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Legal Watch:Personal Injury21st May 2014Issue: 019
Events
Plexus and Greenwoods hold a series of events which are open to interested clients. See below for those being held in the next few months:
MBIG Seminar | 22.05.14 | London
In This Issue:
• Employers’ Liability
• Civil Procedure/Service Of A Claim Form
• Costs
• Court Ruling On “Fundamental Dishonesty”
• Jackson/Mitchell
Employers’ LiabilityThe case of Abbott v Cannock Chase District Council [Lawtel
16/05/2014] is a reminder that the burden of proving negligence
is on the claimant.
The claimant’s deceased husband had been employed by the
defendant as a bricklayer during the 1970s. In January 2014
he died from mesothelioma. Before his death, the claimant
took down a written note of her husband’s allegation that
he had been exposed to asbestos fibres and/or dust during
his employment with the defendant. The particulars of that
note formed the basis of the claim: that the deceased had
been exposed to asbestos when, over the course of about
a week, he had carried out work on the ceiling of a bricked
construction in a cemetery. His account was that he had had
to mix asbestos fibres with water to form a paste, which he
then applied to the ceiling. The court heard evidence from
those who had worked at and were familiar with the cemetery,
and it had the benefit of a joint expert report and asbestos
surveys carried out at the cemetery. The issue was whether
the deceased had been exposed to asbestos fibres and/or
dust while working at the cemetery.
‘...the claimant had not discharged the burden of showing that (the deceased) had used any form of plaster or decorative covering which contained asbestos...’
Dismissing the claim, the deputy High Court judge held
that the deceased had worked at the cemetery sometime
between 1972 and 1977, and probably in 1976 or 1977,
when he had applied some paste or decorative finish to the
ceiling of one of the buildings there. The court was unable
to determine what product he had used on the ceiling. It
was satisfied that the note the claimant took down was the
deceased’s best recollection of what had occurred and there
was no doubt that he had genuinely believed that he had
worked with asbestos whilst at the cemetery. The court was
also satisfied that the ceiling the deceased worked on had
not been altered or replaced since that time and that there
were three separate asbestos surveys which had found no
relevant asbestos. That evidence tended to suggest that
no asbestos was present. In the circumstances, the court
was driven to conclude that, whatever the deceased had
genuinely believed, the claimant had not discharged the
burden of showing that he had used any form of plaster
or decorative covering which contained asbestos whilst
working at the cemetery.
Civil Procedure/Service Of A Claim FormThe following extracts from CPR are relevant to this report.
3.10 Where there has been an error of procedure such as a
failure to comply with a rule or practice direction –
(a) The error does not invalidate any step taken in the
proceedings unless the court so orders; and
(b) The court may make an order to remedy the error
6.4
(1) …the court will serve the claim form except where –
(a) A rule or practice direction provides that the claimant
must serve it;
(b) The claimant notifies the court that the claimant wishes
to serve it; or
(c) The court orders or directs otherwise.
In Stoute v LTA Operations Ltd (2014) EWCA Civ 657 the
appellant/claimant, a professional tennis player, had alleged
that he had been discriminated against by the respondent/
defendant on the grounds of race. After unsuccessful
attempts to issue a claim form in the High Court and the
Central London County Court, he was incorrectly advised
that he had to issue the claim in the County Court Money
Claims Centre, which contrary to his written directions,
served the claim form on the defendant, rather than
returning it to the claimant for service under CPR 6.4(1). He
notified the defendant that the claim form had been served
contrary to his instructions to the court and the defendant
consequently accepted that service was ineffective. It had
appeared that the claimant had not wanted to serve the
claim form as he was awaiting the outcome of misconduct
proceedings that the defendant had brought against him.
He also applied to extend the time for service of the claim
form under CPR 7.6. A district judge’s decision holding
that the court’s service had been effective and granting
the application for an extension of time for the service of
the claim form was overturned on appeal. The claimant
appealed against that decision. The issues were whether (i)
the court’s service of the claim form had been effective; (ii)
CPR 7.6 applied in the instant case; (iii) if service had been
effective, whether the district judge had erred in extending
time for the service of the particulars of claim.
Allowing the claimant’s appeal, the Court of Appeal held that
it was necessary to begin by asking whether CPR 3.10 which
dealt with the consequences of a procedural error, applied
in the instant circumstances. The service of the claim form
by the court, in disregard of the claimant’s notification that
he had wished to effect service himself, was an error of
procedure under CPR 3.10. There was no reason why the
rule should not apply where the error had been an error
of the court, the language was not confined to errors by a
party and the policy considerations which underlay the rule
seemed to be the same whether a procedural mistake was
a party’s or the court’s responsibility. There was no reason
why CPR 3.10 should not be applicable where there had
been a breach of CPR 6.4(1). The possibility of prejudice to
a claimant was not a reason for treating premature service
by the court as a nullity. Insofar as a claimant might have
suffered some tactical disadvantage, the damage would
have been done whether service was a nullity, so that it
would have to be effected afresh, or not. Any procedural
prejudice could be addressed by the grant of an appropriate
extension. However, if there was some important reason why
in a particular case service had to be effected by a claimant,
an order could be made under CPR 3.10(a) invalidating the
court’s service. The court’s service of the claimant’s claim
form had been effective service.
CPR 7.6 was not applicable in the instant case. That rule
applied to cases where service had not been effected within
the time limit under CPR 7.5, whereas in the instant case
CPR 3.10 was relied on to establish that service had been
effected, albeit by the wrong person.
Notwithstanding the importance attached in guideline
cases to a systematic approach being taken to factors
identified in CPR 3.9, a decision was not automatically
bad in law because they had not been individually set out
and considered. It was clear that the district judge had
considered all the circumstances, including the particular
CPR 3.9 factors that were relevant. The claimant’s failure
to serve the particulars of claim could not be described as
intentional; he had not served them as he had not believed
that the claim form had been served. The district judge had
been entitled to take into account the delay and confusion
caused by the claimant’s misguided attempts to obtain an
extension, but it did not follow that those considerations
should have been decisive. He had been entitled to take
the view that, however unsatisfactory the conduct of the
claimant or his solicitors had been in that respect, it was
outweighed by the reasons for granting permission.
CostsIn Finglands Coachways Ltd v O’Hare (Protected Party)
(2014) EWHC 1513 (QB) we have an important decision on
the proportionality of costs under the cost rules applying
prior to 1 April 2013.
The respondent/claimant had brought a personal injury
action against the appellant/defendant which was later
discontinued. The claim was originally estimated to be worth
over £3m. The defendant’s bill of costs was approximately
£60,000. In his points of dispute, the claimant did not
assert that the defendant’s costs were disproportionate
overall. However, during the assessment of costs hearing
his representative raised points about the proportionality
of various individual items such as conferences with
counsel. The judge commented on the “necessity” and
“reasonableness” of some items and reduced the bill to
approximately £37,800 plus interest.
In its appeal the defendant argued that the judge had erred
in applying a test of necessity, rather than reasonableness,
when there had been no finding that the costs claimed were
disproportionate.
Dismissing the appeal, the High Court judge held that
on a number of occasions in the course of the costs
assessment the judge used the terms “necessary” and
“need” indiscriminately. That was not fatal to his decision.
The context suggested that he had used those terms in
their ordinary sense to convey a notion of justification when
enquiring whether the costs were proportionate. He should
not be taken as applying the test of necessity.
Even if the judge had applied the test of necessity, he was not
wrong to do so. CPR 44.4(2) of the old rules meant that the
court would, of its own initiative, disallow disproportionate
costs even if the paying party had not raised the point.
Further, even if a bill overall was not disproportionate, that
did not preclude the judge from concluding that specific
items were disproportionate and then applying the dual
test of necessity and reasonableness to those items. It was
contemplated in Lownds (2002) that if costs as a whole
were proportionate, all that was normally required was
that each item should be reasonably incurred. However,
the use of the qualification “normally” made it clear that it
was not a hard and fast rule. Therefore, in assessing costs
under the old CPR a court could consider on an item-by-
item basis whether the particular cost was proportionate
and necessary even if costs were proportionate on a global
basis. The judge had not misdirected himself in law.
‘CPR 44.4(2) of the old rules meant that the court would…disallow disproportionate costs even if the paying party had not raised the point’
Court Ruling On “FundamentalDishonesty”One of the exceptions to Qualified One Way Costs Shifting
(QOCS) is where the court makes a finding of “fundamental
dishonesty” on the part of the claimant and an order for
costs may then be made in favour of the defendant to be
enforced against the claimant’s assets.
The first report of such an order has arisen from the case
of Gosling v Screwfix and Anor, (Cambridge County Court),
in which the judge found the claimant had significantly
exaggerated the extent of his injuries following a fall from
a ladder.
The defendants had adduced surveillance evidence which
showed the court that the claimant had exaggerated his
injuries. The County Court judge ordered the claimant to pay
the defendants’ costs on an indemnity basis. He held that in
significantly exaggerating the extent of ongoing symptoms
the claimant’s conduct was dishonest and designed both to
deceive and give a false impression. He also held that the
dishonesty, which impacted on about half the value of the
claim was “on any view” sufficient to be characterised as
fundamental. As a result, he was satisfied on the balance
of probabilities that the claim was fundamentally dishonest.
CommentAs we begin to see the demise of cases funded under old
style CFAs, the relevance of QOCS will increase and so will
the need for defendants to take steps to mitigate its impact.
Effective and early Part 36 offers will be the principle tool
but costs orders obtained against the claimant during the
course of the proceedings will also be important. A finding
of fundamental dishonesty will be relatively rare, but as
this case illustrates, defendants must be vigilant for cases
where it is relevant.
The claimants appealed and argued that the judge was
wrong to characterise their application for an extension of
time as an application for relief from sanctions and that the
costs judge’s decisions allowing the extension and refusing
to set aside that order, were case management decisions
with which the judge was not entitled to interfere.
Allowing the appeal, the Court of Appeal (including Jackson
LJ) held that the claimants’ application for an extension was
made before the expiry of the time allowed for filing the
points of dispute. Given CPR 23.5, the fact that the court
staff did not date stamp the application until the following
day was immaterial. An application for an extension of
the time to take any particular step in litigation was not
an application for relief from sanctions, provided that the
applicant filed his application notice before expiry of the
permitted time period. That was the case even if the court
dealt with the application after the expiry of the relevant
period. That remained the case following the recent civil
justice reforms. It followed that the costs judge was dealing
with a straightforward application to extend time under CPR
3.1(2)(A) and the principles concerning relief from sanctions
Jackson/Mitchell
An application for an extension of the time …was not an application for relief from sanctions, provided that the applicant filed his application notice before expiry of the permitted time period.
The case of Hallam Estates Ltd and another v Baker (2014)
EWCA Civ 661 has already attracted widespread publicity
and a good deal of comment. It confirms:
a) That parties may agree sensible extensions of time
before a time limit has expired:
b) That the courts will approve such extensions provided
that the conduct of the litigation would not be disputed
and in particular any threat posed to an existing court
date;
c) That in these circumstances contested applications,
which take up court resources and incur unnecessary
costs should be avoided.
The appellants/claimants had brought defamation
proceedings against the defendant/respondent, which
were dismissed. They were ordered to pay her costs. The
defendant served her bill of costs eight months late. Six
days before the claimants were required to serve their
points of dispute, they asked the defendant for a 21-day
extension of time. She did not agree to it and on the day the
claimants should have served their points of dispute they
applied for an extension of time; their application was issued
by the court the next day. The costs judge dealt with the
matter ex parte and granted the extension. The defendant
unsuccessfully applied for that order to be set aside and the
claimants served their points of dispute within the extended
time for doing so.
The defendant appealed against the costs judge’s refusal
to set aside his order granting the extension. The judge,
allowing the defendant’s appeal, found that the claimants’
application for an extension of time was issued out of time
and therefore they were seeking relief from sanctions which
the costs judge should not have granted as rules should
be complied with. He set aside the costs judge’s order and
therefore held that the points of dispute were not points of
dispute at all and the defendant was entitled to a default
costs certificate under CPR 47.9(4).
in Mitchell did not apply. It was incumbent on the costs judge
to deal with the application in accordance with the recently
amended overriding objective, which he had. The claimants
had made a reasonable application for an extension of time,
which did not imperil any future hearing dates or otherwise
disrupt the proceedings. The costs judge’s decision to grant
an extension was a proper exercise of his case management
discretion. The defendant’s application to set aside was
based upon the misapprehension that the costs judge had
granted relief from sanction. His rejection of her application
to set aside, for which he gave sensible reasons, was
also a proper exercise of his case management powers.
Accordingly the judge had erred in reversing that decision.
When the claimants asked the defendant to agree an
extension of time, they had given sensible reasons for the
request and the defendant should have agreed. Given her
own delays, she could hardly complain about that modest
extension. CPR 3.8 would be amended imminently. Once it
was, parties would be able to agree a time extension of up
to 28 days without reference to the court, provided that it
did not put at risk any hearing date. Under CPR 1.3 parties
had a duty to help the court in furthering the overriding
objective, which included allotting an appropriate share
of the court’s resources to an individual case. Therefore
legal representatives were not in breach of any duty to their
client when they agreed to a reasonable extension of time
which neither imperilled future hearing dates nor otherwise
disrupted the conduct of the litigation. On the contrary, by
avoiding the need for a contested application they were
furthering the overriding objective and also saving costs.
Similarly, the courts should not refuse and CPR 1.1(2)(f) did
not require them to refuse to grant reasonable extensions of
time in such circumstances.
(Obiter) The issue of whether the judge had erred in directing
that a default costs certificate be issued did not arise.
Nevertheless, the court addressed it. The defendants’
points of dispute would have become out of time once the
judge reversed the costs judge’s decision. As a result the
sanction in CPR 47.9(3) would have come into operation.
The effect of which was that the paying party could not be
heard further in the detailed assessment proceedings unless
the court gave permission. That was the only sanction under
the rules. CPR 47.9(5) prevented the issue of a default costs
certificate after the paying party had served its points of
dispute. That rule applied whether they were served before
or after expiry of the permitted time for service. It therefore
followed that if the receiving party wished to obtain a default
costs certificate, he had to file his request after expiry of
the time permitted for serving the points of dispute and
before the points of dispute were actually served. That did
not happen in the instant case and the judge did not have
the power to direct that a default costs certificate be issued.
CommentWhile on the face of it this is a sensible decision, it still
leaves practitioners with a dilemma in certain situations.
One party is in a position to comply with a court direction;
the other is not. The first party considers that the second
has no justification for requiring more time. The time limit is
imminent. The second party requests an extension of time.
What should the first party do?
If it refuses the extension the first party must make an
application for more time before the deadline expires.
If it fails to do so it will be obliged to apply for relief from
sanctions and applying Mitchell may fail, providing the first
party with a potentially massive tactical advantage. If the
application is made in time, the court will consider it in the
light of the overriding objective. If the extension is granted,
the first party may find itself criticised for opposing it and
suffer a penalty in costs.
The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 8 Bedford Park, Croydon, Surrey CR0 2AP. Parabis Law LLP is authorised and regulated by the SRA.
www.plexuslaw.co.ukwww.greenwoods-solicitors.co.uk
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With effect from 5 June 2014 the Civil Procedure Rules
are to be amended to allow parties some respite from the
impact of the decision in Mitchell.
CPR 3.8 will now read (emphasis added):
(3) Where a rule, practice direction or court order –
(a) requires a party to do something within a specified
time, and
(b) specifies the consequence of failure to comply,
the time for doing the act in question may not be
extended by agreement between the parties except
as provided in paragraph (4)
(4) In the circumstances referred to in paragraph (3) and
unless the court orders otherwise, the time for doing
the act in question may be extended by prior written
agreement of the parties for up to a maximum of 28
days, provided always that any such extension does not
put at risk any hearing date.
Introduction into CPR of the ‘buffer provision’