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Sugar Hut Group & Ors v AG Insurance [2014]


Summary:

EWHC 3775 (Comm)

Mr Justice Eder today handed down his judgment on costs issues following his substantive judgment on the 20th October 2014 in the matter of the Sugar Hut Group v AG Insurance. The Claimants were ordered to pay the costs of the claim from the 14th June 2014, save for the costs of the discrete issue as to the amount of interest that was appropriate. They were also entitled to recover only 70% of their costs prior to that date, subject to a detailed assessment if not agreed.

Permission to appeal the costs order was sought by Andrew Post QC on behalf of the Claimants, and was refused by the judge, who stressed that he had taken the view that the Claimants’ conduct was such that there was a very good reason for him to depart from the general rule about costs. He explained that the Claimants had plainly failed on certain issues which had led to a percentage reduction in their costs. In addition he wished to emphasize that he had awarded all costs of the action to the Defendant post the 14th June 2014 not merely because of the negotiations and offer letters between the parties, but also because the claim had very much been exaggerated and the Claimants had failed to comply with their disclosure obligations and other matters as set out in his substantive costs judgment. Mr Justice Eder stressed also in refusing permission to appeal that the case was one that was exceptional on its facts and turned on the specific conduct of the Claimants, such that there were no issues of general principle involved in his decision.

Angus Piper of 1 Chancery Lane (instructed by Caytons solicitors) represented the Defendant on the permission hearing as well as on the substantive costs hearing and at the trial (where Richard Slade QC represented the Claimants).

In his substantive judgment on costs, Eder J accepted Mr Piper’s submission that the Defendant’s Part 36 Offer of the 23rd May 2014 did not attract the automatic consequences of Part 36, but that it could properly be considered under the court’s wider Part 44.2 discretion on costs. He recognised that there were a number of discrete issues where claims were maintained during the trial, but £Nil was recovered by the Claimants. The judge held that those issues involved substantial amounts of money, and also substantial time in disclosure and in lay and expert evidence. He also held that the Claimants’ attempts to argue that post-fire turnover (which occurred after the Sugar Hut nightclub came to feature on the popular TOWIE television programme) should be taken into account had been rejected in their entirety. Given the Claimants’ failures on these discrete and important issues a costs reduction of 30% was appropriate.

In addition, the Defendant had made a Part 36 Offer in a letter dated the 23rd May 2014, which expressly based the offer on gross business interruption losses of £600,000, plus interest at 2.5%, producing a net Part 36 offer figure inclusive of interest of £250,000. In the event, the Claimants at trial recovered gross business interruption losses of just £568,000, albeit they persuaded the court to allow interest at 5%, such that there net recovery inclusive of interest was £277,000.

The judge held that although the letter did not contain an admissible offer to settle or attract the automatic provisions of Part 36 (as Mr Piper conceded), it could and should nonetheless properly be taken into account as a matter of conduct and in accordance with the wide discretion of the court. The judge held that the claim was very much exaggerated, and also accepted Mr Piper’s submission that the Claimants had dragged their heels on disclosure and conducted the disclosure process on a piecemeal basis with fresh documentation still being disclosed just two months prior to trial. Even at trial, there were gaps in evidence, and the Claimants’ approach caused real difficulties to the Defendant in taking appropriate precautions to protect its position. He held that the Claimants’ response to the suggestion that business interruption was worth £600,000 was unreasonable, and for all of those reasons awarded the costs of the action from the 14th June 2014 to the Defendant, as well as making the separate 30% deduction for issue based costs from the period prior to that date.  

As set out above, permission to appeal the costs order was refused. There has been no attempt to appeal the substantive judgement.


Micklewright v Surrey County Council

[2011] EWCA Civ 922


Summary:

Issues: Liability of local authority for death caused by failure of large branch of a highway tree (a massive oak tree adjacent to a roadside lay-by). Foreseeability of failure. Would a reasonable inspection regime have revealed actionable defects in the branch that ultimately failed?

Facts: Claim concerned a tragic fatal accident, in which the Deceased (Mr Imison) was killed when a large oak branch fell on him as he went to remove the family bicycles from his vehicle whilst parked in a designated parking place adjacent to Windsor Great Park. The Defendant Council accepted responsibility for the tree in question as a “highway tree” and the judge at first instance (HHJ Reid QC) held that there was an inadequate system of inspection in place as regards the tree in question. The main live issue was as to what would have transpired had an adequate inspection regime been in place. The CA (Mummery LJ, Patten LJ and Hedley J) agreed that the questions that the court needed to consider were (i) what sort of inspection would have been required; (ii) what it would have revealed if carried out and (iii) would that inspection have led to removal of the offending branch prior to the date of the accident.

Findings: It was open to the trial judge on the evidence before him to have reached the conclusion that the material defect would not have been revealed upon reasonable inspection, such that the claim failed and the appeal was dismissed. The CA (Hedley J gave the judgment which was agreed by his brother judges) cited and approved paragraph 18 of the first instance judgment as an “impeccable direction”.

It read as follows: “It does not follow that because an owner or occupier fails in his duty to make the necessary inspections of his trees that he will automatically be liable if someone is injured by one of them. It may be the tree was suffering from a defect that would not be revealed by inspection. Thus in Caminer v Northern & London IT [1951] AC 88 at 103 Lord Normand observed that the defendants did not comply with their duty but “it is no less plain that, if they had, it would have made no difference. The tree was just such a tree as [the expert witness] says the owner must consider safe.” It is necessary for the Claimant to show that if the owner or occupier had complied with his duty on the balance of probability the defect or danger in the tree would have been noticed. It is important when considering whether the owner or occupier has complied with his duty to avoid using the benefit of hindsight.”

The CA also reminded themselves that it is proper that any appellate court should bear in mind when considering an appeal on essentially factual grounds the words of Lord Hoffman in Piglowska [1999] 1 WLR 1360 (HL) at 1372, as regards the caution which is required when dealing with the factual findings of a trial judge.

Comment: The trial judge effectively preferred the Defendant’s lay and expert witness evidence to that of the Claimant, and held that the internal decay in the tree could not have been discovered upon reasonable inspection, and he was upheld by the CA. 


Nicolas Taaffe (Personal Representative of the Estate of Eleanor Taaffe, Dec'd) v East of England Ambulance Service NHS Trust

Summary:

Paramedics attending a 50-year-old woman suffering from severe chest pains had acted negligently in failing to advise her to attend hospital to have her condition properly investigated. Had she been admitted to hospital, her condition would have been diagnosed and she would have avoided the fatal cardiac arrest she suffered five days later.


Penny Johnson v Le Roux Fourie

[2011] EWHC 1062 (QB)


Summary:

CLINICAL NEGLIGENCE : DISFIGUREMENT : GENERAL DAMAGES : LOSS OF EARNINGS : MEASURE OF DAMAGES : PSYCHIATRIC HARM : NEGLIGENT PLASTIC SURGERY CAUSING PHYSICAL AND PSYCHOLOGICAL HARM

General damages of £80,000 were awarded in the case of a woman who had suffered serious physical and psychological harm after undergoing negligently performed plastic surgery.

 


Micklewright v Surrey County Council

Unreported


Summary:

Guildford County Court.  Fatal Accidents claim.  Claimant killed by branch of tree.  Defendant accepted responsibility for the tree.  Issue at trial concerned condition of tree prior to failure of branch.  Damages agreed at £500,000 subject to liability.

Held: no remedy in nuisance; causation live issue; duty to perform visual check; claimant failed to discharge burden of proof; accident unforeseeable.  Notwithstanding finding of breach of duty, case dismissed.  Permission to appeal granted.  


Anna Howman v Sister Irene Thompson

HHJ Darroch, Norwich County Court, Unreported, 15/12/08


Summary:

Claim against a GP practice nurse for injuries sustained by the claimant when she fainted following a travel vaccination.  The claim was dismissed at the conclusion of the trial, with indemnity costs awarded in favour of the Defendant, on whose behalf Angus Piper was acting (instructed by the MDU).


Howman v Thompson

Unreported, 15/12/08, Norwich County Court


Summary:

Claim against a GP Practice Nurse for injuries sustained by the claimant when she fainted following a vaccination.  Claim dismissed with indemnity costs. 


James v Havering LBC

[2007] EWHC 2168 (QB)

Summary:

Claim concerning CPR transitional stay provisions.  Stale claim by litigants in person. Inadequately pleaded particulars of claim.  Summary judgment (which had been entered against the local authority back in 1995) would have been set aside and claim struck out had it not fallen foul of the automatic stay provisions which rendered it a nullity in any event and the sumary judgment was not enforceable.  Angus Piper appeared for the local authority.


Monger v Buckinghamshire County Council

HHJ Dean QC, Central London County Court, Unreported 17 July 2007


Summary:

Alleged failure to grit an icy road adequately or at all.  S41(1A) Highways Act 1980.


Green v Motts Godwin Insurance Services

25th July 2006; unreported, QB Commercial Court, HHJ Mackie QC

Summary:

An insurance broker's negligence case, in which the broker admitted negligence for failing to draw the claimant's attention to the policy conditions, but where it was held that (contrary to her assertions) the claimant had in fact read the relevant documents, and was therefore contributorily negligent by 50% in failing to instal an alarm and/or a safe at her property.  The value of her claim was further reduced to account for issues of under-insurance and/or over-valuation of the goods stolen from her home in a burglary the subject of the underlying insurance claim (in respect of which insurers had declined to indemnity), and she failed to beat the payment into court that had been made in advance of the trial.


Kiffin v Rowley Ashworth

28th February 2006; unreported, Derby County Court, Rhodri Davies QC

Summary:

A solicitor's negligence claim, in which the claimant alleged that he had not agreed to his instructing solicitor making a "door of court settlement" on his behalf at an employment tribunal.  Further allegations concerned the failure to obtain a written note of the settlement, and an assertion that the claim had been settled for less than it was worth.  It was held that the claimant had in fact given his consent.  Furthermore, the settlement figure was the right one in all the circumstances, and the claimant's submissions to the contrary were wholly speculative.


Mistry v Thakor & Ors

LTL 5/7/2005; [2005] CILL 2266

Summary:

In order to have imputed knowledge of a defect and its consequences, the owner of a building did not need to know the entire consequences of any defect but just needed the basic evidence.


Burton & Anor v Kingsley & Anor

LTL 1/6/2005; [2006] PIQR P2

Summary:

In a personal injury action in which the claimants had sustained serious injuries and liability was uncertain, the appropriate level of percentage uplift under a conditional fee agreement was 50 per cent. That figure reflected the very significant element of risk which existed at the time when the conditional fee agreement was entered into.


SGS Projects Ltd v Ross

LTL 4/4/2005 (unreported elsewhere)

Summary:

The directors of a group of companies had not acted inequitably in purchasing premises at a reduced price to reflect a judgment debt owed to another of its companies by the seller and therefore the judgment debt was not discharged.


Eagle v Chambers

LTL 29/7/2004; [2004] 1 WLR 3081; [2005] 1 All ER 136; [2005] PIQR Q2; [2004] Lloyd’s Rep Med 413; [2005] 82 BMLR 22; [2003] EWHC 3135; Times, August 30, 2004

Summary:

In the circumstances, no sum was awarded regarding panel brokers’ fees, which would be incurred by the claimant on investment advice sought following receipt of an award of damages. The fact that the claimant was a patient did not affect that conclusion.


College Credit Ltd v The National Guarantee Corporation Ltd & Ors

LTL 8/6/2004; [2004[ 2 All ER (Comm) 409

Summary:

The court's task was not to re-write but to give effect to the parties' bargain and in ascertaining what the bargain was and choosing between rival constructions it was relevant to have regard to how well each accorded with the underlying commercial purpose.


The Law Society v Haider

LTL 14/10/2003 (unreported elsewhere)

Summary:

A defendant had received payments from a solicitors firm's client account where there were no such funds standing to his credit and therefore was ordered to repay the amounts so paid.A defendant had received payments from a solicitors firm's client account where there were no such funds standing to his credit and therefore was ordered to repay the amounts so paid.


Marcq v Christie, Manson & Woods Ltd

LTL 23/5/2003; (2004) QB 286; Times, May 30, 2003

Summary:

Where an auctioneer received goods from an apparent owner in good faith and without notice that they were stolen and returned them unsold, the auctioneer was not liable for the true owner in conversion or bailment.


Dean v Chief Constable of the Leicestershire Constabulary

LTL 18/12/2002; [2002] EWHC 2781

Summary:

A probationary police constable recovered damages for personal injuries sustained during unarmed defence training.


David Ruffle Architects v Potter Raper Partnership

LTL 11/4/2002 (unreported elsewhere)

Summary:

The court would not order pre-action disclosure of documents in circumstances where it was impossible to have a clear idea of what the issues in the contemplated proceedings were likely to be.


Flatley v Society of Motor Manufacturers

[2002] All ER (D) 225

Summary:

Claim for unfair dismissal.