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Harrington Hearsay Newsletter

25th June 2008

ISSUE 20

A CIVIL LAW UPDATE FROM 7 HARRINGTON STREET CHAMBERS

Ashley v Chief Constable of Sussex Police
[2008] UKHL 25
Tort of assault and battery – self defence – reasonable belief of threat
HL: a civil law claim of assault and battery is different in nature to a criminal law prosecution for these offences because of the different purposes of the civil and of the criminal law. The civil law of tort aims to identify and protect rights to be respected by others and establish a balance between conflicting rights. As a consequence, to establish self defence to a battery under the civil law the defendant must have had not just an honest, but a reasonable belief in the risk of an imminent attack. Although the defendant had admitted liability for a negligence claim arising out of the same facts and there had been a prosecution, the majority held that the civil claim for battery could proceed to trial as the claimants should be allowed the opportunity to vindicate the right not to be subject to assault and there was prima facie evidence of a triable issue.

X and another v Hounslow London Borough Council   
[2008] EWHC 1168 (QB); [2008] All ER (D) 337 (May)
Negligence – duty of care – vulnerable adults
HC: the claimants were vulnerable adults living in a local authority owned flat who suffered significant abuse by a group of youths one weekend. Agencies of the authority had been aware of the fact that these youths had been exploiting the claimants prior to the relevant weekend. The court held that the mounting concerns of the agencies made it reasonably foreseeable that the claimants would have suffered harm of the nature they eventually did. The claimants were in a sufficiently proximate relationship with the defendants and it was fair, just and reasonable to impose a duty of care to protect the claimants by moving them out of that accommodation in response to a dangerous situation. The failure to move the claimants in time was a breach of this duty which was causative of the events of the relevant weekend. The claimants therefore had a valid claim in negligence against the local authority.

CONTRACT

Regus (UK) Ltd v Epcot Solutions Ltd
[2008] EWCA Civ 361; [2008] All ER (D) 199 (Apr)
s. 11 Unfair Contract Terms Act 1977 – exclusion clause – reasonableness
CA: in all the circumstances, a clause which required a deliberate or negligent act for liability for breach of contract but excluded liability for loss of business, profits, loss or damage to data and consequential losses even where there was deliberate or negligent action and limited any claims where liability was established was held to be reasonable under s.11 Unfair Contract Terms Act 1977 as there were other remedies available for defective equipment supplied by the company and the clause did not exclude liability for fraud or malice.

PROPERTY

Fowler v Barron
[2008] EWCA Civ 377; [2008] All ER (D) 318 (Apr)
Cohabitation – joint tenancy – tenancy in common – rebuttal of presumption
CA: the parties had bought a family home in joint names and had cohabited until the breakdown of their relationship. The property was conveyed to the parties as joint tenants. When considering whether the presumption of a joint tenancy had been displaced so that the parties held as tenants in common with unequal shares, regard was to be had to the criteria laid out in Stack v Dowden [2007] 2 AC 432, relating to the parties’ intentions. The parties’ intentions should be considered in the light of their conduct and attitude to the property and their finances, the purpose for which the home was acquired, the nature of their relationship and whether they had children. The intention to change the way the property was held would be difficult to establish and, in the instant case, the property was still held as a joint tenancy with each party holding an equal share.

EMPLOYMENT

Oyarce v Cheshire County Council
[2008] EWCA Civ 343; [2008] All ER (D) 24 (May)
Race discrimination – burden of proof - victimisation – s.54A Race Relations Act 1976
CA: s.54A Race Relations Act 1976 providing for the reversal of the burden of proof in cases where discrimination or harassment on the grounds of race is alleged does not extend to cases where the claimants has alleged that they have been vicitmised under s.2 Race Relations Act 1976.

COSTS

Carver v BAA Plc
[2008] EWCA Civ 412; [2008] All ER (D) 295 (Apr)
Part 36 offer – order for costs on subsequent litigation – CPR 36.14
CA: under CPR 36.14 the phrase ‘more advantageous’ permits a more wide ranging review of all the circumstances of the case in deciding whether the results of the litigation following a Part 36 offer were worth pursuing. Financial gain is not the sole criterion in this assessment; time and emotional cost are also relevant factors. In the instant case the claimant had only bettered the Part 36 offer by £51 and as such the judge was entitled to order the claimant to pay the defendant’s costs for the period after the Part 36 offer had been made.

DAMAGES

Fletcher (Executrix of the estate of Carl Fletcher (deceased)) v A Train & Sons Ltd
[2008] EWCA Civ 413; [2008] All ER (D) 333 (Apr)
Fatal accident – interest on pre-trial loss at half rate – s.69 County Courts Act 1984
CA: the guidelines relating to the award of interest on damages for loss of financial dependency under the Fatal Accidents Act 1976 given in Cookson v Knowles [1979] AC 556, to the effect that interest should be awarded at one half of the special account rate on the part of the loss arising between the date of the death and the date of trial, must be following in cases where there are no exceptional circumstances. This is a guideline rule on how the court should exercise its discretion under s.69 County Courts Act 1984, not a rule of law, and the court is therefore entitled to depart from this when there are special circumstances but, even though the guidelines may be regarded as unfair, in normal cases they should be followed.

Arnup (administratrix of Arnup deceased) and another v MW White Ltd
[2008] EWCA Civ 447; [2008] All ER (D) 73 (May)
Ss.3, 4 Fatal Accidents Act 1976 – deductions from damages
CA: the defendant employers claimed that two payments, one from a death in service insurance scheme and one from a trust fund, paid to the widow of their employee who died at work should be deducted from the damages awarded under ss.3 and 4 Fatal Accidents Act 1976. The court held that, for the purposes of s.4, it is no longer important to decide whether a benefit has accrued as a result of the death as these payments cannot be deducted from the damages which are related to the loss of dependency. The payments could not therefore be deducted from the damages awarded.

Morgan v UPS Ltd
[2008] EWCA Civ 375; [2008] All ER (D) 241 (Apr)
Personal injury – loss of earning capacity – assessment of damages
CA: the claimant had suffered an injury at work which would affect his future earning capacity. Assessing damages for future loss of earnings required an integrated approach considering the principle in Smith v Manchester [1974] 17 KIR 1, where the claimant has a disability as a result of the accident but is employed, as part of the assessment of the capital sum arising from loss due to future disadvantage on the labour market. To assess these factors separately risks double recovery but, on the facts, the award made was a tenable assessment of lost earning capacity.

LIMITATION

Furniss v Firth Brown Tools Ltd
[2008] EWCA Civ 182; [2008] All ER (D) 154 (Mar)
Personal injury – knowledge of signficant injury – s.14(2) Limitation Act 1980
CA: under s.14(2) Limitation Act 1980 it is necessary to establish that the claimant is aware that their injury is significant for the claimant to be fixed with constructive knowledge from which point the limitation period can be held to run. This assessment is based upon the standards of the ordinary reasonable man given the facts of which the claimant was aware. In the instant case, the evidence was unclear as to whether the claimant was aware that their injury was significant and as such the respondent had failed to discharge their burden of proof under s.14.

Legal Services Commission v Rasool
[2008] EWCA Civ 154; [2008] All ER (D) 43 (Mar)
s.9 Limitation Act 1980 – reg. 86(1) Civil Legal Aid (General) Regulations 1989
CA: the respondent had been issued a legal aid certificate which was then revoked and the Legal Aid Board issued a claim for monies owed in respect of that certificate under Reg 86 Civil Legal Aid (General) Regulations 1989. The time begins to run on the six years limitation period under s.9 Limitation Act 1980 in respect of claims under Reg 86(1) for costs paid by the Legal Aid Board from the date of the revocation of the legal aid certificate.

PRACTICE AND PROCEDURE

Rosenberg v Nazarov and others
[2008] All ER (D) 57 (Apr)
Two sets of proceedings on same facts – striking out
HC: although it is normally an abuse of process for a claimant to pursue two simultaneous actions against the same defendant arising out of the same facts, in the instant case there was a good reason for both actions to be continued as there was concern about limititation issues in relation to the second claim. The actions would eventually be amalgamated and the defendants would be put to only minimal extra expense in the meantime, therefore the first claim would not be struck out.

Rickard Metals Inc v Cotton (trading as Allmat Enterprises)
[2008] EWHC 824 (QB); [2008] All ER (D) (Apr)
Summary judgment – CPR Pt. 24 – fresh evidence – setting aside judgment
HC: CPR Pt. 24 requires that the court be satisfied that there is no prospect of success and there is no other compelling reason why the issues should be dealt with at trial. In setting aside a summary judgment, the wider context of the evidence must be taken into consideration in the light of these factors. The fresh evidence could not be assessed on a summary judgment and gave some prospect of success; the summary judgment would therefore be set aside.