STAGED ATE PREMIUMS APPROVED BY COURT OF APPEAL
Rogers v. Merthyr Tydfil County Borough Council [2006] EWCA Civ 1134
In principle, there is no difference between a staged CFA success fee and a staged ATE premium. An insurer is exposed to risks which rise as the trial approaches, and an unsuccessful defendant pays more if a case goes to trial. This encourages defendants to consider the merits of their cases very carefully as the trial approaches, and is entirely consistent with the principles of the CPR.
If the court decided it was necessary to incur a staged ATE premium, it would be judged proportionate. Necessity might very well be decided on the basis of availability in the market for ATE insurance, because the insurance market was integral to the provision of access to justice.
Comparisons should not be drawn between the price of a single-stage premium and that of the final stage of a multi-stage premium. Further, a party who has taken out a multi-stage premium should inform his opponent that he has done so, and set out the ‘trigger moments’ which cause the premium to increase.
PUWER REG 5(1) – NO GENERAL GUIDANCE POSSIBLE
Reid v. PRP Architects [2006] EWCA Civ 1119
The claimant sought damages from her employer for personal injury she suffered when a lift door closed on her hand. The lift was in the same building as the defendant’s premises, but formed part of a common area, and the claimant was injured when she was leaving work for the day. The judge at first instance found that the lift was an item of work equipment within the meaning of the Regulations.
This was upheld on appeal. It might be appropriate to consider a spatial or geographical restriction on when equipment was used ‘at work;’ it may also be appropriate to consider the employer’s degree of control over the equipment. However, it would be wrong in this case to draw the line at the point the claimant left her office.
Further, it would only be an exceptional case in which a judge could lay down general guidance on circumstances which could give rise to claims under r.5(1), because there were so many different ways in which such a breach could occur. Any guidance would be restricted to the particular facts of the case involved..