Archive for the ‘Litigation’ Category
Tuesday, February 7th, 2012
The Court of Appeal has reviewed the law on vicarious liability in the co-joined appeals in Weddall v Barchester Healthcare Limited and Wallbank v Wallbank Fox Designs Limited where employees suffered injury at work as a result of violence by another employee.
In reviewing the authorities on the concept of vicarious liability the court maintained that it would be unwise to treat these providing an authoritative test stating that each case must be determined on its own facts.
In doing so the court found the assault in Weddal was “separate and distinct” and “outside the course of employment” whilst in Wallbank they concluded it was “so closely connected, in time, place and causation”, being an “immediate response to instructions” that it was fair and just to hold they employer vicariously liable.
Despite concerns that the concept of vicarious liability was being incrementally extended, it is reassuring the Court of Appeal has reasserted the need for the courts to maintain a tight reign keeping the concept within clear limits.
Posted by Steven Conway, specialising in: defence of claims on behalf of insurers, local and public authorities, in particular employers’ liability and public liability claims.
Steven Conway
020 7337 1037
sconway@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: assault at work, Court of Appeal, employers' liability insurance, steven conway, strict liability, vicarious liability
Posted in Employers & Public Liability, Insurance, Litigation | No Comments »
Friday, January 20th, 2012
Pumpkin Patch is the latest retailer to go into administration. The administrators have said that they will continue to trade the relevant stores whilst they look for a buyer. If a company in administration retains premises for the benefit of creditors, the administrator must treat the rent that falls due under the lease during the period as a necessary disbursement and therefore it will rank as an “expense”, which is higher up the chain of priority than an unsecured debt. Whilst this might sound like some welcome news for landlords, unfortunately it is only rent that falls due during occupation. If the Pumpkin Patch leases have rent payable on the usual quarter days then the next payment will not fall due until 25th March and by this time the landlord may well find that the administrators are no longer in occupation. Monthly rents are usually seen as a benefit to tenants but in this scenario the landlord could benefit as well.
Kirsty Black
0121 237 3958
kblack@brownejacobson.com
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Rating: 9.5/10 (2 votes cast)
Tags: administrations, creditors, debts, landlords, property, property litigation, pumpkin patch, Retail, retailers, tenants
Posted in Litigation, Property, Retail | No Comments »
Thursday, January 12th, 2012
Days after Cameron launches an attack on the compensation culture the Transport Select Committee has recommended changes to the law to reduce the rising costs of whiplash injury claims.
The Committee reports there has been a 70% rise in motor insurance injury claims in the past six years, despite a 23% drop in the number of RTA casualties.
It recommends an increase in the threshold for receiving damages in whiplash cases and if this fails to reduce the number of claims significantly, the government should bring forward primary legislation to require objective evidence of whiplash injury and it having a significant effect on the claimant’s life, before compensation is paid.
Anyone who has been involved in a road traffic accident or who deals with these claims will be aware of the huge industry that now surrounds even the most minor accident. It is time for a change.
Posted by Steven Conway, specialising in: defence of claims on behalf of insurers, local and public authorities, in particular employers’ liability and public liability claims.
Steven Conway
020 7337 1037
sconway@brownejacobson.com
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Rating: 9.3/10 (7 votes cast)
Tags: Browne Jacobson LLP, compensation claims, compensation culture, insurance, litigation, motor, motor insurance fraud, personal injury, road traffic accidents, road traffic claims, steven conway, whiplash claims
Posted in Insurance, Litigation | 1 Comment »
Thursday, January 12th, 2012
We’ve seen a lot of publicity recently about the Government’s intention to make the adoption process easier and faster, but for the most part the focus has been on placing babies and young children.
This week brings news that the needs of older children are being forgotten and that it is a concern that deserves to be taken seriously.
Since 1999 it has be possible for children to bring claims against local authorities for failing to secure appropriate arrangements which are in Looked After Children’s short and long term best interests. Failure to do so could be the subject of long, expensive and protracted litigation – something which we are seeing a lot more of.
Posted by Sarah Erwin-Jones, who specialises in social services, the care sector, education and negotiating legal costs; advises on risk management issues including data protection matters.
Sarah Erwin-Jones
0115 976 6136
serwin@brownejacobson.com
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Rating: 9.3/10 (3 votes cast)
Tags: adoption, adoption system, childrens social care, Education, fostercare, local authority children's services, Social Care
Posted in Education, Litigation, Public Sector, Social Care | No Comments »
Friday, January 6th, 2012
Around half of public sector senior leaders have expressed concerns over growing public-private sector collaborations according to a recent report by global management consulting firm the Hay Group.
The report, Relationship Counselling, surveyed around 200 senior leaders from local government, healthcare, uniformed services and universities.
The report highlights growing opposition and resentment to closer ties with the public sector amid increasing concerns over risks to service delivery.
This is an issue that is clearly taxing the minds of public sector managers as was evidenced at our December Claims Club session on shared services, outsourcing and private sector delivery of local government services.
With the report predicting public-private sector collaborations will double over the next three years these are unsettling findings.
Then again following the very public failure of private sector providers of care services in 2011 perhaps we ought not to be that surprised by the research findings.
Posted by Bridget Tatham, specialising in: high value complex litigation relating to disease and stress and bullying at work; experienced in regulatory matters including advocacy, investigations and inquests.
Bridget Tatham
0121 237 3916
btatham@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: hay group, healthcare services, local government, private sector, Public Sector, relationship counselling, service delivery, uniformed services, universities
Posted in Government bodies, Health, Litigation, Public Sector | No Comments »
Friday, January 6th, 2012
David Cameron has vowed to protect British businesses by “waging war” on the health and safety culture inflicting the UK.
With many depicting a double dip recession on the horizon Cameron argues businesses need some respite from the “battle against a tide of risk assessment forms and fear of being sued for massive sums”.
Many believe there is almost strict liability for employers’ liability claims which makes even accidents where there is no fault on the part of the employer virtually impossible to defend.
Cameron intends to abolish or consolidate up to half of the existing health and safety regulations and to change laws so that businesses are no longer automatically at fault if something goes wrong.
Whilst we await the Prime Ministers detailed proposals his call for individuals to take “responsibility for our actions and rely on common sense” will be welcomed by all those who have felt that the scales had tipped too far in favour of the careless, feckless and work-shy.
Posted by Steven Conway, specialising in: defence of claims on behalf of insurers, local and public authorities, in particular employers’ liability and public liability claims.
Steven Conway
020 7337 1037
sconway@brownejacobson.com
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Rating: 9.8/10 (6 votes cast)
Tags: compensation culture, David Cameron, employers liability, health and safety, insurance, steven conway, strict liability
Posted in Employers & Public Liability, Health & Safety, Insurance, Litigation | No Comments »
Tuesday, January 3rd, 2012
The latest version of Well-maintained Highways: the Code of Practice for Highway Maintenance Management has been released which includes updated chapter 13 providing guidance on Winter Service.
This revision is a consolidation of all previous UK Roads Liaison Group winter guidance documents and includes new detailed information on the scope and detail recommended for local authority winter maintenance policies. Local authorities would be well advised to note these to ensure they comply with their duty under section 41(1A) of the Highways Act 1980 as we head in to the winter weather season.
Posted by Steven Conway, specialising in: defence of claims on behalf of insurers, local and public authorities, in particular employers’ liability and public liability claims.
Steven Conway
020 7337 1037
sconway@brownejacobson.com
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Rating: 10.0/10 (4 votes cast)
Tags: browne jacobson, codes of practice for higways maintenance management, insurance, litigation, local authority winter maintenance, section 41(1A) of the Highways Act 1980, steven conway, uk roads liaison group, well maintained highways, winter service
Posted in Insurance, Litigation, Local Authorities | No Comments »
Friday, December 16th, 2011
Just in time to put a downer on the Christmas spirit the Court of Appeal has held that it was the responsibility of Father Christmas to keep his grotto clean and tidy and that he was responsible for an elderly lady tripping on a plastic icicle while she visited his grotto.
Joan Dufosse, 73, was having a photograph taken with her two grandchildren at Selfridges in Oxford Street store when she trod on the icicle and fell, fracturing her left thigh. Lord Justice Rix held that Mrs Dufosse was in no way to blame for falling, stating that “It was not her duty to ensure there were no tripping hazards in the room which might cause something amiss. This was purely the duty of Santa and the elf.”
Mrs Dufosse is now in line for a £30,000 payout as elves now fear for their jobs in cuts expected as a result of Santa having to meet this compensation claim.
Posted by Steven Conway, specialising in: defence of claims on behalf of insurers, local and public authorities, in particular employers’ liability and public liability claims.
Steven Conway
020 7337 1037
sconway@brownejacobson.com
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Rating: 9.4/10 (7 votes cast)
Tags: compensation claim, Court of Appeal, lord justice rix, mrs dufosse, public liability, santa, selfridges, steven conway
Posted in Employers & Public Liability, Insurance, Litigation | No Comments »
Friday, November 25th, 2011
The case of Fortune v Roe has re-visited the question of success fees and what the correct success fee ought to be if certain risks are removed from the litigation.
In this case the Claimant had been involved in a very serious car accident but by the time she entered into a CFA liability had been admitted and judgment entered for damages to be assessed. The CFA provided for a success fee of 100%. Sir Robert Nelson found that there was no risk to the recovery of charges to the solicitor and there could not be said to be a litigation risk. Therefore the only risk was of receiving no costs after beating a Part 36 offer and the success fee would represent compensation for that. As a result the court found that a success fee of 100% could not be justified and the figure of 20%, awarded by the first instance judge was upheld.
This shows the importance of getting the risk assessment on the CFA right. If it’s not an accurate assessment then we can expect the courts to get involved – with cost consequences!
Posted by Nichola Evans, who specialises in professional indemnity work, directors and officers, legal expenses insurance, conditional fee agreements and after the event insurance and commercial litigation.
Nichola Evans
020 7337 1019
nevans@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: cfa, insurance, litigation, litigation costs, Part 36, professional indemnity, risk assessments, success fees
Posted in Insurance, Litigation, Professional Indemnity | No Comments »
Wednesday, October 19th, 2011
In a warning to those who seek to help claimants exaggerate claims, two relatives of a claimant in a personal injury claim have been held to be in contempt of court for deliberately creating a false impression that she suffered from very limited mobility in an attempt to inflate her claim.
Thereza Daoud suffered serious head injuries when she was hit by a bus and presented a claim for personal injury for several million pounds. The defendants obtained video surveillance which showed she was presenting a “deliberately false picture” to the defendant’s medical experts which resulted in her claim being settled for only £40,000.
Proceedings for contempt of court were brought against her husband two daughters with the High Court finding that the husband and one daughter had signed false statements of truth and deliberately given a false impression to the experts. A further hearing will be held to determine what sanction should be applied.
Posted by Steven Conway, specialising in: defence of claims on behalf of insurers, local and public authorities, in particular employers’ liability and public liability claims.
Steven Conway
020 7337 1037
sconway@brownejacobson.com
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Rating: 10.0/10 (6 votes cast)
Tags: contempt of court, exaggerated claim, fraud, insurance fraud, motor insurance fraud, road traffic accidents, steven conway
Posted in Insurance, Litigation | No Comments »
Tuesday, October 11th, 2011
A senior Scotland Yard officer has warned motorists to beware of “cash for crash” insurance scams following the sentencing of six men charged with insurance fraud following three induced road traffic accidents totalling over £50,000.
Only one of those charged received a custodial sentence, jailed for 8 months after admitting conspiring to defraud insurance companies, while the remaining five received suspended sentences having admitted committing similar offences.
Contrast these sentences with those handed out in the recent riots where one rioter was jailed for six months for stealing a £3.50 case of water from a supermarket while another was jailed for five months for receiving a pair of shorts given to her after they had been looted from a city centre store.
Judges criticised for the apparent harshness of sentences given to rioters were defended on the basis that the sentences handed down had a deterrent effect. Perhaps the time has come for the courts to take a similar approach to insurance fraud, or else continue to be seen as a soft touch.
Posted by Steven Conway, specialising in: defence of claims on behalf of insurers, local and public authorities, in particular employers’ liability and public liability claims.
Steven Conway
020 7337 1037
sconway@brownejacobson.com
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Rating: 10.0/10 (10 votes cast)
Tags: browne jacobson, Cash for crash, fraud, induced traffic accidents, insurance, insurance fraud, insurance scam, litigation, motor, motor insurance fraud, planned traffic accidents, steven conway
Posted in Insurance, Litigation | No Comments »
Friday, September 30th, 2011
On 1st October the 57th update to the Civil Procedure Rules comes into force.
The 57th version seeks to bring uniformity and clarity to the meaning of “more advantageous” and “at least as advantageous” in Part 36. In recent cases judges have been seen to use their discretion leading to inconsistency in their decision making when it comes to awarding costs following an unaccepted Part 36 offer.
From 1st October, “more advantageous” means “better in money terms by any amount, however small”. And “at least as advantageous” shall be “construed accordingly.”
The amendment will provide a clearer cut approach to the costs rules, and it is hoped that the change will reduce the number of appeals bought forward regarding costs.
CPR.14(2)(a) provides that the normal cost consequences of Part 36 do not have to apply following judgment if it is unjust for them to do so. It remains to be seen as to whether parties will seek to rely on this aspect of the Part despite the clarity provided, if for example, the award is better in monetary terms by a nominal amount.
Posted by Nichola Evans, who specialises in professional indemnity work, directors and officers, legal expenses insurance, conditional fee agreements and after the event insurance and commercial litigation.
Nichola Evans
020 7337 1019
nevans@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: amendments to part 36, appeals, browne jacobson, civil procedure rules, Claims, cost rules, Court of Appeal, Nichola Evans, Part 36
Posted in Commercial dispute resolution, Commercial Litigation, Litigation | No Comments »
Wednesday, September 28th, 2011
On 1st October Practice Direction 51G Costs Management in the Mercantile Courts and the Technology and Construction Courts will come into force. Despite its less than catchy title, this will have important consequences for litigation in those courts.
Going forward litigants will have to file and serve spreadsheets project managing each stage of the proceedings and pricing out each section. Judges will voice their approval or disapproval of the costs budget. Judges may also take a cold hard look at the proposals the parties make in terms of how the parties wish to present their claim, say the number of witnesses and see if matters are being progressed proportionately.
A party may apply to the court if one party believes that the other is behaving oppressively and causing the other party to spend money disproportionately. It will be interesting to monitor how actively judges project manage cases and costs going forward. Also if this Practice Direction is successful whether Costs Management will be extended in other courts.
Posted by Nichola Evans, who specialises in professional indemnity work, directors and officers, legal expenses insurance, conditional fee agreements and after the event insurance and commercial litigation.
Nichola Evans
020 7337 1019
nevans@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: costs budget, litigation, Mercantile Courts, Practice Direction 51G Costs Management, Technology and Construction Courts
Posted in Insurance, Litigation | No Comments »
Wednesday, June 22nd, 2011
A rather robust judgment has been given in the High Court on the scope of the court to make costs orders against non-parties.
In a piece of litigation where Judgment had been given five years earlier, the parties were now embroiled in a dispute over the fact that several of the defendants who were shareholders in the first defendant funded that defence and as to how far they should now fund the costs of the successful claimant.
Insofar as four of the defendants were concerned, their involvement in the action was “open and honest”. Not only did they fund the litigation but they also had an “interest and control” of the litigation. As a result they had to take the financial consequences of that and bear the costs jointly and severally.
Posted by Nichola Evans, who specialises in professional indemnity work , directors and officers, legal expenses insurance, conditional fee agreements and after the event insurance and commercial litigation.
Nichola Evans
0207 337 1019
nevans@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: dispute, High Court, litigation
Posted in Litigation | No Comments »
Wednesday, June 1st, 2011
The fight against insurance fraud received a shot in the arm when the Court of Appeal allowed Zurich Insurance to pursue a claim for fraudulent representation.
Colin Hayward claimed around £420,000 for an accident at work. His employer’s insurers were suspicious and they alleged that he was exaggerating his injuries. In October 2003 the claim was settled for around £135,000 but two years later evidence emerged which suggested Mr Hayward had made a complete recovery from his injuries over a year before settlement.
Zurich sought damages. The claim was struck out by the Judge who held that there was no material difference between Zurich’s allegations of fraud in both cases. The Court of Appeal disagreed and have allowed Zurich’s claim for damages to proceed.
This is a welcome decision for defendants and their insurers who are safe in the knowledge that if fresh evidence later comes to light they will not be prevented by the courts from pursuing claimants for damages.
It also serves as a reminder to those claimants who make miraculous post-settlement recoveries that they can still be pursued if they have induced settlement through deceit.
Posted by Steven Conway, specialising in: defence of claims on behalf of insurers, local and public authorities, in particular employers’ liability and public liability claims.
Steven Conway
020 7337 1037
sconway@brownejacobson.com
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Rating: 10.0/10 (8 votes cast)
Tags: Court of Appeal, employers liability, fraud, insurance, steven conway, zurich
Posted in Employers & Public Liability, Insurance, Litigation | No Comments »
Tuesday, May 31st, 2011
The uncertainty over the validity of Part 36 offers expressed to be “open for 21 days” ended with Friday’s Court of Appeal judgment in C v D [2011] EWCA Civ 646 which confirmed that Part 36 offers cannot be time-limited.
The Part 36 offer in that case was however saved from failing by the court construing “open for 21 days” as meaning it would not be withdrawn within 21 days, without the permission of the court.
In the light of this decision, Part 36 offers which are presented as a Part 36 offer and which otherwise comply with its form will not readily be interpreted by the courts in a way which will prevent them from being valid Part 36 offers.
Posted by Steven Conway, specialising in: defence of claims on behalf of insurers, local and public authorities, in particular employers’ liability and public liability claims.
Steven Conway
020 7337 1037
sconway@brownejacobson.com
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Rating: 9.0/10 (9 votes cast)
Tags: C v D, CPR, insurance, Part 36, steven conway
Posted in Insurance, Litigation | No Comments »
Thursday, March 17th, 2011
Property tycoons Vincent and Robert Tchenguiz hit the headlines earlier this month when they were briefly arrested and questioned by British police about their role in the failure of Icelandic bank, Kaupthing.
The Tchenguiz brothers were yesterday granted permission by the High Court to sue Kaupthing Bank for one billion damages following the banks failure to block the claim on the grounds that the English court did not have jurisdiction to hear it.
The brothers had also brought claims in the Icelandic courts which had been thrown out.
The result may be a victory at great cost for the brothers, as the Icelandic bankruptcy courts may refuse to recognise an English judgment on the validity of the brother’s claims.
Posted by Dominic Offord , who specialises in business recovery and insolvency matters for creditors and practitioners including transaction avoidance claims; commercial dispute resolution; experienced litigator on high value and warranty claims.
Dominic Offord
0115 976 6149
dofford@brownejacobson.com
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Rating: 9.5/10 (2 votes cast)
Tags: business recovery, Icelandic bank, Icelandic bankruptcy, insolvency, Kaupthing Bank, Vincent and Robert Tchenguiz
Posted in Business recovery, Litigation | No Comments »
Tuesday, February 15th, 2011
A recent article in the Derby Telegraph highlighted the nature of frivolous or spurious claims local authorities routinely face. While some may see this as possibly a ‘slow news’ day in Derby, the article does raise some interesting issues for local authorities and litigators alike.
One would like to think that cases involving ‘kamikaze conkers’, are never allowed anywhere near doors of the Court, however, other cases, where perhaps decisions are more finely balanced in all types of litigation, would it be unreasonable to think that Courts will allow local authorities more discretion and perhaps leniency – especially in these days of austerity? Time will tell.
Posted by Jonathan Cook, who specialises in defendant public liability work including employers’, occupiers’ and highways liability cases from initial instruction to trial. Including small claims, fast and multi track work.
Jonathan Cook
0115 976 6150
jcook@brownejacobson.com
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Rating: 10.0/10 (2 votes cast)
Tags: kamikaze conkers, local authorities, local authority claims
Posted in Litigation, Local Authorities | No Comments »
Friday, January 14th, 2011
In Ashford –v- Somerset County Council a 9 year old student was being led in a line of pupils exiting a classroom. The teacher was at the front of the line and opened the door and led the children into the corridor. The Claimant was at the back of the line and when he turned around to talk to some friends, the door closed on his fingers.
The Claimant argued that the Council should have fitted door closures and other protection to the door; that Risk Assessments had been completed and sufficient supervision was not in place.
The Court found that just because door closures were available it did not necessarily mean that there was a breach if they were not utilised. A door is safe without such protection and a child of the Claimant’s age should be familiar with doors and their dangers.
While the Council had not risk assessed for the type of accident that occurred for that specific door, the Court found it was not necessary to do so as there had been no other accident prior to this one.
The claim was dismissed – the School’s duty was to take such care as would be exercised by a reasonably careful parent and not to take steps to ensure the complete safety of its pupils. Commonsense prevailed.
Posted by Jonathan Cook, who specialises in defendant public liability work including employers’, occupiers’ and highways liability cases from initial instruction to trial. Including small claims, fast and multi track work.
Jonathan Cook
0115 976 6150
jcook@brownejacobson.com
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Rating: 7.0/10 (2 votes cast)
Tags: Claims, elpl, insurance claims, local authority claims
Posted in Employers & Public Liability, Insurance, Litigation, Local Authorities | No Comments »
Friday, January 7th, 2011
Nick Clegg today announced ‘ambitious’ plans to reform Britain’s ‘laughing stock’ libel laws, and a draft libel bill is due this spring. Reform is certainly needed, but it should not be easier for journalists to be sloppy or for bloggers to lie.
Some of the suggested reforms seem to echo recent developments in the common law. It is already established that trivial comments cannot be defamatory . Similarly, it has always been a defence that a statement is true, and honest comments are also not defamatory. A defendant may also claim qualified privilege if he acted in good faith and without malice. So what would the proposed new defence of speaking out in the public interest add?
The key issue which needs reform is the huge legal costs involved which means that defendants settle unmeritorious cases. Reform has been attempted previously. The government should concentrate on this; there have been enough reports and if effective reform is enacted, libel bullying and libel tourism will wane.
Posted by Giles Parsons, who specialises in intellectual property agreements and disputes relating to patents, copyright, trade marks, designs, as well as domain name disputes and reputation management.
Giles Parsons
0121 237 4557
gparsons@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: Britain's libel laws, legal costs, Nick Clegg
Posted in Litigation | No Comments »
