DIB October 2011 Edition by gegeshandong

VIEWS: 2 PAGES: 19

									                   DOLMANS INSURANCE BULLETIN

                        Welcome to the October 2011 edition of the
                              Dolmans Insurance Bulletin

                                    In this issue we cover:

REPORT ON

 A preliminary issue to the preliminary issues - S v Vale of Glamorgan Council

 Alleged bladder cancer due to work as a laboratory assistant in a power station -
     Thomas John Cottrell v RWE Npower plc

FOCUS ON

 The hurdle is high for Defendants - Sir Robert Lloyd & Co Ltd & Others v Bernard Hoey
     - date of knowledge and limitation in asbestos related disease claims

CASE UPDATE

   Civil procedure - Calderbank letters - part 36 offers
   Civil procedure - late acceptance of part 36 offers - discretion
   Civil procedure - committal for contempt
   Costs
   Damages
   Disclosure

COMING UP

 Training opportunities : details on tailor-made training seminars aimed at Local
     Authorities, their Brokers, Claims Handlers and Insurers

 Employment briefing and workshops : overview on employment briefings and half day
     workshops




If there are any items you would like us to examine, or if you would like to include a
    comment on these pages, please e-mail the editor, Justin Harris, Partner, at
                             justinh@dolmans.co.uk



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                         DOLMANS REPORT ON

                A PRELIMINARY ISSUE TO THE PRELIMINARY ISSUES

                               S v Vale of Glamorgan Council


          Instructions were received from the Vale of Glamorgan Council in connection with
          the above matter which had initially been dealt with in house by the Legal Services
          Department.

‘S’ brought a claim alleging that his property (a farm)
had been devalued by £350,000.00 as a result of an
Enforcement and Stop Notice being imposed upon
his waste transfer activities. The Notices were
issued pursuant to the Town and Country Planning
Act 1990. ‘S’ also claimed damages for loss of
earnings deriving from his waste transfer business,
however, the same was never properly
particularised and the extent of the same remains
unknown. Whilst the claim was poorly pleaded, the
essence of the argument was that both the
Enforcement and Stop Notice had not been validly
served. The Claimant could not accept that the
Notices were valid because if he did so there would
be no possibility of any claim.

The Local Authority’s Defence was that as a matter of fact, the Notices had been served, and
for ‘S’ to challenge the Planning Authority’s decision to issue the Notices would require the
leave of the High Court to apply for Judicial Review. It was also averred that ‘S’ was out of
time to appeal against the provisions of the Enforcement Notice with such an appeal having to
be made to the National Assembly of Wales.

The claim came before the Court on a Case Management Conference at which a number of
preliminary issues were identified being:

(1) Were the Notices validly served.

(2) If not properly served, what was their effect and what are the consequences of such failure
    on the claim.

(3) What is the effect of ‘S’ not taking the proper course to challenge the Notices.


In effect, the third point could be seen as asking whether or not ‘S’ had any cause of action in
the County Court.




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                         DOLMANS REPORT ON
                                                 The preliminary issues were listed for hearing,
                                                 together with consequential directions, which
                                                 included the exchange of Witness Statements.

                                                 ‘S’, in his Witness Statement, averred that as a
                                                 result of the Stop Notice, he had been
                                                 prevented from selling the farm to cover his
                                                 debts and had been declared bankrupt,
                                                 although had appealed. Investigations revealed
                                                 that ‘S’ had been made bankrupt approximately
                                                 2 weeks prior to the serving of the Stop Notice
                                                 and, further, that he was pursuing a number of
                                                 other claims.       His bankruptcy had been
                                                 discharged after 12 months.

                                                 In light of the bankruptcy, a further preliminary
                                                 issue was raised as to whether or not ‘S’ had
                                                 any cause of action and if the proceedings were
                                                 an abuse of process and/or a nullity.

Section 306 of the Insolvency Act 1986 makes it clear that the bankrupt’s estate vests in a
trustee immediately on his/her appointment. Section 283 defines the estate as including “any
property”, which by virtue of section 436 includes “….. money, goods, things in action, land …..
and every description of interest, whether present or future or vested in contingent, arising out
of, or incidental to, property”. “Things in action” includes any right to bring civil proceedings,
although there are a number of exceptions, including “pain felt by the bankrupt in respect of his
body, mind, or character, and without immediate reference to his right to property” which would
remain vested in the bankrupt. Obvious examples would include a defamation and assault.

Further, in Pickthall v Hill Dickinson LLP [2009], it was held to be an abuse of process for a
Claimant to start proceedings in respect of a cause of action which was not vested in him in the
hope that it would be assigned to him later.

It was, therefore, submitted that the action brought by ‘S’ was an abuse of process/nullity.

In view of the foregoing, we secured a letter from the trustee in bankruptcy confirming his views
that:

(1) The cause of action vested in the bankruptcy estate being an action based upon ownership
    of land.

(2) ‘S’ would not be able to bring the action in his own right.

(3) In the event that the action was successful, that any damages would be payable to the
    bankruptcy estate.




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                        DOLMANS REPORT ON




With regard to the other preliminary issues, substantive evidence had been collated proving
effective service both by way of Witness Statement and photographs showing copies of the
Notices to the main gate and all other obvious entries to the farm. The Notices were also
placed through the only letterbox at the property.


Whilst ‘S’ alleged that he had not received the Trial Bundle and Skeleton Argument at the
preliminary issue hearing, the reality was that he had previously seen all the documentation,
save for the Skeleton Argument. He was, therefore, allowed a short adjournment to consider
the same. The subsequent submissions of ’S’ that the trustee in bankruptcy had advised him
that he was able to bring this action, that the action was brought by him on behalf of his
company and that his claim did include an element of personal injury was not accepted by the
Court. It transpired that during the adjournment, ’S’ had persuaded his General Practitioner to
send a letter to the Court, however, the same was received too late and, in any event, personal
injury was not pleaded.


In light of the submissions made regarding the bankruptcy position, the Court was compelled to
conclude that in the absence of an assignment of the cause of action, the Particulars of Claim
had to be struck out, the claim dismissed, whilst also ordering ‘S’ to pay the Local Authority’s
costs. In light of this, the Court did not need to deal with the other preliminary issues.



                                                                                 Simon Evans
                                                                                       Partner
                                                                             Dolmans Solicitors


                  For further information regarding this article, please contact
                           Simon Evans at simone@dolmans.co.uk
                          or visit our website at www.dolmans.co.uk




                                        www.dolmans.co.uk                                          4
                               DOLMANS REPORT ON

                      ALLEGED BLADDER CANCER DUE TO WORK AS A
                      LABORATORY ASSISTANT IN A POWER STATION

                              Thomas John Cottrell v RWE Npower plc


                                               Aromatic amines 1 have long been associated with
                                               bladder cancer; this association first arose in the context
                                               of vulcanised rubber and dye workers exposed to these
                                               aromatic hydrocarbons during the course of their
                                               handling these chemicals and/or products containing
                                               substantial quantities of them for long periods. As a
                                               result, for many years, the use of these chemicals has
                                               been strictly controlled. The above case concerned an
                                               allegation that the Claimant’s bladder cancer arose as a
                                               result of his exposure to these chemicals whilst
                                               employed as a ‘laboratory assistant’ at the former CEGB
                                               power station located near Newport, South Wales
                                               (Uskmouth Power Station).

The Claimant was employed at Uskmouth Power Station from the 1960s until the late 1980s.
He performed various functions at the power station, although the material period in the context
of this claim was 1984 to 1988, during which period the Claimant was employed as an Auxiliary
Plant Attendant seconded to the Station’s Chemist’s Department in relation to water treatment.
The treatment of so called ‘feed water’ in a steam turbine based power station is a matter of
detailed concern; the quality of the water coming into the steam turbines/boilers is of
paramount importance since the calcium salts and/or other impurities in the water can have a
deleterious effect on the delicate mechanisms of both the power station boilers and steam
turbines. As a result, the Station Chemist’s Department in any steam turbine power station
devotes a significant amount of its time in respect of water quality, both in terms of sampling
and/or water treatment.

During the course of the aforementioned period, the Claimant was required to engage in daily
water sampling on both the low pressure steam and high pressure steam circuits. This
involved him drawing water samples and taking the same to the laboratory for testing.
Dependent upon the results of that testing, the Claimant was also required to administer
various chemicals to the water incoming into the steam circuits to ensure water quality.

Similar chemicals were also, less frequently, added (in greater quantities) to the power station
boilers themselves in order to allow so called ‘wet storage’ of the boilers (a process whereby
the boiler could be allowed to be shut down with water contained inside it, without the water
causing corrosion to the interior of the boiler).

  1
      A form of aromatic hydrocarbons ‘related’ to hazardous chemicals, such as benzene, which has been linked to
                      leukaemia causation and sought to be linked to a number of other cancers.




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                        DOLMANS REPORT ON




The Claimant alleged that his duties would have exposed him to aromatic amines which were
used, it was alleged, in the water treatment process. The Claimant specifically identified one
chemical, hydrazine, as an aromatic amine and/or source of his exposure. The Claimant, in
common with many of the Defendant’s former workers who may have worked in a laboratory
environment, were regularly screened for bladder cancer via a regular urine screening
programme (twice yearly). As a result of this screening, the Claimant was referred for further
investigation and treatment in 2004, which detected advanced bladder cancer.

There was no doubt that the Claimant had worked for the former CEGB at the relevant power
station or that he had been exposed to various chemicals during the course of that work. The
issue in the case was that of causation in the sense of whether such chemicals as the Claimant
was exposed to could cause bladder cancer and, collaterally, whether it could be said that the
Defendant was aware of this. In the context of aromatic amines, subject to proof of sufficient
exposure, there was no doubt that the Defendant was aware of their injurious qualities; indeed,
their own screening programme was, in a sense, an admission of such knowledge.

                                     Following issue of proceedings in late summer 2010, we
                                     were instructed to investigate the Claimant’s complaints.
                                     One of the principal other issues which required
                                     investigation was the issue of limitation, given that the
                                     Claimant’s symptoms manifested themselves in 2004
                                     and, yet, proceedings were not issued until 2010.

                                     As part of our remit on behalf of the former CEGB
                                     (usually in the context of asbestos related disease
                                     claims), we maintain regular contact with former senior
                                     members of staff at various former CEGB sites. As a
                                     result of that contact, we were able to identify and locate
                                     the former Station Chemist at Uskmouth Power Station
                                     (who we had not spoken to previously) and interview him
                                     at length in relation to this case.
We were advised by him that a specific and detailed General Operational Memorandum (GOM)
existed in relation to the question of water treatment within the CEGB (GOM 72), given its
importance to the question of efficient power generation. Following further enquiries with the
Defendant, we were able to locate a copy of this document and a copy was provided to the
former Station Chemist of Uskmouth Power Station.




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                        DOLMANS REPORT ON
                                 As a result of consideration of this document, he was able to
                                 identify that there would have been a difference in water
                                 treatment regimes as between the older ‘A’ station at
                                 Uskmouth (which ceased generation in the mid 1970s) and
                                 the newer ‘B’ station at Uskmouth. He conceded that it was
                                 perfectly possible that aromatic amines (specifically, a
                                 chemical called cyclohexlamine) would have been in use for
                                 water treatment purposes within the older ‘A’ station (which,
                                 in some senses, explained the inception of the health
                                 screening programme discussed above). However, due to
                                 the differing configuration of the later ‘B’ station, the use of
                                 aromatic amines would not have been necessary for water
                                 treatment within that station. Alternative (hazardous, but not
                                 specifically carcinogenic) chemicals were in use. One of
                                 those chemicals was, indeed, hydrazine, however, hydrazine
                                 was not, contrary to the Claimant’s allegations, an aromatic
                                 amine.

The Defendant’s witness, given his chemistry qualifications, was able to provide a detailed
explanation of the difference between hydrazine and chemicals such as cyclohexlamine.

Since the Claimant’s tenure within the Station Chemist’s Department did not commence until
1984, long after closure of the ‘A’ station, he could not have encountered cyclohexlamine (ie -
aromatic amines) in his water treatment duties. Thus, as a matter of factual causation, it was
extremely doubtful that the Claimant’s central allegation as to exposure was correct or credible.




The Claimant also contended that he was exposed to a variety of “other chemicals” as a result
of his various duties and alleged that exposure to these chemicals was responsible (in the
alternative) for his condition. It was, therefore, necessary to obtain a detailed witness
statement from the former Station Chemist at the power station dealing with these allegations
and explaining, in detail, the processes in question.

In light of the causation position, a report was commissioned from a Consultant Urological
Surgeon specialising in the treatment of bladder cancer. This report was required not only to
deal with prognosis (thankfully, it appeared that the Claimant’s treatment had been successful
in placing his condition in remission), but also to deal with causation.




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                         DOLMANS REPORT ON
                                   The expert examined the detailed evidence provided by the
                                   Defendant as to exposure and also the causation position
                                   more generally in the context of the epidemiology in relation
                                   to bladder cancer. His conclusion was, unsurprisingly, that,
                                   on balance of probabilities, the Claimant had not been
                                   exposed to aromatic amines, which were identified to be the
                                   leading occupational cause of bladder cancer. Absent a
                                   credible history of such exposure, identifying a particular
                                   causative agent in a specific case was, in his view,
                                   impossible. Whilst the Claimant had been exposed to other
                                   chemicals during the course of his career, none of the
                                   chemicals in question (identified by reference to the detailed
                                   evidence provided by the Station Chemist) were known to be
                                   implicated in bladder cancer.       Moreover, most of the
                                   chemicals in question, whilst potentially hazardous, were of
                                   an ‘acutely hazardous’ character, such that their effects
                                   would be obvious at the point of exposure, if causative
                                   exposure had taken place. These chemicals were strong
                                   acids and/or alkalis which, although capable of causing
                                   chemical burns, would, obviously, do so immediately upon
                                   contact with an unprotected worker. There was no evidence
                                   of such ‘acute incidents’ (notably, the Claimant had not
                                   referred to any such incidents).


Finally, the Defendant’s Urological Surgeon identified that the epidemiological studies in
respect of bladder cancer all tended to identify a much longer latent period between exposure
and manifestation of symptoms than was the case here. In this instance, the Claimant’s initial
symptoms arose within 10 to 15 years of cessation of any alleged exposure. However,
epidemiological studies from both the rubber and dyestuff industries identified a much longer
latent period (20 years minimum) and, by definition, the extent of exposure within those
industries was to much higher concentrations of aromatic amines due to their differing and/or
greater usage in those industries in the relevant period.

A detailed Defence denying liability was filed on behalf of the Defendant, pending completion of
the aforementioned enquiries. Limitation was also raised as an issue. Limitation was
considered, realistically, to be a ‘last line of defence’ since, thanks to the identification and
location of the former Station Chemist for the power station, the issue of prejudice (pursuant to
Section 33 of the Limitation Act) would have been difficult, to say the least, for the Defendant.

The case proceeded in the usual manner and exchange of witness evidence took place. The
Claimant’s witness statement was fairly unimpressive; it failed to identify, specifically, what it
was said the Claimant had been exposed to, which was said to be the cause of his condition. It
referred to hydrazine, but, obviously, this reference was of limited significance given the
evidence of the Defendant’s witness as to the nature of this chemical.




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                        DOLMANS REPORT ON
                                                 Potentially more impressive was a witness statement
                                                 from a former colleague of the Claimant and the
                                                 Defendant’s witness who had performed the same job
                                                 as the Claimant over a much longer period (from the
                                                 1950s onwards - from when the power station was
                                                 initially commissioned). This statement identified the
                                                 use of aromatic amines within water treatment
                                                 processes in the power station and, therefore, alleged
                                                 that material exposure would have taken place.
However, the key point in respect of this witness was that he had worked at both the former ‘A’
station and the later ‘B’ station. Accordingly, when his evidence was put to the Defendant’s
witness, it was immediately observed by that witness that exposure to aromatic amines within
the ‘A’ station was possible (albeit very unlikely to any appreciable extent). However, such
exposure would have ceased within the ‘B’ station (see above).
Shortly after the exchange of witness evidence, the Defendant’s expert’s report was disclosed
and proposals put to the Claimant as to the question of a joint discussion between the
experts 2. In response to this disclosure, the Claimant initially offered to discontinue the claim,
with no order as to costs, but shortly thereafter (following rejection of those proposals),
discontinued the entire claim with costs.
Comment

This case provides an illustration that despite the fact that many occupational disease claims
resolve around expert evidence and, sometimes, issues of causation, which can only be
resolved via examination of complex epidemiology, the duty is still upon the Claimant to prove
his/her case in factual terms.

In this specific instance, the Claimant was required not only to identify a specific substance
which was capable of giving rise to his condition (which, arguably, he had failed to do,
hydrazine being the ‘wrong kind’ of chemical), but also to prove, as a matter of fact, that
sufficient exposure to that substance would have taken place to give rise to the condition in
question. On that latter issue, definitively, the Claimant failed.
The case also illustrates that initial impressions are no substitute for detailed investigation. The
existence of an established urine screening programme for bladder cancer within the
Defendant’s former laboratory workers, in isolation, tended to create the (mistaken) impression
that exposure might well have taken place. The correspondence on the Claimant’s GP file
from the Defendant’s Occupational Health Department regarding this screening programme
appears to have led the Claimant’s Solicitors to this conclusion. However, the underlying
situation, as identified by the Defendant’s witness, was to the contrary and caused a fatal blow
to the Claimant’s factual case as to relevant exposure.
                                                                                      Peter Bennett
                                                                                             Partner
                                                                                Dolmans Solicitors
         For further information regarding this article, please contact Peter Bennett at
             peterb@dolmans.co.uk or visit our website at www.dolmans.co.uk
         2
             The Claimant relied upon a Consultant Oncologist’s report as to diagnosis, prognosis and causation.
               This report was, obviously, written upon the basis of an assumption as to exposure to aromatic
                                                           amines.


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                                 DOLMANS FOCUS ON

              DATE OF KNOWLEDGE AND LIMITATION IN ASBESTOS
        RELATED DISEASE CLAIMS : THE HURDLE IS HIGH FOR DEFENDANTS

                       Sir Robert Lloyd & Co Ltd & Others v Bernard Hoey




In Sir Robert Lloyd & Co Ltd & Others v Bernard Hoey [2011], the Court of Appeal (led by Lord
Justice Rupert Jackson) confirmed the finding of the Trial Judge, His Honour Judge Allan Gore
QC, that the Claimant’s claim was not statute barred by virtue of the Limitation Act 1980.

The case is noteworthy not for creating any legal
principle (the case is largely a re-statement of existing
well known principles and/or a reminder of how high
the hurdle is for Defendants in claims of this nature
with regard to limitation arguments), but for its
application of those principles generously in the
Claimant’s favour by Lord Justice Jackson, the
architect of the much discussed civil justice funding
reforms and a Judge widely tipped for elevation to the
Supreme Court.

In this matter, the Claimant had been exposed to asbestos on many occasions throughout his
employments with the Defendants from 1947 to 1992. In 1984, the Claimant developed left
sided chest pain and he sought medical treatment from his GP on 27 February 1984. An x-ray
was taken on 29 February 1984 and thickening of the pleura of the lung was noted. The
Claimant denied seeing the x-ray report and he did not consult his GP again until July 1985
complaining of chest pains. Further x-rays were taken, pleural shadowing was noted and
arrangements were put in place for follow up x-rays. The Claimant’s chest pains eased in
September 1985.

On 23 January 1986, the Claimant was seen by a hospital doctor who told him that the
shadowing might be caused by asbestos exposure in work. Surrounding evidence suggested
that the main concern at this time was that the Claimant might be suffering from mesothelioma,
an invariably fatal cancer of the pleura of the lung which is most likely caused by asbestos
exposure. The Claimant declined the hospital’s suggestion that he be admitted for further
investigation (most probably via a pleural biopsy). The Claimant continued to be monitored
until 17 September 1986, when he was discharged from the care of the hospital (the
mesothelioma scare having passed) 1.

1
    It does not appear that the Claimant queried at this time what the actual cause of his chest pain might have been.
    Had he done so, it is arguable that he would have been told that the cause was pleural thickening caused by his
                                           workplace exposure to asbestos).




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                                  DOLMANS FOCUS ON


                                                        In 1992, the Claimant experienced breathing
                                                        difficulties and retired from work on ill health
                                                        grounds. In August 2007, the Claimant was, once
                                                        again, referred to the hospital and underwent chest
                                                        x-ray, CT scan and MRI scan. As a consequence,
                                                        asbestosis or pleural related fibrosis was diagnosed
                                                        and the Claimant was advised of the diagnosis on
                                                        17 December 2008, following which the Claimant
                                                        sought legal advice. Proceedings were issued
                                                        against the Claimant’s former employers on 13
                                                        August 2010 for damages for personal injury for
                                                        “bilateral diffuse pleural thickening and a large area
                                                        of folded lung”. The Court directed that limitation be
                                                        tried as a preliminary issue. The medical evidence
                                                        agreed that the diffuse pleural thickening was
                                                        present and significant in January 1986 and would
                                                        have caused the Claimant’s chest pains in the mid
                                                        1980s.

The position, therefore, can be summarised as follows; the Claimant suffered from chest
symptoms (to include pleural shadowing/thickening) in the mid 1980s that he wrongly believed
(for a time at least) might be caused by a work related asbestos injury in the form of
mesothelioma. In fact, the symptoms were caused by a significant work related asbestos injury
in the form of diffuse pleural thickening that the Claimant had no knowledge of. The chest
symptoms having eased, and the cancer scare having passed, the Claimant gave the matter
no further regard until his concerns were reignited in 2007.


The date of knowledge which starts the limitation clock ticking is
the date on which the Claimant knows that his injury is significant
2
  and is attributable 3 to the allegedly negligent act or omission.
The Trial Judge found that the Claimant did not know in 1985 or
1986 that he had an injury which was significant and did not learn
of this until he was advised of the outcome of tests in 2008. Yet,
again, in 1985-1986, the Claimant was aware of his pleural
shadowing, albeit the same having been initially suspicious of
mesothelioma was later the subject of reassurance.


2
    The test for what constitutes a ‘significant’ injury is set out in s.14(2) of the 1980 Act. Lord Hoffmann explained the
                              operation of that test in the House of Lords in A v Hoare [2008].
3
    In relation to knowledge that the injury was ‘attributable’ to the allegedly negligent conduct, guidance was given by
                       the Court of Appeal in Spargo v North Essex District Health Authority [1997].




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                         DOLMANS FOCUS ON




In the Court of Appeal, Jackson LJ (giving the leading Judgment) agreed with the Trial Judge
that what the Claimant suffered with in the mid 1980s was “a transient bout of chest pain”. The
Claimant did not know that he had suffered a significant injury in the form of diffuse pleural
thickening until 2008. Jackson LJ did not consider that the Claimant could have been fixed
with the knowledge that his diffuse pleural thickening injury was caused by exposure to
asbestos, even if he had been aware of the same, “on the basis of the Claimant’s evidence, in
particular, his cross-examination, the only relevant knowledge which the Claimant had was this;
if he had developed mesothelioma (which he had not), then that condition would be attributable
to exposure to asbestos”. In the absence of a confirmed diagnosis of mesothelioma, the
limitation period did not begin to run until the Claimant could reasonably have concluded that
he had an asbestos induced injury.


                                   This case serves as a reminder, if one is needed, that
                                   Claimants will not be judged too harshly by the Courts if
                                   they fail to attribute their specific injury to their workplace,
                                   even in circumstances where a workplace cause for the
                                   symptoms is suspected and being discussed with them by
                                   doctors and where they fail to press those doctors for an
                                   explanation for the symptoms when the initial suspected
                                   workplace cause does not materialise.




                                                                                Jamie Mitchell
                                                                                   Associate
                                                                            Dolmans Solicitors


                 For further information regarding this article, please contact
                         Jamie Mitchell at jamiem@dolmans.co.uk
                         or visit our website at www.dolmans.co.uk




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                      DOLMANS RECENT CASE UPDATE

                    Civil Procedure - Calderbank Letters - Part 36 Offers

                            French v Groupama Insurance Co Ltd
                                   [2011] EWCA Civ 1119

         The Claimant brought a claim for breach of contract. The Defendant wrote to the
         Claimant in 2006 and offered to settle the whole of her claim for the sum of £115,000.00.
         The offer was repeated in correspondence in 2007, when the offer was stated to be open
         for 21 days, after which it would expire. The offers were rejected. The Claimant
         succeeded in her claim and was awarded £132,000.00. However, the Judge concluded
         that she had suffered an additional £20,000.00 worth of damage since the date of the
         offer and she should, therefore, have accepted it, applying Stokes Pension Fund Trustees
         v Western Power Distribution (South West) plc [2005] EWCA Civ 854. The letters should
         be treated as quasi Part 36 Offers and, therefore, the Claimant should pay the
         Defendant’s costs. The Claimant appealed.

The Court of Appeal noted that the original CPR Part 36 had been in force at the time the offers
were made. The letters failed to meet the requirements of the original Part 36 in a number of ways :
the offers were made before proceedings began, they were not supported by a payment into Court;
the second offer was time limited and the requirements of CPR 36.10 were not observed.
Accordingly, there was no requirement that the Court would even take the offer into account, let
alone apply the consequences of CPR 36.20.
The Judge had applied the consequences of Part 36 because he considered that all four conditions
set out in Stokes had been met. However, only the third and fourth conditions were plainly met : the
offer was genuine and the Defendant was clearly good for the money. It was not, however, a
Calderbank offer. The offers were not quasi Part 36 Offers for the purpose of Stokes. It, therefore,
fell to the Court of Appeal to apply its discretion anew.
                                     In favour of treating the Defendant’s offers with the
                                     seriousness of a formal or quasi Part 36 Offer were the
                                     following considerations : the offer was genuine and clearly
                                     intended to be treated seriously; the Defendant could be
                                     relied upon to pay if the offer were accepted; the offer was
                                     worth much more than the Claimant received from the
                                     Judgment of the Court. However, at the time of the offers,
                                     and for a long time thereafter, the Claimant was a litigant in
                                     person. The offer, although expressed to be open for 21
                                     days, was, nevertheless, time limited so that it expired. The
                                     offer was not expressed to be a Part 36 Offer; it was not
                                     expressly stated to be open or privileged “save as to costs”.
                                     The offer also covered the Claimant’s costs, which made the
                                     value of the offer hard to evaluate. The Defendant always
                                     had the opportunity to serve a formal Part 36 Offer, at any
                                     time, particularly once proceedings were commenced, but did
                                     not do so.
  It was held that the Claimant should have her costs, if any, up to the date when the Defendant’s
                       offer had expired. No other Order for costs was made.




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                     DOLMANS RECENT CASE UPDATE

              Civil Procedure - Late Acceptance of Part 36 Offers - Discretion

                                      Lumb v Hampsey
                                [2011] QBD Lawtel 11.10.2011




The Court was required to determine costs following the late
acceptance by the Claimant of a Part 36 Offer. The Claimant
argued that it would be unjust to make the usual Costs Order
under Rule 36.10(5) because (i) at the time of the offer, he was
undergoing neurological rehabilitation and it was reasonable to
wait and see if that would be successful; (ii) any settlement
needed approval from the Court of Protection, which was
unlikely, on the medical evidence available, and because
Counsel had advised against acceptance, and was complicated
by a change in his deputy due to the breakdown of his marriage;
(iii) it was reasonable to await further medical reports; (iv) the
advice to accept the offer had been prompted by an
improvement in his condition, his capacity to conduct the
proceedings and the possible change to his care needs.


It was held that the Court had a discretion under Rule 36.10(5) not to make the usual Costs
Order in cases of late acceptance, but no guidance was provided on how to exercise that
discretion. The Court had a discretion not to make the usual Costs Order in an exceptional
case. The test was whether the usual Costs Order should be departed from because it was
unjust for the Claimant to pay the Defendant’s costs; departure would be the exception, not the
rule.


The incidence of costs was not affected by a Claimant being a patient, but there might be
circumstances when the Claimant, being a patient, had implications that made it unjust for a
Costs Order to be made against him. The Claimant’s arguments were insufficient grounds for
departing from the usual Costs Order. By the time of the settlement meeting, the Claimant’s
advisers had sufficient expert evidence, knew that the Claimant’s marriage was coming to an
end, were able to provide quantum summaries with specific figures and to have meaningful
discussions with the Defendant’s advisers. The Claimant was clearly capable of valuing his
claim by the time of the Part 36 Offer. Considering the Rule 36.14(4) factors, the offer had
been clear, made at an appropriate stage, and made at a time when there was sufficient
evidence to value the claim and there had been no criticism of the Defendant’s conduct.
Judgment accordingly.




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                     DOLMANS RECENT CASE UPDATE

                         Civil Procedure - Committal for Contempt

                                        Lane v Shah
                                [2011] DC Lawtel 05.10.2011

                                          Custodial sentences of 6 months imprisonment and
                                          3 months imprisonment were imposed for contempt
                                          of Court against a Claimant and her family for
                                          making false statements in a personal injury claim
                                          arising out of a road traffic accident.

                                          The Claimant signed Statements of Truth on her
                                          Witness Statements and Schedule of Loss and they
                                          were verified by Statements from her family. It was
                                          later discovered that those Statements were not
                                          true. The Claimant and her family admitted their
                                          deception and that they were in contempt of Court.
                                          The Claimant, however, contended that she had not
                                          been initially advised about the consequences of
                                          signing a Statement of Truth attached to false
                                          information and submitted that it would be
                                          appropriate to pass suspended sentences.

It was held that the fact that the Claimant had not been advised about the consequences of
signing the false information was an aggravating factor, rather than a mitigating factor. The
Claimant and her family were of previously good character. However, considering the interests
in the administration of justice, it was held it was not appropriate to impose a suspended
sentence and custodial sentences were imposed accordingly.


                                            Costs

                            Motto & Others v Trafigura Limited
                                  [2011] EWCA Civ 1150


The Court of Appeal gave Judgment in respect of a number of leapfrog costs appeals in this
litigation, including as follows:

 The Judge had decided that although the Claimants’ overall bill of costs appeared
   disproportionate, he was not obliged to apply the necessity test to all parts of the bill. The
   Court of Appeal held that the Judge had been wrong to depart from the approach in
   Lownds v Home Office [2002] on proportionality that if the total costs claimed appeared
   disproportionate they were, in effect, to be rendered proportionate by allowing only those
   items which were necessary, and then only in a reasonable sum.




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                      DOLMANS RECENT CASE UPDATE


                       The costs of arranging the funding
                          of the action are not recoverable.
                          Costs incurred in connection with a
                          CFA and ATE insurance were,
                          ultimately, attributable to the need
                          of a litigant to fund the litigation, as
                          opposed to the actual funding of
                          the litigation itself.       The time
                          devoted by Solicitors to negotiating
                          the terms on which they were to be
                          engaged by the Claimant should be
                          treated as part of a Solicitor’s
                          overheads or expenses.

 The costs incurred in referring to the ATE Insurers during the litigation were also not
   recoverable. Those costs were not so much a cost of the litigation as a cost which was
   collateral to the litigation, being a cost incurred to ensure that the Claimants were not at risk
   on costs.

                                             Damages

                                   Sadler v Filipiak & Another
                                       Lawtel 11.10.2011


                                The Claimant suffered multiple injuries in a road traffic accident.
                                The Claimant was awarded £32,000.00, plus interest, for
                                General Damages, which was broken down as £12,000.00 for a
                                fractured femur; £4,000.00 for a facial scar; £5,000.00 for other
                                scars; £8,000.00 for PTSD; £1,000.00 for an eye injury and
                                £2,000.00 for other injuries. The Claimant appealed, submitting
                                that the award was too low and that the Judge had erred in his
                                approach to valuation by first forming an overall impression and
                                awarding a figure and then breaking it down.
The Court of Appeal found that the Judge had taken the wrong approach. The Judge should
have had separate figures in mind for the various injuries and then stood back to see if it was
sufficient for the totality of the injuries. Accordingly, the Court of Appeal substituted its own fig-
ures, comprising £14,000.00 for the orthopaedic injuries, with additional loading of £6,000.00
for scarring; £6,000.00 for the facial scar; £5,000.00 for other scarring; £12,000.00 for PTSD;
£2,500.00 for the eye injury and £2,000.00 for the other injuries. This made a total of
£47,500.00. Taking into account overlap, the appropriate award for General Damages was
£40,000.00, plus interest.




                                          www.dolmans.co.uk                                              16
                     DOLMANS RECENT CASE UPDATE

                                          Disclosure

                   Shah & Mahabeer v HSBC Private Bank (UK) Limited
                                2011 EWCA Civ 1154


                                        The Claimants brought a claim for damages against
                                        the bank for delay in executing four transactions. The
                                        bank’s defence was that it did not immediately execute
                                        the transactions because it suspected money
                                        laundering. It, therefore, made a suspicious activity
                                        report to the Serious Organised Crime Agency and
                                        sought consent to proceed with the transactions. The
                                        bank’s suspicions were later proved to be false. In the
                                        proceedings, the bank was required to prove that it
                                        held the suspicion alleged.        The bank disclosed
                                        documents in which it redacted the names of the
                                        employees who had reported their suspicions to the
                                        nominated Officer. The Judge held that the bank was
                                        obliged under its duty of standard disclosure to reveal
                                        the employees’ names, but it was prima facie entitled
                                        to maintain their anonymity on the ground of public
                                        interest immunity. The Claimants appealed against the
                                        Judge’s second finding and the bank cross appealed
                                        against the Judge’s first finding.

Before the Judge, the parties had proceeded on the basis that in respect of the first issue, the
question was whether the names of the employees were ‘relevant’. The Court of Appeal
indicated that this was incorrect as the word ‘relevant’ does not appear in CPR 31.6 (standard
disclosure). The question should have been whether the redacted material adversely affected
the bank’s case or supported the Claimants’ case. The Court of Appeal considered that the
request for the names of the employees was a fishing expedition based on speculation. The
identification of the employees was at best something which might lead to a train of enquiry
which might adversely affect the bank’s case. This was not sufficient to meet the requirements
of CPR 31.6. Accordingly, the bank’s cross appeal was allowed. The issue of public interest
immunity, therefore, did not arise and the Claimants’ appeal was dismissed.




               For further information on any of the above cases, please contact
                       Amanda Evans at amandae@dolmans.co.uk or
                          Judith Blades at judithb@dolmans.co.uk



                                       www.dolmans.co.uk                                           17
                           DOLMANS COMING UP
                                         Training Opportunities


At Dolmans, we want to ensure that you are kept
informed and up-to-date about any changes and
developments in the law.

To assist you in this, we can offer a whole range of
training seminars which are aimed at Local
Authorities, their Brokers, Claims Handlers and
Insurers.

All seminars will be tailored to make sure that they
cover the points relevant to your needs.

Seminars we can offer include:-

 Defending claims – the approach to risk management
 Highways training
 Flooding and drainage – duties and powers of landowners and Local Authorities for
   drainage under the Land Drainage Act 1991. Common law rights and duties of
   landowners in respect of drainage
 Flooding and drainage – duties and powers of Highway Authorities for drainage and
   flooding under the Highways Act 1980. Consideration of case law relating to the civil
   liabilities of the Highway Authority in respect of highway waters
 Employers’ liability update
 Employers’ liability claims – investigation for managers and supervisors
 Corporate manslaughter
 Ministry of Justice reforms
 Housing disrepair claims
 Public liability claims update
 Liability of Local Education Authority for accidents involving children
 The Display Screen Regulations – duties on employers
 Bullying, harassment, intimidation and victimisation in the workplace – personal injury
   claims
 Industrial disease for Defendants
 Apportionment in HAVS cases
 Pre-action protocol in relation to occupational disease claims – overview and tactics
 Conditional Fee Agreements and costs issues


If you would like any further information in relation to any of our training seminars, or wish to have an
           informal chat regarding any of the above, please contact our Training Partner,
                               Clare Hoskins at clareh@dolmans.co.uk



                                        www.dolmans.co.uk                                                   18
                       DOLMANS COMING UP
                                        Employment


 Our employment team also run a series of employment breakfast briefings and half day
workshops. These seminars will be of interest to all employers who want to minimise their
    exposure to costly tribunal claims and who want to ensure their human recourses
      procedures and managers are up-to-date with significant changes in the law.




       For further details please contact Jen Cottle at jenniferc@dolmans.co.uk
                       or visit our website at www.dolmans.co.uk




                                     One Kingsway
                                        Cardiff
                                       CF10 3DS

                                   Tel: 029 2034 5531
                                   Fax: 029 2039 8206


                                   www.dolmans.co.uk                                        19

								
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