PIBULJ
Professional Negligence Law: Chapper v Jackson (Ch) 21/12/11
An application against a trustee in bankruptcy that he pay £200,000 to the estate as loss alleged to have been occasioned by the sale of a property at an undervalue failed. Following proceedings relating to the property the court ordered that it should sold for not less than £650,000. That was the price at which the property was sold. This was said to be at an undervalue and the trustee should have applied to the court to increase the minimum sale price and also by failing to initiate rent reviews in respect of the property. The court held that the in general terms the prospects of an intervention were poor. There was no possibility of reversing most of the orders previously obtained including the charging order and the order for sale. Central to the decision not to join the litigation was the limited costs in the estate and of the administration and the potential liability for the other party's costs. Without a new valuation there was no prospect of an application succeeding and the omission not to obtain s uch a valuation did not fall short of the trustee's duty. For similar reasons it was not a breach of duty not to have pursued rent reviews.
Contributory Negligence: Extending the “Car as a Weapon” Principle? - Tom Gibson, Pupil Barrister, Outer Temple Chambers
03/02/12. Do you ever advise on contributory negligence in road traffic accident cases, especially where one of the parties is a vulnerable road user such as a pedestrian, horse rider, or motorcyclist? If so then you may be interested in the recent Court of Appeal case of Stoddart v Perucca (unreported, [2011] EWCA Civ 290).
Stoddart is important for two reasons:
- it may extend the principle of the ‘car as a weapon’ from pedestrians to horse riders and other vulnerable road users; and
- it illustrates the difference between ‘blameworthiness’ and ‘causative potency’ as the two constituent halves of contributory negligence.
Stoddart – background facts
The Claimant horse rider (Stoddart) was crossing a country road near Sunderland when she was hit by the Defendant car driver (Perucca). Burnett J heard the first instance trial, on liability only. He decided that the Claimant horse rider was only 50% contributorily negligent, even though “she was significantly more at fault” for the accident.
The Defendant appealed the 50% level of contributory negligence to the Court of Appeal. However the Court of Appeal...
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Editorial: Can the Court of Appeal make mistakes? - Aidan Ellis, Temple Garden Chambers
26/01/12. The recent case in Sayce v TNT 2011 EWCA Civ 1583 is remarkable on its facts, since HHJ Harris QC declined to follow the directly relevant Court of Appeal decision in Copley v Lawn 2009 EWCA Civ 580. Not only did this ignore the doctrine of precedent, but it also went behind the basis on which the parties had argued the case in front of him. Of course, this alone was sufficient to...
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Editorial: Can the Court of Appeal make mistakes? - Aidan Ellis, Temple Garden Chambers
26/01/12. I have spent my spare time this month preparing to deliver a webinar on credit hire. It is never easy to give a useful seminar on a topic that many people will be familiar with already. Happily, the law on credit hire rarely stands still, and there is plenty of new material to discuss.
Take for example the recent case in Sayce v TNT 2011 EWCA Civ 1583. The case is remarkable on its facts, since HHJ Harris QC declined to follow the directly relevant Court of Appeal decision in Copley v Lawn 2009 EWCA Civ 580. Not only did this ignore the doctrine of precedent, but it also went behind the basis on which the parties had argued the case in front of him. Of course, this alone was sufficient to allow the appeal.
But if HHJ Harris QC intended to make a point about the Court of Appeal decision in Copley, he certainly succeeded. In Sayce, Moore-Bick LJ “respectfully question[ed]” and “respectfully doubt[ed]” the analysis in the earlier case, before confessing that he had difficulty with the conclusion that the Court of Appeal reached in Copley v Lawn.
It is, of course, inevitable that there is some level of disagreement among senior Judges on difficult issues. Often that disagreement remains off-stage. Where it is openly expressed, as it is in Sayce, it can only act as an invitation to Insurers to continue arguing and appealing the point. I doubt that we have heard the last of this issue.
Aidan Ellis
Image cc Ian Britton
January 2012 Summary
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LAW JOURNAL
Editorial: Can the Court of Appeal make mistakes? - Aidan Ellis, Temple Garden ChambersPersonal Injury Articles
Transport Committee examines whiplash, referral fees and fraud - Editorial
Think fraud, think fees being paid for introductions and think, er, whiplash and some people might jokingly point to the House of Commons. But they are exactly three of the issues which have been examined in the recent follow up report on the cost of motor insurance by the House of Commons Transport Committee. There were a number of matters which the report considered and this article looks at three of them: whiplash injuries, referral fees and fraud.
Replacing PIP implants for Peace of Mind, the Law and the Politics - Hugh Preston, 7 Bedford Row
The government has been drawing attention recently to the “moral duty” of private clinics to replace PIP implants where this is required for peace of mind. Is this merely a moral duty or is it a legal duty? If so, how should the NHS proceed if it wishes to recover its costs from the clinic, given that the obvious claimant to such a legal claim would be the patient, and not the NHS? It can be done, but the NHS should take care how it proceeds.
Honesty And Integrity In Drink-Drive Calculations - Professor Ronald Denney, independent forensic scientist
The author’s experience over many years in carrying out calculations on alcohol absorption and elimination in drink-drive cases has shown that some solicitors are ignoring basic guidelines in seeking the assistance of forensic scientists. This paper emphasises the criteria that need to be applied by all parties in maintaining respect for these calculations.
Road Traffic Accident Diagrams: the Court of Appeal says “Use Google Maps” - Tom Gibson, Pupil Barrister, Outer Temple Chambers
Are you still using diagrams coupled with lots of photos from different angles to describe the location of road traffic accidents? If you are then you should be using aerial photos from Google Maps (or other online resources), said the Court of Appeal in Ievers v Prebble [2010] EWCA Civ 1615.
Cameron’s Announcement on Health & Safety Measures and Capping Costs in Claims - Susan Brown, Prolegal
David Cameron has announced plans to tackle the so-called "compensation culture" and to free business from "the stranglehold of red tape". He laid out a number of planned measures including; to extend the current scheme that caps the amount that lawyers can earn from small value personal injury claims, and reduce overall costs in cases funded by 'no win no fee' deals.
Credit Hire Articles
Abbot v Long: Costs in Credit Hire Claims - Adam Gadd, Pump Court Chambers
The case of Abbot v Long [2011] EWCA Civ 874 will have important implications for costs arguments in credit hire cases. In particular, caution must be exercised where there is a risk that a claimant may not recover close to the amount claimed.
Local Authority Liability, Edited by Daniel Tobin, 12 King’s Bench Walk
Maynard v. Wigan Metropolitan Borough Council [2011] EWCA Civ 1694 - Daniel Tobin, 12 King’s Bench Walk
On 28th August 2006 the Claimant fell on a grass verge located outside her home in Platt Bridge, Wigan. She suffered very modest injuries to her foot. She eventually brought a claim for personal injuries and loss against the Defendant, alleging that her fall was caused by a breach of Section 2(2) of the Occupiers’ Liability Act 1957.
PI Travel Law, Edited by Katherine Deal, 3 Hare Court
More tips on how travel agents may be caught by, or avoid, the PTR - Helen Pugh, 3 Hare Court
On 15th December 2011 the Court of Appeal judgment in Titshall v Qwerty Travel Limited [2011] EWCA Civ 1569 was handed down. It was the second time the Court of Appeal has waded into the debate about when a combination of holiday arrangements is a ‘package’ within the meaning of the Package Travel, Package Holidays and Package Tours Regulations 1992 (“the Regulations”).
Medico-Legal Articles, Edited by Dr Hugh Koch
Psychological Aspects of Breast Implant Removal: Setting the Scene - Hugh Koch, Nicole Hampton & Karen Addy
Recent anxiety and publicity surrounding the use of breast implants and alleged difficulties with some implant products have resulted in the possibility of litigation in this area. This summary paper sets the scene for subsequent papers on this crucial and topical issue.
Coronial Law Articles, Edited by Bridget Dolan, 3 Serjeants’ Inn
The state’s duty to investigate deaths: Understanding the relevant ECHR article 2 obligations - Neil Davy, 3 Serjeants’ Inn
This case is notable for its lucid and instructive summary of the jurisprudence on the duties imposed by article 2 of the European Convention on Human Rights (“ECHR”). Article 2 frequently causes uncertainty in the conduct of coronial inquests, in particular in relation to whether an enhanced inquiry must be held or resumed to examine the actions of the state.
Marketing for Solicitors
Marketing your Practice - Do we need new New Year’s resolutions in 2012? - Jenny Cotton, Mortons Marketing
Do we need new New Year’s resolutions in 2012? What happened to 2011 resolutions? Did we complete all we set out to do? Were our actions delayed or changed by others? Last December we looked at the trends forecast, we asked if the practice was actively monitoring change and developing alternative plans. Did this happen? Was it helpful? What preparation has been made for 2012? “More difficult than usual” were forecasts for 2011, has been proved to be the case? Change means opportunity and well as threat. How can you, your practice and clients benefit?
Charon QC
The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law
BabyBarista
OldSmoothie’s Law of Unintended Consequences
More Articles...
- The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law
- More tips on how travel agents may be caught by, or avoid, the PTR - Helen Pugh, 3 Hare Court
- More tips on how travel agents may be caught by, or avoid, the PTR - Helen Pugh, 3 Hare Court
- Maynard v Wigan Metropolitan Borough Council [2011] EWCA Civ 1694 - Daniel Tobin, 12 King’s Bench Walk
![Appeal judge rules that credit hire company has no costs liability following a finding of fundamental dishonesty in personal injury case: RSA v. Fastrack Solutions Limited [2023] 4 WLUK 92 - David Bowden, Erimus Chambers](/content/images/resized/images/stories/carkeys_72_72.jpg)
