Clean air: a claim under Article 1?
In February 2013 nine-year-old Ella Kissi-Debrah from Hither Green in South London died after suffering a severe asthma attack. “Can the courts be used to establish that we have a human right to clean air?” asked Nick Robinson on the Today Programme this morning. A report by Royal College of Physicians has apparently linked 40,000 deaths to pollution each year. A successful case against the government would arguably put the government under considerable pressure as well as resulting in justice for affected families. Ella’s mother and her lawyer were interviewed on the programme. Ella had very severe asthma. According to the Today Programme, nitrogen dioxide levels around their home on the South Circular are double the EU legal limit. Her lawyer, Jocelyn Cockburn…
Negligence, false imprisonment and a surprising decision on contributory negligence: Liability of a taxi driver to a passenger detained in his vehicle…
The case of Hicks v Young [2015] EWHC 1144 (QB) is extremely sad based, as the judge found, on a tragic misunderstanding between a taxi driver and his young passenger. The taxi driver formed the view the claimant and his girlfriend were going to run off without paying so drove away from the claimant’s home with him still in the vehicle, intending to “teach him a lesson”. The judge found that there was no such intention on the part of the claimant, although he accepted that the taxi driver’s belief was genuine. Whilst the taxi was travelling at about 20mph the claimant jumped from the vehicle to escape, suffering a serious brain injury. Edis J presided over a trial on liability. The claim was brought in negligence …
Employer not liable for employee killed in air disaster
Yesterday, Mr Justice Coulson delivered an extensive judgment in the case of Cassley and Others v GMP Securities Europe LLP & Sundance Resources Limited [2015] EWHC 722 (QB), in which he dismissed the claim for damages brought by the estate of the Deceased (James Cassley) against his employer (GMP) and its client (Sundance), an Australian mining company, who chartered the ill-fated flight. This case was heard only weeks after the decision in Dusek v Stormharbour Securities LLP [2015] EWHC 37 (QB) in which an employer was found to be liable for the death of its employee on facts that were superficially similar to the present. The judgment is of significance to the developing field of employer liability in negligence for death of and/or injuries caused…
Costs Budgeting – Time for change
Having at first hand experienced the heated battle of CCMCs, in which costs draftsmen and (usually) junior Counsel joust in front of a Master on the level of costs incurred thus far and those yet to come, it seems that change might be in the air. Lord Justice Jackson is preparing a speech / paper on costs budgeting, to be finalised by mid-May. He is looking, amongst other matters, at the circumstances in which the Court should decline to carry out costs budgeting (because of a concern at the delays being caused to listing generally by the new regime) and at whether there should be some sort of provisional costs budgeting exercise on paper.You will no doubt remember Ian Miller’s prediction on this very ‘…
Fee increase to take place next Monday
A dramatic hike in court fees is to take place on Monday 9th March 2015. The Law Society has published the following table (see below) of the new court fees suggesting solicitors consider issuing cases this week. Employment Tribunal fees were increased in July 2013 and the effect is thought to have been to reduce the number of tribunal claims substantially. It remains to be seen whether the increase of court fees will have the same effect. The move will inevitably raise questions as to whether access to justice is being made more difficult. It may also sharpen the debate about whether our legal system should be funded by society as a whole or simply by its users: is the civil justice system simply about settling disputes between individuals…
Personal Injury and the Party Manifestos
Is there anything in the parties’ manifestos which might affect the field of personal injury? Reforms since 2010 include a new fixed costs regime, costs management/budgeting and greatly increased court fees. Civil liability has been removed for breaches of health and safety regulations. But what is being promised for the future? The Conservative Manifesto includes a pledge to reform human rights law. It would scrap the Human Rights Act and introduce a British Bill of Rights. The intention is that this will break the formal link between British Courts and the European Court of Human Rights making the Supreme Court the ultimate arbiter of human rights matters in the UK. More is said in the section on the European Union: the Bill will remain faithful to the…
Low cost Arbitration instead of expensive Civil Justice?
At a recent seminar a solicitor, with whom I was discussing the recent (rather extraordinary) hike in Court fees (see, Andrew Spencer’s blog last week), mentioned an initiative which Andrew Ritchie QC has pioneered. Arising out of concerns about recent Government “reforms” to civil justice as these deal with personal injury litigation, the initiative is a proposal for personal injury and clinical negligence claims (presently dealt with in the civil justice system that we all know and love) to be dealt with instead by means of an alternative: a low cost and relatively swift arbitration scheme (using independent PI silks as arbitrators). In common with commercial arbitration, upon appointment, the PI Arbitrator will provide the parties with relatively early assessment of and decision upon those matters…
Local Standards: Don’t Let Them Cat-ch You Out
In Lougheed v On the Beach (2014) EWCA Civ 1538 the Court of Appeal reaffirmed the importance of the Claimant adducing evidence of local safety standards in the context of package holiday claims. The recent decision of the High Court of Northern Ireland in Kerr v Thomas Cook [2015] NIQB 9 provides a colourful (and not unamusing) example of the same principle being applied in a very different factual context. The Claimant and her partner travelled to Tunisia on a holiday organised by the Defendant tour operator. Whilst she was there the Claimant was attacked by a cat (not pictured) which jumped out at her from a bush, scrabbing and biting her right lower leg, which was uncovered as she was wearing shorts. After the attack the …
New law – fundamental dishonesty in PI claims
The government brought into force last week a new law preventing claimants from recovering damages for personal injury when they have been fundamentally dishonest, unless it would cause substantial injustice. In the case of Summers v Fairclough Homes Ltd [2012] UKSC 26 the claimant was injured in an accident at work and claimed more than £800,000 from his employer. Surveillance revealed him to have grossly exaggerated the effect of his injuries. At trial he was found to have fraudulently misstated the extent of his claim but the judge declined to strike out his claim and awarded £88,716. The defendant appealed and the Supreme Court held that it had jurisdiction to strike out the claimant’s statement of case but that it would only be done in exceptional…
Fee hike implemented
Further to Ian’s post last week, court fees have been increased from today – by over 600{9c067c25ed205f086ce6001901eb13dfadc688a7aefab9f64e0c55b8c5a55872} in some cases. The Law Society have set out the arguments they are raising in support of their proposed judicial review. The most eye-catching of these is that the fee increases are “tantamount to ‘selling justice’ contrary to the principles of Magna Carta”, presuambly on the basis that the new fees will not just be covering the court’s costs of the claim, but subsidising the public purse generally. Section 29 of Magna Carta 1297 is still in force and provides: “… We will sell to no man, we will not deny or defer to any man either Justice or Right.” Whether or not 13th Century barons had court fees in mind…
Insurers’ proposals for further reform to the PI sector
The Association of British Insurers’ website recently set out its top 10 insurance and savings priorities for the next parliamentary session. The most striking of these for personal injury lawyers is the proposal for “Modernising the civil justice system to get compensation to claimants rather than lawyers.” The ABI fleshes this out by suggesting increasing the small claims track limit for PI claims, considering a reduction in the current 3-year limitation period and using fixed legal fees to address the rise in industrial deafness claims and ensuring people suffering from asbestos related conditions get compensation quicker. Another of the ABI proposals which would also affect the PI sector is a proposal for “Cracking down on the behaviour of Claims Management Companies” by requiring them to…