Corporate Claims Bulletin

• United Kingdom

• Personal injury claims litigation - Claims e-briefing

12-07-2019

Barlow v Wigan Council [2019] EWHC 1546 (QB)

The claimant, Deborah Barlow, brought a claim against the defendant, Wigan Metropolitan Borough Council for a trip which occurred on 21 September 2018. The claimant was walking along a path in Abram Park, Wigan when she tripped and fell on an exposed tree root. The park had been purchased on 10 November 1920 by the defendant’s predecessor, who ceased to act as a local authority on 1 April 1974. The land had been purchased with the intention of constructing a public park and was developed in the 1930’s, with the pathways being constructed some time before 1959. The pathways had been constructed to allow access to and across the amenities built within the park.

In the first instance the District Judge held that the path had become a highway under Section 31 of the Highways Act 1980 due to 20 years dedicated use. The District Judge held however, that the path was not a ‘highway maintainable at public expense’ and was not a highway constructed by a highway authority as set out at Section 36(2)(a) of the Highways Act 1980. The District Judge stated the highway had to be constructed as a highway at the time of construction. This was not the case here, as the path had become a highway through usage. There was no evidence that the highway authority built the path with the intention of it being dedicated as a highway. The District Judge also queried whether the defendant’s predecessor was in fact a highway authority.

The claimant’s appeal and defendant’s cross appeal

The claimant appealed against these findings, arguing that Section 36(2)(a) does not require proof of intent to create a highway at the time of construction. The claimant further argued that it was enough that the path was constructed, that it had become a highway and that it was constructed by a highway authority. The claimant also argued that in the alternative, the path fell within Section 36(1) of the Highways Act 1980. The defendant cross appealed and argued that Section 36(2)(a) did not apply in this matter as the defendant’s predecessor was not acting in the capacity of a highway authority and was in fact, a local authority. They also argued that the Highways Act 1980 only applied to highways constructed after the Act commenced.

The appeal judge found the following:

Does Section 36(2)(a) apply only at construction?

The appeal Judge considered whether a highway had to be dedicated as such at the time of construction, in order for Section 36(2)(a) to apply. The judge held that it could not be the case that express dedication was needed at the time of construction, as highway authorities could not do so for several months, leading to the highway falling outside Section 36(2)(a). The highway authority would therefore have no duty to maintain, nor would they be under a duty under the Occupiers Liability Act following the case of McGeown.

The appeal Judge concluded that there should not be a limitation imposed on the wording of Section 36(2)(a) and once it was recognised that the relevant highway may have become such after its construction, there was nothing in the wording to limit the way in which it later became a highway. A highway established through long usage would therefore qualify.

Did the defendant predecessor have capacity to act as highway authority under Section 36(2)(a)?

It was argued by the defendant that their predecessor was a local authority and as such, did not have the capacity to construct the highway as a ‘highway authority’. The appeal Judge found that whilst the predecessor may have worn many ‘hats’, including local authority or highway authority, it would not be an easy task for claimants to make the distinction between them. The appeal Judge took the view that it was necessary to identify the relevant legal entity and not attempt to look behind it.

The appeal Judge held that provided the relevant local authority at the time was, among other things, a highway authority, then Section 36(2)(a) will apply to them.

Was there a deemed intent by the defendant’s predecessor at the outset?

Although considering this ground was not necessary in light of the other findings, the claimant sought to argue that once there was a presumed dedication, the highway must be taken to have been dedicated at the outset. The appeal Judge rejected this argument, as it would seek to impose a duty on the highway authority before it arose.

Can Section 36(2)(a) apply retrospectively?

The defendant argued that the application of Section 36(2)(a) cannot apply to highways constructed before the Highways Act 1980 was implemented. The appeal Judge concluded that the application of the Highways Act 1980 only came into play when there had been a failure to maintain, despite the fact the highway was built at an earlier stage. This was not retrospective liability. Secondly there was no express limitation within the wording of Section 36(2)(a) and there was no basis for implying such a limitation.

The alternative ground

In light of the retrospective application finding it was not necessary to consider if Section 36(1) operated. The appeal Judge found that the path may have been dedicated before 16 December 1949 but chose not to consider it further.

Conclusion

The claimant’s appeal against the original finding that the path in question was not a highway ‘maintainable at public expense’ was successful.

Davies (a protected person by his litigation friend Natalie Kay Pitman-Treharne) v Walon Limited [2019] EWHC 1481 (QB)

The claimant allegedly suffered a head injury on 3 October 2014 whilst working in the course of his employment. The claimant stated that he was in the course of securing a vehicle on to the top deck of a trailer using tensional straps, when the trailer deck dropped some 35 mm, which caused a Mitsubishi Outlander vehicle to bounce on its suspension and cause a sudden blow to the claimant’s head.

The claimant was working alone at the time of the accident therefore there were no witnesses. No reports were made to the claimant’s employers of the accident but the claimant recorded on the ‘Non Depot Delay Slip’ that he had banged his head three times. This document was not given to the claimant’s employers due to him being hospitalised.

The injuries

The claimant finished his shift and returned home, where he developed problems with his vision and speech. He knocked on his neighbour’s door stating he was going to die and complaining of head pain. He had vomited twice and refused to open his eyes. He was taken to hospital and underwent extensive surgery for a brain injury. The claimant continued to suffer headaches and underwent cranioplasty in January 2017.

The evidence

The claimant made a witness statement, despite lacking capacity and gave oral evidence to the court. The defendant argued that the claimant’s history of the events was inconsistent and unreliable. They did not accept that the incident could or did happen in the way contended and that it could not have resulted from any negligence.

The claimant could not give a consistent account of the accident circumstances, having provided 3 possible explanations for the bang to the head, all of which provided different mechanics of the accident. The defendant provided evidence to show that the claimant was provided with training on the loading of trailers on commencement of his employment.

Whilst the claimant’s neighbours confirmed the claimant reported to them after his shift that he had banged his head at work, there were no other details provided to them.

The parties each provided engineering expert evidence. The claimant’s expert confirmed that the trailer bed was not fully engaged and that the locking pawl came to rest at a precarious position at a distance of 35mm from the engagement position. The hydraulic system then did not support the trailer bed and it fell into the locking position. The defendant’s engineering expert stated there was no evidence of the sort of damage to the locking pawl that could result in the locking pawl only partly entering a slot. There was also no evidence of the slots being obstructed, resulting in a part engagement. The defendant’s expert also took the view that the loading of a 1,800kg vehicle was likely to have caused the trailer bed to drop and lock in the engagement position.

The court’s findings

The Judge had to take a balanced view of the weight to be placed on the claimant’s evidence. The Judge was mindful that the claimant had difficulty placing events in time and chronological order as a result of the injuries. The Judge was willing to accept that the claimant injured his head whilst attaching a belt to the Mitsubishi.

The issue for the Judge to decide was whether on the balance of probabilities the cause of this was the sudden and unexplained dropping of the deck and whether this was due to the defendant’s negligence. The Judge considered the engineering evidence and preferred the evidence of the defendant’s engineer. The Judge held that it was difficult to envisage a scenario where the deck lock could have been left in a precarious position before loading a vehicle, remained in that position during it and then subsequently fall after it. The Judge accepted that the claimant banged his head but this was most likely due to overbalancing on his part. The judge held that no question of negligence on the defendant arose in those circumstances.

Brushett v Hazeldean (2019) - Unreported

On 20 July 2015 the claimant was attempting to cross King William Street towards Cannon Street in London.  The Defendant was cycling northbound over London Bridge and intended to cycle up King William Street. The claimant was looking at her mobile phone as she was crossing the road, unaware that the defendant was cycling through a green light. As a result, a collision occurred between the pedestrian claimant and the cyclist defendant.

The police report

The police attended at the scene following the incident and took 5 statements, one from the defendant and the others from other witnesses. The defendant says he saw a number of pedestrians crossing the road and sounded his air horn on his bicycle. The pedestrians parted but as he was proceeding along the road, he saw a blonde lady step out from the traffic island into the road, look up to see him coming and then began to step backwards, he shouted ‘No’ to the claimant as she saw her step backwards. The defendant says he applied his brakes but was only 2-3 metres away from the claimant and collided with her.

2 witnesses confirm the claimant stepped out from the traffic island into the path of the defendant and blamed her for the incident. A further witness confirmed they heard the air horn and the defendant shout something, but gave no opinion as to who was to blame. The final witness, Mr H says he was cycling on the same route as the defendant, who had overtaken him at the lights and cycled towards a group of pedestrians without slowing down. He believed the defendant was riding too fast and that the defendant was to blame.

Proceedings

The defendant drafted his own defence to the claim, which did not make allegations of contributory negligence. He had also served hearsay notices to rely on the witness statements contained in the police report.

The claimant subsequently sought summary judgment on the basis the defendant accepted Mr H’s evidence as true. This was however refused by the trial judge. The defendant however, made an application to plead contributory negligence in the alternative and this was allowed.

The evidence at trial

The claimant called Mr H as their only witness. He attended trial and was cross examined by the defendant’s counsel. Mr H produced a voice memo he recorded on his phone immediately after the accident, as he wanted to get an accurate account recorded. Mr H confirmed in evidence that there was around 50 people crossing and that he had slowed down as he did think it was safe. The defendant on the other hand had rode past him at 20mph and was speeding up towards the group. He stated that he saw the collision and was still of the view the defendant was to blame.

The defendant stated he was approximately 20 metres away from the crossing when he saw a group of pedestrians crossing the road. The pedestrians were unaware that there was oncoming traffic but many of the pedestrians heard the 115db air horn. The claimant however, continued to cross the road. The defendant says he accelerated up to 10-15mph after he sounded the air horn, when people were still in the road. The Claimant looked up from the mobile phone, panicked, and ran or stuttered back across the road in the direction of the central island. The defendant called out loudly, applied his brakes, and attempted to swerve but would have hit the pedestrians waiting on the island.

The findings at trial

At trial the court found that the evidence given by Mr H appeared to have gone beyond an independent onlooker, to someone who had become involved in the incident. His voice recording was held to be self-serving with something in mind. The court found that the defendant had given a consistent account throughout which on the face of it, balanced with the other witnesses’ accounts given to the police.

The court did however find that the defendant owed a duty to other road users to drive with reasonable care and skill. The junction was not clear and it was evident he could not pass without giving way. The defendant’s riding fell below the standard expected of a cyclist. He made a judgment call to proceed whilst there were pedestrians in the road.

The court also held that the claimant’s conduct contributed to the accident. The court accepted that the claimant was looking at her phone, despite the defendant being the only one to allege this. The claimant was therefore held to be 50% contributory negligent.

Ohoud Al-Najar & others v The Cumberland Hotel (London) Limited [2019] EWHC 1593 (QB)

The facts

The claimant in this matter were a family visiting London from the United Arab Emirates, staying at the Cumberland Hotel in London. After checking into the hotel, the claimants went to their rooms on the seventh floor. Some of the family members went out for the evening, whilst others went to bed.

Around 1 o’clock in the morning Mr Spence, a third party, entered the hotel via the lobby area and accessed the lift bank without being challenged. He had a hammer on his person, which he had concealed. Mr Spence was able enter the lifts despite members of staff, whose job it was to greet members of the public and ensure that non-guests did not access the accommodation floors, being in the lobby area.

Mr Spence made his way to the fifth floor and used the fire escape stairs to reach the seventh floor.

The claimants were staying in rooms 7003 and 7004, which were connected via a joining internal door. One of the family members had exited the room via the external door, but had left it on the latch, by applying the deadlock to stop it closing. This was due to the fact they could not find a key card and did not want to wake the family members up to get back into the room. It is very common amongst middle eastern families to book a suite of rooms and leave the locks on the latch so that family members can come and go freely. The penalty for theft in middle eastern countries is so severe that theft within hotels is almost unheard of, therefore families such as the claimants’ are trusting of those around them.

Mr Spence entered the claimants’ room with the intention of stealing their possessions. As he was filling a suitcase with valuables when one of the family members awoke and startled him. Mr Spence hit the family member over the head with the hammer. Other family members in the room were awoken by this attack and in trying to stop him, were also attacked with the hammer.

Mr Spence left the room with the suitcase and walked out of reception without being challenged.

The criminal trial

Following the harrowing ordeal, Mr Spence was put on criminal trial for and convicted of three counts of attempted murder. Mr Spence, who had been under the influence of drugs at the time of the attack had a significant criminal record was sentenced to life imprisonment.

The civil claim

The claimants issued a claim against the Cumberland Hotel (‘the defendant’) following the outcome of the criminal trial, alleging that the defendant owed them a duty of care to protect them from the actions of Mr Spence and had breached that duty. The claimants made a number of allegations in respect of the defendant’s security services and the failing on their part to put into place reasonable measures within the hotel.

The defendant’s argued that their systems were in fact reasonable and in any event, the actions of Mr Spence were a Novus Actus Interveniens. As such the chain of causation had been broken and there could be no liability.

The court had to consider the following 5 issues to determine liability:

0. Did the defendant owe a duty of care to the claimant to protect them from criminal activities of the third parties?
0. Did the criminal activities of Mr Spence break the chain of causation?
0. Were the actions of Mr Spence reasonably foreseeable?
0. Was there a breach of duty on the defendant’s part?
0. Causation

The court held the following:

Did the defendant arrow the claimants a duty of care to protect them from the criminal actions of third parties?

The court had to assess whether the defendant owed a duty of care to the claimants to protect them from the criminal activities of third parties.  Historically there was a general reluctance of English law to impose liability for pure omissions. The case law has however developed and in relation to hotel proprietors, a duty of care was imposed to take reasonable care to prevent damage to guests from unusual danger which the occupier knows or ought to have known.

The court considered the case of Robinson v Chief Constable of West Yorkshire (2018) which identified certain circumstances where liability for pure omissions would be identified.  One of those situations is where a party has assumed responsibility to protect another from that danger.

The court held that the defendant owed the claimants, as guests of the hotel, a duty of care to take reasonable care to protect guests at the hotel against injuries caused by criminal acts of third parties, drawing an assumption of responsibility in line with the Robinson case.

Did the actions of Mr Spence break the chain of causation?

Having established a duty of care the court had to assess whether the actions of Mr Spence constituted a Novus Actus Interveniens which broke the chain of causation.

The court held that the defendant's duty in this matter was to take reasonable care to protect guests against injury caused by criminal acts of others and therefore, the fact that those criminal actions occurred could not break the chain of causation. This was the exact duty that the defendant had been put under.

Was the criminal at by Mr Spence reasonably foreseeable?

The court had to determine whether the loss caused was reasonably foreseeable to the reasonable hotel proprietor.

The court held that it was reasonably foreseeable to the defendant that a third party might gain entry to the hotel and might injure guests by criminal assault.  The defendant had identified this risk in their own training programme.  The court did however record that the evidence showed the likelihood of such an attack occurring was extremely low, which would be relevant when assessing what steps ought reasonably to be taken against the risk.

Did the defendant breach their duty to the claimants?

In determining whether a breach of duty had occurred the court had to assess whether the actions of the defendant were reasonable when considered against the standard of a reasonable four-star hotel in London.

The claimant's Particulars of Claim made a number of allegations in respect of the defendant's security systems and their assessment of risks. In response to each allegation the court considered the evidence provided by the defendant and assessed whether it was reasonable in the circumstances.  On each allegation the court held that the actions taken by the defendant were in fact reasonable.  The court stated that the defendant was under a duty to take reasonable care to prevent the attack but it was not an absolute duty to prevent the attack.

Although the claimant provided a number of alternative measures that the defendant could have taken in respect of security services, the court held that the systems in place at the time were in fact reasonable.  The defendant had not breached the duty of care owed to the claimant in this matter.

Causation

Although the court had identified that a breach of duty had not occurred they also considered the issue of causation. The court accepted that there were alternative measures that could have been taken, but concluded that there is no evidence to suggest that they would have been more likely than not to have prevented the attack. It was the court’s view that Mr Spence would simply have modified his actions in order to gain access to the accommodation floors and it could not be said that alternative measures would have prevented the attack.  Ultimately the court held the only way this attack could have been avoided was to have shut and locked the bedroom door.

PROCEDURE AND COSTS

Dodds (a protected person by her sister and litigation Janice Dodds) v Arif & Aviva Insurance Limited [2019] EWHC 1512 (QB)

On 6 February 2017, the claimant was struck by the first defendant whilst crossing a road in south west London. She sustained a traumatic brain injury as a result of the accident, which was classified as moderate or severe. The claimant was aged 75 at the date of the Case Management hearing and was a protected party. She lived with her  sister who was her main carer and her litigation friend. The claimant had suffered substantial cognitive impairment and required substantial support, although she was able to perform most of the activities of daily living.

Medical evidence in the case

The claimant relied on medical reports from Dr Sylvester, a Neurologist and Dr Da Costa, a Geriatrician. Dr Da Costa’s report commented on the claimant’s general health pre-accident, along with the effects of the accident on the ageing process and the claimant’s daily activities. Dr Sylvester’s report explained the neurological consequences of the accident and the report also briefly deals with life expectancy. Dr Sylvester expressed the view that unless the claimant developed epilepsy, her life expectancy ‘was unlikely to be significantly reduced’.

The defendant obtained and disclosed a report from Professor Bowen Jones, Consultant Physician. His view was that the claimant’s pre-accident life expectancy had to be adjusted downwards to take into account the claimant’s high blood pressure and upwards for her non-smoking status. The result being that the Ogden prediction had to be reduced by 3.29 years. His view was the post-accident life expectancy was reduced by the head injury and stood at 15.08 years, a reduction of 5.08 years.

The case management conference

At the case management hearing listed by the court, the claimant resisted permission being given for the defendant to rely on Professor Bowen Jones’ report, on the basis that life expectancy evidence should remain with the clinical experts (in this case a neurologist) and that it was only appropriate to get this evidence where the claimant was atypical. The claimant’s pre-existing medical conditions did not make her atypical and there was therefore no basis to deter from the Ogden tables. The defendant argued that the claimant’s head injury did make her atypical and that not all clinical experts were able to deal with life expectancy.

The court’s decision

The court refused the defendant permission to rely on the report prepared by Professor Bowen Jones. The Judge took the view that the correct process in personal injury cases is to use the Ogden tables, which had been prepared considering a wide ranging cohort and therefore deliver broad justice in personal injury matters. The caveat to this position being that evidence could be required if the claimant was atypical.

The Judge accepted that on Dr Sylvester’s view the head injury has had an impact on life expectancy, but that Part 35 questions should have been put to Dr Sylvester before canvassing a further expert opinion. The Judge took the view that the issue of life expectancy was for the clinical expert to deal with in the first instance and only if they could not offer an opinion on life expectancy, should bespoke evidence be sought.

The defendant was therefore refused permission to rely on Professor Bowen Jones’ report. They should have put questions to the clinical experts who could then have offered a ‘top down’ approach to the Ogden tables.

Hammond v SIG plc & Subsidiary Companies [2019] 6 WLUK 151

The claimant’s personal injury claim settled on acceptance of a Part 36 offer. The issue for the court to decide was whether the claimant should recover fixed recoverable costs or costs on the standard basis.

The claim

The claimant’s accident occurred on 6 June 2013 but a letter of claim was not sent to the insurers until 23 November 2015, due to difficulties identifying the driver. At the time of submitting the letter of claim, the claimant’s solicitors indicated that the claim would not be submitted via the portal due to the potential value of the claim. The defendant however requested that the claim be submitted via the portal. The claimant’s solicitors agreed to do so, despite commenting that they thought the claim may fall outside the portal due to the injuries sustained.

The claimant’s claim was submitted to the portal, despite the claimant’s solicitors believing this was a multi-track claim. The claimant’s claim subsequently dropped out of the portal and proceedings were issued. The defendant made a Part 36 offer in March 2017, prior to the directions hearing and offered to pay costs in accordance with 36.13/36.20. The claimant’s solicitors wrote in their reply that the claimant would accept the sum of £36,500 on the basis the costs were paid on the standard basis.

The claimant’s bill of costs totalled £57,831.90, but the defendant argued that the claimant could only recover fixed costs under Section IIIA of CPR 45.

The arguments

The claimant sought to argue that the claim did not start under the RTA protocol, as it started by way of a letter of claim. The claim could not therefore be subject to the fixed recoverable costs as it did not start in the Portal. The defendant argued that the claim did in fact start under the RTA protocol, as it is not possible for a claim to fall out of the Portal, which in this case it did, if it has never started under it.

The court took the view that the claimant’s interpretation had to be incorrect, as a claimant could bypass the provisions Section III A of CPR 45 simply by sending a letter of claim and then entering the claim on the portal. The Court therefore held that from the moment of entry of any claim into the Portal, the CPR 45 fixed costs regime apply.

The findings

The court found that there was never any common understanding between the parties that standard costs should apply. On receipt of the letter of claim, the claimant’s solicitors were asked to enter the claim on the Portal. The court held it was the claimant’s solicitors judgment whether to do so and having entered the claim on the Portal, and that the only common understanding that could be found was that the claim should proceed through the Portal. Costs were not discussed as part of that decision.

Turning to the Part 36 offer, the court held that the defendant had offered to pay fixed recoverable costs. The court took the view that the claimant’s attempt to change the term of the offer had no bearing, as Part 36 is a self-contained code and the contractual principles do not apply. The court therefore applied the fixed recoverable costs set out in Section III A of CPR 45, as the matter had not been allocated to the Multi-Track.

Hanson & others v Carlino and another (2019) - Unreported

The claimant made an application to the court to issue a bench warrant against the defendant, in order to compel him to engage in the proceedings.  

The claimants alleged that the defendant had stolen or misappropriated £2million arising from a transaction involving resale of properties in London. Proceedings were issued and proprietary order in favour of the claimant over the defendant and his company was granted.

The defendant denied that this order had been received and a further order for substituting service, relating to the defendant’s email address. The court ordered that unless the defendant comply with the order to provide information, he would be required to attend court on 3 May to be cross-examined. The claimants had notified the court that they were concerned about the defendant’s history of non-compliance and as such, they did not believe he would attend on 3 May. They therefore issued an application for a bench warrant, to secure the defendant’s attendance at the hearing.

The claimants counsel stated that the step of issuing a bench warrant was an extreme one, but accepted that this was an appropriate case for it. There did not have to be a contempt of court to issue the warrant.

The defendant had in fact received the application and instructed solicitors to confirm his attendance on 3 May and explain that the bench warrant was not necessary. The defendant had however given falsehoods to the firm of solicitors in respect of the service of the application. This was pointed out to the firm of solicitors who confirmed they had not had chance to take instructions on a retainer before the application hearing, but that the defendant would attend as a litigant in person.

The defendant nevertheless, failed to attend the hearing of the application, despite confirmation from his solicitors that he would do so. The court was therefore content that the defendant’s actions and conduct in the matter, taking into account the number of untruths that have been submitted on his behalf, would not attend the hearing on 3 May unless a bench warrant was issued. The warrant was therefore issued, and the defendant arrested to attend court and give evidence.

Seekings and others v Moores and others [2019] EWHC 1476 (Comm);

The defendant applied to the court to revise his cost budget by the sum of £130,009 due to significant developments in the litigation.

The court had to assess whether it was within their power to revise the budget when the majority of the increased costs had been incurred and whether there had in fact been any significant developments.

The parties initially submitted costs budgets to deal with the litigation and an associated unfair prejudice petition. The parties agreed their costs budgets and at the Cost and Case Management conference, the agreement was recorded, with no budgeting being undertaken. The court subsequently ordered that the defendant respond to the claimant’s Request for Further Information, something which had been envisaged in the assumptions on the defendant’s budget.

The defendant however wrote to the claimant indicating that the extra time spent dealing with the Request for Information and disclosure as a result, meant that the budget was going to need to be revised. The claimant responded and queried why the budget needed to be updated as there did not appear to be any significant changes in the case. The claimant also queried why the incurred costs had been revised, as the court could not consider those.

The claimant sought a 33% increase in their budget, of which only 4% appeared to be left to be incurred, as the defendant had in fact already done most of the work.

The court looked firstly at whether there had in fact been any significant developments that required revision of the budgets. The court took the view that development meant something that had happened since the time of the last budget. Whether this was significant was a matter of fact depending on the circumstances of the case.

The court held the following:

Disclosure

The continuing costs of maintaining an electronic platform should have been anticipated at the time the budget was drawn. The work carried out as a result of the Request for Information should also have been encompassed in the budget, as these were received before the budget was submitted. His failure to respond adequately to these requests should not give rises to an increase to the costs he can recover. The defendant sought to argue that there was an increase in the number of documents produced. As a result of the Request for Information, the defendant stated the documents had increased, but the court held that this would have been in the defendant’s knowledge, as they were their documents and they should have budgeted for it. This was not a reason to revise the budget.

Expert evidence

The defendant argued that the increase in documents had led to the expert’s fees increasing. The defendant had also changed their expert as a result. The court took the view however that the increase in documents should have reasonably been anticipated and did not warrant an increase.

Statement/Issue of Case

The defendant sought to argue that the list of issues had not been finalised and that as a result of the Request for Information, the list of issues was likely to extend. This required additional work. The court however held that the claim was of the type whereby list of issues would be commonplace and the defendant should have therefore anticipated this in their budget. There was therefore no reason to revise the budget.

Interim applications

The defendant argued that the interim applications in this matter were a significant change and were not anticipated when the budgets were set. The defendant argued that extensive work had to be done as a result and therefore the budgets should be revised. The court accepted that on occasions interim applications could change the scope of a case, but in this matter, the work had arisen out of the defendant’s decision to resist the applications and failure to answer the Request for Information adequately. This did not therefore warrant a revision of the budget.

The defendant’s application was therefore dismissed, and the revised budget was refused. The court did not consider the jurisdiction point as it was not necessary to do so.

OTHER NEWS

Property damage “will be covered” by whiplash regime

The MIB have confirmed that the whiplash portal will also cover property damage. The Ministry of Justice policy states that the new portal system must capture heads of claim related to property damage, personal injury and uninsured losses. There is currently no more detail on the design of the system but it appears as though credit hire claims could fall within the portal.

Amendment to the Social Security Contributions and Benefits Act 1992

The government has established the Children’s Funeral Fund for England which will meet the charges for cremation or burial of a child under 18. The government will also now contribute £300 to a coffin, shroud or casket in addition to the charges of the service.