recommended in the Professional Negligence and Personal Injury sections.

Our listings by practice area are set out below:

Local authority duty of care: VL v Oxfordshire County Council [2010] EWHC 2091

The High Court has held that a local authority did not owe a duty of care in tort to make a an application to the Criminal Injuries Compensation Board on behalf of a child in its care prior to the replacement of that body by the Criminal Injuries Compensation Authority. The Claimant had suffered catastrophic injuries at the hands of her father before she was taken into care.

Mr Justice Mackay held that although she would have received substantially more compensation under the old criminal injuries compensation scheme than she did under the new, it would not be fair just or reasonable to impose a duty of care on the local authority to promote her financial security over the rebuilding of her family unit, or even to risk doing so.

The judge also held that even if a duty of care had arisen, he would not have found it to be breached given the lack of publicity from central government at the time about the changes it was making to the criminal injuries compensation scheme, in particular as to the fact that the new scheme would deprive those with existing claims to a large part of their remedy.

Lord Faulks QC and Andrew Warnock appeared for the Defendant, instructed by Barlow Lyde & Gilbert.

Debt relief order precludes recovery of social security debts: R (Cooper and Payne) v Secretary of State for Work and Pensions

On July 26th 2010, the Administrative Court held that the making of a debt relief order precludes the Secretary of State for Work and Pensions from recovering overpaid benefits or social fund loans by making deductions from ongoing entitlement to benefit, because in doing so the Secretary of State would be exercising a "remedy in respect of the debt" within the meaning of section 251G(2)(a) of the Insolvency Act 1986. 

In his oral judgment, Cranston J decided that: (1) in the absence of any indication to the contrary, "remedy" should be given its normal meaning to include methods of self-help such as abatement and set-off, and the Secretary of State was effectively exercising a statutory right of set-off, (2) the so-called 'net entitlement principle' under which, prior to consideration of insolvency law, a claimant was only entitled to receive an amount of benefit net of deductions, did not detract from that conclusion and did not, properly understood, preclude section 251G(2)(a) from having the effect contended for by the claimants, and (3) given the differences between the DRO schemes and the differences in language used, it was not possible to attribute an intention by Parliament, in enacting the DRO legislation in 2007, to adopt the conclusion in the cases of Mulvey and Taylor that bankruptcy left the Secretary of State's right of recovery unaffected prior to discharge.  Accordingly, the Secretary of State's continued withholding of benefits was unlawful. The Secretary of State was given permission to appeal, but refused a stay of execution pending appeal. The judgment will also apply to local authorities administering housing benefit and council tax benefits who seek to recover overpayments of those benefits by way of deductions from ongoing entitlement. 

Paul Stagg of 1 Chancery Lane represented Ms Cooper and made the oral submissions on behalf of both claimants.

The Court of Appeal has considered the inter-relationship between police protection powers and emergency protection orders

F-v- (1) East Sussex County Council; (2) Chief Constable of Sussex Police [2010] WLR (D) 171

This case concerned the use of powers under Sections 44 and 46 of the Children’s Act 1989 (“the Act”). The applicant mother was appealing the decision of HHJ Coltart, sitting at Brighton County Court. He held the Respondents’ use of a Police Protection Order (“PPO”) under Section 46 of the Act to enable the removal of her child when she was in hospital, was lawful. The child was admitted to hospital following the mother’s contention that he was suffering from fits. There was nothing medically wrong with the child. A doctor and medical staff suggested it was a case of fabricated illness by the mother, who had a history of mental health problems and was being uncooperative. The Respondents’ considered the removal of the child necessary for his protection and wellbeing, in light of medical advice which suggested the child was at risk of being harmed by the mother. It was between Christmas and New Years Day, and the Respondents’ considered it was impractical to seek an Emergency Protection Order (“EPO”) under Section 44 of the Act from a court.

The Court of Appeal (Carnwath, Jackson LJJ and Hedley J) held that, in accordance with Langley v Liverpool City Council [2005] EWCA Civ 1173, local authorities and police forces must effect the removal of a child via an EPO where practical, in preference to PPOs. However, HHJ Coltart in the present case was entitled to find that the exercise of a PPO was justified and neither unlawful nor disproportionate in such circumstances where there was substantial evidence that the child was at risk from harm and an application to a court for an EPO was logistically impractical. The Court gave guidance on how police and social services should handle such situations. 

Andrew Warnock appeared for the Second Defendant.

Edward Faulks QC elevated to House of Lords

Chambers are delighted to announce that Edward Faulks QC, long-standing former head of this Set, has been elevated to the House of Lords. We wish him every success in his new role. We are also pleased to be able to confirm that he will be continuing in practice from 1 Chancery Lane.

Assured tenancies - Rent Threshold Increase

With effect from 1 October 2010 the rental threshold for assured tenancies under the Housing Act 1988 Schedule 1, paragraph 2(1)(b) will be £100,000 per annum (SI No 908-Assured Tenancies (Amendment) (England) Order 2010). This means many lettings, currently outside the statutory protection of the Housing Act 1988, will now be covered by the Act.   The amendment applies to existing and new tenancies. Thus a landlord (if their status or the other terms of the tenancy do not take it outside the auspices of the Housing Act 1988) must take measures to ensure compliance with the requirements of the tenancy deposit scheme under the Housing Act 2004. Given there is no statement of intention by the government to amend the timing requirements under section 213 of the Housing Act 2004 for deposits of extant tenancies affected by this change, it may be prudent to prepare the paperwork in advance of 1 October 2010.

 Samantha Jackson, Barrister

Savage v South Essex Partnership NHS Foundation Trust

An NHS foundation trust had breached its positive obligation under the European Convention on Human Rights 1950 art.2 to protect the life of a mentally ill woman who had committed suicide after absconding from one of its hospitals.

This  case was heard in the House of Lords on a preliminary point (Edward Faulks QC acting for the Claimant).  The case was remitted for trial in the High Court, and judgement handed down on 28 April 2010.

An NHS Foundation Trust was found liable for a violation of article 2 of the European Convention on Human Rights (“right to life”) after a mentally ill woman patient absconded from a psychiatric ward and committed suicide. 

The case is the first to address the duty owed by a health authority under the Human Rights Act 1998 to a patient detained under the Mental Health Act 1983. 

The judge found that there was a real and immediate risk of the patient absconding and committing suicide and that the defendant did not do enough to reduce this risk.  The judge also held that the claimant (the deceased’s daughter) was a “victim” within the meaning of section 7 of the 1998 Act and therefore entitled to bring proceedings.  The judge made a declaration of a violation of the deceased’s right to life and awarded £10,000 by way of just satisfaction.  The defendant is considering an appeal.

Edward Bishop, instructed by Bevan Brittan LLP, appeared for the defendant NHS Foundation Trust.

Claim for underpaid care fees rejected: West Sussex County Council v Amberley (UK) Ltd

Field J gave judgment on March 31st 2010 in litigation between West Sussex County Council, Amberley (UK) Ltd and Mr Ronald Green concerning fees paid by the council to the company for residential care provided to individuals suffering from mental illness.  The council succeeded in recovering fees paid in respect of a resident for whom it did not have statutory responsibility following the abolition of residents' preserved rights to income support pursuant to the Health and Social Care Act 2001.  The company had counterclaimed for alleged underpayments in respect of other such residents from 2002 onwards.  Field J held, however, that those residents' contracts had not given the company the right to impose unilateral price increases in respect of the cost of care prior to 2002, and so section 50 of the 2001 Act did not give the company the right to impose similar increases on the council.  He also held that no agreement by the council to pay the price demanded by the company could be inferred, and that in any event the council's usual maximum rates constituted the local market rate and hence reasonable remuneration for the company's services.  The judgment will be of interest to local authorities who have had difficulty reaching agreement with owners of care home as to sums payable for the provision of residential accommodation. 

Paul Stagg of 1 Chancery Lane represented the council.

Darren Bent v (1) Highways & Utilities Construction LTD (2) Allianz Insurance PLC (2010)

[2010] EWCA Civ 292 CA (Civ Div) (Jacob LJ, Leveson LJ, Briggs J)

24/3/2010 CONSUMER LAW - CIVIL EVIDENCE CAR HIRE : CIVIL EVIDENCE : HIRE CHARGES : VALUATION : ABILITY TO ASSESS SPOT HIRE RATES RETROSPECTIVELY ON BASIS OF LATER EVIDENCE 

Professional Negligence Seminar: Mortgagee Claims against Professionals

 

1 Chancery Lane's Professional Negligence Group is running a workshop in Chambers on Tuesday evening, 24 May 2010:

 

Mortgagee Claims against Professionals (solicitors and surveyors)

• Duty;
• Contribution;
• Quantum;
• Breach.

Each workshop will start at 4pm and will finish at 6.15pm.  The workshops will take place in Chambers.  If you would like to book a place on any or all of the workshops, please contact our Business Manager Sheena Byrne(sbyrne@1chancerylane.com).

Tenancy announcement: Rebecca Grant is joining Chambers in March 2010

Chambers is delighted to announce that Rebecca Grant has accepted an invitation to join Chambers as from 2 March 2010 after successfully completing her pupillage.

1 Chancery Lane recruits new member

We are delighted to announce that Samantha Jackson has joined Chambers.  Samantha, called in 1996, has an established practice in property and housing law.

She regularly handles matters relating to commercial and residential property and commercial leases. She is also instructed in commercial and residential property disputes as a trained mediator.

Chambers & Partners 2010: Chambers once again improves its rankings dramatically

Chambers is delighted once again to have dramatically improved its rankings in the latest edition of Chambers & Partners Guide to the UK Legal Profession. 

Having retained and improved its rankings in Clinical Negligence, Education, Personal Injury, Police Law, Professional Negligence, Professional Discipline, Real Estate Litigation and Travel, it is now newly listed in Civil Liberties.

The following members of Chambers have also been additionally listed as leading individuals in the following fields: 

Edward Faulks QC (Civil Liberties), John Ross QC (Personal Injury), Paul Stagg (Police Law) and Laura Johnson (Clinical Negligence, Police Law).

Chambers' full listings can be found below.

Civil Liberties: Edward Faulks QC leading silk.

Clinical Negligence: Leading set. Edward Faulks QC and Simon Readhead QC leading silks.  Edward Bishop, Sarah Paneth, David Thomson and Laura Johnson leading juniors.

Education: Edward Faulks QC leading silk.  Andrew Warnock leading junior.

Personal Injury: Leading set. Edward Faulks QC and John Ross QC leading silks.  Edward Bishop, Andrew Warnock and Laura Johnson leading juniors.

Police Law: Mainly Defendant: Leading set.  Edward Faulks QC leading silk.  Sarah Paneth, Edward Bishop, Geoffrey Weddell, Andrew Warnock, Paul Stagg and Laura Johnson leading juniors.

Professional Discipline: David Thomson leading junior.Professional Negligence: Leading set.  John Ross QC and Edward Faulks QC leading silks.  Alastair Hammerton and John Norman leading juniors.

Real Estate Litigation: Zachary Bredemear leading junior.

Travel: Leading set.  Matthew Chapman, Sarah Prager and Jack Harding leading juniors.

Claimants fail to establish liability in one of Britain's biggest sex abuse compensation claims

Claimants, in what has been described as one of Britain's biggest sex abuse compensation claims, have failed to establish liability against a lay religious order that provided Brother to work at a residential institution known as St William's, Market Weighton.  The 170 Claimants failed to establish that the De La Salle Order was vicariously liable for the alleged acts of abusers at St William's during the period 1965 to 1992.

 In a Preliminary Issue Hearing, the judge held that the managers of St William’s, a committee of lay men and women and the employers of all staff, ran the approved school between 1965 and 1973 and therefore were vicariously liable for alleged acts of physical and sexual abuse by staff during this period.

He also held that the Diocese of Middlesbrough’s children’s societies, which became the statutory responsible organisations for St William’s following its change of status to a Community Home in 1973, were vicariously liable for abuse by staff from 1973 until its closure in 1992. In addition, all liabilities of the managers of the approved school were statutorily transferred to these societies. 

Unusually, the judge heard evidence from two canon lawyers about Roman Catholic canon law, which was treated as expert evidence of foreign law, as to the relationship between the Diocese of Middlesbrough and the De La Salle Order during the period 1912 to 1992. The judge granted the Diocese and Claimants permission to appeal.

Edward Faulks QC and Alastair Hammerton acted for the De La Salle Order, instructed by Cumberland Ellis LLP.

Boy of 10 awarded £7.1 million: Snowdon v Oxford Radcliffe Hospitals NHS Trust

A boy of ten facing a lifetime of care as a result of negligence at birth has been awarded £7.1 million.  Harry Snowdon was left with severe brain damage after his birth was unnecessarily delayed despite signs of foetal distress. 

The Judge in the High Court awarded a financial settlement of £2.3 million plus annual payments of £75,000 to age 16, £85,000 to age 19 and £165,000 from age 19 for life. 

The facts of the case were as follows.  During labour, the CTG monitors showed abnormal decelerations of the claimant's heart rate causing oxygen starvation. Despite this, his condition was not checked by blood sampling; instead, syntocinon was continued and increased to strengthen contractions.  Obstetricians instructed in the case advised that the claimant was delivered by caesarean section four hours later than he should have been by which time he had sustained severe brain damage due to oxygen starvation.  At birth he was in a poor condition, not breathing and requiring resuscitation.

The claimant has severe brain damage causing developmental delay, limitations to his mobility, memory and learning difficulties and behavioural problems. He has a normal life expectancy but will never work and will require care for life. He has awareness of the differences between himself and his peers and of his limitations which will become more challenging as he gets older.

The damages awarded will be held in trust to ensure that the claimant receives the care and support he requires.  The defendant admitted liability at an early stage in proceedings.

Edward Faulks QC acted for Harry Snowdon, instructed by Oxford firm Darbys.

Chambers Bar Awards 2009: Chambers wins award

Chambers is delighted to announce that Edward Faulks QC has won the 'Personal Injury and Clinical Neg Silk of the Year' award in the Chambers Bar Awards 2009.

Chambers was also shortlisted for the Client Service Set of the Year Award this year.

Legal 500 2009: Chambers dramatically improves its rankings

Chambers is delighted that it is now ranked by the Legal 500 as one of the top 8 leading civil common law sets.  It has dramatically improved its rankings this year.  As well as retaining its rankings in the fields of Clinical Negligence, Consumer and Product Liability Law, Education, Personal njury, Professional Discipline and Regulatory Law and Professional Negligence it is newly recommended as a set of chambers in the field of Human Rights and Civil Liberties. 

As a set we have moved up a band in four separate practice areas and many members of Chambers have also moved up a band or more.  The following members of Chambers have been recommended in new practice areas:  John Ross QC (Consumer and Product Liability Law), John Norman (Consumer and Product Liability Law and Personal Ijury), Alastair Hammerton (Professional Discipline and Regulatory Law), Edward Bishop (Human Rights and Civil Liberties), Sarah Paneth (Clinical Negligence), Angus Piper (Clinical Negligence and Personal Injury), Geoffrey Weddell (Professional Discipline and Regulatory Law), Matthew Chapman (Personal Injury), Laura Johnson (Personal Injury and Professional Discipline and Regulatory Law).

 Our full rankings are set out below:

Clinical Negligence - leading set.  Edward Faulks QC and Simon Readhead QC leading silks.  Edward Bishop, Angus Piper, Sarah Paneth and David Thomson leading juniors.

Consumer & Product Liability Law - leading set.  John Ross QC leading silk.  John Norman, Matthew Chapman and Sarah Prager leading juniors.

Education - leading set.  Edward Faulks QC leading silk.  John Norman, Andrew Warnock and Paul Stagg leading juniors.

Human Rights & Civil Liberties - leading set.  Edward Faulks QC leading silk.  Edward Bishop and Andrew Warnock leading juniors.

Personal Injury - leading set.  Edward Faulks QC and John Ross QC leading silks.  John Norman, Edward Bishop, Julian Waters, Matthew Chapman, Andrew Warnock and Laura Johnson leading juniors.

Professional Discipline & Regulatory Law (incl Police Law) - leading set.  Edward Faulks QC and John Ross QC leading silks.  Edward Bishop, Geoffrey Weddell, David Thomson and Laura Johnson leading juniors.  Alastair Hammerton recommended in editorial.

Professional Negligence - leading set.  John Ross QC and Edward Faulks QC leading silks.  Andrew Goodman, Nicholas Yell, John Norman, Alastair Hammerton, Angus Piper, Andrew Warnock and Ivor Collett leading juniors.

Laches; Limitation; Undue Influence: Azaz v (1) Denton (2) Self Realization Meditation Healing Centre

Judgment in the above case was handed down on 21st July 2009 ([2009] EWHC 1759 (QB)).  The claimant alleged undue influence by the defendants (D and S).  S was a healing centre which had been established by D who was its spiritual leader attributed with the status of 'guru'.  S's activities included teaching meditation and healing and it operated as a residence for those who wished to participate in communal living.  X had left his career as a medical doctor and he and his wife became resident at S, earning their keep through teaching meditation and healing activities.  Upon joining, X transferred all his assets, both in cash and property, to S.  X later left the centre and requested the return of his assets.  When that did not happen he issued proceedings against D and S alleging inter alia that D, as his spiritual leader, had exercised undue influence over him as a result of which he had handed over and allowed the use of all his personal possessions, worked for D and S without receiving proper remuneration and developed episodes of severe dissociative mental illness (personal injury claim).  X sought equitable compensation or damages or both.  D and S in defence alleged that X's equitable claim was barred by the doctrine of laches and that the other claims were statute barred pursuant to the Limitation Act 1980.  The court ordered the trial of preliminary issues concerning whether all or any part of X's claim was an action for personal injuries within section 11 of the Limitation Act 1980 and, if so, whether the primary limitation period had expired when the claim was issued and the court should exercise its discretion to disapply the primary limitation period under section 33; whether all or any part of X's claim was otherwise statute barred; whether X was entitled to rely upon section 32; whether all or any part of X's claim for equitable relief was barred by the equitable defence of laches.  X made a later claim for delivery up of the possessions on the ground that they had been provided to D and S on a long-term loan and it was common ground between the parties that that claim was not susceptible to a defence of limitation or laches.

Ministry of Defence not negligent in providing escorted transport for civilian contractors in un-armoured vehicles in Basra: Hopps v (1) Mott MacDonald (2) Ministry of Defence

Judgment in the above case was recently handed down in the Queen's Bench Division of the High Court ([2009] EWHC 1881 QBD, Christopher Clarke J.)

Mr Hopps, the Claimant, was injured when the Land Rover in which he was travelling in Basra, Iraq, in October 2003 was the target of a roadside bomb or IED. The explosion killed an Iraqi engineer and injured the two British soldiers also travelling in the same vehicle. It was the Claimant's case that he should have been moved around the Basra region in an armoured vehicle and/or confined to base  in the relevant period.The Claimant was present in Iraq to assist in the emergency electricity network reconstruction programme for Southern Iraq. He was escorted to his various tasks by the Army.

His claim was dismissed by Christopher Clarke J, holding that it was not negligent for the Army or a civilian company to transport civilian employees in un-armoured Land Rovers in Basra in  October 2003. The Judge held that, taking into account the level of risk and the urgency and desirability of the emergency infrastructure projects, it was not negligent to transport the Claimant in an ordinary Land Rover.

The Court also found that the emergency reconstruction of Iraq following the 2003 Iraq war was a "desirable activity" for the purpose of section 1 of the Compensation Act 2006, and took into account the possible deterrent effect a finding of liability might have on future such activities. It is understood that this is the first reported decision by an English court in a claim by a civilian for personal injury suffered in an attack while working in Iraq after the 2003 war. It is also believed to be the first case in which a judge has relied on section 1 of the Compensation Act 2006.

One of the issues in the case was causation - the Judge, having heard expert ballistics evidence as to the size of the IED  and whether various types of armoured vehicle would have protected against it, determined that the Claimant also failed to prove that an armoured vehicle would have prevented or reduced his injuries in the context of this particular explosion.

The Court found expressly that s.1 Compensation Act 2006 applied to the Claimant's claim despite the fact that the incident occurred nearly 3 years before that Act came into force. Thus section 1 now applies to every relevant Personal Injury case, whenever the accident occurred.

http://news.bbc.co.uk/1/hi/england/west_yorkshire/8166671.stm

Simon Murray was junior counsel for the Ministry of Defence, instructed by the Treasury Solicitor.

Haithwaite v Thomson Snell & Passmore: solicitors negligence causes failure of claims against NHS trust

In Haithwaite v Thomson Snell & Passmore [2009] EWHC 647, the Defendant solicitors admitted that they had negligently caused the loss of the Claimant’s litigation against an NHS trust.  They contended that the action was worthless, despite their advice at the time and counsel’s advice that it stood a 50-60% chance of success.  It is trite law that although the legal burden rests on the Claimant to prove that his case had some worth, the evidential burden lies on the Defendants to prove that it was valueless.  If they fail to discharge that evidential burden, the Court is not to determine definitively how the litigation would have been decided, but merely to make a realistic assessment of the prospects of success.

In the Defendant’s closing submissions, it was driven to concede that the Claimant’s original case was not valueless. Nicol J took the somewhat rare course of assessing the prospects of success of establishing negligence separately from the prospects of success of establishing causation.  The learned judge found that that the Claimant had lost a 40% chance of establishing negligence against the NHS trust.  He found that the Claimant stood a 75% chance of establishing causation against the NHS trust.  The overall loss of a chance was therefore 40% x .75, namely 30%.  The judge largely accepted the Claimant’s submissions on quantum so the Defendant’s Part 36 offer was handily beaten.  Marc Rivalland appeared for the Claimant.

Turkish asylum seeker has no "right to reside" in the UK: Yesiloz v London Borough of Camden

Shapoor v MIB: liability for failure to report RTA to police

In circumstances where an uninsured driver gave misleading information as to whether he was insured, the innocent claimant did not breach clause 13 of the Uninsured Driver Agreement 1999 in failing to report the accident to the police. The appeal concerned the correct construction of the condition precedent set out in clause 13 of the 1999 Agreement. Although the point is often taken by the MIB there is no reported decision.

The claimant’s vehicle was damaged in a RTA. At the scene the third party driver stated that he was insured and gave certain details about his insurer. On subsequent enquiries it transpired that the information was false. When the claimant’s solicitor made contact with the third party about a month after the accident he admitted that he was not insured. The MIB sought a declaration that it was not obliged to meet any claim on the grounds that clause 13 required the claimant to report the matter to the police. It was common ground that no formal complaint was made. It was held on appeal that on its true construction, a claimant is only obliged to report the matter to the police in circumstances where the third party driver has refused to give his details or has failed to respond to a request for the same. The clause imposed no such obligation where the uninsured third party had either deliberately or innocently misinformed the claimant.

Kiril Waite appeared on behalf of the successful appellant. Copies of the judgment are available from him.

CICA decision: false accusation of rape constitutes a 'crime of violence'

A CICA Panel has decided that to accuse someone falsely of rape is a "crime of violence" entitling the victim to be paid compensation from the Criminal Injuries Compensation Authority.  Nicholas Yell of 1 Chancery Lane drafted the Submissions that formed the basis of the CICA's decision.

X & Y v Hounslow LBC: council did not owe a duty of care to protect adults with learning difficulties from attacks by third parties

In a judgment handed down on 2nd April 2009, the Court of Appeal has held that a council did not owe a duty of care in the tort of negligence to protect adults with learning disabilities who are living in the community from attacks by third parties.  The court held that a public authority which is trying to exercise its statutory powers and duties does not, without some additional ingredient, assume a responsiblity in the law of Tort.  Thus a social worker who visited the claimant was merely performing her statutory duty which did not itself give rise to a private law cause of action.  With specific reference to an allegation that a housing authority owed a duty to re-house the claimants because of the danger they were in, the court held that it would not be fair, just or reasonable to impose such a duty given the fact that the authority had to balance the claimants' interests against those of other deserving cases and the rights of other tenants. 

Edward Faulks QC and Andrew Warnock, instructed by Barlow Lyde & Gilbert, appeared for the local authority.

Cosmos Holidays Plc v Dhanjal Investments Limited [2009] 18 March

Court of Appeal: Clarke MR, Sullivan and Toulson LJJ. 

This appeal concerned the proper construction of an indemnity clause contained in a supply contract between C (a tour operator) and D (proprietor of a Hotel in Mombasa, Kenya). In April 2000 C organised 14 night package holidays for a party of 9 UK consumers. The consumers all stayed, on an all-inclusive basis, at the Mombasa Hotel which was owned and operated by D. A feature of the all-inclusive amenities available at the Hotel (at no extra cost to consumers staying there) was an overnight, all-inclusive excursion to a tented camp at an Elephant Sanctuary some miles distant from the Hotel. The excursion included full board accommodation at the tented Camp, all transfers, two game drives and sanctuary entrance fees. The group of 9 consumers took up the offer and travelled to the Camp for an overnight stay on 3 May 2000.

At around 1.30 am on 4 May 2000 the Camp was attacked by a group of 10-12 armed men who assaulted the consumers who suffered physical and psychological injury, as well as consequential losses. The consumers commenced proceedings against C in respect of these injuries and served these proceedings in August 2003. Conventionally, they based their claims on regulation 15 of the Package Travel etc. Regulations 1992 and, alternatively, on the terms of C’s booking conditions. Liability was compromised in July 2005 (following mediation on the same date) on the basis of a 60:40 apportionment in the consumers’ favour. C sought to recover the settlement sum and costs from D and relied on an indemnity clause which read as follows: “Throughout the period of the contract the Hotelier warrants and guarantees as follows: (a) that the design, installation, structure and contents of the Hotel and its furnishings and the services and goods supplied at the Hotel comply with all applicable national and local laws, decrees, regulations and codes of recommended practice (including those promulgated by trade associations of which the Hotelier is a member) relating to hygiene, fire and general safety of those using the Hotel or any of its amenities. The Hotelier shall indemnify and keep indemnified Cosmos against all losses, liabilities, claims or expenses for or in respect of injury (including death) loss or damage to persons or property which may arise from any cause whatsoever out of or in connection with the supply of services to Cosmos (excluding the negligence or default of Cosmos, its servants or agents but including any failure on the Hotelier’s part to comply with the laws, decrees, regulations and codes of recommended practice referred to above) [emphasis added]”

At the trial of a preliminary issue as to D’s liability to indemnify C, it was argued by D that the indemnity clause was limited to the Hotel and did not extend to services at the Camp. C argued that the clause fell to be construed in the context of the contractual documentation as a whole which, when read together, made it clear that the indemnity applied to the Camp. The preliminary issue was resolved in C’s favour. It was also found that the indemnity was not an onerous clause and had, therefore, been incorporated in the contract and that C had acted reasonably in settling the consumers’ claims. D appealed on a variety of grounds, but obtained permission to appeal only on the question of construction (whether the indemnity extended to the services at the Camp).

The Court of Appeal dismissed the appeal (applying Investors Compensation Scheme v West Bromwich Building Society [1998] 1 WLR 896, 912 – 913 (HL(E)) and BCCI SA v Ali & Others [2002] 1 AC 251 (HL(E)). It followed that D was liable to indemnify C.

C was represented at first instance and in the Court of Appeal by Matthew Chapman who was instructed by MB Law, Leeds.

Peters v Dr P Halstead and East Midland Health Authority (Defendants) and Nottingham City Council (Third Party)

The Court of Appeal handed down a judgment on 3rd March in an important case about damages in the law of Tort and specifically as to the right of an individual to elect for damages to pay for a care home even if it was the same care home that was provided free by the local authority pursuant to its statutory duty.  The Court said that there was no duty to mitigate in these circumstances and the preference for private funding expressed by a claimant's deputy was not as a matter of law capable of challenge.  However, the Court rejected the Council's appeal against the judge's decision that it was not entitled to charge the claimant for providing the care home albeit that she had been awarded damages to pay for such care. 

The Health Authority and the Doctor were represented by Edward Faulks Q.C. and Paul Stagg.  The case may proceed to the House of Lords.

Nationwide BS v Dunlop Haywards & Cobbetts: Contribution Issues between Negligent Defendant and Defendant Liable in Deceit

Contribution Issues between Negligent Defendant and Defendant Liable in Deceit - Nationwide BS v Dunlop Haywards & Cobbetts [2009] EWHC 254 (Comm)

The judgment of Christopher Clarke J.  in the above case merits detailed consideration.  It addresses a number of issues which are now arising with some frequency – damages recoverable in deceit claims; damages recoverable from solicitors in lending claims; deduction for contributory negligence on the part of a lender; apportionment between defendants in contribution claims; the relevant starting point when apportioning damages between defendants one of whom was guilty of deceit.  Of particular interest are the views of the Judge as to what heads of loss were recoverable against the fraudulent valuer and those (fewer) heads of loss which were recoverable from the negligent legal adviser – see paragraphs 33-34 and 35-36 – and the effect on the contribution proceedings of a finding of contributory negligence against the lender – see paragraphs 43-45.

Chambers assists with development of new PI Calculator website

Chambers is very pleased to have assisted with the development of a website which will take much of the pain out of the calculation of PI damages - www.picalculator.co.uk.  The website was launched recently and promises to assist busy practitioners with the preparation of complicated schedules of damages.

The High Court comes to 1 Chancery Lane

In a new move forward, the High Court came to 1 Chancery Lane on 4th February 2009 when a court of the Queen's Bench Division held a hearing in conference room 1 in Chambers in order to hear contemporaneous video-link evidence from a witness from his hospital room in Beijing, China.  Chambers' technical facilities enabled the examination in chief and cross-examination of the witness in front of the judge.

TCD v Harrow: the exercise of discretion under s33 Limitation Act 1980

Judgment in the above case was handed down in the High Court on 10 December 2008.  The case involved a claim for compensation from three local authorities for sexual abuse some years previously.  The claimant was abused between 1975 and 1981 by her adoptive father when she was aged eight to fourteen.  The court ordered that the limitation point be heard as a preliminary issue.  The two questions for the judge were:

1.  Did the claimant know more than three years prior to issuing proceedings that her injury was attributable to the acts/omissions of the local authorities?

2.  Even if she did, should the court nevertheless allow her claim to proceed out of time?

Privy Council overrules Court of Appeal: Durity v Attorney General of Trinidad & Tobago

In December 2008 the Privy Council overruled the Court of Appeal's decision in Durity v AG Trinidad & Tobago, Privy Council Appeal No 83 of 2007.  The case involved a former Trinidad & Tobago magistrate who had been suspended by the Judicial and Legal Services Commission for overruling a judge's decision.  In 2005, Justice Carol Gobin awarded the former magistrate damages but the Court of Appeal then overturned the judge's decision and said that the claimant was not entitled to any damages.  The former magistrate then appealed to the Privy Council which reinstated Justice Gobin's award together with substantial costs.

Negligence claim dismissed with indemnity costs: Anna Howman v Irene Thompson

The above claim for negligence against a GP practice nurse was dismissed with indemnity costs by HHJ Darroch in Norwich County Court on 15th December 2008.  Angus Piper appeared as counsel for the defendant nurse.

Paterson v Chief Constable of Surrey: Stress Claim Dismissed

Judgment was handed down on 7th November 2008 in the case of Paterson v Chief Constable of Surrey.  The claimant's usual working hours reached or exceeded the working time limit of 48 hours per week on a regular basis and his wife had complained to his manager expressing her concerns on the way this was affecting them both.  The Judge rejected the claimant's argument that the terms of the Working Time Regulations meant that he was to be treated as actually working 24 hours a day 7 days a week with very little relief by reason of his employer's requirements that he live on site and that he provide 24 hour cover for his job.   The claimant alleged that his employer was in breach of duty in failing to ensure better relief arrangements and in failing to provide him with accommodation off site.  The Judge dismissed the claim.  John Norman appeared successfully for the defendant, instructed by Barlow Lyde & Gilbert.

Chambers & Partners 2009: Chambers Dramatically Improves its Listings

Chambers is delighted to have improved its listings dramatically in the new edition of Chambers & Partners Guide to the UK Legal Profession.  As well as retaining all of its previous listings in the fields of Clinical Negligence, Education, Personal Injury, Police Law, Professional Negligence and Travel it has now been listed in two further fields, namely Professional Discipline and Real Estate Litigation.

The following members of Chambers have also been listed as leading juniors for the first time:  Geoffrey Weddell (Police Law), David Thomson (Professional Discipline), Zachary Bredemear (Real Estate Litigation), Laura Johnson (Personal Injury) and Jack Harding (Travel). 

 Chambers' full listings can be found below.

Chinnock v Hocaoglu: Court of Appeal judgment handed down

The Court of Appeal handed down judgment in the case of Chinnock v Hocaoglu yesterday.  The main issue in the case was whether or not sums payable under Special Condition 26 of a contract for the sale of land, for which sums the purchaser was to "be responsible", had to be paid on completion with the effect that, if they were not so paid, the vendor might treat the contract as repudiated.  Blackburne J at first instance had held that they were payable on completion.  The Court of Appeal disagreed and allowed the purchaser's appeal.  The court also dismissed the vendors' cross-appeal that under the Special Conditions it was essential that the completion moneys be paid by 1.00 p.m. on the day of completion.  John Bryant, instructed by Gelbergs, successfully appeared for the purchaser.  The case is reported on Lawtel.

Three new books by members of Chambers published

The following three new books by members of Chambers have been published recently:

Travel Law and Litigation - 4th Edition 2008, Xpl Law - by Alan Saggerson

Package Holiday Law: Cases and Materials, Xpl Law - by Alan Saggerson

Pearl & Goodman on Small Claims Procedure - 4th Edition 2008, Xpl Law - co-author: Andrew Goodman

Personal Injury Awards 2008: Laura Johnson shortlisted for PI Barrister of the Year award

Chambers is delighted to announce that Laura Johnson has been shortlisted for the Barrister of the Year award in the Legal & Medical Personal Injury Awards 2008.  This brand new awards scheme has been launched aimed at raising standards and recognising excellence within the personal injury sector.  It will bring together the most talented professionals working in the field from insurance claims handlers to claimant barristers, to reward all those people who make the system work.

New Listings in The Legal 500 2008

Chambers is delighted to have received several new listings in the new edition of The Legal 500.  In particular, members of Chambers are now recommended as leaders in their field in the Human Rights & Civil Liberties section and in the Professional Discipline & Regulatory Law section. 

As well as retaining its previous listings in its core practice areas, the following members of Chambers have received further recommendations:

John Ross QC is listed in the personal injury and professional discipline & regulatory law sections as a leading silk

Edward Faulks QC is listed in the human rights & civil liberties and professional discipline & regulatory law sections as a leading silk

John Norman is listed in the personal injury section as a leading junior

Edward Bishop is listed in the clinical negligence, personal injury and professional discipline & regulatory law sections as a leading junior

Julian Waters is listed in the personal injury and professional discipline & regulatory law sections as a leading junior

Andrew Warnock is listed in the human rights & civil liberties and professional negligence sections as a leading junior

Paul Stagg is listed in the education section as a leading junior

David Thomson is listed in the professional discipline & regulatory law section as a leading junior

Ivor Collett is listed in the professional negligence section as a leading junior

Chambers awarded Quality Mark for the Bar

Chambers is delighted to announce that it has been awarded The Legal Services Commission's Quality Mark for the Bar.  The LSC auditor advised Chambers that it had passed its preliminary audit with no corrective action and praised Chambers' client feedback system and practical clerking procedures.

In order to achieve the standard, Chambers was required to demonstrate compliant management and administration systems.  The benefits of having these systems in place include:

• improved risk management
• improved client care
• effective deployment of resources and
• increased client confidence

Tenancy Announcement: Lisa Dobie and Roddy Abbott will both be joining Chambers in October

Chambers is delighted to announce that Lisa Dobie and Roddy Abbott have accepted invitations to join Chambers as from 1 October 2008 after successfully completing their pupillage.

Van Colle v Chief Constable of Hertfordshire and Smith v Chief Constable of Sussex Police: Judgment given by House of Lords

The House of Lords has given judgment in the related appeals of Van Colle v Chief Constable of Hertfordshire Police and Smith v Chief Constable of Sussex Police [2008] UKHL 50.

Both appeals involved allegations that police officers had failed to provide appropriate protection for members of the public who had reported threats.  In both cases the Chief Constables succeeded in overturning unanimous decisions of the Court of Appeal.

In Van Colle, the claimants were the parents of a 25-year-old man (Giles Van Colle) who had been shot dead shortly before he was due to give evidence in a criminal trial.  The defendant in the trial (now serving life imprisonment) was charged with relatively minor theft offences, but had attempted to bribe, intimidate and threaten various prosecution witnesses (including Giles).  Some of these activities, which included two threatening telephone calls to Giles, had been reported to the police.

Onwuama v London Borough of Ealing: Compatibility of issue estoppel with ongoing legal obligations

On 22 July 2008 Teare J dismissed the Claimant's appeal against the decision to strike out part of her claim on the ground of res judicata and abuse of process.

C, a tenant, pursued a claim for disrepair against D, her landlord, in 2005.  Her complaints included damp.  Her claim was dismissed and it was held that the damp was caused by condensation which did not amount to a breach of s.11 Landlord and Tenant Act 1985.  In 2007 she commenced a second claim complaining of, amongst other things, damp.  Her claim in respect of damp was eventually expressed to be for damages for disrepair running from the day after the first judgment onwards.  She adduced expert evidence not relied upon in 2005 to show that condensation was not the cause of the damp.  D successfully struck out much of the second claim on the basis that C was estopped from relitigating the cause of the ongoing dampness in her flat by reason of issue estoppel and that other aspects of her claim were an abuse of process because they predated and should have been included in her first claim.

Steadman v TNT: Credit Hire: Mitigation of Loss

Judgment was handed down on 27th June 2008 in the case of Steadman v TNT. The case concerns a point of law that has lead to a number of inconsistent decisions at first instance: where a claimant has failed to mitigate her loss by refusing the tortfeasor's offer to hire her a car at no cost to herself, she is not entitled to recover by way of damages for loss of use what it would have cost the defendant to hire the vehicle.  Rather, she has no entitlement.

 The claimant's vehicle was damaged by the admitted negligent driving of one of the defendant's employees.  The claimant was handed a card at the scene of the accident which contained an offer on the reverse stipulating that in no-fault accidents the defendant will hire a comparable vehicle to the claimant at no cost to herself; in other words the defendant will settle the invoice with the car hire company directly.  The claimant took the card to her insurance broker who instead advised her to use the services of Helphire (a credit hire company).  At first instance the trial judge found as a fact that she had acted unreasonably in not making any enquiries in respect of the defendant's offer and accordingly she had failed to mitigate her loss.  He went on to find that, as she had failed to mitigate her loss as a matter of law, she was not entitled to recover any of the hire charges by way of loss of use of her vehicle.  The trial judge declined to follow Evans v TNT (2007).

Damages; Assessment; Cost of Care: Peters v Nottingham Health Authority

Judgment was handed down in the above-named case on May 12th.  The case was an assessment of damages payable to the claimant with congenital rubella syndrome, following an admission of liability by an NHS Trust and a GP.

The principal issue concerned the entitlement of the claimant to damages for past and future care.  The claimant had been provided with accommodation and care by the local social services authority, the Nottingham City Council, and the responsible Primary Care Trust, at The Spinnies, a residential facility.  It was common ground that The Spinnies provided the claimant with an appropriate standard of care.  The defendant's case was that the public authorities would continue to provide her with care at The Spinnies or an appropriate authority without levying any substantial charges, since they were not entitled to have regard to the claimant's award of damages, which would be held in the Court of Protection.  The council was joined as a Part 20 defendant, with the defendants seeking directions as to the council's powers to charge the claimant for her care after her award of damages was paid to her.

Chief Constable of Wiltshire v McDonagh: interpretation of ss8 and 22 PACE

Judgment was delivered in the above appeal last week.  The case concerned the appeal by Wiltshire police of a decision of a county court judge that they must return a caravan seized and retained under a warrant.  M was a young mother and traveller.  She was due to give birth to her fourth child when the police seized her home, the caravan.  M's article 8(1) rights were engaged.  M was arrested on suspicion of conspiracy to steal and money laundering.  She was released on police bail.  She made a successful application under the Torts (Interference with Goods) Act 1977 for delivery up of the caravan.  The police appealed arguing that the power to retain under section 8(2) of PACE was separate to the power under section 22 and that this interpretation was convention compliant.  M's counsel argued that by applying the normal canons of construction retention under section 8(2) was subject to the requirement of necessity under section 22.  This analysis was also supported by giving a convention-compliant construction to sections 8 and 22. 

A v Essex County Council: no infringement of child's human rights

The Court of Appeal has ruled that a local authority did not arguably infringe a disabled child's human rights under articles 2, 8, 14 or article 2 of the First Protocol of the European Convention on Human Rights in circumstances where it did not provide education to a severely disabled child for a period of 18 months.  The Court held that in order to succeed in a claim that his right to an education had been breached, the child would need to have established that he had been abandoned by the education system, which he could not do on the facts.  Lord Justice Sedley further ruled that the Convention was "not a panacea for every ill" and held that the fact that the child had had to stay at home without an education, with consequent disruption to his well-being, did not arguably violate his right to respect of his family life.

Andrew Warnock, instructed by Weightmans, appeared for the local authority.

Permission to appeal to the House of Lords granted in Smith v Chief Constable of Sussex Police

The House of Lords has granted permission to appeal in the case of Smith v Chief Constable of Sussex Police, a common law claim alleging failure to take steps to protect a victim from attack.  The appeal is expected to be heard in May 2008 and will be conjoined with the appeals in Van Colle v Chief Constable of Hertfordshire and Savage v South Essex Partnership NHS Foundation.  Edward Faulks QC is acting for the defendant in all three cases, leading Edward Bishop in Smith and Van Colle.  Julian Waters is acting for the claimant in Van Colle.

Defeat of challenge to police decision to prosecute

On February 14th, the High Court gave judgment in a claim for judicial review, R (D) v Commissioner of Police of the Metropolis and CPS, in which two juveniles charged with criminal damage challenged the institution and continuation of prosecutions against them.  They claimed that the police had failed to apply the guidance issued under the Crime and Disorder Act 1998 and that they should have been given final warnings instead.  The court held that the police's view of the seriousness of the facts had been one which had been reasonably open to them and that, in light of the CPS's lawful decision that the prosecutions should continue, any non-compliance with the guidance did not provide the court with grounds to intervene.  The court also deprecated the use of judicial review to challenge police decisions in relation to juvenile justice.

Paul Stagg represented the Commissioner of Police of the Metropolis.

Solicitors' Disciplinary Tribunal: appeal by Law Society successfully resisted

Nicholas Yell successfully acted on behalf of a female solicitor resisting an appeal by the Law Society to the Administrative Court against the decision of the Solicitors' Disciplinary Tribunal disqualifying her from practising as a solicitor for a year.  She and another solicitor were accused of professional misconduct enabling an unsupervised clerk to indulge in money laundering of £193 million resulting in a loss to HM Customs & Excise of between £20-£30 million.  The Law Society was represented by the Chairman of the Bar.  The appeal was discontinued.

Laura Johnson appointed to Attorney General's C Panel

Chambers is delighted to announce that Laura Johnson, called in 2001, has been appointed to the Attorney General's C Panel of Counsel (Civil).  Chambers now has two members of Chambers who are junior counsel to the Crown, namely Laura and Simon Murray.  Laura's appointment builds on Chambers' increasingly strong public law practice.

David Thomson appointed as FA Commissioner

We are delighted to announce that David Thomson has been appointed an FA Commissioner on the FA Regulatory Authority.  This appointment builds on David's existing sports regulatory practice and on Chambers' growing professional discipline practice.

Costs awarded directly against limited liability insurer: Palmer v Palmer and PZ Products Limited

Judgment in Palmer v Palmer and PZ Products Limited was handed down on 6 February 2008 in the Court of Appeal.  The Court awarded costs directly against the limited liability insurer.  Liability was founded on the insurer's failure to recognise or inquire into whether its insured had any real commercial interest in continuing to contest liability, even where the insured had also failed to address that question.  Where a deal would secure the insured's financial future, but losing a trial would lead to the insured's inevitable closure, winning or settlement were equally in the insured's interest and, inferentially, further support for a defence with any real risk could only benefit the insurer.

John Norman appeared for the first and second defendants/respondents, instructed by Barlow Lyde & Gilbert.

A v Hoare and related appeals: House of Lords reverse decision in Stubbings v Webb

The long-awaited opinions of the House of Lords have been delivered in the appeal of A v Hoare and other related appeals including Young v Catholic Care in which Edward Faulks QC acted for Catholic Care.  All of the appeals, save Young, depended upon whether or not the Lords were prepared to reverse their own decision in Stubbings v Webb.  They decided that they were which now means that claimants can bring cases for compensation as a result of sexual and physical abuse many years after the events provided that a court considers that a fair trial is still possible.

John Ross QC and Ivor Collett elected to the PNBA Executive Committee

Chambers is delighted to announce that John Ross QC and Ivor Collett have been elected to the Executive Committee of the Professional Negligence Bar Association.  Their presence on the committee builds upon Chambers' reputation as a leading professional negligence and tortious liability set of Chambers.

1 Chancery Lane recruits new member

We are delighted to announce that Simon Murray has joined Chambers.  Simon, called in 2000, has a busy public law practice and is on the Treasury Solicitors' C Panel.  He regularly appears in cases involving judicial review, human rights and discrimination issues.  He is also instructed in personal injury, contract, employment and landlord and tenant claims. 

1 Chancery Lane selected as preferred tenderer by the West London Alliance

1 Chancery Lane has been selected as a preferred tenderer by the West London Alliance for its civil litigation, education and property framework panels. The West London Alliance comprises the London boroughs of Brent, Ealing, Hammersmith and Fulham, Harrow, Hillingdon and Hounslow.

Powers to impose conditions on police bail: R (Torres) v Commissioner of Police of the Metropolis

The Administrative Court today dismissed a claim for judicial review brought against the Commissioner of Police of the Metropolis.  The claimant had been arrested on suspicion of offences against a member of his family.  After interview, a custody officer bailed him pending further inquiries and imposed a condition on his bail that he should not contact that family member.  The magistrates' court having refused jurisdiction, the claimant challenged the bail condition on the ground that there was no power to impose conditions on bail granted under section 34(5) of the Police and Criminal Evidence Act 1984.  The court dismissed the claim on the basis that the custody officer had had power to grant bail under section 37(2) of the 1984 Act when he did so and, on the facts, had exercised that power.  Furthermore, the bail condition was necessary in all the circumstances.  Accordingly the claimant's claim for breach of Article 8 of the European Convention on Human Rights was dismissed. 

Paul Stagg acted for the Commissioner.

Liability to repay benefits discharged at end of bankruptcy: Secretary of State for Work and Pensions v Balding

On December 13th 2007, the Court of Appeal dismissed the Secretary of State's appeal from the decision of the Administrative Court in the above-named case. The Divisional Court had held that where a decision that a claimant is liable to repay overpaid social security benefits has been issued, and the claimant has subsequently been made bankrupt and then discharged from bankruptcy, he is no longer liable to repay the overpaid benefits. The judgment was estimated to affect between 1,500 and 2,000 claimants and £3 million of overpaid benefit. No application was made for permission to appeal to the House of Lords and so the decision is final. Paul Stagg of 1 Chancery Lane acted for the claimant.

'Fraudulent Claims: Deceit, Insurance and Practice' published

This book, written by Matthew Chapman of 1 Chancery Lane, was recently published by Xpl Books.

With a bias towards personal injury practice, it aims to be an accessible guide to fraud, dishonesty and malingering in all their forms with chapters on: deceit; insurance fraud; fraud as a defence in contract and tort; evidence; perjury and contempt; the Proceeds of Crime Act; pleading and case management; detecting and proving fraud; and costs.  Among other cases, there is discussion of the recent Court of Appeal decisions in Kearsley v Klarfield and Casey v Cartwright.

John Ross QC appointed new Head of Chambers

1 Chancery Lane is delighted to announce that John Ross QC will be Head of Chambers from 1 October 2007. 

We would like to thank Edward Faulks QC for his leadership as Head of Chambers.  We are very pleased that he will be continuing in full time pratice with us.

The Legal 500: Chambers scores highly in the new edition

Chambers is delighted that it has improved significantly on its listings in the new edition of the Legal 500. We have retained our listings from last year's edition in the areas of Clinical Negligence, Consumer, Education, Personal Injury, Police Law and Professional Negligence and a number of members of Chambers are newly recommended reflecting Chambers' successes over the past year. Our new listings are set out below.

Alastair Hammerton appointed as General Medical Council Legal Assessor

We are pleased to announce that Alastair Hammerton has been appointed as a Legal Assessor to the General Medical Council. This appointment builds on Chambers' growing experience in the field of professional discipline.

Van Colle v Chief Constable of Hertfordshire: Leave to Appeal Granted

The appeal committee of the House of Lords announced on Tuesday 17th July 2007 that leave to appeal to the House of Lords would be granted to the defendant in the above case. The appeal will be heard in 2008.

Right to an Education under the Human Rights Act: A and Others v Essex County Council and Others

Judgment was handed down in the High Court on 13 July 2007 in the above claims under the Human Rights Act 1998. The Claimants, all of whom were children with special educational needs, alleged that their human rights had been breached because they had not been educated in accordance with their needs. They sought extensions of the 1 year limitation period under section 7(5) of the Act.  The judgment raises the following points of interest:

Limitation

Mr. Justice Field refused extensions of the limitation period. Although section 7(5) confers a wide discretion, “it always has to be remembered that there is a significant public interest in public law claims against public bodies being brought expeditiously”. Proportionality was also an important factor.

Human Rights Act

The Defendant local education authorities were granted summary judgment on the claims, which were made under Articles 3, 8, 14 and Article 2 Protocol 1 of the Human Rights Act.  The Judge held that in a case where a person complains that his special educational needs are not being met at a time when he is in a school placement provided by the state, or such a placement is available for him, his complaint will not found a successful claim for breach of the right to an education. Further, exclusion from school will only amount to a denial of the right to an education if on the facts the exclusion was for such a long time and there was such a lack of alternative education at another school or in the form of work to be done at home that it can be fairly be said that that person has not received the bare minimum of education.

Andrew Warnock, instructed by Weightmans, appeared for the defendants.

John F Hunt Demolition Ltd v ASME Engineering Ltd: claimant not entitled to recover settlement

Judgment in the above case was handed down on Wednesday 27 June 2007 in the TCC.  The case raises "two unrelated topics, both much-loved by practitioners in this area of law". 

1.  A claimant who settles with a third party to whom he had no liability in law can in principle recover the amount of that settlement from a defendant, provided that the settlement was reasonable on the facts.  But if the amount of the settlement exceeded what was reasonable and was therefore an unreasonable settlement, the claimant cannot recover some lesser amount which would have represented a reasonable settlement: he recovers nothing.

2.  The combined effect of the insurance provisions in the JCT 1998 Contract with Contractor's Design and the DOM/2 Contract is that a sub-contractor owes an employer no duty of care in relation to fire damage negligently caused to the existing structures.

 Justin Althaus appeared in the above case for the claimant sub-contractor, instructed by Plexus.

Young v Catholic Care & Anor: leave to appeal to the House of Lords granted.

On 14 June 2007 the claimant in the above case was granted leave to appeal the Court of Appeal's judgment dated14 November 2006.  The appeal concerns the test under s14(2) of the Limitation Act 1980 to determine when a person would reasonably have considered an injury to be sufficiently serious to justify his instituting proceedings for damages.  Edward Faulks QC is instructed in the appeal by Hill Dickinson on behalf of the first defendant.

No breach of educational psychologist's duty: Kendall v Southwark BC

Judgment in the case of Kendall v Southwark BC was handed down in the High Court on 1 June 2007.  The case was a negligent education claim against an educational psychologist.  It considered the nature and extent of the duty owed in respect of the educational psychologist's function in providing the documents forming part of the schedule to the claimant's statement of special educational needs.  The Judge held that the educational psychologist did owe a duty but that there was no breach of that duty and in any event the claimant had major problems on causation in respect of any arguable breach.  John Norman appeared for the defendant, instructed by Barlow Lyde & Gilbert.

New 2007 Issues of Atkin's Court Forms: Personal Injury, Professional and Clinical Negligence

The new 2007 issues of Atkin's Court Forms 2nd Ed Vols 29(2) (Personal Injury) and 29(3) (Professional and Clinical Negligence) will be released shortly.  Alastair Hammerton contributed to both volumes and Laura Johnson contributed to volume 29(2).

Documents not covered by 'without prejudice' privilege: Stax Claimants v Bank of Nova Scotia Channel Islands Ltd & Ors

In an interlocutory judgment handed down on 15 May 2007, Mr Justice Warren held that the claimants were not able to claim 'without prejudice' privilege over documents arising out of a meeting between the claimants' lawyers and lawyers representing the Part 20 defendants as the meeting had not concerned settlement of the dispute.  However, the documents were not disclosable under CPR rule 31.6 and were covered by litigation privilege. Nicholas Yell appeared successfully for the claimants, instructed by Carter Ruck.

Social workers and others owe no common law duty of care to parents: Lawrence v Pembrokeshire County Council

Judgment in the case of Lawrence v Pembrokeshire County Council [2007] EWCA Civ 446 was handed down by the Court of Appeal on 15th May 2007.  The Court, dismissing the appeal, held that social workers and others owe no common law duty of care to parents when carrying out their child protection functions, notwithstanding the Human Rights Act 1998.

Willson v MOD: retrial of personal injury claim ordered

Judgment in the case of Willson v MOD was handed down by the Court of Appeal on 9 May 2007.  The case involved a claim against the MOD by an RAF helicopter pilot injured in a helicopter simulator.  The Court of Appeal overturned the first instance decision to award the claimant only £1,000 in damages and a retrial was ordered.  David Thomson appeared for the appellant instructed by Gregory Rowcliffe Milners.

Van Colle v Chief Constable of Hertfordshire: Judgment handed down by Court of Appeal

Judgment in the case of Van Colle v Chief Constable of Hertfordshire [2007] EWCA Civ 325 was handed down on 24 April 2007.  The Court of Appeal held that the police had been under a duty to take preventative measures to protect Giles Van Colle and had breached that duty.  They had therefore acted incompatibly with the European Convention on Human Rights 1950 Art 2.  The Court held that the judge's damages award at first instance under the Human Rights Act 1998 s8 had been too high and should be reduced.  Edward Faulks QC and Edward Bishop (instructed by Weightmans) acted for the appellants.  Monica Cars-Frissk QC (Blackstone Chambers) and Julian Waters (instructed by Lynch Hall & Hornby) acted for the respondents.

 

McGlinn v HTA and others: claimant who beat Part 36 payment awarded only 45% of his costs

On 28 March 2007, the claimant in McGlinn v HTA and others [2007] EWHC 698 (TCC) (a professional negligence action) was awarded only 45% of his costs despite having beaten a Part 36 payment. He was also ordered to pay 25% of the defendant's costs. In a judgment which illustrates the breadth of the court's discretion on costs under the CPR, the Judge ruled that although the claimant had substantially succeeded on liability, the defendant was the substantial victor on causation and quantum. Andrew Warnock (instructed by PI Brokerlink) appeared for a successful defendant in the claim.

Legal Marketing Awards 2007: Chambers' Business Manager shortlisted

Chambers'; Business Manager, Genevieve Hardy, has been shortlisted for the PSMG Newcomer Award in the Legal Marketing Awards 2007. The winners will be announced on 24 May 2007.

Liability to repay benefits discharged at end of bankruptcy: R (Balding) v Secretary of State for Work and Pensions

On April 3rd 2007, a Divisional Court (Laws LJ and Davis J) ruled that it was unlawful for the Secretary of State for Work and Pensions to continue recovering overpayments of benefit from ongoing entitlement to benefit, after a claimant had been made bankrupt and then subsequently discharged from bankruptcy. This ruling will benefit a significant number of claimants (the DWP estimates that it may affect recovery in over 1,500 cases). Paul Stagg acted for the claimant. The Secretary of State was given permission to appeal to the Court of Appeal.

Race Discrimination Claims at School: Appiah v Bishop Douglass School

In Appiah v Bishop Douglass School the Court of Appeal has held that a judge was right to dismiss a claim under the Race Relations Act 1976 against a school (judgment 26 January 2007). The issues considered include the burden of proof, the relevance of statistics and the role of race assessors. Edward Faulks QC and Andrew Warnock acted for the school.

John Ross QC appointed as Legal Assessor to the RCVS Disciplinary Committee

We are pleased to announce that John Ross QC has been appointed as a Legal Assessor to the Royal College of Veterinary Surgeons' Disciplinary Committee. This appointment builds on Chambers' growing experience in the field of professional discipline.

'Emergency Services: Law and Liability' published

The above named book, edited by Morrell and Whittaker, has just been published by Jordans Publishing.  Paul Stagg and Edward Bishop of 1 Chancery Lane wrote chapters 5 (on civil claims for police malfeasance) and 7 (on police complaints and disciplinary proceedings) respectively.  The remainder of the book was written by solicitors at Messrs Weightmans.

Local authority's duties to foster carers: Lambert v Cardiff CC

On January 11th 2007 judgment was handed down in the case of Lambert v Cardiff CC. The claimants were foster carers who had been subjected to a campaign of abusive phone calls by a child formerly fostered by them and had suffered psychiatric injury as a result. They brought proceedings against the defendant local authority alleging negligence, breach of contract and misrepresentation in its dealings with them. In a 72 page judgment, the judge dismissed all the claims. He considered a number of interesting points of law, including the enforceability of foster carer agreements in private law and the scope and extent of the duty of care owed by a local authority to foster carers. Paul Stagg of 1 Chancery Lane represented the local authority.

Times Law Report: Kew v Bettamix Ltd and Others

The Court of Appeal case of Kew v Bettamix Ltd and Others, November 14 2006, has been reported in the 4th December edition of The Times. John Ross QC and Ivor Collett of 1 Chancery Lane acted for the defendants. The case is authority on the circumstances in which adverse costs orders may be made in personal injury claims. The Court of Appeal found that the claimant should pay a proportion of the costs as the bulk of the two day hearing was concerned with the issue of date of knowledge of significant injury attributable to employment and the identity of the employers, both of which the claimant lost. The order would be varied so that the defendants paid 65% of the claimant's costs on the limitation issue.

New Editions of The Legal 500 (2006 ed.) and Chambers UK Guide to the Legal Profession (2007 ed.)

1 Chancery Lane has improved its listings in the latest editions of The Legal 500 (2006 ed.) and Chambers UK Guide to the Legal Profession (2007 ed.).

Listed in The Legal 500 as a leading civil common law set, we are also listed as a leading set in Clinical Negligence, Personal Injury, Professional Negligence, Education and Police law. Members of chambers are listed in all categories, with individuals also recommended for Consumer Law (Travel). Our expertise in handling negligence cases for local authorities is mentioned in several sections of the editorial.

In Chambers Guide, we are listed as a leading set in Clinical Negligence, Personal Injury, Professional Negligence, Travel Law and Police Law, with individuals mentioned in all categories. New mentions this year include Sarah Paneth and David Thomson for Clinical Negligence and Sarah Prager for Travel Law. Alan Saggerson attained a star ranking this year indicating exceptional recommendations in the field of Travel Law.

Pennington v Surrey County Council: Regulation 4 of the Provision and Use of Work Equipment Regulations

The Court of Appeal has recently handed down judgment in the case of Pennington v Surrey County Council [2006] EWCA Civ 1493. The claim was for personal injury suffered by a firefighter in the course of his employment. Surrey County Council appealed the decision at first instance that a piece of life saving equipment used worldwide by firefighters to rescue victims of road traffic accidents, a Holmatro Ram 1040, was unsuitable within the meaning of regulation 4 of the Provision and Use of Work Equipment Regulations. This decision had significant implications for the ongoing use of this vital equipment. Surrey County Council's appeal was successful on this point allowing the ram to remain in service: it was held that the equipment was suitable if operated by properly trained and instructed personnel. Ultimately the Claimant succeeded overall on an allegation of deficient training. Laura Johnson of 1 Chancery Lane represented Surrey Councty Council instructed by Weightmans.

Ashley v Chief Constable of Sussex: Leave to Appeal Granted

The House of Lords has granted the defendant leave to appeal from the decision in Ashley v Chief Constable of Sussex [2006] The Times August 30th [2006] EWCA Civ 1085. The appeal raises two questions: whether it is an abuse of process for a claimant to pursue a private law claim for assault and battery to seek a declaration when a defendant has agreed to pay damages, and whether an honest mistake can support a defence of self-defence. Edwards Faulks QC and Paul Stagg of 1 Chancery Lane are acting for the Chief Constable, instructed by Weightmans.

New Book on Mediation Advocacy Published

'Mediation Advocacy' written by Andrew Goodman and Alastair Hammerton of 1 Chancery Lane has just been published. The book is aimed at lawyers and other professional advocates who represent clients in mediation. Both Andrew Goodman and Alastair Hammerton have extensive experience representing clients in mediations. Andrew Goodman is also an accredited CEDR mediator.

Secretary of State not entitled to withold arrears of benefit: Brown v Secretary of State for Work and Pensions

The Court of Appeal handed down judgment in Brown v Secretary of State for Work and Pensions on February 14th 2007. The appellant had been overpaid benefit which was held not to be recoverable under statute. There had been substantial delay in the making of a decision, during which the appellant's benefit had been suspended. The Secretary of State argued that the effect of the relevant legislation was that he was entitled to retain arrears that had accrued during the period of suspension, even though the overpayment was not recoverable. The Court of Appeal rejected this conclusion and ruled that the benefit had to be paid. Paul Stagg acted for the appellant.