piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Holding out for the Heroism Bill

The Social Action, Responsibility and Heroism Bill (dubbed by some the “Sarah Bill”) is being returned to the House of Commons, with amendments, following its final reading in the House of Lords on 6 January 2015. The much-maligned and exceptionally brief Bill seeks to introduce a requirement that courts deciding negligence and/or breach of statutory duty cases and in determining the standard of care give consideration to whether the activity or omission complained of was for the benefit of society, whether the person carrying out the activity demonstrated a “predominantly responsible approach” in protecting a person’s safety or other interests and whether (in emergency situations) the person intervened “heroically”.   Clause 4 in particular makes clear that the Bill is aimed predominantly at personal injury cases, although it will apply to non-personal injury cases. Critics of the Bill have suggested that it is largely being promoted by the Government to further protect employers and to appease the insurance industry. Indeed, the Bill has been criticised on several grounds, mostly as being a mere publicity stunt by the Government but also for its vagueness. The Sarah Bill is designed to afford greater protection to volunteers and employers who might otherwise be deterred from performing worthwhile deeds or organising events due to the risk of finding themselves on the end of a negligence claim. The Bill survived an attempt in December 2014 at the Second Reading to remove most of its (four) clauses. At the Third Reading, clause 3 (the social responsibility clause) was amended such that (in assessing the standard of care) the individual’s approach towards protecting the safety and interest of others must have been “predominantly”, rather “generally”, responsible. Clause 4 was also amended, removing the words “and without regard to the person’s own safety or other interests” to make clear that the clause applies equally to those cases where the person (sorry, hero(ine)) assess  the risks to their own safety or other interests before intervening (as well as those where they did not assess the risks). The amended Bill will be considered by the House of Commons on 2 February 2015. If the Bill is passed, there are potentially difficult questions for the judges on the ground to answer. The Bill is somewhat unhelpfully brief and uses terms which are somewhat “foreign”. The first difficulty is going to be determining when a defendant’s action was “for the benefit of society or any of its members.” The clause has a potentially enormous scope. Employers, particularly in the public sector, are likely going to try to fit themselves under this clause. But even if they do, you may well ask, so what? It is only a factor for the judge to consider and is by no means a defence. There is no indication of what weight, if any, judges will place on this factor. Judges will also have to decide on what is meant under clause 3 by a “predominantly responsible approach” in protecting the safety or other interests of others. Again, the potential scope of the clause is vast. Will it apply, for instance, to all medical professionals? Will it apply to any attempt by an employer to introduce some health and safety measure? And what is the tipping point for an approach to be categorised as “predominantly responsible”? There is potential for a stream of cases on that issue alone, unless of course there is a judicial reluctance to engage with the clause and it goes the way of section 1 of the Compensation Act 2006. It is also questionable how many cases will fall under clause 4 (the heroism clause). But for those that do, what do we mean by acting “heroically”? This is an entirely foreign legal concept and is open to a sliding scale of judicial interpretation.  Are doctors acting “heroically” in emergency situations or will the clause only apply to the volunteer, have-a-go hero(ine) which the Government seems to have intended? The Bill, as is stands, is brief, vague and uses terms to which the legal world is not accustomed. Although cases might throw up interesting questions on how to interpret the Bill, one has to wonder whether it will all be for nought. Chris Grayling MP himself has said, "The bill will not change this overarching legal framework, but it will direct the courts to consider particular factors when considering whether the defendant took reasonable care." If judges do not engage with it or consideration of these particulars factors makes no material difference in practice, will defendants even bother to try to fit their cases under one of the clauses? Much like section 1 of the Compensation Act 2006, it will be judicial appetite that determines how effective the Bill’s clauses become. Given the criticism of the Bill in judicial circles, do not expect that appetite to be very strong.  

Exit Mitchell enter Denton

Our jurisdiction generally does not favour laws (whether judge- or parliament-made) which fail to take account of what is just in the individual circumstances of the particular case. The common law prides itself in being able to adapt to new situations to yield what we would generally understand to be the ‘right’ result. This is a priority of our legal system and Mitchell fell foul of it – whether because it overstepped the mark in the first place or whether because it was wrongly interpreted. It is a strength of our system that it has been able to correct itself within such a short space of time. Exit Mitchell and enter Denton (or perhaps it will become known as ‘Decadent’). The Court of Appeal explains that when approaching rule 3.9 the first stage is to identify and assess the seriousness and significance of the ‘failure to comply with any rule, practice direction or court order’. If the breach is neither significant nor serious then there is no need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate ‘all the circumstances of the case, so as to enable [the court] to deal justly with the application including [factors (a) and (b)]’. The assessment of ‘seriousness and significance’ is substituted for the ‘triviality’ test. The Law Society had contended for a test of ‘immateriality’. The Court of Appeal was content with this as long as it involved not just a question of whether trial dates were affected but also the effect on litigation generally. Because this test did not take account of breaches which were serious but did not affect the efficient progress of the litigation, the Court preferred to stick to whether or not the breach was ‘serious or significant’. At this stage unrelated past failures should not be taken into account. The second stage is to consider why the default occurred. The examples in Mitchell are to be considered as no more than examples. When it comes to the third stage, if there is a serious or significant breach and there is no good reason for it the application will not automatically fail but the court will consider ‘all the circumstances of the case, so as to enable it to deal justly with the application’. The Court of Appeal rowed back from the epithet ‘paramount importance’ which had been attached to the only two factors expressly referred to in rule 3.9. They are now of ‘particular importance’ and should be given particular weight when all the circumstances of the case are considered. The Court of Appeal is on a tight rope. Its aim is evidently to avoid relaxation which 'will inevitably lead to the court[s] slipping back to the old culture of non-compliance which the Jackson reforms were designed to eliminate.' Equally it wants to put an end to the plethora of decisions which have come from some judges which are 'manifestly unjust and disproportionate'. Whether Denton will achieve that remains to be seen.

A defendant's nightmare?

  A Defendant’s Nightmare?   Sarah Davison would normally get to her desk by 6 a.m., work for twelve hours and often head out thereafter to meet and entertain clients. Sleep felt like it was secondary to achievement. She worked in a macho environment and her boss was a man who, in the words of Andrews J, “does not suffer fools gladly, or indeed at all”. But Mrs Davison was well-paid: at the time she left on maternity leave to have her first child she was earning over £200,000 a year. When, after giving birth to that child, she suffered a career-ending injury as a result of clinical negligence, the resulting claim was always going to be of the size that makes defendants and their insurers wake up in a cold sweat in the middle of the night.   Andrews J’s judgment on damages (Sarah Davison v Craig Leitch [2013] EWHC 3092 (QB)) makes interesting reading. A court called upon to assess loss of earnings in such a situation is engaged in a difficult exercise, perhaps best characterised, to borrow one of my favourite judicial dicta of Lindsay J, as “a glance at a crystal ball of, so to speak, only a low wattage” (see Douglas v Hello! Ltd (No.5) [2003] EWHC 786 (Ch)). There are often a number of variables and changing any one of them can have a significant effect on the ultimate award.   One approach is to consider a number of possible scenarios, determine the probability of each of them occurring, and then multiply that figure by what would have been earned in each scenario; that can sometimes be the only way to do justice, particularly where a person had a chance of a “big break” which, had it occurred, would have lead to very significant rewards. The kick-boxing claimant in Langford v Hebran [2001] PIQR Q13 is a good example of this approach being applied; it works best where there are a limited number of clearly defined possible scenarios; where they are more numerous, or the lines between them more blurred, the calculation can become unwieldy.   The more traditional approach, and the one adopted by the court in Davison, is simply to make a best guess as to how the claimant’s career would have progressed absent the tort. This will inevitably involve scrutiny of the claimant’s pre-accident career and abilities. Andrews J was clearly impressed by the evidence on this point of Mrs Davison’s ex-boss, a man so busy he had to give evidence “via video link ... en route to catching a plane”. There may also be a need, particularly in a volatile or cyclical industry such as financial services, to assess what the future demand would have been for a person’s services.   Andrews J broadly accepted the Claimant’s evidence on these two points; where she differed was as to the likelihood of the Claimant continuing in her pre-accident role as an equities trader once her three children were born, holding “it highly unlikely that when Mrs Davison returned to work after her maternity leave ... she would have had the appetite to return to the stresses of the trading floor and face the prospect of never seeing her three small children during the week ... However much she would like to believe otherwise, in my judgment it is far more likely that she would have moved to a less stressful position within the bank, involving shorter working hours.”   The judgment is also interesting for its award of £6,500 for loss of congenial employment. Given the description of Mrs Davison’s working life at the start of this post, one may well question whether it can really be described as “congenial”. Andrews J justified the award on the basis that Mrs Davison’s “future is uncertain and any work she does undertake in future is likely to be fairly solitary and considerably well paid”. This is curious reasoning. The fact that the Claimant was likely to be paid less was, of course, compensated by an award for future loss of earnings. It might be said that her earnings are relevant to what was in effect an award for loss of status, but here again surely one has to look at all the circumstances of her pre-accident employment. Andrews J found as a fact that the most likely future for the Claimant would be running her own small business, possibly as an interior designer. Of course, that would lack the stimulus and status of a job in the City, but it would also lack its stresses and uncertainties. Can it really be said, taking everything into account, that the Claimant’s overall quality of life would undoubtedly be the poorer? Less well-paid, certainly; but less congenial? - it is perhaps to be doubted. There is a danger that awards under this head will become routine in all cases where a claimant is unable to pursue their chosen career. Perhaps the Law Commission’s suggestion that this should not be a separate head of damage at all, but rather should be considered as part of the award for PSLA, deserves reconsideration.        

The Length of Judgments and the Cost of Litigation

For a number of reasons, the cost of litigation is a hot topic at the moment.   Lord Justice Mummery in giving the lead judgment of the Court of Appeal in Neumans LLP v Andrew Andronikou & Ors [2013] EWCA Civ 916, suggested a way that he and his brethren could assist in ensuring that legal costs are kept to a minimum by judges keeping their judgments as short as possible.   He held that this would (at paragraph 40 of the judgment) “stem the soaring costs of litigants when their advisers have to spend too long working out what the law is. They may be faced with a multiplicity of separate, complex, discursive and (increasingly, imitating the style of subordinate legislation) cross-referential judicial pronouncements at different levels of decision, or at the same level of decision, but sometimes leading to the same overall result.” In this case which concerned a solicitor’s costs generated by the liquidation of Portsmouth Football Club, the Court of Appeal upheld the judgement below of Mr Justice Morgan.   Lord Justice Mummery asked (at paragraph 36): “What sensible purpose could be served by this court repeating in its judgments detailed discussions of every point raised in the grounds of appeal and the skeleton arguments when they have already been dealt with correctly and in detail in the judgment under appeal? No purpose at all, in my view.”   He advocated (at paragraph 37) that courts should follow the “excellent lead” of Lord Wilberforce in Brumby v Milner (1975) 51 TC 583. In this case, Lord Wilberforce (with whom the rest of the court agreed) gave a single page opinion In a one-page tax opinion, stating that he would go no further in stating the law than the Court of Appeal had done below (who themselves affirmed the judgment of Walton J at first instance).    Lord Justice Mummery continued (at paragraphs 38-39):   “… The proper administration of justice does not require this court to create work for itself, for other judges, for practitioners and for the public by producing yet another long and complicated judgment only to repeat what has already been fully explained in a sound judgment under appeal. If the judgment in the court below is correct, this court can legitimately adopt and affirm it without any obligation to say the same things over again in different words. The losing party will be told exactly why the appeal was dismissed: there was nothing wrong with the decision appealed or the reasons for it.”    “… It can do so, as in an old style judgment, by setting out short legal propositions relevant to this case and the conclusions reached by applying them in this case. It does not begin to attempt to cover all the law on administration and liquidation expenses. That would not be a proper exercise in a judgment.”

Lights, Camera … Appeal!

    It’s Channel 4’s fault!   Was it just coincidence that on 10 July, the day after “The Murder Trial” was first screened on television, the Court of Appeal (Recording and Broadcasting) Order 2013 was published?   Or that yesterday (17 July) saw the release of the Crime and Courts Act 2013 (Commencement No 3) Order 2013 which, amongst other things, permits the Lord Chancellor by order to enable the making and use of films and other recordings of proceedings in courts in England and Wales?   Nick Holt's documentary concerned the retrial of Nat Fraser for the murder of his wife, Arlene, in Scotland. Mr. Fraser had already been tried and found guilty but in 2011 his conviction was quashed by the Supreme Court and the Channel 4 film followed his retrial.   Compressing a five week trial into two hours was always going to be challenging. Six remote cameras were placed inside the courtroom in Edinburgh with the consent of all the parties including Mr. Fraser who was re-convicted for the murder of his wife whose body has never been found after she went missing in 1998.   The public can already watch proceedings in the Supreme Court. The new Order sets out the conditions under which broadcasters in England and Wales will be able to film in the Court of Appeal later this year.   Currently, section 41 of the Criminal Justice Act 1925 makes it an offence to film in court and section 9 of the Contempt of Court Act 1981 makes it a contempt of court to record sound in court except with the permission of the court. The new Order provides that these provisions do not apply where the conditions in the Order have been satisfied. There is power in the Order to prescribe the types of hearing that can be recorded, what part of the hearing can be recorded and who can record a hearing. There is also power to set out when the recording of a hearing in the Court of Appeal can be broadcast and what content is permitted in a broadcast.   In “The Murder Trial” I thought Mr. Fraser's defence team did a pretty good job on his behalf. However, dramatic compromises were still necessary. These included the action in the court room being interspersed with shots of isolated forest tracks and a soundtrack clearly chosen to ratchet up the tension and anxiety.   Personally, I get all the tension and anxiety I need just by being in the Court of Appeal but when drafting my next skeleton argument, I will definitely give some thought to the music to go with it … just in case!          

Litigants in Person, the Judges and You!

      According to the government's own figures, 623,000 of the 1,000,000 people who previously received public funding each year ceased to be eligible for such assistance when the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 came into force on 1 April 2013.   On 5 July 2013 the Judicial Working Group on Litigants in Person (LIPs) published its report on how the judiciary proposes to deal with the massive increase in LIPs in courts and tribunals. It merits careful reading by all practitioners.    www.judiciary.gov.uk/Resources/JCO/Documents/Reports/lip_2013.pdf    The challenges are immense and will be further increased by the impending rise in the financial limit for the small claims track from £5,000 to £10,000. A doubling of this limit will inevitably mean more cases fall within the small claims track where public funding is not available. As for alternative sources of assistance, the Citizens Advice Bureau estimates that local advice and community based services will lose over 77% of their public funding.    In 2012, District Judge Richard Chapman, the immediate past president of the Association of Her Majesty’s District Judges observed that already:   “Judges like me are spending more and more of our time having to deal with litigants who simply do not know the law, have never heard of the Civil Procedure Rules 1998 or the Family Procedure Rules 2010 and have breached most of the case management directions”.    The report recommends that the Ministry of Justice and Her Majesty’s Court and Tribunal Service should devote the necessary time and resources to producing, with judicial involvement, appropriate materials, including audio-visual materials, to inform LIPs what is required of them and what they can expect when they go to court as well as reviewing the information that is currently publically accessible on the various judicial websites – see [2.8] and [3.49-3.52] of the report.   The Judicial College should also urgently assess the  feasibility of providing training on LIPs –  a sort of “Quick Lit” course for judges – together with developing a  “litigants in person toolkit” utilising the existing judicial guidance – see [2.9] and [4.9-4.19] of the report.   More far reaching proposals include:   1.      The inclusion in the CPR of a dedicated rule which makes specific modifications to other rules where one or more of the parties to proceedings is a litigant in person.  2.      The introduction of a power into Rule 3.1 CPR to permit the court to direct, where at least one party is an LIP, that proceedings should be conducted as a more inquisitorial form of process.  3.      The introduction of a specific general practice direction or new rule in the CPR to address, without creating a fully inquisitorial form of procedure, the needs of  LIPs in obtaining access to justice whilst enabling  courts to manage cases consistently – see [2.10] and [5.11] of the report.    The stark reality is that in some courts and tribunals LIPs will be the rule rather than the exception. This will inevitably slow down and drive up the cost of proceedings and take up valuable judicial time. Equally inevitably, the call will surely go out from the judges to practitioners at all levels for assistance in responding to the challenges that lie ahead.   Image – www.123rf.com

The Rolls Royce of hire claims...

  This is the latest round in the Court of Appeal in the battle over car hire (Singh v Yaqubi [2013] EWCA Civ 23). The rear door of Mr Singh’s Roller was dented in a road traffic accident. The car took 54 days to repair and the hire bill claimed from the defendant was £92,953.90. Mr Singh was in partnership with Mr Thakrar in a property development business and the Rolls Royce was one of the fleet of seven vehicles owned by the partnership. The judge dismissed the hire claim in its entirety. In doing so he admitted to anxious thoughts about ‘whether the ever increasing insurance premiums of the ordinary motorist, particularly one struggling to make ends meet and needing a modest car to go to work, should in some part be used so that the rich may continue at no expense to themselves to be filled with good things that they think they need.’ In response to Mr Singh’s case that he used the Rolls Royce ‘to maintain the correct impression’ in the circles in which he did business, the judge commented ‘well, what a testament that is to the superficial if not false nature of the warped values of society…’ The Court of Appeal discouraged such comments but concluded that the manner and openness of their expression encouraged a conclusion that the judge was well aware of his responsibility to decide the case on legal principles and in accordance with the evidence. The Court also dismissed the remainder of the appeal concluding that the burden was on the claimant to show a reasonable need for a replacement Rolls during the period of repair. The required need was the need of the partnership and that need was not self-proving. If need is not proved then questions arising out of the reasonableness of measures in mitigation do not arise. That principle had not been weakened by cases following Giles v Thompson.  An important point to note is that the need was put in issue in the defence. It was for the claimant to establish it and if successful, the defendant would have had to show that it had not been met in a reasonable manner. The Court commented that very large hire claims should be scrutinised very carefully. The judge was entitled to require specific evidence of need such as evidence of the actual use of the vehicle for business purposes before the accident and the use to which the hired vehicle was put during the period of hire. This is a helpful case for defendants where a large hire claim is made on the basis that the vehicle is needed for business use. However the Court contrasted business use with a claim by a private motorist. The evidential threshold for the private motorist to establish reasonable need is much lower. The court cited Lord Foscote in Lagden:  he said such a motorist may not be able to predict what particular use will be made during the period of hire; it may just be about convenience and not avoiding some financial loss he or she might otherwise have incurred. The battles continue…. (Image Courtesy of www.freefoto.com)