Andrew Kearney successfully represented Amey in the recent case of Dawnus Construction Holdings Ltd v Amey LG Ltd  EWHC B13 (TCC).
This was a fascinating TCC case about whether two construction adjudication decisions had become binding for all time, or remained capable of challenge in Court. The sub contract between A and D contained an adjudication clause (Appendix 12), which did not contain a time bar provision. The main contract between A and the local authority contained a NEC3 style different adjudication clause, and a time bar provision. The sub contract expressly incorporated the terms of the main contract, save where they conflicted. A successfully argued that the time bar provision in clause 63.2 of the main contract was not part of the adjudication provisions at all, and so was not in conflict with Appendix 12 of the sub contract. As a result, the time bar was incorporated, and D was too late to challenge the two decisions. This case has potentially wide ramifications for any contract which contains an adjudication provision which does not comply with s108 HGCR Act 1996, and also contains a time bar. It is possible that the statutory Scheme will apply in place of the whole of the non compliant adjudication provisions, but the time bar will not be affected and will still apply, even to a decision made by an Adjudicator under the Scheme.
Ben Quiney QC appeared for Dawnus.
To view judgment – http://www.bailii.org/ew/cases/EWHC/TCC/2017/B13.html
View Profile: Andrew Kearney
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Earlier this month St John’s Chambers’ Personal Injury and Clinical Negligence team hosted an interactive workshop and seminar titled ‘The Essential Toolkit for Junior Personal Injury and Clinical Negligence Lawyers’.
Barristers Ben Handy, James Marwick, Jimmy Barber, James Hughes, Robert Mills and Marcus Coates-Walker ran plenary and parallel sessions throughout the afternoon referring to the latest legal developments and discussing key topics, including:
- Schedules of loss: getting to grips with the Ogden tables and unusual heads of loss
- Understanding causation in Clinical Negligence claims
The seminar received very positive feedback with comments such as:
“Well organised and informative, excellent materials provided.”
“Excellent presentations. Great speakers. Interesting topics. Very relaxed.”
“All speakers are very knowledgeable. It was great to be invited to a training session aimed at junior lawyers.”
Following the success of this seminar we are looking to host a similar event in the coming months. For further information please contact Anita Young, Marketing and Events Coordinator, at or 0117 923 4770
St John’s Chambers are delighted to welcome leading Personal Injury and Clinical Negligence Silk Matthew Phillips QC as an Associate Member.
Matthew enjoys a formidable reputation for his personal injury, clinical negligence and sports law expertise.
In the field of personal injury Matthew specialises in asbestos related disease claims and catastrophic head and spinal injuries.
In clinical negligence cases Matthew acts for claimants and defendants in a wide variety of high value claims.
Matthew also advises claimant and defendant clients in sports law claims, regularly handling anti doping regulatory work.
Matthew is recommended by the legal directories for his technical knowledge and excellent client care skills describing him as “well liked, he always provides thorough advice at the appropriate level.” and “a confident advocate with a keen eye for detail”. (Personal Injury, Chambers and Partners 2017)
“We are delighted to welcome Matthew to Bristol and the West Country – he is an exceptional addition to our teams” said Derek Jenkins, CEO
View profile: Matthew Phillips QC – SJC
If you would like further information, please contact either Annette Bushell, Practice Manager, on 0117 923 4707, or Derek Jenkins, CEO, on 0117 923 4711,
Charlie Newington Bridges wins in the Court of Appeal in Monnow Developments v Morgan  EWCA Civ 1437
Charlie Newington-Bridges of St. John’s Chambers was instructed by Neil Morgan, partner at Darwin Gray Solicitors, to represent the successful Respondent, Monnow Developments Limited.
Summary: The Appellant, Mr Morgan, borrowed £250,000 from the Respondent, Monnow Developments, a property development company. The loan was intended to allow Mr Morgan to invest £750,000 in a financial services company, Pure Options, which was an enterprise investment scheme with potential tax benefits for investors. The investment in Pure Options was also in the form of a loan, the terms of which were specified in loan notes. The terms of the loan notes included an interest rate of 8%, but interest was to be paid when cash flow allowed. Pure Options became insolvent before any interest had been paid. Mr Morgan repaid the capital borrowed from Monnow but no interest.
The issue at first instance was whether under the agreement between the Appellant and Monnow, the Appellant was legally obliged to pay interest to Monnow in circumstances where he had received no interest on his loan to Pure Options. He contended that he was not. At first instance it was held that on a proper construction of the agreement Mr Morgan was obliged to pay interest. In the alternative, the Appellant argued that the agreement as drafted failed to reflect the true intention of the parties, namely that no interest should be paid in these circumstances and should be rectified to achieve that result. This counterclaim was also rejected by the judge.
In the appeal, it was submitted on Mr Morgan’s behalf that the judge was wrong on both counts; either he ought to have http://www.eta-i.org/provigil.html construed the contract in the Appellant’s favour or, if that was not possible, he should have rectified it to achieve the result that no interest was payable. Elias LJ, giving the leading judgment, found that on the proper construction of the loan agreement between Monnow and Mr Morgan interest was payable at the rate of 8% and that the criteria for rectifying the loan agreement were not satisfied on the facts.
The appeal judgment is interesting in at least three respects. Firstly in relation to interpretation, the court was not prepared to accept arguments that strained the language of the contract and which would lead to artificial results; it placed emphasis on the interpretation that accorded with commercial reality. Secondly, the court was concerned about the use of pre-contractual negotiation documentation in the interpretation case, but nonetheless was prepared to find that certain terms in the pre-contractual negotiations could be used in the interpretation process as they reflected common usage in the background to the contract. Thirdly, on rectification, the court was focussed on the evidence of the parties and their witnesses to determine whether or not there was an outward expression of accord; finding none, it rejected the rectification argument.
View the case commentary: Monnow Developments v Morgan – Charlie Newington Bridges – Case Commentary – June 2017
Read the full article: Monnow Developments v Morgan – Charlie Newington Bridges – Article – June 2017
View Profile: Charlie Newington-Bridges
If you would like to instruct Charlie on a commercial or chancery matter, please contact his clerk on:
or 0117 923 4740
by Rebecca Taylor and Andrew Kearney
Many of you will have attended our hugely successful Civil Mediation seminar “Mules, Muck Sweats and the Mediation Trough” event in April of this year.
To recap – there was not even “standing room” as St John’s mediators Rebecca Taylor and Andrew Kearney, with guest speakers Alistair Pye and Gary Webber and chair Sean Campbell, presented and interacted with a crowded room on a range of mediation topics.
The event was a lively 2 ½ hours, and was sold out with attendees from a wide range of practice areas, all being users or potential users of mediation – personal injury, contentious probate, property, CDR, construction and more.
A Rebalancing ?
One of the themes of our event in April was whether the Courts have gone too far towards de facto compulsion to mediate via threats of costs sanction, with at least one of our speakers expressing the view that the Court of Appeal would need to step in to restore a degree of balance in the light of some slightly surprising statements in decisions at first instance.
That may now have happened to some extent in Gore v Naheed & Anor  EWCA Civ 369.
But possibly not in the most helpful way.
The case is available at http://www.bailii.org/ew/cases/EWCA/Civ/2017/369.html. The bulk of the judgment of Patten LJ deals with alleged obstruction of a right of way, and those whose first interest lies elsewhere may be forgiven for skipping over the first 47 paragraphs of the decision and concentrating on paragraphs 48 to 50. They are set out in full below.
The question which arose was whether the overall winner should be deprived of part of his costs for failing or refusing to respond to an invitation to mediate. An unusual case perhaps, given that it is a brave litigant these days who fails to put a cost protective tick in that particular box (a view borne out by the discussions at our April event).
Having lost, the paying party Defendants unsurprisingly relied on the PGF II case. Given some of the swingeing costs orders made in some of the reported decisions, they probably felt that they were on pretty strong ground…..
But both the Judge and the Court of Appeal disagreed. The relevant paragraphs of the decision read as follows, with the key parts highlighted:
48. The judge made a separate order that the claimant should have his costs of the claim on the standard basis after considering written submissions. It is clear that Mr Gore was the overall winner so as to bring into operation the general rule that he should have his costs. But the defendants submitted and now submit on this appeal that the judge should have made some allowance in their favour for the fact that Mr Gore refused to or failed to engage with their proposal that the dispute should be referred to mediation.
49.Mr McNae referred us to the decision of this Court in PGF II SA v OMFS Company 1 Ltd in which Briggs LJ emphasised the need, as he saw it, for the courts to encourage parties to embark on ADR in appropriate cases and said that silence in the face of an invitation to participate in ADR should, as a general rule, be treated as unreasonable regardless of whether a refusal to mediate might in the circumstances have been justified.Speaking for myself, I have some difficulty in accepting that the desire of a party to have his rights determined by a court of law in preference to mediation can be said to be unreasonable conduct particularly when, as here, those rights are ultimately vindicated. But, as Briggs LJ makes clear in his judgment, a failure to engage, even if unreasonable, does not automatically result in a costs penalty. It is simply a factor to be taken into account by the judge when exercising his costs discretion.
50.I this case the judge did take it into account but concluded that it was not unreasonable for Mr Gore to have declined to mediate. His solicitor considered that mediation had no realistic prospect of succeeding and would only add to the costs. The judge said that he considered that the case raised quite complex questions of law which made it unsuitable for mediation. His refusal to make an allowance on these grounds cannot in my view be said to be wrong in principle.
This was a unanimous decision – the other two judges (Lewison LJ and Underhill LJ) simply agreed with Patten LJ.
This raises a number of interesting points (which may be discussed in Muck Sweats 2 later this year), but three of particular note:
- First – it is welcome to see a failure to mediate being regarded as just one factor to be taken into account when exercising the discretion on whether to award costs and if so how much. Although query whether this will actually have much effect in practice to prevent the ‘tick the box’ approach which has developed as a shield against possible costs sanction.
- Second – a reminder that we should be careful what we wish for. In rowing back against PGF II the Court of Appeal may have set an unhelpful hare running – is it really the case that whether a refusal to mediate was reasonable at the time depends on whether the refuser later wins and his “rights are ultimately vindicated”?
- And an even more worrying third point – the Judge said that the case was unsuitable for mediation as it raised quite complex questions of law…… Surely, complex cases with uncertainty are precisely the cases which we should be mediating?
Muck Sweats 2 ?
We have been asked to consider repeating our April event, but more likely is that we will hold Muck Sweats 2 later in the year and concentrate on some of the topics on which time defeated us last time around, but of course with a look at any recent decisions such as this one. Watch out for a flyer on that in the coming months.
In the meantime this latest Court of Appeal decision maybe corrects the balance a little on de facto compulsion, but introduces even more uncertainty through unhelpful reasoning. As those who attended our April event will know, this is all fertile ground for enjoyable debate and we will certainly not shy away from it.
But on the front line of litigation does this actually help?
Probably not……………keep ticking those boxes!
And keep mediating….
To read this full article, please click:
MULES, MUCK SWEATS AND THE MEDIATION TROUGH – A FOLLOW UP
James Marwick, a member of St John’s Chambers’ Personal Injury team, has successfully obtained enforceable costs orders for a Defendant local authority in personal injury claims subject to qualified one way costs shifting (QOCS) in two recent cases.
The cases are interesting because in neither case was fundamental dishonesty alleged. Fundamental dishonesty is widely regarded as the central gateway under which a Defendant might seek to escape the strictures of QOCS. However, there is an increasing focus on the other procedural tools available to a Defendant to recover costs.
In the first case, a late notice of discontinuance was set aside and the claim struck out on the basis that it disclosed no grounds for bringing the claim. An enforceable costs order under CPR 44.15(a) was duly made.
In the second case, a wasted costs order was obtained against the Claimant’s solicitors pursuant to CPR 46.8 upon the claim being discontinued at trial upon rejection of a late application to amend a defective statement of case.
Continue reading full article: Recent QOCS Success
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St John’s Chambers are delighted to be shortlisted in the ‘Chambers of the Year’ category for the STEP Private Client Awards 2017/2018.
St John’s Chambers Wills, Trusts and Tax team provides a full range of private client expertise and the nomination recognises our legal strength and excellent client relationship skills.
Commenting on being short listed, Alex Troup, Head of the Wills, Tax and Trusts team, says:” We are pleased to be nominated as “Chambers of the Year 2017” as the whole team’s focus is working collaboratively with private clients to provide an outstanding legal service, which is highlighted by this nomination. St John’s Chambers is the ‘go to’ set in the South West and this nomination underscores the legal expertise offered by sets outside of London”.
The winner will be announced at the STEP awards ceremony in London on 6th September 2017.
Latest article from Justin Valentine | How to get the best from your medical expert in clinical negligence cases
Our Clinical Negligence barrister, Justin Valentine, discusses the court’s approach to assessing the credibility of expert evidence in clinical negligence claims, providing an overview of what considerations solicitors need to have when choosing an expert, instructing an expert and thereafter assessing how their evidence will be judged in court.
He was very free with his allegations of professional negligence against a number of doctors and surgeons, all of which have been shown to be without foundation. These allegations were based upon a superficial reading of the relevant notes and records and a totally inadequate appreciation of matters which were well-known to those who have up to date responsibility for the day to day care of spinal injuries but which were unknown to him ….
1. An expert’s “overriding duty” is, according to CPR 35.3, to the Court. This is a somewhat optimistic statement of the expert’s duty. After all, in clinical negligence cases each party has their own breach of duty and causation experts whose evidence is being relied upon precisely to support the party’s case. However, as the quotation above demonstrates failure to pay adequate attention to the logic of the expert’s opinion, to the thoroughness of the analysis and to the qualifications of the expert will prove fatal to the case as well, possibly, to the expert’s future flow of medico-legal work. Credibility is paramount.
Read the full article: How to get the best from your medical expert in clinical negligence cases
View profile: Justin Valentine
If you would like to instruct Justin on a related matter please contact his clerks via email on
Leslie Blohm QC and Christopher Jones win as the Court of Appeal interprets service provisions for Agricultural Notice to Quit
Leslie Blohm QC and Christopher Jones, barristers within St John’s Chambers’ Agriculture & Rural Affairs team, have recently appeared for the successful tenant as the Court of Appeal interprets service provisions for agricultural Notice to Quit.
The Court of Appeal has held that a notice to quit was not properly served and so did not determine a farm business tenancy under the Agricultural Tenancies Act 1995.
Section 36(2)(c) of the Act provides that any notice or document required or authorised to be served under the Act is duly served if it is given to him in a manner authorised by a written agreement made, at any time before the giving of the notice, between him and the person giving the notice. So it’s easy to serve a notice to quit – you just follow the instructions in the lease, right? In Grimes v. Trustees of Essex Farmers and Union Hunt  EWCA Civ 361 the lease provided that ‘Either party may serve any notice (including any notice in proceedings) on the other at the address given in the Particulars or such other address as has previously been notified in writing’. The tenant did notify the landlord of another address, but the landlord served notice to quit at the address stated on the front of the lease anyway. The judge held that the notice was good – the landlord could serve the notice at either address, at his option. It meant what it said, and it gave the landlord a choice. It mattered not that different wording might have produced a fairer or less arbitrary result – see Arnold v. Britton  AC 1619. The tenant had therefore been rightly evicted (the landlord had simply put another farmer into possession) and his claim for two years of lost profits (representing the profits from the occupation he would have had, had the landlord served a valid notice to quit at that time) failed.
The Court of Appeal (Beatson, Henderson, Macur LJJ) disagreed with the Judge. Whilst his view may have been the literal meaning of the provision (and the Court of Appeal were state whether they agreed with that, although their close textual analysis suggested not – see Henderson LJ at ), it was not its purpose. If one party gave the other a new address for service, it was plainly intended to be substituted for the earlier stated (and presumably now redundant) address. As the Court mused, it was not easy to see what the point of enabling a party to provide an up to date address in what was effectively a six year http://pharmacy-no-rx.net/zovirax_generic.html lease if the other party could disregard it. Although in some cases ‘or’ might be interpreted as ‘and/or’ (see Federal Steam Navigation Co Ltd v Department of Trade and Industry  1 WLR 505) this was not one of them.
The case is only the second decision in which the Court of Appeal has applied the Supreme Court’s most recent decision on construction (Wood v Capita  2 WLR 1059) which rationalises what was considered to be the more ‘literalist’ approach of Arnold v Britton to the construction of contracts with the ‘purposive’ approach of Rainy Sky v Kookmin  1 WLR 2900, essentially by stating that Arnold v Britton did not affect the Rainy Sky principles. Henderson LJ considered that the Judge had erred by conducting “a literalist exercise focused solely on a parsing of the wording of the particular clause” to quote Lord Hodge in Wood v. Capita. The judge had gone wrong by starting with a consideration of the literal meaning and then asking himself whether that was plainly wrong, rather than by considering the ordinary meaning of the words in their context.
As a further point, it is also worth noting the rather short shrift given to an attempt by the landlord to challenge the judge’s factual finding that the tenant had sent the landlord his new address. This was a factual finding not to be lightly interfered with; the landlord’s submission on appeal was hopeless. Appellate courts had recently reconsidered the correct approach to such appeals, and where the challenge was to a factual decision relating to a finding of primary fact, the appellate court had to consider that the judge below was ‘plainly wrong’; this meant that no reasonable judge could have come to that conclusion – see Lord Reed in Henderson v Foxworth Investments Ltd  1 WLR 2600 and Lord Hodge in Beacon Insurance Co Ltd v Maharaj Bookstores Ltd   4 All ER 418. That is plainly a very difficult hurdle to surmount, and it may be that it was one that was more likely to be raised in a respondent’s notice (where permission is not required) than on a straight appeal.
Leslie Blohm QC and Christopher Jones of St. John’s Chambers, instructed by Roythornes, represented the successful appellant.
View the judgment: Grimes v The Trustees of the Essex Farmers & Union Hunt  EWCA Civ 361
If you would like to instruct Leslie or Christopher on a commercial or chancery matter, please contact their clerks on: or 0117 923 4740
Latest article from Abigail Bond and Iain Large ‘What do children lawyers need to know about the Court of Protection?’  Fam Law 537 – 542
Barrister Abigail Bond and pupil barrister Iain Large, members of our Family team, have recently published an article called ‘What do children lawyers need to know about the Court of Protection?’ in this month’s Family Law Journal. The article highlights the issues arising when a local authority in care proceedings seeks to deprive a child of liberty in a manner falling short of secure accommodation, and offers a road map to aid understanding of this complex area.
For the full article please see the link below.
If you would like to instruct Abigail or Iain, please contact their clerks: StjohnsChambersFamilyClerks@stjohnschambers.co.uk or 0117 923 4720