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Harrington Hearsay Newsletter

3rd July 2007

ISSUE 15

NEGLIGENCE

Eyres v Atkinsons Kitchens and Bedrooms Ltd
[2007] EWCA Civ 365; [2007] All ER (D) 201 (Apr)
Negligence – road traffic accident – whether caused by excessive tiredness
CA: the claimant had a road traffic accident alleged to be caused by a micro-sleep due to excessive working hours encouraged by the employer. The judge at first instance found the accident was caused by the claimant’s use of a mobile phone. On appeal this was found to be unwarranted. On the balance of probabilities the claimant had shown that a micro-sleep was the cause of the accident and that the employer was therefore liable for negligence as they encouraged him to drive whilst too tired. The claimant’s contributory negligence was assessed at 33%, 25% for the failure to wear a seatbelt and 8% for the failure to realise the risk of falling asleep whilst driving.

PROPERTY

Stack v Dowden
[2007] UKHL 17; The Times, 26th April 2007
Co-habitation – beneficial interests – conveyance into joint names
HL: Baroness Hale: where property has been conveyed into joint names of a co-habiting couple without defining the division of the beneficial interests it must be asked, first, whether the parties intended their beneficial interests to be different from their legal interests, and secondly, if the beneficial interests are intended to be different, to what extent? The starting point for deciding the extent of the beneficial interests was equality. However to prove the contrary many factors beyond financial contribution would be relevant, potentially including the reasons why the property was conveyed into joint names, the purpose the property was acquired for, how the parties finances were arranged and how they disposed of outgoing expenses. However, the inference of equality would be span class="boldtextblack", although on the facts, the beneficial interests were not equal, being divided 65% to 35%, the defendant having proved her entitlement to the larger interest due to her larger contribution to the purchase price and the partners otherwise keeping their finances strictly separate. Lord Hoffman agreed, Lord Hope and Lord Walker concurred, Lord Neuberger concurred in the result.

London & Quadrant Housing Trust v Ansell
[2007] EWCA Civ 326; [2007] All ER (D) 149 (Apr)
Landlord and tenant – secure tenancy – order for possession
CA: the defendant held a secure tenancy but the landlord had secured a possession order, which had been suspended on the condition of the payment of rent arrears. The defendant breached this order, terminating the tenancy, but remained in occupation as a tolerated trespasser. The landlord subsequently brought a fresh claim for possession for causing a nuisance. The previous possession order had been discharged by the payment of arrears and was not therefore enforceable. The landlord was entitled to pursue a subsequent order for possession which would be outside of the protective secure tenancy provisions of s85(2) Housing Act 1985.

FIDUCIARY DUTY

Foster Bryant Surveying Ltd v Bryant and another
[2007] EWCA Civ 200; [2007] All ER (D) 213 (Mar)
Breach of fiduciary duty before resignation effective
CA: A company director who had resigned from his post and excluded from his role of director, had been approached by a company client to continue to work on projects for them, which he had agreed to. There was no breach of fiduciary duty because his resignation had no ulterior motive, he did not exploit a maturing business opportunity belonging to the company and he was merely making preparations for his employment following leaving the company. Additionally, if breach of fiduciary duty had been established, an account of profits could be ordered without evidence of any loss to the company.

DAMAGES

Horton v Evans and another
[2007] EWHC 315 (QB); [2007] All ER (D) 97 (Mar)
Recovery of private medical expenses
HC: The claimant obtained judgment for the over-prescription of drugs causing health problems. The resulting medical expenses were paid by the claimant’s two medical insurance policies. The terms of these policies allowed subrogation of the medical expenses to the insurers; the claimant could recover the expenses but, to avoid the double recovery rule, would be obliged to account for these expenses to the insurers.

COSTS

Willis v Nicolson
[2007] EWCA Civ 199; [2007] All ER (D) 205 (Mar)
Cost capping orders
CA: cost capping orders are case management decisions which should be issued where there is a real and substantial risk of unreasonable and disproportionate costs. As such the issue of a capping order is a delicate one which must be approached with reliable information about the case and the type of litigation and should only be sought before the expenditure is incurred. Consideration should be given to the cost of obtaining the cost capping order itself before proceeding.

Shepherds Investments Ltd v Andrew Walters and others
[2007] EWCA Civ 292, [2007] All ER (D) 40 (Apr)
Split trial – judicial discretion to reserve costs assessment – CPR 44
CA: Where liability had been established at a split trial but quantum has yet to be established, the court is within its discretion under CPR 44 to delay the decision on costs until quantum and account of profit is decided where the claimants are likely to recover only a small account and Part 36 offers have been made, so all the relevant circumstances as to costs are known.

LIMITATION

Giles v Rhind and another
[2007] EWHC 687 (Ch); [2007] All ER (D) 474 (Mar)
Limitation period – s32 Limitation Act 1980 – s423 Insolvency Act 1986
HC: under s423 Insolvency Act 1986 a creditor who is capable of being prejudiced by the disposal of assets at an undervalue includes those who will potentially suffer loss at the time of the transaction. The limitation period under s32 Limitation Act 1980 started to run from the point the claimant could have discovered the facts relevant to the transaction at an undervalue under s423.

EVIDENCE

Brown v Rice and others
[2007] All ER (D) 252 (Mar)
Mediation – Admissibility of without prejudice communications
HC: The parties had taken part in mediation and the alleged resulting settlement was factually disputed. Evidence as to alleged settlement made during the mediation were without prejudice communications, but were admissible under the exceptions in Unilever plc v The Proctor & Gamble Co [2001] 1 All ER 783 where the communications form evidence to show whether there is a concluded settlement or a settlement by estoppel. There was as yet no separate ‘mediation privilege’ distinct from the without prejudice rule.

PRACTICE AND PROCEDURE

Broadhurst v Broadhurst
[2007] EWHC 726 (Ch); [2007] All ER (D) 522 (Mar)
Limitation Act 1980 sec. 35, R19.5 (2), (3) – joinder of claimant - substitution
HC: When considering whether a party should be joined to an action following the expiry of the limitation period, evidence of a qualifying mistake was required. R19.5(3)(a) can only be used for the substitution of a party, not the addition of a party, whereas the other sections of R.19.5(2) allowed either substitution or addition.

Orton v Collins and others
[2007] EWHC 803 (Ch); [2007] All ER (D) 175 (Apr)
Part 36 settlement – disposition of an interest in land
HC: s2 Law of Property (Miscellaneous Provisions) Act 1989 requiring for the disposition of an interest in land, a single document incorporating the express terms of the agreement signed by both parties, would be complied with by a Part 36 settlement. This is so despite the separate notice of acceptance in a Part 36 settlement, because the court had the power to require the parties to sign a single document, and the parties in accepting the offer were accepting that the court had the power to enforce it.