piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Government Whiplash Reforms - On Hold?

The Law Society Gazette is reporting that the Justice Secretary is not intending to proceed with the personal injury reforms set out in last year’s Autumn Statement “at the moment”. We blogged on those proposals at the time here which, as a reminder, were that the small claims track limit should be raised to £5,000 and the removal of the right to general damages for minor soft tissue injuries. Apparently the MOJ has stressed that it is still committed to tackling the high cost of whiplash claims. The Gazette reports that fresh proposals are in the works and could be introduced by the end of the year. It seems the original proposals came very much from the Treasury rather than the MOJ so it will be interesting to see what the MOJ’s solution is. Hopefully they will find a formula which will satisfy everyone by effectively tackling fraud while maintaining access to justice. As ever, watch this space for updates.

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.