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Harrington Hearsay Newsletter

6th August 2007

ISSUE 16

NEGLIGENCE
Gouldsmith v Mid Staffordshire General Hospitals NHS Trust
[2007] EWCA Civ 397
Negligence – causation – surgeon deciding not to refer patient
CA: The claimant lost the digits of her left, dominant, hand, allegedly due to the failure to refer her to a specialist hospital when problems with treatment were encountered. The judge at first instance found that although there had been a breach of the duty of care, this had not caused the injury. On appeal it was stated that the test for causation required a consideration of two questions following Bolitho v City and Hackney HA [1998] AC 232: 1. What would have happened on reference to a specialist hospital and 2. Would it have been negligent under the Bolam test not to operate following referral. In this case, the majority held that it was not necessary to ask the second question as, on the balance of probabilities, if the patient had been referred the operation would have taken place. The claimant had therefore proved that the breach of duty in failing to refer her caused her injury.

David Truex Solicitor (a firm) v Kitchin
[2007] EWCA Civ 618; [2007] All ER (D) 53 (Jul)
Negligence – solicitor failing to advise client of availability of public funding
CA: The claimant had contacted the defendant solicitors in relation to divorce proceedings, which she would be entitled to public funding for. The defendants did not take on publicly funded cases, but did not refer the claimant to another firm of solicitors until costs had mounted which, at first instance, was found to be negligent. On appeal, the court held that a solicitor must consider whether public funding was available and would be negligent if they continued to build private costs when a reasonable solicitor would have known that the client’s financial position meant that public funding will be available.

PROPERTY

Birmingham City Council v Walker
[2007] UKHL 22; [2007] 3 All ER 445
Secure tenancy – succession on death – Housing Act 1985 ss. 87, 88
HL: Where a secure tenant, who has become the sole tenant through the right of survivorship, having been a joint tenant prior to the passing of the Housing Act 1980 (consolidated by the Housing Act 1985) had died, the secure tenancy can pass to a relative under s. 87 Housing Act 1985. S. 88(1) preventing the passing of the tenancy from someone who themselves was a successor to the tenancy did not apply in these circumstances as the s.88 refers to events which had occurred since the creation of the secure tenancy, not before.

Graves v Graves and others
[2007] EWCA Civ 660; [2007] All ER (D) 32 (Jul)
Termination of tenancy – determined on refusal of housing benefit
CA: The claimant had granted a tenancy to the defendant on the assurance that 90% of the rent would be paid by housing benefit. Housing benefit was not available and the claimant began proceedings for possession of the property. The court at first instance held that the tenancy was void for mistake or, alternatively, frustrated. On appeal the court held that there was no valid mistake and that there was no supervening event frustrating the contract. There was however an implied condition in the contract which had terminated the tenancy when housing benefit was not available.

Murphy v Gooch
[2007] EWCA Civ 603; [2007] All ER (D) 350 (Jun)
Trusts of Land and Appointment of Trustees Act 1996 – realisation of beneficial interest
CA: The parties had lived in a property as tenants in common until their relationship broke down and the claimant moved out. The claimant issued proceedings for the sale of the property to realise her beneficial interest and the issue arose as to whether the defendant’s payments towards the maintenance of the property could be offset against the defendant’s sole occupation of the property. On appeal, the court held that under s.12 Trusts of Land and Appointment of Trustees Act 1996 the claimant was entitled to rent for the defendant’s sole occupation of the property without demonstrating that she had been ousted from the property. This could be offset against the defendant’s payments towards the maintenance of the property under s.15 Trusts of Land and Appointment of Trustees Act 1996 when determining the value of her beneficial interest.

Turner v Avis and another
[2007] EWCA Civ 748; [2007] All ER (D) 309 (Jul)
Trusts of Land and Appointment of Trustees Act 1996 – bankruptcy – trust for sale
CA: The defendants jointly owned a property on a trust for sale which, following their divorce, had been varied by court order, postponing sale until certain conditions were fulfilled and allowing the second defendant the sole occupation of the property. The first defendant was bankrupt and the trustee in bankruptcy applied for the sale of the property to realise the value of the bankrupt’s beneficial interest. On appeal, the court held that the court order postponing sale was subject to s.14 Trusts of Land and Appointment of Trustees Act 1996 which allowed the court to order sale. S.6(6) Trusts of Land and Appointment of Trustees Act 1996 did not restrict the operation of s.14 of the Act.

DAMAGES

Veitch and Another v Avery
[2007] EWCA (Civ) 711; [2007] All ER (D) 177 (Jul)
Negligence – date from which damages to be assessed
CA: The defendant solicitors negligently advised the claimants that they had no defence to possession proceedings issued by their bank against their hotel. On reliance of that advice they did not defend possession proceedings and subsequently the bank obtained possession. Nominal damages of £5 were awarded based on the value of the property against the value of the claimant’s equity at the time the bank took possession. The claimants appealed, claiming that damages should have been assessed on the basis that they could have traded into profitability if the bank had not obtained possession. On appeal the court held that there was no hard and fast rule for the assessment of damages in negligence cases. As it was clear that the claimant’s business would fail, it was appropriate to assess damages based on the value of the property at the time the bank took possession.

COSTS

Lamont v Burton
[2007 EWCA Civ 429; [2007] 3 All ER 173
Road traffic accident – Part 36 offer – CPR Pts 44, 45
CA: The claimant was injured in a road traffic accident and rejected a Part 36 offer. When judgment was obtained, damages were assessed at less than the value of the offer. The court held that where there is a road traffic claim subject to a conditional fee arrangement, costs will be awarded under section III CPR Pt 45 which, as scheme to provide certainty of costs in road traffic accident cases, could not be circumvented by the terms of CPR Pt 44. The rejection of the Part 36 offer therefore had no effect on the award of costs under CPR 45.16(a) awarding 100% increase for solicitor’s fees where the claim had concluded at trial, even if the acceptance of the offer would have prevented the trial.

Straker v Tudor Rose (a firm)
[2007] EWCA Civ 368
CPR Pts 36, 44 – discretion – judgment more than terms of Part 36 offer
CA: Although appeal courts will only rarely interfere with the exercise of discretion in relation to the award of costs, in this case, the trial judge had misdirected himself. Where a Part 36 offer is rejected and the judgment is more than the value of the offer, the court must start from the assumption that the losing party will pay the costs under CPR 44.3(2) unless there are factors leading to a different conclusion under CPR 44.3(4). Relevant factors will include how the litigation developed, the extent to which the pre-action protocol is adhered to and the extent to which a party unreasonably pursued an issue.

Jones v Associated Newspapers Ltd
[2007] EWHC 1489 (QB); [2007] All ER (D) 288 (Jun)
Indemnity costs – whether judgment more advantageous than Part 36 offer
HC: the claimant was suing for defamation and made a Part 36 offer of £4999 and an apology. The defendant did not respond and the jury returned a verdict in the claimant’s favour, awarding £5000 damages. The nature of defamation damages in accounting for hurt feelings and injury to reputation will be taken into account determining whether the judgment was as advantageous as the Part 36 offer under CPR 36.14. In this instance, although the financial value of the jury’s award looked less advantageous than the Part 36 offer, in all the circumstances the criteria in CPR 36.14(1)(b) were not reached and the costs of the action were therefore awarded on a standard basis.

EVIDENCE

Stax Claimants v Bank of Nova Scotia Channel Islands Ltd
[2007] EWHC 1153 (Ch); [2007] All ER (D) 215 (May)
Scope of without prejudice rule
HC: Discussions between parties aimed at progressing the litigation to eventually achieve a settlement are not within the scope of the without prejudice rule. The discussions must be specifically directed at avoiding litigation by settling the dispute for the privilege to apply.

PRACTICE AND PROCEDURE

Adelson and another v Associated Newspapers Ltd
[2007] EWCA Civ 701; [2007] All ER (D) 117 (Jul)
CPR Pt 19 - Substitution of parties – nature of mistake
CA: CPR 19.5 requires that to substitute a party, a mistake as to the name of the claimant must be demonstrated, not a mistake as to the identity of the party, so if the mistake had not been made, the new party would have been named. New claims could be added subject to the terms of CPR 17.4, but these new claims could not be relied upon to demonstrate that a mistake had been made about the naming of a party leading to the substitution of a party under CPR Pt 19.

Carnegie v Drury
[2007] EWCA Civ 497
CPR Pt 7 – extension of time for service
CA: CPR 7.6(3) for the extension of time for service requires the claimant to demonstrate that he took all objectively reasonable steps in the circumstances to serve the claim form and had acted promptly in making the application to extend the time. These are stringent requirements as time limits under the CPR should be taken seriously. Where the claimant does nothing to attempt service until the last available day and delays applying for an extension, only exceptional circumstances could justify extending the time for service.

Marcan Shipping (London) Ltd v Kefalas and another
[2007] EWCA Civ 463; [2007] 3 All ER 365
CPR Pt 3 – ‘Unless’ orders – consequences of non-compliance
CA: The sanction contained in a conditional order takes effect when the party to whom it is addressed fails to comply with it without an application to the court being necessary. The party failing to comply with the order must apply to the court under CPR 3.8 for relief from the sanction. When issuing a conditional order the court must therefore consider the nature of the conditional order, its appropriateness in all the circumstances, and must ensure that it is termed so as to make it clear what a party needs to do to comply with the order.