Global menu

Our global pages

Close
Eversheds Corporate Claims Bulletin

Eversheds Corporate Claims Bulletin

  • United Kingdom
  • Personal injury claims litigation - Personal Injury Bulletin

06-10-2016

Welcome to the new edition of Eversheds' Corporate Claims Bulletin, which provides an overview of recent case law and important legislation changes from September 2016.

We hope you find this briefing useful and informative.

If you require any further information, please find our contact details at the end of this newsletter.

Liability

EDWARDS v KUMARASAMY (2016) UKSC 40

On 1 July 2010 the Appellant was taking rubbish from his flat to the communal dustbins outside, when he tripped on an uneven paving stone. He sustained an injury to his right hand and right knee.

He brought his claim against the landlord of the second floor flat he lived in (the Respondent). The flat was in a block. The Respondent did not own the block but had sublet his flat to the Appellant. The Appellant claimed that the Respondent was in breach of S.11(1)(a) and S11(1A)(a) of the Landlord and Tenant Act 1985 as he had failed to keep the paved area in repair.

At first instance, Deputy District Judge Gilman found in favour of the Appellant and awarded damages of £3,750. The Respondent accepted the decision on fact and quantum but appealed against the conclusions of the DDJ that he was liable as a matter of law. That appeal was allowed by the Circuit Judge, overturning the original Judgment and indicating that the Respondent was not liable as he did not have knowledge of the defect.

The Appellant then appealed to the Court of Appeal, challenging the finding that the Respondent was not liable and the Court of Appeal allowed the appeal. The Respondent appealed again, now reaching the Supreme Court, and seeking a determination of 3 questions, all of which had to be answered in the affirmative in order for the Appellant to succeed:

1. Is the paved area part of the structure or exterior of the building such to bring it within the ambit of S11?

2. Does the Respondent have an estate of interest in that part of the building, as required by S11?

3. Could the Respondent be liable to the Appellant even without notice of the disrepair?

Question 1

The Court held that the definitions in the Landlord and Tenant Act must be given their ordinary English meaning. In that way, a pathway, although a means of access to a building, cannot be part of the exterior of that building. The Appellant therefore failed at the first question, and his appeal could not therefore be successful. Nevertheless the Court went on to consider the remaining 2 questions.

Question 2

Again the word “interest” is to be given its proper meaning in the context of a property issue and as the Respondent was granted a right of way over the path in the head lease, he therefore had an interest in that land. He did not have an estate in the land and was not in possession so this “interest” was not sufficient to displace the requirement for notice (see below).

Question 3

Since the case of Makin v Watkinson (1870), it has been a generally accepted principle that a landlord is not liable under a repair covenant to his tenant, for premises which are in the possession of the tenant, unless and until the landlord has notice of the disrepair. The main reason for this is that the landlord has no knowledge of the condition of the property to be able to ensure compliance with the covenant.

The Court considered whether this rule applied to common parts of a block of flats and held that it would apply to the disrepair of parts which were included within the property demised to the tenant.

If the tenant is not however in possession of the location in disrepair, and the landlord is, then the requirement for knowledge does not apply as the landlord has more and free access to that area.

The present situation however was more complicated as the location of the accident was not in the possession of either the landlord or the tenant, although it was property over which they each had a right of way. The Court concluded however that as tenant uses the common parts every time he enters or leaves the flat, he is in the best possible position to know about any disrepair. The Supreme Court therefore held that the rule did apply to this case and the Respondent could not be held liable unless and until he had knowledge.

The Court considered finally that if the Respondent had owned the building, then the rule would not apply because the landlord would be in possession of the communal parts, but this wasn’t a reasoned conclusion as it did not arise as an issue in this case.

Quantum

MG v CHIEF CONSTABLE OF NOTTINGHAMSHIRE CONSTABULARY AND MITIE LANDSCAPES LIMITED (2016)

The Claimant, an employee of the First Defendant, was walking along a footpath outside his place of work on 13 February 2013, when he slipped on snow and ice, fell and landed on his shoulder.

The footpath was maintained by the Second Defendant. The Claimant brought his claim against the First and Second Defendants alleging failures to risk assess, provide a safe means of access, and failing to grit.

Liability was agreed, split equally between the Defendants, with a reduction of 10% for contributory negligence.

The Claimant sustained a rotator cuff tear, requiring physio and arthroscopy. He made a full recovery within 2 years. He was awarded £20,000 broken down as approximately £11,000 for general damages and £9,000 for special damages.

Practice and Procedure

Costs

CAMPBELL V CAMPBELL (2016) EWHC 2237

This case concerns a commercial dispute between two brothers who owned a jewellery business. The Court was asked to consider the extent to which the costs management rules applied to litigants in person, as the Claimant was, at the time of the first case management hearing, acting in person with the assistance of Counsel and ad hoc advice from a solicitor. Chief Master Marsh considered that the CPR 3.13 did not generally require litigants in person to file costs budgets, because their costs did not often require management by the Courts. It was possible however for a litigant in person to opt to serve a costs budget, or the Court may order them to do so, and was likely to do that where it was anticipated that a litigant in person would be claiming substantial disbursements or other costs.

In this particular case it was also argued that the Claimant could not recover the costs of legal services provided to him by a lawyer who was qualified in a different jurisdiction, however the Court held that those costs could be recovered, provided it was lawful for him to have provided the legal services.

Procedure

CAROLINE GIBBS v LAKESIDE DEVELOPMENTS LIMITED (2016) EWHC 2203

The Appellant had pursued a claim for damages against the Respondent in relation to the forfeiture of a lease. The county court dismissed the claim for damages and the Appellant appealed. Before the appeal hearing the parties attempted to reach a settlement.

On 1 March 2016 the Appellant wrote to the Respondent offering to settle for the sum of £90,000 on the basis that it was to be paid by 16 March 2016. The Respondent replied by email on 8 March 2016 accepting the offer, and attaching a consent order, however the consent order said that the payment date would be 8 April 2016.

The Appellant replied saying that the consent order was not agreed, as it was on a different basis to their offer. The matter was not resolved and went to the appeal hearing.

The High Court looked at the communications between the parties and held that the Respondent’s email of 8 March was not an acceptance of the offer, but a counter offer. The Appellant appealed challenging the court’s interpretation of the email. The Appellant argued that the email was a clear acceptance, but the Respondent said that the email and attachment had to be considered as a whole.

The High Court upheld the initial decision that the Respondent’s email was a counter offer, and not an acceptance of the Appellant’s offer. The Appellant’s offer had included a settlement sum and a payment date and should be considered as a whole package. The court is to have regard to all the communications between the parties. When an offer contains a number of different terms, all terms must be accepted to constitute an acceptance.

TITMUS v GENERAL MOTORS UK LIMITED (2016) EWHC 2021

The Claimant died from mesothelioma, on 3 February 2014 and his estate brought a claim against the Defendant, his former employer, alleging an exposure to asbestos.

On 21 July 2015 the Defendant made a Part 36 offer in the gross sum of £220,000 which had an expiry date of 11 August 2015.

The Claimant accepted the offer on 25 April 2016 and the parties agreed liability for costs with the Defendant paying the Claimant’s up to 11 August 2015 and the Claimant paying the Defendant’s from then. The Defendant asked whether the Claimant would wait for payment until the issue of costs had been determined. The Claimant agreed in principle but wanted to see the Defendant’s bill, but when that wasn’t forthcoming and neither was payment of the damages, the Claimant issued an application on 12 May 2016 for payment of the damages. On 13 May 2016 the Defendant applied for an extension of time for payment of the damages.

The Court was therefore asked to determine whether the time for payment of an offer accepted under Part 36 could be extended. The Defendant had requested further time for payment asking the Court to exercise its general case management powers under CPR 3.1(1) which allowed the Court to extend the time for compliance with any rules.

The Court held that a Part 36 offer can be accepted at any time (CPR 36.11(2)) and any sum of money agreed must be paid within 14 days of acceptance (CPR36.14). If payment is not made within 14 days the Claimant can enter Judgment for the unpaid sum.

The Court did not agree that CPR 3.1(1) gave any power to extend the time for payment as Part 36 is a self-contained code. Under CPR 36.14(7) time can only be extended by agreement in writing between the parties, which was not the case here.

The Judge ordered the Defendant to pay the Part 36 sum within 7 days, but allowed also a payment on account of the Defendant’s costs, from the Claimant, which could be offset against that payment.

PURRUNSING v A’COURT & CO (A FIRM) (2016) EWHC 1528

This case concerned proceedings for breach of trust in relation to monies paid under a property sale. The facts and issues are not important here, save that at trial, the 2 Defendants were each held liable to pay the Claimant’s costs, and each to bear their own costs. In the present hearing the Court was asked to determine a number of issues relating to the basis of and amount of costs liability of each Defendant, but for our purposes the most interesting part of the Judgment concerns whether interest is to be included in determining whether a Part 36 offer has been beaten.

On 20 May 2015 the Claimant made a Part 36 offer to accept £516,000 inclusive of interest. At trial, the Claimant was awarded £470,000 plus interest at 2.5% above base rate, which came to a total of £518,983.01.

The Claimant submitted that he had beaten his Part 36 offer and should be entitled to enhanced costs. The Defendant disagreed, saying that interest for the period between the date 21 days after the Part 36 offer was made and the date of Judgment should be deducted and doing that gave a figure less than the Part 36 offer.

The court held that in order to be able to compare like with like it was necessary to include in the Judgment sum interest which would have been due had it been a Part 36 offer made on 20 May 2015, so adding 21 days of interest. The Claimant had not therefore beaten the Part 36 offer and was not entitled to enhanced costs.

S E WOOD v (1) DAYS HEALTH UK LIMITED, (2) THE SECRETARY OF STATE FOR HEALTH, (3) SHROPSHIRE COMMUNITY HEALTH, (4) BALLE/S (T/A F REAC A/S), (5) BERWICK CARE EQUIPMENT LIMITED (2016) EWHC 1079

The Claimant, a paraplegic, had an accident on 26 October 2009 when her motorised wheelchair chair riser shot forwards, propelling her into her desk and causing her significant injuries.

The Claimant issued proceedings to recover damages against 5 Defendants, being the Primary Care Trust who supplied her with and maintained the chair and riser, and the suppliers and manufacturers of various parts of it.

The chair had been provided to the Claimant in 2001 by the Second Defendant. The Second Defendant had ordered the wheelchair and riser unit from the Fifth Defendant who in turn obtained it from the First Defendant. The First Defendant had assembled the wheelchair with a riser unit supplied by the Fourth Defendant.

The Claimant reported problems with the riser to the Second Defendant in June 2008 and the Second Defendant fitted a replacement riser unit which was supplied by the First Defendant, obtained from the Fourth Defendant. The chassis unit was replaced in November 2008, also by the Second Defendant, who obtained it from the First Defendant.

The First Defendant’s loss adjuster admitted liability by letter dated 14 June 2010.

Proceedings were issued in October 2012 and the Defendants were each added at different times as further information about the supply chain became available. All were joined by December 2013. On 29 April 2013, the First Defendant applied to withdraw its admission of liability, and the Court ordered in September 2013 that expert evidence ought to be exchanged so that the contractual position of the parties could be considered to help the Court determine the First Defendant’s application.

On 23 February 2015 the Fifth Defendant applied to dismiss the claim against it on the grounds that it was not involved in the replacement of the riser unit.

On 7 August 2015 the Claimant applied for summary Judgment against the Second Defendant on the contractual claim. The Second Defendant denied that a contract existed between them and claimed that there was insufficient evidence that the Claimant had suffered an injury at all, claiming she was unreliable.

So the court were asked to deal with 3 issues:

1.Should the Claimant have summary Judgment against the Second Defendant?

2.Could the First Defendant withdraw its admission?

3.Should the Claimant against the Fifth Defendant be dismissed?

Question 1

The court gave the Claimant summary Judgment against the Second Defendant on the basis that there had been a contractual relationship between them, the Second Defendant had a repair and maintenance obligation, and the contract was breached as a result of the works carried out by the Second Defendant on their chair, which lead to the accident.

Question 2

In deciding whether to allow the First Defendant to resile from its admission the court considered all the circumstances of the case including:

-whether there had been any new evidence about the circumstances of the accident (the court concluded not);

-the increase in value of the claim since the admission (but held this was not a good reason);

-the conduct of the parties, particularly delays in making the application (but held there had not been any real delay since all parties were aware that the application would be made and it was made promptly after issue);

-the issue of prejudice to either or both the Claimant and First Defendant, given a lack of documentation, and damage to the wheelchair during examination.

The court dismissed the application to withdraw the admission, based upon all the circumstances of the case.

Question 3

The court found that there was no contract between the Fifth Defendant and the Claimant, no repair or maintenance obligation on the Fifth Defendant, and the Fifth Defendant had neither supplied nor assembled the wheelchair. On that basis the Claimant’s case showed no reasonable grounds for a claim against the Fifth Defendant and the Court struck that claim out. The Court assed “if and in so far as it is necessary for me to do so, I also give D5 summary Judgment against the Claimant pursuant to CPR 24.2(9)”.

GOLDCREST DISTRIBUTION LIMITED v McCOLE (2016) EWHC 1571

This claim concerns a claim for possession of the Defendant’s property following the Defendant’s failure to repay a loan provided by the Claimant.

The Defendant filed a defence in July 2015 and at the same time, a counterclaim alleging that the Claimant had not been licenced to provide the loan in the first place, that the property was held in trust for the Defendant’s daughter, and she had been unduly influenced by her husband in executing the charge.

The Claimant failed to serve a defence to the counterclaim and the Defendant applied for default Judgment.

The Claimant made an application to set aside the Judgment on the basis that she had a real prospect of successfully defending the counterclaim.

The Court refused the application. considering under CPR 13.3(2) the court found that the application had not been made promptly. The Court went on to then consider the Denton criteria:

a.the seriousness of the failure

The Claimant did not file a Defence within 6 months and the litigation could not progress therefore that was a serious failure

b.was there a good reason for the failure

the claimant alleged failings by a previous solicitor but that solicitor had not been asked to explain their conduct so this limb of the test wasn’t satisfied

c.all the relevant circumstances

the Claimant had disregarded the rules and litigation could not be conducted efficiently or proportionately if parties ignore the rules.

Looking at all of these issues the Court did not exercise its discretion and the Judgment remained.

Other news

Government announces that the fixed recovery costs regime is to be extended

A report has announced plans to extend the fixed recoverable costs regime to as many civil claims as possible in the hope that it will stop losing parties from facing high costs bills. The senior judiciary have been invited to put forward proposals for consultation.

86th CPR update introduces a new Precedent H form from 3 October 2016

The new form has standardised the shade of grey used within certain boxes, and changes the words “past” and “future” within the expert section, to “incurred” and “estimated”, in line with the rest of the document.

For more information contact

< Go back

Print Friendly and PDF
Subscribe to e-briefings