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October 2009 Case Law Reports

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Amsprop Ltd v ITW Ltd T/A Hobart UK)

This concerned a claim against a maintenance company for damage caused by a fire in a café.  The maintenance company inspected the equipment the day before the incident and noted the extractor was pulling gas off one of the grill’s burners.  Fire experts agreed that the fire started because of the ignition of grease residues in the hood or duct above the flue vent over the grill.  Experts agreed 2 possible causes.  The first being a flare up from food on the grill and the second being the defect noted by the maintenance company the previous day.

It was held that the causes should be looked at on the balance of probabilities if one of the two causes seemed much less likely.  On the evidence it was not possible to make such a conclusion as both were likely causes.  The Judge stated that it would be speculation to say which seemed the more possible cause.

Sir John Fitzgerald Ltd v Hugh Maxwell Macarthur

The Claimant had ordered and paid for a new car from a company run by the Defendant but the car was never delivered and the Defendant moved to Australia.  The Claimant issued proceedings against the Defendant for misrepresentation.  Shortly before the trial the Claimant applied for a pre-trial review as he was concerned that the Defendant may not attend the trial.  The Defendant wrote to the Court advising that it was impossible for him to attend a pre-trial review and tried to make contact with the Judge to establish if the trial date was still scheduled to go ahead. 

The trial went ahead and Judgment was granted against the Defendant in his absence.  The Defendant appealed to set aside the Judgment as he did not expect the trial to go ahead considering the Claimant had only filed his witness statement four days before the trial amongst other things.  His appeal was successful on the basis that he had a reasonable prospect of success, he had acted promptly and he had a good reason for not attending the trial.  The initial hearing should have been adjourned.

Craggy v Chief Constable of Cleveland Police

This matter concerned a collision between a police car and a fire engine at a junction, both responding to emergency calls at 5.50am one February morning.  At first instance the District Judge held the Defendant to be one third liable as he was driving at 50 mph in a 30mph zone and the Claimant two thirds liable as he had driven through a red light.

On appeal it was held that had it not been for Counsel advising the Claimant to admit some liability then the matter would have been concluded as an accident.  This was on the basis that although the Defendant was exceeding the speed limit, as permitted when responding to an emergency call, he had a clear road ahead and a green light at the junction through which he was passing.  The Claimant had to pass through a red light, as permitted when responding to an emergency call, and had slowed to 15mph approaching the junction to ensure it was clear.  Both parties had therefore taken reasonable care in the circumstances.

Sonmez v Kebabery Wholesale Ltd

The Court of Appeal held that although the Claimant was held 20% contributory negligent, the costs of the trial were payable by the Defendant.

The Claimant made a Part 36 offer in respect of liability which was 100% in his favour.  The Defendant then made an offer on the basis of two thirds to one third liability in the Claimant’s favour which the Claimant rejected.  The Defendant followed this with a further offer on the basis of 75% and 25% in the Claimant’s favour which the Claimant again rejected.  At trial the Claimant asserted the Defendant was 100% liable but the court held him contributory negligent for 20% and ordered him to pay the costs of the trial.

The Court of Appeal held that the Claimant had succeeded to the extent of 80% of his claim in a fully contested trial on liability.  They agreed that the cost did indeed follow the event which therefore made the Defendant liable for these.  The only consideration was whether the costs should be reduced because of the Claimant’s conduct and it was held on the facts that they should not be in this case.

Lahcen Bouchouk V Ministry Of Defence

The Claimant suffered a shoulder injury at work.  He already had a pre-existing condition and suffered a heart attack 3 years after the date of the injury.  It was accepted that the heart attack would have led to his retirement in any event.

The Claimant was medically retired 2 years after the accident and had a heart attack a year later.  Loss of earnings were calculated and granted for the period of 1 year.  This was on the basis that the Claimant would have probably worked 1 year more, up until his heart attack, had he not had the accident at work.

Emma Moore (Claimant) V Hotelplan (T/A Inghams Travel) (Defendant) & Adriano Tantera (Third Party)

The Court of Appeal held that as the third party was a risk, they needed to be represented by their own lawyers, contrary to the previous decision of the Court concluding that they did not require representation as they shared a common interest with the Defendant.

The Claimant obtained a ski holiday through the Defendant which advertised activities such as snowboarding.  The Claimant was involved in an accident after hiring a snowmobile from the third party and brought a contractual and tortious claim against the Defendant.  She decided not to join the third party to the hearing as they were resident abroad and the potential cost outweighed the benefits.  The Defendant made a Part 20 claim against the third party and argued that this claim should be allowed to catch up to the main proceedings.  At first instance this was denied but subsequently overturned on appeal.

Mullock v Price (T/A The Elms Hotel)

The Claimant issued proceedings against the Defendant who referred the matter to his insurance company to deal with.  The Claimant obtained Judgment in default and was granted permission for an interim payment together with a warrant to enforce the Order.  This was again passed to the insurance company who made the interim payment.  At the disposal hearing damages were awarded to the Claimant.  The police contacted the Defendant to inform him that the insurance company was being investigated for fraud and his policy could be fraudulent. 

The Defendant made an application to strike out the Judgment 2 years after it had been made.  This was dismissed on the basis that it had no real prospect although the court held that he had acted promptly.  On appeal the Defendant’s application was allowed on the basis that it did have a real prospect and the finding of the previous court regarding promptness were correct.  The Court of Appeal held that this was incorrect as 2 years was not considered prompt as he was aware that Judgment had been entered and his explanation for the delay was irrelevant.

Andrew Brown & Ors V (1) Innovatorone Plc (2) Ytc Medical Learning System Partnership (3) Agent Mole Technology Medical Partnership (4) Paul Carter (5) Bjorn Stiedl (6) Jonathan Roper (7) John Bailey (8) Collyer Bristow

The Claimant’s application for service of the amended claim form to be sanctioned was refused.  The Judge believed that the matter was simply a case of the Claimant’s solicitors leaving the service of a claim form until very late and then not observing the rules for service.