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Giving litigants in person a helping hand: latest article from Lucy Reed

Lucy ReedLucy Reed, member of our family practice group,
has recently written an article for the Law Society Gazette on the challenges faced by litigants in person.

View article: Giving litigants in person a helping hand

Lucy Reed along with a team of volunteers from our family practice group, including Christopher Sharp QC, have produced a series of three short videos giving basic practical guidance to litigants in person who are preparing for a first court hearing. The three videos are available to view for free on YouTube here or via the website accompanying the book (www.nofamilylawyer.co.uk). They can be embedded in other websites through a creative commons licence.

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Personal injury barristers in Court of Appeal in Mitchell triple case

Richard SteadHead of Chambers, Richard Stead and Andrew McLaughlin were in the Royal Courts of Justice this week in legal debates that will shape the future of litigation.

Master of the Rolls Lord Dyson, joined on the bench by Lord Justice Jackson and Lord Justice Vos heard three cases concerning relief from sanctions.

Andrew McLaughlin

Andrew represented TH White in the lead case of Denton & Ors v TH White and Richard represented the Dentons. This is an appeal against relief from sanction being granted for the Dentons who served six witness statements late, forcing a 2-week trial to be adjourned.

Andrew gives his view on the appeals that will clarify the post-Mitchell case management landscape.
This article can also be viewed on the Law Society Gazette website.

The Master of the Rolls expressed surprise the guidance he delivered in Mitchell had apparently led to a substantial increase in satellite litigation, a reduction in cooperation between parties to litigation, and a significant increase in costs, during the hearing of the three conjoined appeals in Denton v T H White Ltd, Decadent Vapours v Devon & others, and Utilise TDS v Bolton College.  He said it was “just guidance” and the intention had not been to remove discretion.  The problem with guidance of course is people are likely to follow it.  As to that, he said it had been “misinterpreted”.  But it is unsurprising that District and Circuit Judges have refused to grant relief from sanction for non-trivial breaches for which there is no good explanation.  Paragraph 58 of Mitchell is clear:  the expectation is the sanction will usually apply unless the breach is trivial or there is a good reason for it.  Whilst the court still has the power to grant relief if neither of these applies, the two specific factors mentioned in Rule 3.9 will usually trump other circumstances.

Counsel for the Law Society, David Holland QC, pointed out the effect of Mitchell has been that non-trivial breaches for which there is no good explanation were often resulting in a disproportionate sanction, even though the breach has had no effect on the timetable of the litigation generally nor the business of the court or other litigants.  In written submissions, the Bar Council suggested the importance of justice in the individual case ought to rank on a par with the two specific factors in Rule 3.9.  But if that is followed we are back to where we were before.  The Law Society suggested what should matter is whether a breach is ‘material’ rather than ‘trivial’.  As the Master of the Rolls pointed out, that begs the question:  material to what?  The triviality or otherwise of the breach looks set to stay as the first question.  It has the advantage of looking simply at the gravity of the breach.  Where further guidance may emerge is in relation to the importance of considering all the circumstances of the case.  If a non-trivial breach occurs, without adequate explanation but in an otherwise well-run case, the weight to be attached to (a) and (b) of Rule 3.9 may not necessarily be as great as has been thought hitherto and therefore may be more easily outweighed by the individual circumstances of the case.  The extent to which more flexibility will be allowed in this kind of situation is the point of greatest interest.  I expect their Lordships will want to do something to correct what they perceive as a general misinterpretation of Mitchell.  But the room for manoeuvre is limited if the change of culture away from non-compliance is to be achieved.

The problem of opportunistic resistance to a self-evidently trivial breach was the subject of anxious discussion.  Mr Holland QC submitted costs sanctions would remain a good deterrent.  However, whilst this may be so in many types of civil work, it is not the case in personal injury litigation.  A claimant, with the benefit of QOCS, who knows his claim may well fail, is unlikely to be fazed by the threat of a costs sanction for refusing to consent to relief for a trivial breach.  CPR Rule 44.14 is pretty clear.  None of the exceptions in CPR 44.15 or 44.16 will apply.  It was suggested on behalf of the Law Society the legal representative should bear the costs.  Such an order could be made under CPR 44.11.  However, this will be easily circumvented by a solicitor saying his client gave firm instructions to oppose the application.  In that event it is hardly fair to visit a costs order on the solicitors.  The court has few other weapons to deploy to deter a speculative objection by someone bringing a speculative personal injury claim.  One option would be to mark that party’s card;  for example, to say that the objection was unreasonable and has disrupted the administration of justice and that will be taken into account should that party himself require relief from sanction in the event of a breach.  A party who knows he will fall to be judged by standards he has tried to set for others in the context of a minor breach is more likely to be willing to behave reasonably.

Whilst their Lordships will no doubt want to get this judgment right, don’t expect it to take very long.  Those needing relief from sanction would be well advised to ensure their applications are dealt with after the decision is published;  especially if the application is borderline.  Those who are unable to persuade the court to postpone the hearing may want to seek a fairly generous extension of time to appeal.  If a judge has ‘misinterpreted’ Mitchell by refusing relief for a breach, which, though not trivial nor well explained, has had no effect on the timetable or the wider administration of justice, with the result that the individual concerned suffers a substantial injustice, then on appeal justice may yet prevail.

Andrew P McLaughlin
Counsel for T H White Ltd in the first appeal, Denton v T H White Ltd

Break notices: latest article from John Sharples

John SharplesJohn Sharples, Head of our property and real estate team considers three recent cases about the validity and effect of break notices:- Friends Life Ltd v Siemens Hearing Instruments Ltd [2014] EWCA Civ. 382, Marks & Spencer plc v BNP Paribas http://pharmacy-no-rx.net/cialis_generic.html Securities Services [2014] EWCA Civ. 603 and Friends Life Management Services Ltd v A&A Express Building Ltd [2014] EWHC 1463 (Ch)

Download article: Breaking up is hard to do

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Richard Stead appears in the High Court in property damage case

Richard SteadRichard Stead, a member of our property insurance litigation team was recently instructed by Lyons Davidson to represent the first defendant in the High Court case of Stagecoach South Western Trains Ltd v (1) Kathleen Hind (2) Andrew Steel [2014] EWHC 1891 (TCC).

The claimant train operator sought to recover the cost of repairing damage to a train, and other consequential costs, against the first defendant landowner and the second defendant tree surgeon after a tree growing on the first defendant’s land fell onto the adjoining railway line.  A train collided with the tree causing extensive damage to the rolling stock.

Following a trial on 12th to 15th May 2014, on 11th June 2014, Coulson J gave judgment for the first and second defendant  The Judge held that a landowner’s duty in respect of a tree on her land, which fell onto a railway line, had extended no further than the carrying out of periodic informal or preliminary observations or inspections, in the absence of any trigger or warning sign. There was nothing that should have alerted her, or put her on notice, that the tree was anything other than healthy, or required a closer inspection by an arboriculturalist.  Coulson J reviewed the authorities relating to fallen trees and set out the principles relating to a landowner’s duty at para. 68 of the Judgment.

The claim against the second defendant tree surgeon also failed on the grounds that he had never been asked to consider the safety or health of the tree when he had worked in the first defendant’s garden.  Accordingly, he owed not duty of care to the claimant railway company to warn of any structural instability of the tree, which would not have been apparent to him without carrying out a close inspection in any event.

Download judgment: Stagecoach South Western Trains Ltd v (1) Kathleen Hind (2) Andrew Steel

View profile: Richard Stead

Kambiz Moradifar appears in the High Court in application to discharge care order

Kambiz MoradifarKambiz Moradifar, a member of our children’s team was instructed by Stone King LLP in the case of Re De (A Child) sub nom A father v (1) SBC (2) A Mother (3) De (By his Children’s Guardian) (2014).

This case provides detailed analysis and guidance on the steps that the Local Authority need to take before removing a child from the care of his/her parents after a full care order is made and there is a change in the care plan.

This significant Judgement also considers the steps that parents can take to prevent such a removal.

To find out more about this Judgement click here

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Guy Adams appears in Court of Appeal in professional negligence case

Guy AdamsGuy Adams, a member of our Professional Negligence team  was instructed by WBW Solicitors in the case of Joyce v Darby & Darby [2014] EWCA Civ 677, in which a reserved judgment was handed down on 19th May 2014 in the Court of Appeal.

Guy acted for the claimant in this professional negligence case, arising out of negligent conveyancing in relation to the purchase of a property by Ms Joyce and the subsequent negligence of her solicitor in trying to sort the matter out himself, when he should have appreciated that there was a conflict of interest. Ms Joyce suffered considerable losses after she found herself in a dispute with her neighbour over works she was carrying out at the property.  The dispute led to injunctive proceedings being taken against her and eventually the property was repossessed and sold by her mortgagee.

Guy succeeded at first instance in obtaining judgment for very substantial consequential losses. The appeal by the defendant solicitors raised issues of causation, forseeability and the extent of the responsibilities assumed by the firm.  The appeal was successful in part. Longmore LJ dissented from Rimer and Tomlinson LJJ in respect of the recoverability of one head of damages.

The case has been remitted to the judge to assess the
outstanding heads of damages, in respect of which the claim exceeds £200,000,
namely diminution in value of the property and the cost of works carried out to
the property.

View full Judgement: Joyce v Darby & Darby [2014] EWCA Civ 677

View Law Society Gazette article: click here

View profile: Guy Adams

Andrew Kearney reports on the latest development in Adjudication – the Supreme Court grants permission to appeal in Aspect v Higgins

Andrew KearneyAndrew’s earlier articles on the conflicting Court of Appeal approaches in Aspect v Higgins and Walker v Quayside are available to view here and here.

The latest news is that permission has been granted and the Supreme Court will now determine whether there is (as per the TCC in Jim Ennis and the Court of Appeal in Aspect) or is not (as per the TCC in Aspect and the Court of Appeal in Walker v Quayside) an implied term which has the practical effect of setting the limitation clock running afresh where the losing party in an adjudication wishes to reclaim the payment made pursuant to the Adjudicator’s decision.

View profile: Andrew Kearney

John Dickinson successful in High Court boundary dispute

John DickinsonJohn Dickinson, a member of our property and real estate team, acted for the claimants in Peter and Christine Gregory v Donald and Marion Naysmith in their boundary dispute claim in the High Court Oxford District Registry. The trial was heard before His Honour Judge Harris QC, who recently handed down judgment for the claimants confirming their ownership of a patio area and former mill race leat.

The case confirms the principle that extrinsic evidence is admissible to construe a plan to a conveyance that  is ‘uncertain, contradictory or ambiguous’ and that such a contradiction can come http://premier-pharmacy.com/product/tramadol/ from the consequences on the ground of the division of the land according to the plan. The conveyance described the property being sold as ‘the property known as …’. This description allowed the court to admit evidence to identify the property so known. This included evidence about pre-contract inspections of the property being sold and answers in a Sellers Property Information Form. The claimants also succeeded on the alternative claims to rectify the conveyance for mutual mistake and to acquire the disputed area of land by proprietary estoppel.

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Chambers raise £4,200 at charity golf day for Headway Bristol

St John’s Chambers organised a Charity Golf Day & Dinner at The Bristol Golf Club on 3rd April 2014 in aid of Headway Bristol, raising the fabulous sum of £4,200.

Derek Jenkins (CEO, St John’s Chambers), Sarah Tune (St John’s Chambers), Rose Kemery (St John’s Chambers), Katherine Hicks (Headway Bristol) and Kate Croucher (CEO, Headway Bristol)

Over 52 golfers completed the 18-hole 4-ball Stableford competition with Nestor as the winners and runner up Withy King LLP being awarded trophies for all the team.  Other teams that participated included ARAG, Foot Anstey LLP, Frenkel Topping, Irwin Mitchell and New Law Solicitors.

Chambers would like to say a huge thank you to Haines Watts for sponsoring the event, Scott Law for kindly donating the goody bags, and Bristol Golf Club for supporting the event.

In particular we thank all those who supported us in raising much needed funds for our chosen charity, Headway Bristol.

Kate Croucher, CEO (Headway Bristol) said: “The support we receive from organisations such as St John’s Chambers – and all those who took part in the Golf Event – is vital in helping us raise awareness about brain injury and the devastating effects it can have on the individuals and their families.  Equally, it helps to raise vital funds that will go directly to providing our range of services.  We are extremely grateful to everyone involved – it was a great event which we hope to hold again next year.  If anyone would like to support the Charity or would like more information, please contact us on or visit our website www.headwaybristol.org.uk.”

Going forward we are organising a charity ball for Headway Bristol on 26th September at the Marriott Royal Hotel Bristol as part as our fundraising activities this year. If you would like more information, please click here.

Leslie Blohm QC represents Eirian Davies as her estoppel claim for an interest in her parents’ £7 million farm is upheld by the Court of Appeal

Leslie Blohm QCLeslie Blohm QC, a member of our wills, trusts and probate team was instructed by Wiljo Salen of Hugh James, Cardiff to represent Eirian Davies both at trial and on appeal, in her £7 million farm battle.

The Court of Appeal has upheld the claim of Carmarthenshire farmers’ daughter, Eirian Davies, to an interest in her parents’ £7 million farm and pedigree Holstein/Friesian milking herd. The claim is the latest in a line of actions brought by relatives who have  worked on farms, often for many years, for long hours and at low or no pay, on the basis that they would succeed to the farm in due course.

Eirian Davies’ parents who have owned and run the farm since 1961 disputed all of her daughter’s allegations that promises had been made to her, and that she had relied on those promises to her detriment – all matters that had to be proved for her to succeed.  The Court of Appeal approved the judgment of HHJ Milwyn Jarman QC who heard evidence over three days in Cardiff last June, in favour of Ms. Davies. The case illustrates the complex factual findings that a Court must make in respect of matters that often arose informally, in private and many years ago. Unless settled by agreement, the case will now proceed to a further hearing where Eirian Davies’  entitlement will be decided.

Download detailed discussion about this case: Estoppel and detrimental reliance

This case has received national coverage:

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