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Harrington Hearsay Newsletter

11th January 2008

ISSUE 18

TORT

Johnston v NEI International Combustion Ltd; Rothwell v Chemical and Insulating Co Ltd and Others; Topping v Benchtown Ltd
[2007] UKHL 39 Negligence – asbestos exposure – claimants developing pleural plaques HL: pleural plaques developed as a consequence of negligent exposure to asbestos is not actionable as they do not cause compensatable damage. Anxiety about the risk of developing asbestos related diseases caused by the discovery of the plaques is also not compensatable damage. Even if an individual has developed a psychiatric illness caused by the fear of developing asbestos related disease following the identification of pleural plaques, this is not actionable as recovery for psychiatric damage is limited and does not extend to situations where the illness is caused by the apprehension of an event which has not yet happened. Although not argued, action for breach of contract, rather than for negligence, may be more appropriate where the only symptoms of exposure to asbestos yet developed are pleural plaques as damage does not have to be demonstrated to establish the cause of action.

V v Metropolitan Police Commissioner
[2007] EWCA Civ 1361; [2007] All ER (D) 368 (Dec) Negligence – duty of care – investigation by police CA: there is no duty of care where the police and CPS have investigated a serious sexual assault on a child and decided not to prosecute in the interests of the victim. They do not assume a duty of care in relation to that child. It is difficult to establish a duty of care in an area where the law had already denied a duty and the resource implications of such a duty, given the wider responsibilities of the CPS in deciding whether to prosecute, made it inappropriate to extend one in such circumstances.

Cox v Rolls Royce Industrial Power (India) Ltd
[2007] EWCA Civ 1189; [2007] All ER (D) 347 (Nov) Negligence – death due to asbestos exposure CA: the deceased had been exposed to asbestos by a number of employers most of which were no longer identifiable or had ceased trading. In these circumstances, as long as it could be proved that the defendant had breached the duty of care in relation to that individual and that, as a result of asbestos exposure during the course of the period of employment with that company there was a material increase in the likelihood of their contracting asbestos related disease, the defendant would be liable.

PROPERTY

Powell and another v Benny
[2007] EWCA Civ 1283; [2007] All ER (D) 71 (Dec)
Proprietary estoppel – detriment – satisfying the equity
CA: although the claimants had acted to their detriment on reliance of a promise, on the facts the element of detriment was not defined with enough clarity for there to be a bargain between the claimants and the deceased property owner. The case was not therefore one where the court had to identify the true beneficial owner and the extent of their beneficial interest, but instead was concerned with how the court should exercise its discretion to satisfy the equity which the promise and the subsequent detrimental reliance gave rise to. The equity would be satisfied by a monetary award proportionate to the detriment incurred.

James v Thomas
[2007] EWCA Civ 1212; [2007] All ER (D) 373 (Nov)
Existence of constructive trust – assurances given to unmarried cohabitant
CA: the parties had lived together as man and wife. The claimant alleged that there was a common intention that she should have an interest in the property following assurances from the defendant, who was registered as the sole legal owner of the property, and that she had acted to her detriment in reliance of this common intention. A constructive trust can arise after the property has been acquired and registered in the name of one party but the court will be slow to infer from conduct alone that the parties intended to vary the beneficial interests established on acquisition in the absence of express agreement. On the facts, the claimant’s conduct was not evidence of a common understanding that she should obtain an interest in the property, or as reliance on a promise that she would, as it was explicable as a contribution to the business partnership that the parties had been engaged in and to their lives together.

Accent Peerless Ltd v Kingsdon and another
[2007] EWCA Civ 1314; [2007] All ER (D) 174 (Dec)
S. 7 Housing Act 1988 – possession – nuisance – abatement
CA: the defendants held the property on an assured weekly periodic tenancy. Possession proceedings were brought under s.7(1) Housing Act 1988 on the grounds that the defendants had caused a nuisance under Schedule 2 Part II Ground 14. In considering the reasonableness of making an order the court had to consider the provisions under s.7(4) and s.9(a) Housing Act 1988 on the reasonableness of making such an order. The pattern of conduct causing a nuisance, the likelihood of re-occurrence and any abatement of the conduct will form part of this assessment. An order for possession is more likely to be reasonable the more likely the continuation of the nuisance is.

COMMERCIAL

Office of Fair Trading v Lloyds TSB Bank Plc and Others
[2007] UKHL 48
S. 75(1) Consumer Credit Act 1974 – foreign transactions
HL: the territorial scope of s.75(1) Consumer Credit Act 1974, making a creditor under the debitor-creditor-supplier agreement liable with the supplier for breach of contract in relation to a transaction financed by the credit agreement, is not limited in its application to domestic supply transactions. The only territorial limit is that the credit agreement must be a UK credit agreement.

COSTS

Crane v Canons Leisure Centre
[2007] EWCA Civ 1352; [2007] All ER (D) 281 (Dec)
Collective conditional fee arrangement – costs consultants – success fee
CA: under a collective conditional fee arrangement, a success fee was payable on the fees of the independent costs draftsman that the solicitors chose to instruct because the work done it was solicitor’s work and, although it was delegated, the solicitor retained control and responsibility for it.

Haji-Iannou and others v Frangos and others
[2007] EWCA Civ 1663
CPR 44.14, CPR 47.8 – misconduct – disallowing costs
CA: CPR 44.14 is not inconsistent with CPR 47.8 in disallowing interest when the assessment of costs is not conducted in time, although there is a tension between them as failure to commence assessment of costs in time is breach of a rule falling within the scope of CPR 44.14. Under CPR 44.14 the breach of a rule must be capable of being categorised as ‘misconduct’; it must therefore be a bad enough breach of the rules for the judge to exercise his discretion to disallow costs under CPR 44.14, instead of disallowing interest under CPR 47.8.

Hall and Others v Stone
[2007] EWCA Civ 1345; [2007] All ER (D) 260 (Dec)
CPR 44.3 – winning party – whether costs should be denied
CA: despite the exaggeration of injury and the fact that they did not recover the extent of damages claimed, the claimants had won under CPR 44.3(4) because, at trial, the central issue of alleged fabrication of symptoms had not been proved by the defendants. The costs of the successful party cannot be cut down because they had not done as well as they hoped, there must be identifiable conduct under CPR 44.3(4)(a) for costs to be paid by the successful party and, on the facts, none had been identified as the claimants had not caused the case to be allocated to the multitrack and had not behaved in any way which contributed to an escalation in costs.

Shore v Sedgwick Financial Services Ltd and another
[2007] EWHC 3054 (QB); [2007] All ER (D) 315 (Dec)
CPR 44.3 – claim dismissed as time barred – successful party – discretion on costs
HC: under CPR 44.3 the fact that a party succeeds on some points does not justify departing from the general rule that the party who really won at trial should receive their costs, but both the defendant’s and the claimant’s conduct should be taken into account when assessing costs. The issues in the case were too intertwined for an issue based costs order, but the defendant’s conduct of the case on the facts was unreasonable, justifying a reduction in their costs.

DAMAGES

Martins v Choudhary
[2007] EWCA Civ 1379; [2007] All ER (D) 325 (Dec)
Harassment – damages – psychiatric injury and injury to feelings
CA: there is no hard and fast rule in relation to whether separate awards should be made for psychiatric injury and injury to feelings, although judges must take care to avoid the risk of overlap resulting in double recovery. Where there is injury to feelings the quantum of damages should compensate for the effect on the claimant of the aggravating features of the defendant’s conduct; they are not a form of punishment.

EVIDENCE

Parallel Imports (Europe) Ltd v AJR Import & Export Ireland Ltd and Another
[2007] EWCA Civ 1373; [2007] All ER (D) 331 (Dec)
Burden of proof – fraudulent misrepresentation - loss
CA: when the claimant has proved fraudulent misrepresentation which induced him to make a payment he has discharged his burden of proof to establish liability. The burden of proof is then on the defendant if he alleges that the claimant in fact suffered no loss.

PRACTICE AND PROCEDURE

Hoddinott and others v Persimmon Homes (Wessex) Ltd
[2007] EWCA Civ 1203; [2007] All ER (D) 321 (Nov) CPR 7.6, CPR 11 – extension of time for service subsequently set aside CA: where an application for extension of time for service has been made without notice and given under CPR 7.6, if there was no good reason in the circumstances for the failure to serve within time, the order may be set aside irrespective of whether the issue of the extension gave rise to a sense of security. Under CPR 11.5, even if the service of a claim form was out of time, the court was not deprived of jurisdiction to try the claim.

Khudados v Hayden and others
[2007] EWCA Civ 1316; [2007] All ER (D) 203 (Dec) CPR 1.3 – no duty for counsel to supplement deficiencies in opponent’s evidence CA: the overriding duty of counsel under CPR 1.3 to help the court to administer cases justly does not require counsel to supplement an opponent’s evidence, even when they are a litigant in person, to the detriment of their client’s interests.