The View - February 2007.qxp by linzhengnd

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									                                                                                                                                 February 2007




theView
CASES REVIEWED IN THIS ISSUE
       Limitation                                   McCoubrey v MoD
       Tripping                                     Atkins v Ealing London Borough Council
       Sport                                        Mountford v Newlands School and another
       Expert witnesses                             Kirkman v Euro Exide Corporation
       Summary dismissal                            Miller v (1) Garton Shires (2) Ison Harrison
       Road traffic accidents                       Bee v Jenson
       Case management                              Keen Phillips (a firm) v Field
       MIB                                          Phillips v Rafiq and MIB
       Costs                                        Haji-Ioannou v Frangos and others
                                                    Russell Young & Co v Brown and others
       Quantum                                      G v Good Hope Hospital NHS Trust (removal of tattoo)
                                                    Rydin-Orwin v Grocery Co Ltd (anaphylactic shock)
                                                    Re C (amputation of toe)


News watch                                          The government is proposing an overhaul of           their last months, is available in some parts of the
                                                    the IIDB scheme, which was introduced in             country, including the North East, London and
CPR Part 14                                         1948. The Department for Work and                    Liverpool. The UK mesothelioma epidemic will be
A new rule 14.1A will be inserted into Part 14      Pensions commenced the consultation in               highlighted in the second Mesothelioma Action
with effect from 6 April 2007, covering             January 2007 and the deadline for responses          Day on 27 February 2007, when there will be a
admissions made before the commencement             is 22 April 2007. The consultation can be            parliamentary reception at the House of Commons
of proceedings. The new rule is intended to         found at http://www.dwp.gov.uk/publications/         and events will be held throughout the UK.
deal with some of the difficulties caused by the    dwp/2007/IIDB.pdf
decision in Sowerby v Charlton [2006],                                                                   Work accident payback
highlighted in Stoke on Trent City Council v        Right to die                                         The NHS hopes to recover over £150m a year
Walley [2006]. Admissions made before that          30-year-old Kelly Taylor, who is terminally ill      in respect of the cost of treating employees
date in multi-track claims will continue to be      due to a rare heart condition, is relying on the     injured in workplace accidents under the NHS
covered by the Sowerby rule (no permission of       European Convention on Human Rights in a             Injury Costs Recovery scheme. The scheme,
the court is required to withdraw a pre-action      bid to end her suffering with dignity. Mrs           which came into force on 29 January 2007,
admission of liability) but in respect of           Taylor is seeking a ruling that she has the          operates similarly to the RTA scheme, which
pre-action admissions made thereafter, the          right to adequate pain control and to have a         allows recovery of the cost of hospital treatment
consent of all parties to the action or the         living will that will state her desire not to be     and ambulances for patients injured in RTAs.
permission of the court will be required.           resuscitated or fed foods or liquid artificially.    The cost of primary care, eg by general
Guidance as to the way in which the court           At a court hearing on 12 February Mr Justice         practitioners, is not recoverable under either
should exercise its discretion is set out in        Kirkwood ruled that the case would be                scheme.
Sowerby and includes the balance of prejudice       brought to the attention of the Attorney
to the parties and the prospects of success of      General as it raised civil issues that might         Dockers' asbestos ruling
any issue arising from the withdrawal of an         affect criminal law. Lawyers for Mrs Taylor          The Department for Trade and Industry has
admission.                                          argued that Mrs Taylor's doctors have a duty         appealed against a High Court ruling of May
                                                    to treat her pain even if it results in her death.   2006 that it must compensate dockers working
Coroners Bill                                                                                            with asbestos under dock employment schemes
The government has released details of a            Drug for mesothelioma sufferers                      in the 1950s and 1960s. The appeal was heard
draft Coroners Bill which includes proposals to     The National Institute for Clinical Excellence       on 29 January 2007 and judgment is expected
enable coroners to require organisations to         (NICE) is being urged to make the drug               in a few weeks. The test case was brought by
respond in writing to their reports, to allow the   Altima available on the NHS throughout the           Robert Thompson, who suffers from an
chief coroner to monitor the responses and to       UK as soon as possible. NICE had decided             asbestos-related illness, and Winifred Rice, the
make an annual report of those responses to         that it would not recommend Altima for use           widow of Edward Rice who died of mesothelioma
the Lord Chancellor and the House of                across the UK but that decision is under             in 2000. The DTI alleges that the dock labour
Commons. Coroners will also have the power          review. NICE anticipates being able to give          boards were not employers but merely hired and
to take into account the wishes of bereaved         guidance in September, a date that                   arranged labour and it is the shipping and
relatives in relation to sudden deaths.             campaigners say is just too late. The drug,          stevedore companies that should bear full
                                                    which is not a cure for mesothelioma but is          responsibility. Many of those companies, or their
Review of Industrial Injuries Disablement           said to make sufferers more comfortable in           insurers, are now insolvent or ceased to exist.
Benefit scheme
Limitation - s14(2) Limitation Act 1980;        holding that time did not start to run until   manhole cover but such an inspection
knowledge                                       then. The claimant had all the information     was not designed to do so. The
                                                he needed in early 1994 and the                defendant had failed to show that it
McCoubrey v MoD [2007] EWCA Civ 17              requirements of s14(2) had not been            had taken such care as in all the
Court of Appeal - Ward, Neuberger and           satisfied.                                     circumstances was reasonably required
Tugendhat LJJ                                                                                  to secure that the manhole cover was
24 January 2007                                 The appeal was allowed and the matter          not dangerous. Dismissing the appeal,
                                                remitted back to the judge to consider         the court held that the judge had struck
During a training exercise in 1993 the          whether the claimant could bring his           the right balance between public
claimant, who was a soldier, suffered an        claim under s33.                               interests and private interests and had
impairment to his hearing when a                                                               not placed too high a burden on the
thunderflash exploded near him. He              Ruth Downing for the claimant                  defendant.
suffered immediately with ringing in his        Robin Tam QC for the defendant
ears and a day or two later noticed that                                                       Giles Mooney for the claimant
his hearing had deteriorated in his left                                                       Steven Snowden for the defendant
ear. He saw a consultant in early 1994          Tripping - Highways Act 1980; duty of
and marked sensorineural hearing loss           care
was noted. The damage over the next                                                            Sport - breach of duty of care; rugby
few years remained fairly constant. His         Atkins v Ealing London Borough Council
military service was not affected until         [2006] EWHC 2515 (QB)                          Mountford v Newlands School and
2001 when he was told he would be               High Court - Teare J                           another [2007] EWCA Civ 21
temporarily downgraded. In 2003 he was          17 October 2006                                Court of Appeal - Waller, Rix and Hooper
formally downgraded and told he would                                                          LJJ
be permanently excluded from active             The claimant pedestrian suffered ankle         24 January 2007
service.                                        injuries after stepping on an unstable
                                                manhole cover in a street in Acton. The        The Court of Appeal upheld the decision
Proceedings were issued in 2004, the            manhole cover tilted and her foot fell into    of the first instance judge in this case,
claimant relying on both s11(4)(b) and          the manhole. The judge found for the           which concerned an injury sustained by
s33 of the Limitation Act 1980 in order to      claimant at trial and the defendant            the claimant, aged 14, whilst playing
bring his claim outside the three-year          appealed, arguing that the judge had           rugby for his school against the
time limit.                                     applied too high a standard and had placed     defendant school. The claimant was
                                                too high a burden on the defendant.            playing in an under 15 match but the
The judge at first instance ruled that the                                                     defendant's master had selected for their
claimant could rely on s11(4)(b) on the         The defendant's system for inspecting          team a boy who was older than 15 and
grounds that the injury did not have a          manhole covers was that an inspector           considerably bigger than the claimant. As
significant impact on the claimant until he     inspected the highways once a month            a result of a legal tackle by the older boy
was downgraded in 2001, reasoning that          looking for defects, a trip or a difference    upon the claimant, the claimant broke his
the court had to look at both the severity      in height between two adjacent surfaces        elbow. Crucial to the case was the
of the injury and the impact on the             of more than 19mm. The judge had               interpretation of Rule 5 of the Junior
claimant's life and ability to participate in   noted that the defendant had adduced           Rugby Guidelines of the England Rugby
a chosen career. He did not rule on s33.        no evidence to show that putting in place      Football Schools' Union - that players
The defendant appealed, submitting that         a system of checking manhole covers to         should not 'normally' be allowed to play
the judge had erred in his approach to          ensure that they were safe would be so         other than in their own age grouping.
the meaning and application of s14(2) -         difficult or impractical a burden to place     The claimant's expert gave evidence that
whether an injury was 'significant'.            on the defendant. The defendant's              the rule was never departed from
                                                inspector had given evidence that if a         whereas it was the defendant's case that
The Court held that the test under s14(2)       manhole cover tilted the injuries could be     the rule was a guideline and was flexible.
was no longer a mix and subjective and          catastrophic and it would be reasonable        The judge agreed with the defendant's
objective. It was substantially objective       for there to be closer inspection of such      interpretation but held that departures
and the issue as to whether an injury           manhole covers than the system of              from the rule were rare and it existed to
was 'significant' was to be determined by       checking provided for.                         protect players such as the claimant. The
reference to the seriousness of the injury                                                     complete failure of the master to justify a
rather than by reference to its effect on       The court was satisfied that the judge         departure from the age rule amounted to
the claimant's life or career. Section          had considered the matters which he had        negligence. The presence of the older boy,
14(2) should be narrowly construed              to under s58(2) of the Highways Act            with greater weight and height, had
given that a claimant would have a fall         1980. He had considered that it was a          materially increased the risk of injury to the
back position under s33. The Court              shopping street, a main thoroughfare,          claimant. The defendant was vicariously
doubted whether it would have been the          that the appropriate standard of               liable for the master's negligence.
intention of parliament that there would        maintenance was one which ensured, as
be many cases where the claimant could          far as possible, that pedestrians were not     As to causation, applying Chester v
rely on both s14(2) and s33.The                 at risk of falling into a large hole, the      Afshar, the judge held that the claimant
objective circumstances of the claimant         state of repair in which a reasonable          had shown that the defendant's conduct
could be taken into account but not             person would expect to find the highway,       materially contributed to an increased
personal characteristics such as                whether the defendant knew, or could be        risk of injury. Causation was 'obvious'.
ambition, intelligence and personality.         expected to know, that the condition of
                                                the highway was likely to cause damage         The defendant appealed, arguing that if
The correct approach to s14(2) should           and whether the defendant could not            there had been a legitimate reason for
be to consider the reaction to the injury of    reasonably have been expected to repair        the older boy playing in the match the
a reasonable person in the objective            the manhole cover before the accident.         claimant would have been unable to
circumstances of the claimant, disregarding     There was no evidence that the                 establish any relevant breach of duty and
his personal attributes. The claimant's         defendant knew that the manhole cover          that the judge did not say that the tackle
reasons for not pursuing a claim against        was loose and no evidence that loose           that resulted in injury was of the type that
the defendant in 1993 could not be taken        manhole covers were so rare that they          an older and bigger boy would have
into account. The fact that there was no        could not be foreseen. The visual              made on a smaller boy and that if he had
setback to the claimant's career until          inspection system employed by the              intended the boy's maturity, weight or
2001 was not an appropriate reason for          defendant did not identify the loose           physique to have contributed to the injury


                                                                     2
he would have said so in terms.               expressing an expert opinion. He was             'appropriate cases'. This was an
                                              not expressing an opinion as to what             appropriate case and the district judge
The Court held that there was discretion      most competent surgeons would do in              had adopted a permissible approach,
in the rule to bring a player down an age     the same situation but was saying, rightly       concluding without oral evidence but with
group but, in an under 15 match, schools      or wrongly, what he advised. He was              sufficient confidence that the factual
would not normally expect a considerably      speaking only for himself. The Court also        basis asserted by the claimant was so
older and larger boy to have been             held that the judge had properly applied         lacking in substance as to render his
playing and the master should not have        the order requiring equality of expert           claim against the solicitors no more than
selected him. There was no special            evidence. This was not an absolute rule          fanciful.
reason for the boy to have been playing.      and this was a good example of a case
The guidance existed to protect smaller       in which the rule should have given way          With regard to the two limbs of CPR Rule
boys from injury in incidents involving       in the interests of justice. B was               52.13(2) - (i) that the appeal would raise
both legal and illegal tackles from larger    permitted to give evidence.                      an important point of principle or practice
boys. The Court felt it was apparent that                                                      or (ii) that there is some other compelling
the judge was satisfied that the injury       Christopher Limb for the claimant                reason for the Court to hear it - the Court
that resulted from a physical tackle was      Dominic Nolan for the defendant                  was satisfied that the case did not raise
of a type that a bigger boy would perform                                                      any important points of principle or
on a smaller boy. The risk against which                                                       practice that had not yet been
Rule 5 guarded had eventuated.                Summary dismissal - lost opportunity;            established (Uphill v BRB (Residuary)
                                              untested evidence                                Ltd [2005]) and, even if there had been
The appeal was dismissed.                                                                      procedural irregularities on the hearing of
                                              Miller v (1) Garton Shires (2) Ison              the application for summary judgment
Tim Kevan for the claimant                    Harrison [2006] EWCA Civ 1386                    and first appeal, the decision reached by
Jonathan Bellamy for the defendant            Court of Appeal - Chadwick and Hallett           the district judge was not so manifestly
                                              LJJ and Lindsay J                                perverse that further litigation was
                                              25 October 2006                                  justified.
Expert witnesses - distinction between
statements of fact and opinion                The claimant sought damages against              Refusing permission to appeal, the Court
                                              the two defendant firms of solicitors who        concluded that where a case is so weak
Kirkman v Euro Exide Corporation (CMP         were both instructed in connection with          that it has no real prospect of success it
Batteries Ltd) [2007] EWCA Civ 66             the claimant's potential claim against a         should be stopped before great expense
Court of Appeal - Buxton and Smith LJJ        Mr Brown following an RTA in 1997. Mr            is laid out.
25 January 2007                               Miller's car had collided with Mr Brown's
                                              car and they were both severely injured.         Tim Hurst for the claimant
The claimant had an accident at work          There was conflicting factual evidence;          Glenn Campbell for the first defendant
that resulted in injury to his right knee.    the police report concluded that the             Hugh Evans for the second defendant
He had a history of problems with his         claimant had lost control of his vehicle
knee and for which he had been                whilst driving at excessive speed but two
consulting an orthopaedic surgeon (B) for     eye witnesses put the blame on Mr Brown.         Road traffic accidents - hire of
some time. B's advice to the claimant         Proceedings were issued but not served           replacement vehicle
following the accident was that he should     on Mr Brown within the appropriate time
have reconstructive surgery. The              limit. The claimant alleged that he had          Bee v Jenson [2006]
claimant went ahead but developed an          lost an opportunity of recovering                High Court - Morison J
infection after surgery and, after            damages from Mr Brown as a result of the         21 December 2006
extensive treatment, an above-knee            solicitors' negligence. The solicitors applied
amputation of the right leg was required.     for summary judgment dismissing the              The issue in this case was the recovery
He claimed damages against the                claim on the grounds that Mr Miller's            of the cost of the hire of a replacement
defendant employer. Permission was            claim against Mr Brown would not have            vehicle whilst the claimant's vehicle was
given to the parties to rely on the           been successful and his claim was                undriveable, having been damaged in an
evidence of one expert each. Liability        valueless. Granting the application, the         accident for which the defendant had
was not disputed but the issue was            District Judge applied CPR 24.2. She             admitted liability. The claimant's legal
whether the reconstructive surgery was        held that, taken as a whole, it was the          expenses insurers, DAS, had arranged
necessitated by the accident or by the        claimant who had been at fault and the           for the vehicle and this was supplied
pre-existing problems. The claimant           claim against Mr Brown had no realistic          through Help Hire. The claimant signed
sought to rely on the expert evidence of      prospect of success and would have               the agreement with Help Hire, which
another orthopaedic surgeon and to            been worthless. It was not necessary to          provided for the insurer to pay the
submit a witness statement from B as          test the live witnesses as the other             charges at rates set by reference to the
evidence of fact. B's clear evidence was      evidence was clear.                              Association of British Insurers' general
that he would not have recommended                                                             terms of agreement. A total of £610.46
reconstructive surgery had it not been for    The claimant's first appeal was refused.         was paid for hire and the insurer brought
the accident. The defendant objected,         Permission to appeal that decision was           a subrogated claim in the claimant's
arguing that, because it dealt with a         sought on paper but refused. The                 name to recover the cost from the
hypothetical situation, the statement was     application for an oral hearing was              defendant.
one of opinion and was clearly an             renewed and came before Ward LJ who
attempt to circumvent the order allowing      adjourned the application to be heard on         The defendant argued that, as the
for one expert each.                          notice.                                          claimant was never under an obligation
                                                                                               to pay the hire charges, the only entity
The judge refused the claimant                The Court of Appeal repeated its distaste        obliged to pay was the insurer and since
permission to adduce the statement, on        for 'mini trials' at the summary stage           the insurer could not recover by way of
the basis that it was expert opinion rather   (Swain v Hillman and another [2001]),            subrogation more than its true outlay, the
than factual evidence. The claimant           but added that this restriction did not          claim had to be limited to the reasonable
appealed.                                     mean that summary relief was only rarely         cost of hiring a car. The vehicle could
                                              to be available or only to be used in            have been supplied more cheaply by
The Court of Appeal held that B's             exceptional circumstances or where the           DAS under corporate hire rates and the
statement was clearly evidence of fact.       facts are entirely free of dispute. Judges       claim was limited to that sum. It also
He was relying on his knowledge and not       should make use of CPR Rule 24 in                argued that DAS should give credit for


                                                                    3
any commission fee that Help Hire might         Rule 3.8(1) provides that, 'Where a party       claimant issued an application under CPR
have paid to the insurer, otherwise it would    has failed to comply with a rule, practice      Rule 44.14 seeking a disallowance of part
be making a profit on the transaction.          direction or court order, any sanction for      of the defendant's costs on the grounds of
                                                failure to comply imposed by the rule,          delay. The defendant conceded that,
The judge held that, whether or not the         practice direction or court order has effect    pursuant to Rule 47.8, interest for the
claimant was liable to pay the hire, an         unless the party in default applies for and     relevant period should be disallowed but
action could be brought in his name to          obtains relief from the sanction…'. Rule        disputed that there should be any further
recover those charges. The law was blind        3.9 goes on to say that on the making of        penalty.
to insurance arrangements. What                 such an application, the court will consider
mattered was that, but for the insurance        'all the circumstances'.                        The costs judge agreed with the
arrangements, the claimant would have                                                           defendant and dismissed the application
been entitled to hire a car and recover the     The Court of Appeal held that, having           for disallowance save with regard to
cost of doing so from the defendant. The        regard to such matters as the overriding        interest, as did the judge on appeal. The
claimant was entitled to hire a replacement     objective and case management powers,           Court of Appeal upheld that decision. Rule
car at a reasonable rate for a reasonable       it would not be right to find that the effect   47.7 provides that detailed assessment in
period and to recover those costs from the      of the wording of Rule 3.8 was to deny the      this case should have been commenced
defendant. If the costs were reasonable,        court jurisdiction to grant a party an          within three months of the date of the
the defendant had to pay them. Under the        extension of time in the absence of an          order for costs. Rule 47.8 provides that,
hire agreement, the claimant would have         explicit application for relief from the        where a receiving party does not
been liable to pay the charges had the          sanction for breach of an order and the         commence detailed assessment within the
occasion arisen.                                judge was entitled to act as he did.            correct time, the paying party may apply
                                                                                                for an order that he do so and that, in
With regard to the commission payment,          Helen Brander for the claimant                  default, all or part of the costs be
the judge could see no reason in law why        Edward Mallett for the defendant                disallowed. If the paying party does not
any profit made by the insurer should be                                                        make such an application, the court may
transferred to the defendant or his insurers.                                                   disallow interest but must not impose any
The claimant was not entitled to that           MIB - fatal accidents; uninsured driver         other sanction except in accordance with
payment and there was no reason why he                                                          Rule 44.14 (powers in relation to
should be expected to give credit for a         Phillips v Rafiq and MIB [2007] EWCA            misconduct). Under that rule, the court
payment to which he was not entitled. The       Civ 74                                          may disallow part or all of the costs if it
rate charged by Help Hire was a good rate       Court of Appeal - Ward and Latham LJJ           appears that a party has failed to comply
in comparison with other spot rates and it      and Charles J                                   with a rule, practice direction or court
was reasonable for the replacement              23 January 2007                                 order. Therefore, if a party fails to comply
vehicle to be provided with a nil excess                                                        with Rule 47.8, it also fails to comply with
regardless of the excess that applied to        The Court of Appeal upheld the decision         Rule 44.14, leading to what Lord
the claimant's own car. Had the claimant        of HHJ Seymour QC that the widow and            Longmore described as 'a certain tension'
gone into the market without the insurance      children dependants of the deceased             between the rules. He concluded that
arrangements in place, he would have            could seek damages from the MIB under           there is no inconsistency between Rules
paid at least the rate charged by Help          the Fatal Accidents Act 1976 where the          47.8 and 44.14 but it cannot be supposed
Hire. The reasonableness of the rate had        deceased was killed when he was                 that it was intended that every failure to
to be considered from the claimant's            travelling as a passenger in his own car        commence detailed assessment within
perspective. The claimant was entitled to       whilst it was being driven by an uninsured      three months should be regarded as
recover the whole amount of the hire.           driver despite the deceased having 'guilty      misconduct leading to the disallowance of
                                                knowledge' of the fact that the driver was      costs as well as interest. The court should
Christopher Butcher QC and Benjamin             uninsured.                                      be hesitant to exercise its power to
Williams for the claimant                                                                       impose further sanctions where the
Julian Flaux QC and Jonathan Hough for          Andrew Ritchie for the claimants                normal sanction for delay was spelled out
the defendant                                   Stephen Worthington QC and James                in the rules and the paying party had the
                                                McKeon for the defendant                        option of taking the initiative by applying to
                                                                                                the court to prevent further delay. The
Case management - extension of time;                                                            interest sanctions were likely to be
no explicit application                         Costs - delay in commencing detailed            uncontroversial and unlikely to cause
                                                assessment; CPR Rule 44.14                      further litigation but the imposition of further
Keen Phillips (a firm) v Field [2006] EWCA                                                      sanctions was likely to be contentious and
Civ 1524                                        Haji-Ioannou v Frangos and others [2006]        encourage satellite litigation.
Court of Appeal - Jonathan Parker and           EWCA Civ 1663
Moore-Bick LJJ                                  Court of Appeal - Arden and Longmore            This judgment would apply equally to
26 October 2006                                 LJJ                                             delay in setting down a case for detailed
                                                6 December 2006                                 assessment, as the applicable provisions
The claimant sought permission to appeal                                                        in Rule 47.14 are identical to those on
a county court judgment but failed to file a    The parties, both Greek shipping                Rule 47.8.
transcript of the judgment as ordered. The      millionaires related by marriage, fell out.
transcript was available at the time of the     Litigation in the UK followed, with appeals     Nicholas Bacon for the claimant
hearing of the claimant's application. At       to the Court of Appeal and a subsequent         Jeremy Morgan QC for the defendant
the hearing the judge granted the claimant      application to the House of Lords for
an extension of time in which to file the       permission to appeal, which was refused.
transcript, granted permission to appeal        The claimant was dissatisfied with the          Costs - generic costs; CFAs
the district judge's decision and allowed       outcome and issued proceedings in
the appeal. The defendant appealed,             Greece. In March 1999 the claimant had          Russell Young & Co v Brown and others
arguing that, given the sanction under          been ordered by the Court of Appeal to          [2007] EWCA Civ 43
CPR Rule 3.8(1), the judge had no               pay the first defendant's costs but the         Court of Appeal - Buxton, Smith and
jurisdiction to grant an extension of time      claimant declined to put forward proposals      Wilson LJJ
where no explicit application had been          for payment pending the outcome of the          31 January 2007
made and the sanction should have been          Greek proceedings. The defendant took
engaged.                                        no steps towards assessment until July          The issue before the Court in this appeal
                                                2004, five years late, following which the      was whether, in group litigation relating to


                                                                      4
vibration white finger claims, the CFAs         and that there was no distinction in           The claimant experienced difficulties in
provided a sufficient basis on which the        principle between costs incurred solely for    breathing and swelling to her lips. She
claimants could recover a share of their        the benefit of an individual claimant and      had made a full recovery after two weeks.
solicitors' costs from the paying party (the    costs incurred for the benefit of several
Solicitors' Indemnity Fund). The action         claimants. Costs-sharing was an everyday       Out of court settlement: £2,000 including
concerned a claim for damages for               occurrence and there was no requirement        an estimated £1,750 for PSLA.
professional negligence on the part of the      for the client to give express consent for
defendant solicitors in settling the            this to occur.
claimants' claims against British Coal                                                         Amputation of toe
undervalue. The claimants had entered           Dismissing the appeal, the Court of
into CFAs with their present solicitors,        Appeal held that there was no need for         Re C [2006]
Burroughs Day (BD) The intention was for        solicitors to enter into an additional or      Out of court settlement
there to be a costs-sharing arrangement         collateral agreement relating to generic       27 July 2006
between BD and other solicitor firms            costs. The client would be liable to pay the
instructed by other claimants. Proceedings      solicitors' properly incurred costs whether    The claimant was an insulin-dependent
were never commenced as acceptable              they were incurred solely on his behalf or     diabetic. He attended a chiropodist who
offers were made in almost all the cases,       for the benefit of a large group. Generic      failed to notice that the circulation in the
together with an offer to pay reasonable        costs served the purpose of keeping costs      claimant's right great toe was poor or to
costs. No group litigation order was made.      down. Protection against an inflated claim     arrange a follow up appointment. His GP
                                                could be found under CPR Part 44.5(1)(a)       also failed to arrange an appointment
Agreement could not be reached on costs         and that protection would not be               when consulted by the claimant. When the
and Part 8 proceedings were commenced.          enhanced by solicitors sending letters to      claimant was finally admitted to hospital
An order was made for detailed                  their clients informing them that some of      he was told that the toe would have to be
assessment. The judge further ordered           the costs would be expended for the            amputated. The claimant claimed that the
that the solicitors should select a             benefit of other claimants besides             defendants were negligent in failing to
maximum of six cases to be lead claims          themselves and that they would be asked        diagnose the lack of circulation and in
for the purpose of resolving the costs          to pay a share of the costs. It would be       failing to arrange an urgent appointment.
issues. Bills of costs relating to generic      good practice to mention this in a client      Liability was partially admitted but the
costs were served by BD claiming                care letter but this was not a pre-requisite   extent of causation was disputed.
identical amounts in each of the six cases.     to the recovery of a share of generic
BD did not state how many claimants             costs.                                         The claimant's gait was altered following
these generic costs were to be shared                                                          the amputation and there was a small risk
between, instead arguing that the SIF           Simon Jonathan Brown for the claimants         that he would require further amputation to
should pay a global bill of generic costs.      Justin Fenwick QC and Leigh-Ann                his legs.
The defendant argued that BD should             Mulcahy for the defendant
apportion the generic costs between their                                                      Out of court settlement: £17,000 for PSLA
clients to which BD replied that this would
be inappropriate and artificial.                Quantum                                        Michael Walsh for the claimant

When Points of Dispute were served, the         Removal of tattoo
defendant dropped that argument and                                                            Interesting reading
contended instead that the claimants were       G v Good Hope Hospital NHS Trust [2006]
not entitled to generic costs because there     Out of court settlement                        Grania Langdon-Down examines the
was no order providing for such costs. The      5 December 2006                                Criminal Injuries Compensation Scheme
defendant accepted that there had been                                                         and proposed changes in 'How crime
compliance with the Conditional Fee             The claimant was 19 when she underwent         pays' in the Law Society Gazette (2007)
Regulations 2000.                               otoplasty at the defendant hospital in July    Vol. 104 No. 06 pages 20-21.
                                                1999. A permanent Indian ink was used to
In March 2005, Master Wright held that          mark out the operative area rather than        Donal Nolan of Worcester College, Oxford
BD were not entitled to any generic costs       the biodegradable ink usually used and         analyses the concept of actionable
because, in the absence of a group              the claimant was left with permanent blue      damage in the tort of negligence in 'New
litigation order, the court could only make     spots around her ears. In April 2003 the       forms of damage in negligence' in the
an award of generic costs where the client      marks still had not faded and the claimant     Modern Law Review (2007) Vol.70 No. 1
had agreed with his solicitor that he would     had 11 sessions of painful laser treatment     pages 59-88.
be liable to the solicitor for those costs.     in order to reduce the tattooing. The
BD appealed and Senior Costs Judge              tattooing was significantly reduced but
Hurst reversed the decision, holding that       there was some residual staining which
where claims were settled before the            would be permanent. Liability was
issue of proceedings and there was no           admitted.
opportunity for a costs-sharing order to be
made, a claimant could recover generic          Out of court settlement: £6,716.32
costs under the terms of the CFA. The           including £6,000 for PSLA.
defendant appealed, arguing that,
standing alone, a CFA was insufficient to
create liability for such costs. Without such   Anaphylactic shock                                 Please contact Jason Rowley at the address below if
a collateral agreement, it argued,                                                                 you wish to discuss these or any other legal
unscrupulous solicitors might abuse their       Rydin-Orwin v Grocery Co Ltd [2007]                matters.

clients' entitlement to generic costs. There    Out of court settlement                                Jason Rowley
                                                                                                       Managing Partner
                                                                                                                                City office
                                                                                                                                Asia House
should be a more 'structured approach'          15 January 2007                                        Vizards Wyeth            31-33 Lime Street
towards generic costs. The defendant                                                                   Riverbridge House        London EC3M 7HT
                                                                                                       Anchor Boulevard
complained about BD's failure to attribute      The claimant suffered anaphylactic shock               Crossways
a specific share of the costs to each           after inadvertently consuming nuts in a                Dartford
                                                                                                       Kent DA2 6SL
claimant and about the costs-sharing            restaurant in April 2006. She claimed the
agreement with the other firms of               defendant did not provide sufficient                   Tel:   020 7400 9999
solicitors. BD argued that the CFAs were        information about its products. Liability              Fax: 020 7400 9990
                                                                                                       email: jr@vizardswyeth.com
wide enough to encompass costs incurred         was admitted.
by the solicitor for more than one client

								
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