Reflections on a grave new world of disproportionate sanctions

Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537

There can be very few civil litigation lawyers unaware of Lord Dyson MR’s judgment in this case.  If any warning of the new post Jackson tough line were needed, it can certainly be found here: stated in blunt terms.  This judgment, and in particular the guidance offered at paragraph 40 and following, is essential reading for anyone wishing to stay in business as a civil litigator. 

There is no need to recite the case facts here as a host of commentators have done so at length.  My own analysis is published by Lexis Nexis in the BPILS Bulletin.  I prefer to reflect on the lessons to be drawn from this case.

CPR 3.9 requires a court to consider the need (i) for litigation to be conducted efficiently and at proportionate cost and (ii) to enforce compliance with rules, practice directions and court orders.  The Court of Appeal held that these considerations are of paramount concern.  This rule change reflects a deliberate shift of emphasis imposed by the post-Jackson civil justice reforms.  Although CPR 3.9 requires the court to consider ‘all the circumstances of the case, so as to enable it to deal justly with the application’ and although this is capable of including the other factors listed in the earlier version of this rule ( e.g. whether the breach was intentional, the applicant’s other conduct, whether relief was sought promptly etc ) the two consideration listed above trump all other factors.

We are given useful guidance on how the courts will apply CPR 3.9 at paragraphs 4o to 46 of the judgment.  If the breach is anything other than trivial then a heavy burden lies on the defaulting party to persuade the court to grant the relief.  Unless there is a very good reason (e.g. serious illness or injury of the party’s solicitor or some other intervening factor) then the presumption will be that the sanction imposed, whether by court order or automatically under the rules, is appropriate and should not be disturbed.  Inadvertent default through oversight or pressure of work are likely to be given scant regard, as these salutary words from the judgment make clear: ‘Solicitors cannot take on too much work and expect to be able to persuade a court that this is a good reason for their failure to meet deadlines’.

It is is worth noting that the Court approved Lord Dyson’s earlier observations in his recent lecture on the Jackson reforms delivered in March 2013, in which he said:

‘The tougher, more robust approach to rule-compliance and relief from sanctions is intended to ensure that justice can be done in the majority of cases. This requires an acknowledgement that the achievement of justice means something different now. Parties can no longer expect indulgence if they fail to comply with their procedural obligations. ...(these obligations)... serve the wider public interest of ensuring that other litigants can obtain justice efficiently and proportionately, and that the court enables them to do so.’

This message may be unwelcome but that is no reason to shoot the messenger.  The Court of appeal’s hands were tied by the recent revisions wrought to the CPR; no other outcome was likely or in the writer’s view perhaps even possible.

 

One of the most subtle (and to many, invidious) changes wrought by the new CPR, has been the redefinition, within the CPR 1 Overriding Objective of what is meant by the term ‘Justice’. This is now appears to be something considerably less than the ideal form envisaged by the ancients or by more recent conventional jurisprudence.  The rights of individuals to a just determination are now subordinated to the perceived greater public good of rigid adherence to the CPR.  Cutting off the hand of a pick-pocket may an effective means changing someone’s behaviour but in a modern civilised society this kind of Procrustean approach is generally thought to be neither proportional, just nor intelligent.  Depriving a litigant of the right to recover his any legal costs for a relatively innocuous non-contumelious bungle, albeit one that wasted a little of the court’s time (hardly the most wicked act!) when other far more proportionate sanctions are available and appropriate, does rather stick in one’s craw; if only for its lack of moderation.  It would be easy to summon up the spectre of a dystopian legal system in which increasingly oppressive sanctions are imposed by manic rule committee gnomes and then exploited by an avaricious privatised Court Service, the latter is apparently under consideration by the present Government, however I prefer to live in hope! 

The lessons to be learnt from this ruling are that those firms that have failed to undertake a post-Jackson risk assessment and to review their fee earner caseloads as well as their training and general competence on CPR rule compliance  run the risk of suffering a nasty costly surprise.  I am reminded of Samuel Johnson’s wry note that the knowledge of an impending penalty does indeed concentrate the mind wonderfully!

There can be no doubt that the courts will now follow this robust (aggressive?) approach to imposing the sanctions.  Two high court judges who adopted a more lenient (proportionate?) approach were named and shamed in this judgment.  Civil litigators operate in a grave new world, one that will show scant sympathy for the pressures that many practitioners face as they seek to increase caseloads to make up for the savage hair cut on recoverable costs.  A wise practitioner friend of mind mentioned that there could be a silver lining to all of this: it is great business for costs draftsmen!

It seems likely that we will see a succession of ill advised pre-emptive strikes by one party or another seeking to win a tactical advantage from an opponent’s procedural discomfiture, perhaps decisively, by raising a non compliance issue and then calling for the court to exercise its powers to impose a draconian penalty.  Yet, they should not loose sight of Dyson’s comments at [26] of his judgment:

‘ The revisions to the overriding objective and to rule 3.9, and particularly the fact that rule 3.9 now expressly refers back to the revised overriding objective, are intended to make clear that the relationship between justice and procedure has changed.  It has changed not by transforming rules and rule compliance into trip wires.  Nor has it changed it by turning the rules and rule compliance into the mistress rather than the handmaid of justice.  If that were the case then we would have, quite impermissibly, rendered compliance an end in itself and one superior to doing justice in any case.  It has changed because doing justice is not something distinct from, and superior to, the overriding objective.  Doing justice in each set of proceedings is to ensure that proceedings are dealt with justly and at proportionate cost. Justice in the individual case is now only achievable through the proper application of the CPR consistently with the overriding objective.’

All very well...But if you equip antagonists with sharp knives, you can hardly complain when they get used, especially if the stakes are high and the going is getting rough; its only human nature.  So there will be few surprises if a bout of vicious satellite litigation, as the excesses of the new regime are tested to the full, becomes Mitchell’s immediate legacy.

England was the correct jurisdiction for an English holidaymaker gravely injured in Western Australia

Stylianou v Toyoshima and another [2013] EWHC 2188 (QB)

This is an interesting case that considers the sort of exceptional circumstance that can justify an English court quantifying a claim that under Rome II would ordinarily fall outside its jurisdiction.

The case facts featured an English national who was rendered tetraplegic in a road accident in April 2009 whilst holidaying in Western Australia.  Proceedings being issued in Australia but which were later stayed. Liability was admitted.

Upon the claimant’s return to the UK she issued fresh proceedings in England.  Her reasons were (i) her condition prevented her from to travelling back to Australia and (ii) that all the remaining issues and evidence concerning her future care and needs lay in this jurisdiction  and (iii) that the lower English discount rate would deliver in real terms a much higher award for her than in Australia.

The judgment is of interest as it considers three issues:

·         Which jurisdiction should apply?
·         Which law should apply?
·         Was the second action an abuse of process, given the advanced state of the proceedings in Australia?

Sir Robert Nelson refused the strike out application and ruled that in the special circumstances of the case, England had jurisdiction.

This case is considered in more detail in Butterworths Personal Injury Litigation Service Bulletin issue 112.

Fraudster sentenced to prison for 15 months

R v McKenzie [2013] EWCA Crim 1544

McKenzie and two co-accused concocted a bogus insurance claim based on a fictitious road accident in which they claimed to have sustained whiplash injuries.  Their claims amounted to £33,000.  They were charged with and convicted of fraud.  The police investigations revealed that D was part of a ring of 70 people who perpetrated these scams and that he had committed 24 similar frauds.

McKenzie was sentenced to 15 months imprisonment and ordered to pay £3,242.00 towards the prosecution costs.  His appeal against sentence was dismissed but the costs contribution order was reduced to £1,500 to take into account his reduced financial circumstances.

This case demonstrates that the law is perfectly capable of protecting insurer’s interests where it is properly applied.  No doubt this prosecution was made possible due to improved intra-insurer co-operation and the use of an anti-fraud database.  Further progress could be made if insurers co-operated with the legal profession in tackling fraud.  Insurers need to be more proactive bringing private prosecutions where the Police don’t.  The insurance industry’s current policy of disparaging genuine whiplash injury victims and portraying minor whiplash injury claims as being synonymous with a fraudulent claim is as unfounded as it is disingenuous.

School not liable for schoolboy’s 'selfie'

Pierce (a child by his litigation friend Annette Pierce) v West Sussex County Council [2013] EWCA Civ 1230

A school authority was not liable for the cut sustained by a nine year old who injured his own hand whilst taking a swipe at another boy.  He missed his aim, landing his blow on the underside of a water fountain that happened to have a sharp edge. 

The trial judge had held that as the edge was sharp it had presented a foreseeable danger and that in the absence of a risk assessment the LEA was liable.  The LEA appealed successfully.

Any school will have numerous edges that might injure a child who strikes them. The school was not liable for this self inflicted injury.

This case is considered in more detail in Butterworths Personal Injury Litigation Service Bulletin issue 112.

No abuse of process by claimant where Coroner’s office advises disposal of post mortem samples

Matthews v Collins and others [2013] EWHC 2952 (QB)

The outcome of this particular decision runs against the general tide due to exonerating circumstances peculiar to the case, which  included the Coroner’s office providing misleading information.  It should be seen as an exception; not the rule. 

It is vital to ensure that in a fatal industrial disease claim that all relevant post mortem evidence is preserved, both documentary and real evidence such as tissue samples.  There have been two recent first instance decisions where a failure to preserve such evidence resulted in the claim being struck out: Weaver (Widow & Personal Representative of Harry L Weaver, deceased) v Contract Services Division Ltd considered [2009] (unreported decision of the Senior Master, 03.09.2009) and  Irene May Currie v Rio Tinto Plc and others [2009] (unreported decision of Master Eastman, 06.10.2010). 

In Matthews, Swift J concluded her judgment with the following postscript:

‘I propose to send a copy of this judgment to the Chief Coroner with a request that he considers advising all Coroners that, in cases where there has been a verdict that a contributory cause of death was industrial disease, any communication to the deceased’s family about the disposal of histological samples should contain advice that, if a claim in respect of the deceased’s death is pending, they should consult their solicitor before giving authority for disposal. 

In the light of what has happened in this case, it would be good practice also for solicitors instructed by claimants in fatal asbestos claims to advise both their clients and the relevant Coroner’s Office that disposal of histological samples should not be undertaken without confirmation from those solicitors that the samples are not required for the purposes of the claim.’

Whilst it is to be hoped that in future Coroner’s officers will be better informed about the need to preserve tissue samples in this kind of case, practitioners would be wise not take any chances. 

A more detailed commentary is Published in Butterworths Personal Injury Litigation Service Bulletin issue 112 and is featured in my Asbestos Fundamentals training for the Association of Personal Injury Lawyers.

Nursery liable for back injury caused by defective cot mechanism

Cooper v Bright Horizons Family Solutions Ltd [2013] EWHC 2349 (QB)

This claim predates section 69 of the Enterprise and Regulatory Reform Act 2013 that removed the actionability of breaches of health and safety legislation.  It is based on breaches of the Provision and Use of Work Equipment Regulations 1998 and the Manual Handling Operations Regulations 1992.

However, it is one of those cases that would probably have succeeded in common law negligence as the trial judge found there had been a real and foreseeable risk of injury to the claimant in stretching over the high sides of a cot to lift out a baby.  The cot was designed for the sides to slide down but the mechanism was broken.

My full commentary and analysis is Published in Butterworths Personal Injury Litigation Service Bulletin issue 112.

Regulation 2 (a) Asbestos Industry Regulations 1931 applied to a visiting lorry driver

McDonald v (1) Dept for Local Government (2) National Grid Electricity [2013] EWCA

Lord Justice McCombe’s judgment in this case rewards careful reading.  This mesothelioma claim resulted in a decision that is notable for three reasons: 

• In the way it illustrates the wide remit of the absolute liability imposed under the 1931 Regulations where there was (a) no foreseeable risk, (b) no breach of duty at common law, (c) no liability under section 47 (1) of the 1937 Act for dust of such a character as was “likely to be injurious” and (d) no infringement of the ‘substantial quantity of dust’ provisions of section 47 (1) of the 1937 Act.

• It is also significant because it seems this claim only succeeded under the 1931 Regulations because the Court of Appeal felt constrained to follow the Cherry Tree ratio, under the Young v. Bristol Aeroplane Co Ltd [1944] KB 718 principle by which the Court of Appeal is bound by an earlier decision.  The Court of Appeal appears to have had some sympathy with the Defendant’s contentions that the Cherry Tree was wrongly decided and that the Asbestos Industry Regulations 1931, as their title implies, are directed to the asbestos industry alone.  Accordingly, it is possible that when this appeal is heard by the Supreme Court, it may disapprove of the Cherry Tree decision and restore a narrower scope to the 1931 Regulations; one that restricts its application to industrial manufacture of asbestos products, as opposed to their use elsewhere.

• Finally, the case provides an almost textbook illustration of the differences, not only between common law and statutory duties of care but also between the qualified / relative duty of care under generic health and safety legislation on the one hand, where the common law concept of reasonable foresight is relevant, and the asbestos specific regulations that impose an absolute duty, on the other.  In the latter case, these regulations are subject only the defence of ‘practicality’, and that only in the sense of that the precautions stipulated should be impracticable to implement from a physical viewpoint and where an appreciation of the risk presented by the exposure to asbestos is not required.

Brief facts:

The claimant was diagnosed with mesothelioma that claimed he had contracted during his employment during his employment as a lorry driver between 1954 and 1959.  His duties had involved collecting pulverised fuel ash from Battersea Power Station run by the National Grid Electricity Transmissions PLC.  It was claimed that he made 68 collections over the four year period.

He alleged that he was exposed to asbestos on his visits to the power station.  His case was that asbestos dust had been regularly released into the air from routine heat insulation maintenance and repair operations undertaken by others on site: preparing the asbestos mixture and in its application as a heat insulator to piping.  However, all this had occurred in locations where he had no reason to be as his role was confined to collecting and removing ash from an entirely different part of the building.  His case was that he had become friendly with some of the workers at the facility and had been free to roam and to socialise whilst waiting for collections.  The claimant’s statement gave the impression that he had been regularly exposed to clouds of asbestos dust. 

The claimant contended that D1, his employer, was liable at common law for failing to take reasonable care for his safety and for failing to warn him of the dangers involved.  His claims against D2 were founded on three separate causes of action:

• Breach of the common law duty of care,
• Breach of s47 (1) Factories Act 1937,
• Regulation 2 (a) Asbestos Industry Regulations 1931.

The trial judge did not accept that the claimant had been exposed to the degree of exposure he claimed.  HHJ Denyer QC.  He found that it had been only modest, on limited occasions and for short periods.

As to the allegation of breaches of the common law duty, he considered Williams v University of Birmingham [2011] CWCA Civ 1242 and held that in the mid to late 1950s...

‘...it would not reasonably have been foreseen that the quantities and intensity of any asbestos dust given off to which this Claimant was exposed would be likely to be injurious or offensive to his health.’

His claim was dismissed at first instance on all three grounds.   However, he succeeded on appeal under Regulation 2 (a) Asbestos Industry Regulations 1931.

If the appeal proceeds to the Supreme Court, the decision that the Court of Appeal felt constrained to make may well be overturned

My full commentary and analysis is Published in Butterworths Personal Injury Litigation Service Bulletin issue 112 and is featured in my Asbestos Fundamentals training for the Association of Personal Injury Lawyers.