piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Late amendments, strike outs, summary judgment & remote heads of loss

  The High Court has recently handed down judgment in Gonul Guney v Kingsley Napley & Anor [2016] EWHC 2349 (QB). This was a professional liability claim based on the Claimant's retainer of the Defendant solicitors, in respect of litigation concerning the estate of the Claimant’s father. It touches upon a number of issues of interest to those involved in a broad range of civil litigation.   Mrs Justice McGowan recited that in very simple terms that action is based on the Defendants' alleged negligence, it having been alleged that had she been properly advised the Claimant would have settled a claim brought by a third party at a much earlier date and thereby avoided liability for the Defendants' costs after that date as well as those of the said third party.   The court was faced with cross applications: By an application issued on 12 April 2016, the Defendant “applied for summary judgment against and/or to strike out of parts of the claim in relation to various heads of loss...” The Claimant “[a]s late as 31 August 2016... served an application for permission to re-amend the Particulars of Claim. By this new application she seeks to introduce two new aspects to the claim.”   The Claimant argued that the proposed amendments should not be regarded as truly late, as they would not cause the trial to be derailed, that the same would only have limited impact on the case, and turn on factual evidence from the Claimant and family members, and the same were necessary to ensure justice is done between the parties.   The Defendant diametrically-opposed submissions were that the proposed amendments were both fundamental and too late. In addition, they submit that there are entirely at odds with the pleaded case.   McGowan J produced a summary of the law pertaining to such applications:   “The imperative of strict adherence to the rules of procedure governing the conduct of litigation has changed substantially in recent years. ... Inaction or flawed action can now be penalised even without proof of serious consequential effect on the litigation [Mitchell and Denton considered] ... Delay will meet with less tolerance and intervention to ensure that only those matters which should be litigated are... The rules are not inflexible but will be enforced strictly, more strictly than before...” (paragraph 17)   “It is a balancing act between competing factors and is a matter of discretion. ... It is no longer acceptable to use the test advanced by the Claimant in this case that if the trial date can withstand the amendments, they should be allowed without more. If the date fixed for trial is to be lost, then the factors would need to be extremely compelling. ...” (paragraph 18)   “In this application there is no reason given for the lateness of the proposed amendments. Nothing is raised in the application that could not have been pleaded in the original or amended Particulars of Claim. No explanation is given for the omissions or the delay...” and that the point was of great significance and if allowed “[t]he entire nature of the litigation would have been different” (paragraph 19)   It was not accepted “that all evidence, factual and expert can be obtained and exchanged within a timeframe that does not imperil the trial date...”  (paragraph 20)   “A compelling factor, capable of determining the outcome is much more likely to be admitted that a "kite being flown" in forensic terms” and “There is nothing compelling in the amended claims that would be pursued if these amendments were allowed” (paragraph 21)   The learned judge held as to the Claimant’s application to amend was manifestly made as a reaction to and in an attempt to defeat the Defendant’s Applications, and were “misconceived and much too late in the protracted history of this litigation” (paragraph 26).   In respect of the Defendant’s Applications, it was held that its applications for summary judgment and/or strike out are made in good time.   The court gave summary judgement as to two aspects of the claim relating to whether the Defendant breached its fiduciary duty and an alleged lost opportunity to share in the increase in value of estate property.   The Court struck out the claim for loss of profits brought by the Claimant (a solicitor herself) to her own practice in assisting the gathering of evidence for the case. It was held that the Defendants had not “been put on notice that this was having a detrimental effect on her own practice and it was never in the contemplation of the parties that they had assumed such a risk. Even if they had been made aware of such a risk it is too remote from the duties they assumed to include this. In any event this has never been particularised and still remains an assertion without evidence.” (paragraph 24)   The Court also struck out the claim for damages for stress and inconvenience. It held “Such general damages are irrecoverable. This was a not a contract for the provision of a holiday, a pleasurable activity relaxation or peace of mind. ... This was a contract to act in relation to a family dispute over inheritance matters. It is too remote to say that solicitors conducting litigation assume liability for the stresses that that imposes on the litigants involved. It is difficult to imagine what would happen to litigation if there was such a general duty. The Claimant denies that this is a personal injury claim and relies on Malyon v Lawrance, Messer & Co [1968] QBD 2 539 but that was a case in which the litigant claimed damages for the aggravation of his injuries by the solicitors' negligent delay when those injuries were the cause of action in the case. This claim discloses no reasonable ground and has never been particularised.”   The judgment is available at http://www.bailii.org/ew/cases/EWHC/QB/2016/2349.html.

Getting your hands on an undisclosed expert report and more

When the other side wants to change expert are you entitled to their original expert’s reports and other documentation containing the substance of the expert’s opinion? This was the question considered in the case Allen Tod Architecture v Capita Property and Infrastructure Ltd ([2016] EWHC 2171). Unsurprisingly the claimant in that case resisted disclosure on the grounds that the documents and reports sought were privileged. The claimant had grown exasperated by his expert’s delays and shortcomings and so turned to an alternative expert. At paragraph 32 of his judgment the judge set out the authorities and principles to be applied when considering whether to grant permission to a party to change expert:  (1) The court has a wide and general power to exercise its discretion whether to impose terms when granting permission to a party to adduce expert opinion evidence (2) In exercising that power or discretion, the court may give permission for a party to rely on a second replacement expert, but such power or discretion is usually exercised on condition that the report of the first expert is disclosed (and privilege waived - see Vasiliou v Hajigeorgiou [2005] 1 WLR 2195) (3)  Once the parties have engaged in a relevant pre-action protocol process, and an expert has prepared a report in the context of such process, that expert then owes a duty to the Court irrespective of his instruction by one of the parties, and accordingly there was no justification for not disclosing that report as a condition for changing expert (see  Edwards-Tubb v JD Wetherspoon plc [2011] 1 W.L.R. 1373 – a PI case)  (4) The court's power to exercise its discretion whether to impose terms when giving permission to a party to adduce expert opinion evidence arises irrespective of the occurrence of any ‘expert shopping’. It is a power to be exercised reasonably on a case-by-case basis, in each case having regard to all the circumstances of that particular case.   (5) The court will require strong evidence of ‘expert shopping’ before imposing a term that a party discloses other forms of document than the report of expert A (such as attendance notes and memoranda made by a party's solicitor of his or her discussions with expert A) as a condition of giving permission to rely on expert B (see (BMG (Mansfield) Ltd v Galliford Try Construction Ltd  [2013] EWHC 3183)  In the case of Allen Tod itself the judge found that there was no real reason for making a distinction between the expert’s final report, draft or provisional reports or other documents setting out his opinion: neither would have been discloseable if the expert had remained the claimant’s expert. He ordered disclosure of the original expert’s notes and preliminary report as a condition of permitting the claimant to rely on the new expert and he also ordered disclosure of any document in which the original expert had provided his opinion. To the extent any other material was contained in any such document, it was to be redacted before disclosure.

PI claim by tenant: SC overules CA and Dowding & Reynolds

For years tenants have relied upon Brown v Liverpool Corporation [1969] 3 All ER 1345 when suing landlords for damages for personal injury caused by an accident on external steps or a front path leading to the front door of a house. In that case the Court of Appeal held that the steps were part of the exterior of the dwelling-house. In the case of Edwards v Kumarasamy [2016] UKSC 40, the Supreme Court held that decision was wrong. The case of Edwards involved a subtenant being injured when he tripped on an uneven paving stone on the paved area between the main entrance to the block of flats and a carpark. The subtenant brought proceedings against his landlord (the headlessee) claiming his injury was caused by his landlord’s failure to keep the paved area in repair in breach of the covenants implied into the subtenancy by section 11(1)(a) and 11(1A)(a) of the Landlord and Tenant Act 1985. Section 11(1)(a) of the 1985 Act implied a repairing obligation into the subtenancy “to keep in repair the structure and exterior of the dwelling-house…”. Section 11(1A)(a) required section 11(1)(a) to be read as if it required a landlord “to keep in repair the structure and exterior of any part of the building in which [he] has an estate or interest.” Presumably influenced by the decision in Brown, the Court of Appeal had held that the path leading from the car park to the main entrance was “a part of the exterior of the front hall”. Lord Neuberger PSC said that ordinary language simply did not permit the path to be described in this way. He said “it is hard to see how a feature which is not in any normal sense part of a building and lies wholly outside that building, and in particular outside the floors, ceilings, walls and doors which encase the front hall of the building, can fairly be described as part of the exterior of the front hall.” Lord Neuberger was not persuaded that the words should be given a wide effect in the light of section 11(1A)(a). Having decided that the path was not a part of the ‘structure or exterior’ of the dwelling house the Supreme Court needed go no further. It did however go on to consider whether the landlord/headlessee had an “estate or interest” in the front hall. He had been granted a right of way over the front hall by the headlease and as a matter of property law, that constituted an interest in land (although not an estate). It was argued that the landlord/headlessee had, for the purposes of s.11(1A)(a), effectively disposed of his right of way to the tenant under the tenancy. This argument was rejected preserving the liability of the landlord/headlessee for disrepair in the common parts. Lord Neuberger said that s.11(3A) would have offered him some protection in that he would not have been liable for disrepair without prior notice. The final issue considered by the Supreme Court (again, not technically necessary due to its initial finding) was the question of notice. The court reiterated the law as it stands. The general principle is that a repair covenant effectively operates as a warranty that the premises will be in repair. As soon as premises are out of repair, the covenantor is in breach irrespective of whether he has had notice or whether he has had time to remedy the disrepair. There are exceptions to this general rule, one of which is that a landlord is not liable under a covenant with his tenant to repair premise which are in the possession of the tenant and not the landlord, unless and until the landlord has notice of the disrepair. The court went on to consider what happens when the landlord has covenanted with one tenant to repair the structure but has let part of it to another tenant. In other words, what happens when property is in possession of neither the landlord or tenant? The answer is that the exception to the general principle does not normally apply: the landlord will be liable to the one tenant even though he is not in possession of the structure in concern and has had no notice from the other tenant. The final question on notice was whether s.11 always required it: in other words, whenever a tenant relies on the covenant implied by s. 11, is the landlord only liable when notice is given? The text Dowding & Reynolds, Dilapidations: The Modern Law and Practice, 5th ed (2013) supported the landlord’s submission that notice was required when a tenant relied upon the s.11 covenant. The Supreme Court thought otherwise. The s.11 covenant was to be interpreted and applied in precisely the same way as a landlord’s contractual repairing covenant.

Inadequate bundles: a costly mistake...

The July edition of Civil Procedure News reports a case in which a claimant's bundles were inadequate, two applications were adjourned and the claimant was ordered to pay the costs of producing properly prepared bundles and the costs thrown away as a result of the adjournment. The claimant had brought three applications for summary judgment on three separate claims. Two of the applications were supported by a witness statement which had 750 pages of exhibits. The judge criticised the lack of pagination and the fact that many of the exhibits were not placed in the bundle where they were stated to be in the witness statements. The inadequate pagination meant that the time-estimate for pre-reading and the hearing was inadequate. The judge found there had been a breach of the Overriding Objective (managing the courts resources proportionately). PM Project Services Limited v Dairy Crest Ltd [2016] EWHC 1235 is a sobering reminder of the potential consequences of poorly-prepared bundles. This decision comes hot on the heals of a decision earlier this year by the Court of Appeal. The editor of the Civil Procedure News draws attention to the decision in Pawar v JSD Haulage Ltd [2016] EWCA Civ 551 in which the Court of Appeal granted the respondent its costs of having to prepare appeal bundles as those submitted by the appellant were described as "chaotic".