Posts Tagged ‘Court of Appeal’
Monday, June 3rd, 2013
Judgment was recently handed down by the Court of Appeal in the case of Delaney v Basildon Borough Council [2013] EWCA Civ 505.
This matter concerned an unauthorised travellers site in greenbelt land which had previously been granted temporary planning permission. This permission had lapsed and wasn’t renewed. The site’s occupant claimed that permission should be granted due to an acknowledged lack of traveller provision in the district.
The Court of Appeal determined that the inspector was entitled to find that other material factors outweighed the failure of the council to address the lack of traveller provision.
However the judge emphasised the importance which should be placed on having suitable traveller provision and although an inspector is entitled not to grant planning permission in such circumstances he is not bound to do so.
Therefore it remains that the most effective way to ensure appropriate locations for traveller sites is for councils to make sure that they identify suitable provision for travellers.
Ben Standing
0121 237 4563
ben.standing@brownejacobson.com
Tags: Ben Standing, Court of Appeal, Delaney v Basildon Borough Council, planning permission, traveller provisions
Posted in Local Authorities, Planning, Public Sector | No Comments »
Tuesday, April 30th, 2013
The long awaited Court of Appeal decision on TR v Devon County Council has been handed down.
Having departed from the Well-maintained Highways – Code of Practice, the trial judge found that Devon’s inspection frequency of six months for local distributor roads was lacking in reasonable care.
The Code is guidance only; therefore the Court of Appeal held that this decision could not stand. Whilst Devon won in law on this point, the Court of Appeal found there was enough evidence in fact to find that the inspection frequency should have been more often. TR was held 50% responsible.
The Code does not place a duty upon the highway authority to carry out risk assessments if they depart from it. Highway authorities were understandably concerned by the judge’s approach in TR. They will be relieved by this, as this is the first judgment from an appeal court giving guidance on the Code’s role in litigation and the practical approach taken by the Court of Appeal.
Posted by Lorna Herring, who specialises in OLA, local authority liability including highway claims, tree claims, costs and data protection and employer liability and abuse claims.
Lorna Herring
01392 288 324
lorna.herring@brownejacobson.com
Tags: code of practice for highway maintenance, Court of Appeal, highways, Lorna Herring, TR v Devon County Council
Posted in employer/public liability, Employers & Public Liability, Insurance, Litigation | No Comments »
Wednesday, March 27th, 2013
As we thought, the government decided not to appeal the Court of Appeal decision ruling CRB checks unlawful. Instead, they will change the law to allow the Disclosure and Barring Service to filter out convictions, in limited circumstances.
And they are limited. To be removed, the individual must only have one conviction which did not result in a custodial sentence, it must be at least 11 years old (5 ½ years if under 18 when the conviction was received) and must not be a specified offence (sexual offences, for example).
For now, it is business as usual as this change will only come into force once new legislation has been passed.
So it’s a step in the right direction. Coupled with other vetting and barring changes, it will help ensure a sensible balance is achieved between protecting the vulnerable and an individual’s right to privacy.
Posted by Dai Durbridge, who specialises in advising schools, academies and other education providers on all pastoral matters. Recognised leader in safeguarding law, with a specific interest in the vetting and barring scheme; also defends claims made against education, and social care providers.
Dai Durbridge
0115 976 6578
ddurbridge@brownejacobson.com
Tags: Court of Appeal, CRB checks, Dai Durbridge, Disclosure and Barring Service
Posted in Education, Employment, Government, Regulatory | No Comments »
Thursday, March 7th, 2013
In Goodman v Faber Prest Steel (2013) it was found that the trial judge had erred in accepting the claimant’s evidence without dealing with the contradictory medical records – and explaining why his evidence was preferred.
The claimant had visited his GP about unrelated matters but did not complain about certain injuries until a number of months later and during cross-examination, he was unable to explain this delay.
While the claimant’s demeanour in court was an important factor, even this posed difficulties for the most experienced judge who should look at all evidence to see what supports or undermines a witness. Contemporaneous documents provide a valuable guide to the truth. The judge had been aware of the medical records but the claimant’s evidence had not been tested against them.
This is an interesting decision that could be useful when reminding the court of it’s obligations to look behind the claimant – especially where you suspect that he may not be giving a fully accurate account!
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
Tags: claimant's evidence, Court of Appeal, Jonothan Cook, Michael Goodman v Faber Prest Steel (2013)
Posted in employer/public liability, Food & drink, Fraud, Government, Health, Health & Safety, In-house Lawyers, Insurance, Litigation, Local Authorities, NHS, Professional Indemnity, Public Sector, Social Care, Sport | No Comments »
Friday, February 1st, 2013
This week the Court of Appeal said what many of us thought – disclosing every conviction on a Criminal Records Bureau (CRB) check without any consideration of relevance is unlawful. Regardless, the Home Secretary seems intent on appealing the decision to the Supreme Court.
In my view, she faces an uphill task. Three senior judges reached this decision having heard from legal teams in three different cases, so being granted a right of appeal is far from guaranteed. More importantly, the decision makes sense. When a 55 year old man applies for a role in a school, does it really make any difference to his employability if he had a minor conviction or caution 35 years earlier? Such convictions would be irrelevant in almost every case.
What should flow from this is a simple change in the law to impose a duty on the police or the government to consider the relevance of convictions before adding them to the CRB certificate.
Posted by Dai Durbridge, who specialises in advising schools, academies and other education providers on all pastoral matters. Recognised leader in safeguarding law, with a specific interest in the vetting and barring scheme; also defends claims made against education, and social care providers.
Dai Durbridge
0115 976 6578
ddurbridge@brownejacobson.com
Tags: Court of Appeal, CRB checks, Dai Durbridge, safeguarding, Supreme Court
Posted in Education, Employment | No Comments »
Tuesday, January 29th, 2013
The Court of Appeal has upheld the decision that a patent for an animal flea treatment was invalid on grounds of sufficiency due to its broad formulation.
It was found that the patent, required a skilled team to formulate a combination of active ingredients to achieve the claimed result, however, it contained no examples to guide the formulation process. The patent “provided no real practical assistance over and above the common general knowledge”.
As the trial judge stated, the very broad formulation was not “sufficient description to enable the skilled person to arrive at a formulation within the claims without undue effort.”
While there is no requirement for a patent to include specific examples, and this was not in itself fatal in this case, it was this lack of example combined with an inadequate specification which led to the insufficiency finding. This decision is a good reminder that patents which do not easily enable construction of an invention without reference to other sources may be at risk.
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
Tags: Court of Appeal, Patents, Paula Dumbill
Posted in Intellectual Property, Technology | No Comments »
Tuesday, January 29th, 2013
The most arresting case arising from the Costs Budgeting pilots must be Henry v News Group Newspapers. Master Hurst refused to allow C. £300,000 of the successful claimants costs because her solicitors failed to update their budget. Despite finding that this might well have been allowed on assessment. This appeared to set a ‘firm but fair’ foundation ahead of the much stricter post April 2013 CPR regime.
However, the Court of Appeal allowed the Claimant to recover, stating that there was ‘good reason’ to depart from the budget in this instance. However, the pilot differed in important respects from the upcoming rules when a greater emphasis is expected on the responsibility of the parties and the Court to keep budgets under review and spending under control.
This should not be seen as a sign that budgeting post April will be less onerous than expected and prudent practitioners and litigants should not feel reassured by the decision when preparing costs budgets in the future.
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
Tags: civil litigation reforms, costs budgeting, Court of Appeal, CPR, Henry v NGN, jackson, james arrowsmith
Posted in Commercial Litigation, employer/public liability, Insurance, Litigation, Local Authorities, NHS | No Comments »
Thursday, January 3rd, 2013
Golden Eye was licensed on terms to bring copyright infringement proceedings against people alleged to have shared pornographic works.
The High Court did not find this agreement illegal but refused to order O2 to disclose alleged filesharers’ identities as that would ‘endorse’ the agreement, and be ‘tantamount to… sanctioning the sale of the Intended Defendants’ privacy and data protection rights’.
The Court of Appeal disagreed – the licence did not increase the risk to vulnerable defendants, and any information received could only be used for the proceedings.
Although the Media CAT cases suggested courts should put safeguards in place before granting such orders, it is clear from this decision and the Supreme Court’s decision in RFU v Consolidated Information that the courts will order disclosure of individuals’ identities to enable legitimate claims to be pursued.
So, expect more P2P litigation against individuals; though it could still be difficult to prove who actually performed the infringing act and the recovery sought may not reflect the level of damage suffered.
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
Tags: Browne Jacobson LLP, copyright, Court of Appeal, Data Protection, Giles Parsons, Golden Eye, High Court, Intellectual Property, Norwich Pharmacal, O2, P2P, Supreme Court
Posted in Commercial dispute resolution, Commercial Litigation, Data Protection, Intellectual Property, Technology | No Comments »
Wednesday, November 7th, 2012
In an unusual step, the Court of Appeal overturned a finding of fraud against the claimant in the case of Hussain v Hussain and Aviva UK Insurance Limited.
At first instance the claimant and first defendant were found to be complicit in staging an accident, although there was no direct link between the two. Put simply, the appellant argued it did not necessarily follow that a suspect defendant causing a collision meant the claimant was dishonest.
Aviva had circumstantial evidence of a wider fraud. The Judge was persuaded that this was a ‘crash for cash’ scenario. On appeal despite the discrepancies in the claimant’s evidence, the absence of evidence linking the parties was crucial.
No matter how compelling the circumstantial evidence or the theorising of the defendant insurers, the key to successfully obtaining a finding of conspiracy to defraud is to produce incontrovertible evidence. In this case, regrettably, insurers lacked the silver bullet.
Posted by Paul Wainwright, who specialises fraud litigation, and counterfraud intelligence and investigations across the insurance, public and corporate sectors. Expert in policy fraud, recovery and deterrents, including enforcement and prosecutions.
Paul Wainwright
0121 237 3973
paul.wainwright@brownejacobson.com
Tags: Court of Appeal, fraud, insurance fraud, paul wainwright
Posted in Data Protection, Insurance, Local Authorities, Professional Indemnity, Public Sector | No Comments »
Thursday, October 11th, 2012
The Court of Appeal has issued its revised decision in Simmons v Castle. The earlier judgement would have resulted in a 10% increase in general damages in all tort cases decided after 1 April 2013.
This judgement reflects a success for insurers and other defendants as it means that Claimants who entered into CFAs before 1 April 2013 (who benefit from the current funding regime) will now not benefit from this uplift. This will more evenly balance the benefits and detriments of reform on a case by case basis, avoiding windfalls in most cases.
It is not a perfect outcome, and it is likely there will be some satellite litigation. The court considered the possibility of such litigation where a claimant has changed solicitor or has died and new solicitors are instructed. Dispute s may also arise where there has been an irregularity in the CFA, which may render it unenforceable, or a failure to give proper notice of funding.
However, the judgement will prevent an emerging procedural bottleneck in which some claimants put off settlement until April 2013 in order to increase damages.
Posted by Hannah Rice, who specialises in personal injury law; supporting solicitor handling large loss cases relating to road traffic accidents, employers’and public liability claims.
Hannah Rice
0121 237 4563
h.rice@brownejacobson.com
Tags: Court of Appeal, Hannah Rice, Simmons v Castle
Posted in Employers & Public Liability, Insurance, Insurance - Advisory, Professional Indemnity | No Comments »
Thursday, July 26th, 2012
The Court of Appeal has today addressed one of the proposals made by Lord Justice Jackson in his report namely the suggested 10% increase in general damages.
After much debate as to how this recommendation might be introduced, in the case of Simmons v Castle the Lord Chief Justice has indicated (together with the Master of the Rolls and the Vice President of the Court of Appeal) that the increase will apply to all cases where Judgment is given after 1st April 2013.
It was suggested that it would be a “little short of a breach of faith for the judiciary not to give effect to the 10% increase in damages” recommended although it was also suggested that this may not always achieve “perfect justice”. The increase will apply to all personal injury cases, nuisance claims, defamation actions and other tort cases where inconvenience or distress is caused to an individual.
Posted by Nichola Evans, who specialises in commercial dispute resolution, litigation funding issues including ATE insurance and third party funding; experienced litigator on high value complex litigation claims.
Nichola Evans
0161 242 1306
nevans@brownejacobson.com
Tags: Court of Appeal, Nichola Evans
Posted in Insurance | No Comments »
Wednesday, May 9th, 2012
The Court of Appeal has given useful guidance on the issue of interim costs awards pending a final outcome of a large trade mark litigation matter, as part of the ongoing litigation between Specsavers v Asda.
The court felt it was appropriate (despite Asda arguing costs should be reserved pending the outcome of its application for permission to appeal to the Supreme Court) that although costs had not yet been formally assessed, Specsavers be awarded their costs, subject to a substantial discount to reflect the issues upon which it had lost as the court had already made a final determination of all issues concerning liability; except those specific issues referred to the Court of Justice of the European Union, for which costs must be reserved.
This pragmatic decision confirms that successful parties in a case should not have to wait unduly for their costs; however a win overall does not guarantee an award of costs for those specific issues they have been unsuccessful on.
Laura Mackenzie
0121 237 3959
lmackenzie@brownejacobson.com
Tags: Asda, Court of Appeal, Laura Mackenzie, litigation, Specsavers, trade marks
Posted in Commercial dispute resolution, Litigation | No Comments »
Tuesday, March 20th, 2012
The Court of Appeal held that it is not a defence to a claim for nuisance to show that waste disposal activities giving rise to a nuisance were carried out in accordance with a landfill permit and without negligence. Carnwath LJ concluded, in the judgment handed down yesterday, that the common law of nuisance remains unaffected by the enactment of parallel systems governing waste disposal and the question of whether the use of a waste disposal site gives rise to a nuisance is governed by conventional principles of nuisance.
In the first instance, Coulson J dismissed the group claims in nuisance – Carnwath has now reversed this decision in rejecting any reinvention of old, robust common law principles.
A good day for the residence surrounding the landfill who will now have their individual claims assessed. A bad day for the waste industry who, briefly, thought they may have won this smelly battle.
Posted by Westley Laird, who specialises in environmental law, specifically advising nature conservation, local authority and corporate clients and administrative law, with a focus on judicial review.
Westley Laird
0115 976 6273
wlaird@brownejacobson.com
Tags: Carnwath, common law, Coulson, Court of Appeal, landfill permit, waste
Posted in Waste & Environmental | No Comments »
Tuesday, March 13th, 2012
An appeal by BT and TalkTalk regarding measures to tackle copyright infringement online, a rapidly growing issue, has been rejected in the Court of Appeal. The ISPs (Internet Service Providers) challenged the provisions of the Act stating that they were incompatible with EU law, including the E-commerce directive. The decision rested on some key technical issues regarding the construction of legislation.
Under the Act ISPs will be required to send warning notifications and potentially cut off alleged illegal file downloader’s services, raising concerns regarding privacy and costs of this obligation on the providers, however the Court stated that ISPs would not be liable for case fees in relation to subscriber appeals. They will now have to consider how to deal with the implementation of this Act and its provisions and the effect it may have on their customers.
It is likely that the parties will seek leave to appeal the decision and flowing from this the promised Initial Obligations Code for ISPs will probably suffer further delays while this matter plays out.
Laura Richards
0115 908 4886
lrichards@brownejacobson.com
Tags: BT, copyright, Court of Appeal, isp, Laura Richards, Talk Talk
Posted in Intellectual Property | No Comments »
Tuesday, February 28th, 2012
A horse rider has lost her case in the Court of Appeal against the owner of a horse that bucked violently causing her to be kicked in the face after she was thrown to the ground.
The court ruled that the claimant voluntarily accepted the risk that the horse could buck and so therefore the defence to liability under section 5(2) of the Animals Act 1971 was engaged. It is irrelevant that the horse bucked more violently than had been anticipated. The claimant cannot have consented to bucking but not violent bucking.
This decision follows a recent stream of similar cases where defendants have been found not liable in circumstances whereby the claimant proceeds to engage with the animal knowing of the risk which subsequently eventuates.
With this in mind it is imperative to assess both the knowledge of the claimant in relation to the relevant characteristic of the animal concerned as well as the defendant when faced with an Animals Act claim.
Hannah Bramhall
0121 237 4563
hbramhall@brownejacobson.com
Tags: Court of Appeal, personal injury, section 5(2) of the animals act 1971
Posted in Insurance | No Comments »
Monday, February 13th, 2012
The Supreme Court has reversed a decision of the Court of Appeal in finding the state owes a positive duty to protect life to informal mental health patients.
The case of Rabone v Pennine Care NHS Foundation Trust concerns the tragic suicide of Melanie Rabone whilst on home leave from a psychiatric hospital. Her family successfully argued that the Trust had failed to protect her and allowed her the opportunity to take her own life. The Trust had already admitted negligence and paid compensation to the family but the Court found it had also breached Article 2 of the European Convention of Human Rights (the “right to life”). The case follows an earlier decision of Savage which decided that the state owed the same positive duty to protect formally detained mental health patients.
The case could see an increase in claims against the state, mainly the NHS, by parents of adult children who commit suicide who previously did not have the right to receive compensation for bereavement under existing laws of negligence.
Posted by Neil Ward, who specialises in: defending clinical negligence claims; representing NHS Trusts at inquests; advising on healthcare issues, particularly relating tomental health.
Neil Ward
0121 237 3927
nward@brownejacobson.com
Tags: clinical negligence, Court of Appeal, European Convention of Human Rights, Melanie Rabone, mental health, NHS, Rabone v Pennine Care NHS Foundation Trust, Right to life, Supreme Court
Posted in Health, NHS | No Comments »
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 rein 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
Tags: assault at work, Court of Appeal, employers liability, Steven Conway, strict liability, vicarious liability
Posted in Employers & Public Liability, Insurance, Litigation | No Comments »
Monday, February 6th, 2012
The Court of Appeal has upheld an order from the High Court requiring Glenn Mulcaire, the private investigator at the centre of the News of the World phone hacking scandal, to reveal the names of anyone who instructed him to intercept Steve Coogan and Nicola Phillips’ phone messages. Mr Mulcaire has until 5pm today to appeal.
Mr Mulcaire attempted to rely on his right to privilege against self-incrimination (PSI), arguing that by revealing other names he would be liable to prosecution for conspiracy. However, the court held that PSI could be suspended in proceedings for breach of confidence under section 72 of the Supreme Court Act 1981. This would not compromise Mr Mulcaire’s right to a fair trial, because section 72 prevents incriminating statements or admissions being used in later proceedings, should they take place.
By accepting a definition of “confidential” including “private” and “commercial information”, the Court of Appeal effectively rendered PSI obsolete where any form of confidential information has been illegally obtained.
Dave Drew
0115 976 6226
ddrew@brownejacobson.com
Tags: confidential information, Court of Appeal, glenn mulcaire, news of the world, nicola phillip, phone hacking, steve coogan
Posted in Intellectual Property | No Comments »
Friday, January 20th, 2012
A new ruling by the Court of Appeal has added to the caselaw setting out the differences between public service contracts and public service concessions. In this case, contracts for the provision of bailiff services with the Ministry of Justice (MOJ) were concessions, meaning that the EU procurement directives are not applicable.
The court held that even though the MoJ retained considerable control over how the contract was performed and the scope for exploiting the services further by the contractor was extremely limited the fact that the payment of fees under the contract came from third parties (the debtors) and the risks of management and operation of the service transferred to the contractor were enough to make it a service concession.
The court did acknowledge that the facts of this case didn’t fit neatly into the normal descriptions of either public service contracts or concessions meaning that future cases on the same point may end differently.
Posted by Anja Beriro, who specialises in : local authority law, public sector procurements, commercial agreements, projects and shared services; clients: local authority and private sector bodie.
Anja Beriro
0115 976 6589
aberiro@brownejacobson.com
Tags: Court of Appeal, eu procurement directives, government, infrastructure, Ministry of Justice, Procurement, public service concessions, public service contracts, Public Services
Posted in Government bodies, Local Authorities, Procurement | 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
Tags: compensation claims, Court of Appeal, mrs dufosse, public liability, santa, selfridges, Steven Conway
Posted in Employers & Public Liability, Insurance, Litigation | No Comments »
