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Harrington Hearsay Newsletter

1st September 2008

TORT

Harris (a minor and a patient suing by his mother and litigation friend, Harris) v Perry and Others
[2008] EWHC 990 (QB)
Negligence – child injured by boy somersaulting on bouncy castle – liability of parents
HC: the claimant child had sought permission to play on a bouncy castle set up by the defendants as part of a party to celebrate their children’s birthday. The claimant had subsequently been dealt a severe blow on the head by a larger child doing a somersault on the castle. The defendant mother was found to have given permission for the claimant to play on the bouncy castle and as such the defendants owed a duty of care to the claimant. The defendants had failed to adequately supervise the children on the bouncy castle because they were maintaining two pieces of play equipment without constantly monitoring either, and had allowed children of different sizes to play simultaneously on the castle, increasing the risk of injury. Although the events leading up to the claimant’s injury happened quickly, had supervision been adequate the defendants could have intervened to prevent the child somersaulting, the defendants had therefore caused the claimant’s injury and were liable in negligence.

Gray v Thames Trains Ltd and another
[2008] EWCA Civ 713; [2008] All ER (D) (Jun)
Negligence – train crash - claimant killed a man whilst suffering from post traumatic stress
CA: the claimant was involved in a train crash and had subsequently suffered from post traumatic stress disorder. He had stabbed a man to death and been convicted on manslaughter on the ground of diminished responsibility. He sought damages for loss of earnings against the defendant train company and track operator as a result of their negligence in causing the train crash. Although the defendants admitted that there was a duty of care which they had breached and had caused the claimant’s mental condition, they denied liability for loss of earnings after the criminal act of manslaughter had occurred on the grounds of ex turpi causa non oritur actio. The manslaughter did not break the chain of causation and if it was appropriate to deny recovery, it should be on the grounds of public policy. As the claimant was seeking damages for loss of earnings, not for the incarceration as a result of the manslaughter, the claim was not inextricably bound up with his criminal behaviour and recovery was not prohibited by public policy. The court could allow recovery for loss of earnings without appearing to condone his criminal conduct.

Birmingham Development Company v Tyler
[2008] EWCA Civ 859; [2008] All ER (D) 325 (Jul)
Nuisance – fear of collapse of neighbouring wall
CA: there is a claim in nuisance where a building on a neighbouring property presents a real danger of collapsing onto the claimant’s property, as this danger will interfere with the claimant’s enjoyment of their property. However, where there is only a subjective fear of collapse and no actual danger there is no cause of action in nuisance, the fear must be well founded and the danger proved on the balance of probabilities.

CONTRACT

CTI Group Inc v Transclear SA
[2008] EWCA Civ 856; [2008] All ER (D) 290 (Jul)
Frustration – failure to supply goods due to pressure from monopoly on supplier
CA: the parties entered into a contract to import cement into Mexico, breaching a local cartel. The cartel placed pressure on the suppliers of the cement, preventing its delivery to Mexico by the seller. Not every supervening event which prevents performance of a contract will be a frustrating event and the nature of the contract, its terms and the context it was concluded in will be considered to decide whether the performance of the contract in the new situation would be fundamentally different to that contemplated by the parties. A contract will not necessarily be frustrated because performance has become impossible and in the circumstances there was nothing fundamentally different required of the seller and the nature of the performance required by the contract remained the same. The seller bore the risk of a failure of supply and the occurrence of this event was therefore not enough to frustrate the contract.

DISCRIMINATION

Mayor and Burgesses of the London Borough of Lewisham v Malcolm
[2008] HL 43
Disability – Claiming possession against disabled tenant – ss.22(3), 24(1)(a), Disability Discrimination Act 1995
HL: the appellants were the landlords of a flat that the respondent had sub-let. The appellants sought possession and the respondent argued that in doing so they were acting unlawfully. Under s. 22(3), Disability Discrimination Act 1995 it is unlawful to discriminate against a tenant on the grounds of disability and under s. 24(1)(a), discrimination is defined as treating the individual less favourably because of a reason related to their disability. In deciding whether the landlord has discriminated in this way, the reason for the treatment must be objectively determined by the court. For the respondent’s case to succeed the appellants must have had knowledge of the disability and there must be some connection between the reason to seek possession and the disability. The majority held that the relevant comparator is persons without a disability who was otherwise in the same position as the respondent. The court held, allowing the appeal, that the reason for the application for possession was that the respondent had sub-let the property, the appellant had no knowledge of the respondent’s disability and the appellant would have treated someone else who had sub-let the property in the same way, so they had not acted unlawfully in seeking possession.

PROPERTY

Thorner v Major and others
[2008] EWCA Civ 732
Proprietary estoppel – revocation of will – clear and unequivocal representation
CA: the claimant had worked for many years on the deceased’s farm without payment. Under the deceased’s will, the claimant would have inherited the farm, but this will was revoked, the deceased died intestate and the farm would be inherited by relatives of the deceased. The claimant alleged that the deceased had made representations, which he had relied on to his detriment, that he would inherit the farm. The claim of proprietary estoppel succeeded at first instance, but on appeal the court stated that the deceased’s statements were not clear and unequivocal enough for them to be relied on, or for the claimant to reasonably take them as intended to be relied on by him. The ingredients for proprietary estoppel should not be diluted and, in this case, the requirement for a clear and unequivocal assurance had not been made out, and there was no equity to satisfy.

EMPLOYMENT

Wilmot and others v Selvarajan
[2008] EWCA Civ 862; [2008] All ER (D) 310 (Jul)
Unfair dismissal – completion of statutory procedure – Part 1 Schedule 2, Employment Act 2002 - S. 98A, Employment Rights Act 1996
CA: the employer had completed the procedures in Part 1, Schedule 2 Employment Act 2002 in dismissing the employees under s. 98A(1)(b), Employment Rights Act 1996. The employees claimed that they had been unfairly dismissed because the employer had unreasonably delayed completing the appeals aspect of the procedure under the General Requirements of Part 3, Schedule 2, Employment Act 2002. The court held, allowing the employer’s appeal, that completion of the statutory procedures under Part 1, Schedule 2 is not made conditional on, or subject to, compliance with the General Requirements. The 2002 Act had no impact on the case because the application of the General Requirements is premised on the assumption that the relevant statutory procedure had not been completed, which in this case, it had.

COSTS

Oriakhel v Vickers and others
[2008] EWCA Civ 748; [2008] All ER (D) 69 (Jul)
s. 51 Supreme Court Act 1981 – award of costs against non-party dishonest witness
CA: a witness gave dishonest evidence during the litigation and although not joined as a party, a costs order was sought against him as being the person behind the claim and because of the reliance placed on his false evidence. This order was refused at first instance and on appeal, the court held that, although the judge had fettered his discretion by requiring that the non-party was a funder or controller of the action before ordering such costs, no order should be made in this case. It would be exceptional to order non-party costs against an individual who could have been made a party to the proceedings. The party seeking costs should have a good reason not to make the individual a party and give them warning that they might seek costs against them. There was a claim against the witness for his part in the dishonest conspiracy, which would allow him to adduce evidence to support his own defence, and the costs would be recoverable as part of the damages if this action was successful. It would therefore be inappropriate to award costs against him.

R (on the application of Roundham and Larling Parish Council) v Breckland Council
[2008] EWCA Civ 714, [2008] All ER (D) 346 (Jun)
Refusal for permission to judicial review – award of costs
CA: in an application for permission for to judicially review, cases where it would be appropriate to explore the issues in depth would be rare and the costs arising in cases where permission is refused should be decided according to the principles in Davey v Aylesbury Vale DC [2007] EWCA Civ 1166. Where preparation costs are sought in addition to acknowledgment costs the defendant must justify those costs. Preparation costs may well not be recoverable, but the court should give fair weight to the work done for the purposes of acknowledgment costs.

R (on the application of Compton) v Wiltshire Primary Care Trust
[2008] EWCA Civ 749; [2008] All ER (D) 12 (Jun)
Judicial review – pre-emptive order for costs
CA: pre-emptive orders for costs (PCO) in judicial review requires consideration of a two stage test considering the general public importance of the case and the public interest in the issue, although these factors may be difficult to separate. General public importance does not refer to the interest of the public nationally, but the interested group must not be too small and although the effect of applying these principles may mean that pre-emptive costs orders are exceptional, the question of public importance is a question of degree. These principles are not to be interpreted restrictively. If a party benefiting from a PCO then wishes to appeal, the PCO should be reviewed at appellate stage to establish whether an issue of public importance still exists. The application for a PCO should be lodged with the application for permission to appeal and once the respondent had given reasons why a PCO is now appropriate, a decision should be taken by a single Lord Justice. If a PCO is refused they can then apply orally. If they are the respondent to a subsequent appeal then it is likely that some protection will be necessary at the Court of Appeal stage also. The defendant against whom a PCO is made can apply to set aside, vary or discharge the order under CPR 23.8(c) but compelling reasons will be required to alter the order.

LIMITATION

Khairule v North West Strategic Health Authority
[2008] EWHC 1537 (QB)
Negligence – personal injury sustained during birth – ss 14, 33 Limitation Act 1980
HC: the claimant had been deprived of oxygen during birth which resulted in cerebral palsy. He issued a claim in negligence 25 years after the birth. The defendants argued that the claim was statute barred as the claim was issued three years after the claimant had knowledge of the existence of a claim under ss. 14(1)(b) and 14(3) Limitation Act 1980. To assess whether the claimant had knowledge for the purposes of making a claim under s. 14(3), the court will objectively consider whether the reasonable person in the same circumstances as the claimant, suffering from the same disability and having the same level of intellect would investigate the claim. Personal or subjective characteristics are ignored in this assessment unless they are attributable to the results of the injury. On the facts, the claim was statute barred, but under s. 33 Limitation Act 1980, it was within the court’s discretion to allow the claim to proceed as a fair trial was still possible. Witnesses and relevant evidence was still available, and, having regard to the claimant’s subjective circumstances, it was equitable to disapply the limitation period.

PRACTICE AND PROCEDURE

OCS Group Ltd v Wells
[2008] EWHC 919 (QB)
CPR 31.16(3)(a),(b),(c),(d) – pre-action disclosure of medical records
HC: the claimant had delayed dealing with her claim for personal injury resulting in loss of earnings and the defendants had requested pre-action disclosure of the claimant’s medical records to assist with resolution of the claim. The court had jurisdiction under CPR 31.16(a) and (b) to make an order for pre-action disclosure of the records as they were likely to be parties to the subsequent proceedings and the records would be relevant to making the claim. Hypothetically, for the purposes of CPR 31.16(c), medical records would be disclosed under standard disclosure if proceedings had started. CPR 31.16(d) contains an element of jurisdiction and an element of discretion for the court, but the pre-action disclosure of medical records could not be desirable for the fair disposal of the proceedings or the resolution of the dispute as the medical records may cause the claimant to amend or restrict their eventual claim and their pre-action disclosure could protract the arguments between the parties. The delay should instead be dealt with through an order for costs.

British Sky Broadcasting Group plc and another v Virgin Media Communications Ltd and others
[2008] EWCA Civ 612; [2008] All ER (D) 57 (Jun)
CPR 31.22 – disclosure of sensitive documents – lawyers acting in other proceedings
CA: there are three separate types of proceedings ongoing between the claimant and the defendant. The claimant sought to restrict the defendants lawyers for the High Court proceedings from participating in any of the other proceedings between the parties on the grounds that they would be influenced by the knowledge they acquired from the sensitive documents disclosed in the High Court proceedings. On appeal it was stated that it is desirable that a litigant is free to instruct the lawyer of his choice, and the risk that information disclosed as part of the High Court proceedings would be improperly used in other proceedings was fanciful. There was no justification for the type of order sought.