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

Kirsty Black
0121 237 3958
kblack@brownejacobson.com

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It is not necessary for a publisher to have identified the matters on which comment is based in sufficient detail to enable a reader to judge for themselves whether the comment is well founded. Instead, an honest comment  ”must explicitly or implicitly indicate, at least in general terms, the facts on which it is based” so that “the reader can understand what the comment is about and the commentator can, if challenged, explain…”. However, a defendant is not permitted to get support from facts that were not referred to by the comment, or facts that the defendant did not know when he made his comment.

This clarification allies the defence more closely with the realities of publication on the internet, in editorials and in blogs, and makes a little progress towards the more robust reform position currently proposed in the Defamation Bill. The ruling will please publishers and proponents of free speech – but on the other hand, it might make the judicial process for persons defamed in unbalanced attacks more difficult.

Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.

Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com

The High Court granted an injunction against the publication of her story and also granted an anonymity order and an order restraining the reporting of the fact of the proceedings. On appeal, the Court of Appeal continued the substantive injunction but overturned the anonymity and restraining reporting restrictions on the grounds that they were unjustified.

This decision weighs public interest against the right to privacy. But, unlike other competing human rights, the scales are not set fair. “Necessity” was the hurdle to be overcome by Mr Donald. He failed to establish that the mere reporting of the proceedings would be significantly invasive to his private life.

How would we all feel about a newspaper naming us as a party to privacy proceedings which, if unsuccessful, would result in the publication of sexually explicit details of our relationships? I, for one, would feel aggrieved.

Posted by Paula Dumbill, who specialises in non-contentious intellectual property, particularly trade marks and copyright, advising in particular on IP exploitation and collaboration agreements and trade mark portfolio management.

Paula Dumbill
0115 976 6059
pdumbill@brownejacobson.com

Its key recommendations include abolishing the recovery of success fees or ATE premiums from the losing party, the use of qualified one way costs shifting and damages based agreements and enhanced penalties under Part 36 offers.

The consultation focuses primarily on issues of funding. Recommendations such as fixed fees, new processes and limitations on referral fees will be looked at separately. There is also a strong focus within the document on personal injury litigation, though a number of the proposed reforms would have wider ranging effects.

Posted by James Arrowsmith, who specialises in high value personal injury claims, extensive experience of claims relating to head injuries and serious bodily injury, psychiatric damage and injuries to children.

James Arrowsmith
0121 237 3981
jarrowsmith@brownejacobson.com

The report’s author, Anthony Barton, proposes a cap on recoverable success fees and ATE premiums accompanied by a modest uplift in general damages to address the concern that claimants will be left less well off. The great strength of his report is in placing legal costs issues in the context of the current economic situation.

Barton is critical of Lord Justice Jackson’s proposals in relation to one way costs shifting and expresses concern in relation to the potential for unintended consequences, including spurious claims and fraud.

Jacksons’ recommendations should not be dismissed lightly and are likely to be at the heart of the Government’s proposed consultation in Autumn. Whether or not his conclusions prove correct, Barton’s report is also deserving of further consideration in the months ahead.

Posted by James Arrowsmith, who specialises in high value personal injury claims, extensive experience of claims relating to head injuries and serious bodily injury, psychiatric damage and injuries to children.

James Arrowsmith
0121 237 3981
jarrowsmith@brownejacobson.com

The main thrust of this will be to review CFAs and as to whether they are the best way of achieving justice with the current level of success fees and the way in which ATE works.

It is reassuring that the Government is looking at proposals for fixed costs on the fast track and has recognised the unique problems associated with clinical negligence claims. However it has left us in the dark when it comes to non personal injury claims and legal expenses insurance.

It is important the Government clarifies how this will be combined with other measures such as the Lord Young report and the LSB review on referral fees if it seriously wants the industry to engage fully in the debate.

Posted by Nichola Evans
0207 337 1019
nevans@brownejacobson.com