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Mavris -v- Xylia
The Chancellor of the High Court, Sir Geoffrey Vos has given an important judgment dealing with how the High Court should deal with appeals from the County Court that are based on the ground of fraud.
In Mavris v Xylia (1//11/17) it was common ground that two tenancy agreements had been made but there was a dispute as to the which documents were the genuine agreements: an issue that the forensic scientist instructed as a single joint expert could not resolve. The trial judge preferred the evidence of the defendants and their witnesses, including two Greek accountants who gave evidence in support of how the defendants said the second agreement had been made at a meeting in a hotel in Athens.
In the course of the trial the defendants disclosed a bank statement which revealed that one of the defendants was in receipt of housing benefit. After the trial the claimant obtained a redacted version of the tenancy agreement submitted for the housing benefit application by making a subject access request to the local authority. The version obtained was similar to the first agreement produced by the claimant (Agreement A) rather than the version produced by the defendants (Agreement B).
The claimant appealed on the ground that the new document (Agreement A1) satisfied the requirements of Ladd v Marshall and tended to show that Agreement A was genuine rather than Agreement B. The claimant argued that if Agreement A was genuine then the judge would have approached the issues of credibility differently.
On the appeal the defendants argued that Agreement A1 would not have affected the outcome as the evidence of the Greek accountants had been accepted.
The Chancellor held that Agreement A1 did not incontrovertibly demonstrate that the judge had been misled but it did tend to show those matters. The Chancellor followed Noble v Owens  EWCA Civ 224 and ordered that the issue of the fraud had to be determined by a trial and remitted this issue to the County Court. To keep the proceedings costs-effective the Chancellor gave directions to avoid the matter coming back to the High Court. If the County Court decided that there had been no fraud, then the appeal would stand dismissed and if the County Court decided that fraud had been proved, then the appeal would be allowed and there would be a retrial of the claim before the same judge dealing with the fraud trial. The parties were ordered to file and serve pleadings dealing with the issue of fraud.
The case resolves the doubt about what a party who believes they have been the victim of a decision obtained by fraud in the County Court should do (see Bishop v Chhokar  EWCA Civ 24) and how the court should deal with an appeal that raises a prima facie but not incontrovertible case of fraud.
Zachary Bredemear acted for the claimant/appellant.
KXL & Others -v- Murphy & Anor  EWHC 3102 (QB)
The High Court, on 2 December 2016, handed down an important judgment dealing with the issues arising out of the provisions of the Foreign Limitation Periods Act 1984 and whether the circumstances of this case warranted a disapplication of a foreign law limitation period either on grounds that it offended public policy or on the grounds that the Claimants has suffered undue hardship – as prescribed by s.2 of the 1984 Act.
The claims concerned assaults said to have been committed in Uganda but which were issued in this jurisdiction. The Defendants raised as a defence the provisions of the Ugandan Limitation Act 1959 (in essence, 3 years from reaching the age of majority at 18) whereby the claims were statute barred. It was common ground that the applicable law was Ugandan law so the issue came before the Court as a Preliminary Issue of law. The Claimants contended that although the lex causae was Ugandan law the content and operation of its limitation provisions were contrary to public policy and/or its operation would cause the Claimants undue hardship within the meaning of section 2 of the 1984 Act because Ugandan law made no provision for an extension of time on grounds identical or similar to section 33 of the English Limitation Act 1980.
Mr Justice Wilkie, in a careful and closely reasoned judgment ruled that the provisions of the Ugandan Limitation Act 1959 were not contrary to public policy as although some jurisdictions made provision a discretionary extension of time for the commencement of proceedings other jurisdictions did not and described the Claimants’ submissions in this regard as “bold”. The learned Judge similarly dismissed the argument that the Claimants had suffered undue hardship within the special meaning to be attributed to that term as it is found in section 2(2) of the 1984 Act, saying that he could answer that question with a clear “No”.
The Claimants have not sought permission to appeal.
The implications of this judgment are important in that they confirm that the provisions of the 1984 Act are still alive and well. The concept underlying the introduction of that Act was that the English courts should not take a parochial view of foreign law provisions and treat them as subordinate to English law. Instead the principle should be that the lex causae should determine all substantive law issues in a claim which occurred abroad, subject only to an ability on the part of an English court to find that the foreign law provision was contrary to public policy (a high threshold) or caused a particular claimant particular hardship beyond that which is inevitable if the foreign limitation provision is applied (a similarly high threshold).
A further consequence of this decision is that it may serve to dampen enthusiasm for forum shopping in the area of tort claims.
Laura Johnson appeared for D1; John Ross Q.C. and Matthew Chapman appeared for D2.
Legg & Ors v. Aviva  EWCA Civ 97
On 23 February 2016 the Court of Appeal handed down a judgment in the case of Legg & Ors v. Aviva  EWCA Civ 97. The case concerned the scope and application of the rule relating to a party’s ability to secure an adverse costs order against a third party who funded the unsuccessful claim by a claimant /defence of a defendant. Additionally it concerned the proper interpretation of a “costs” term in the Defendant’s “Public Liability” policy.
In upholding the decision below to order that Aviva should pay the Claimants’ costs of pursuing the Aviva’s assured to judgment, both (i) on the ground that Aviva was a third party funder of the Assured’s unsuccessful defence of the Claimants’ claims and (ii) on the ground that the terms of the Assured’s policy obliged Aviva to meet such costs, the Court of Appeal clarified and explained the existing authorities on the liability of third party funders to adverse costs consequences when they choose to intervene in litigation and to support an unsuccessful defence of a legitimate claim. The relevant test is whether the insurers were “motivated either exclusively or at least predominantly, by a consideration of its own interest in the manner in which it conducted the defence of the litigation.”
Additionally the Court explained how policy terms relating to costs coverage should be interpreted, namely by reference to whether or not the Insurer’s proposed construction of the policy wording would produce “an extraordinary result”. If so, although the lay-out of definition clause was supportive, the extraordinary result of the Insurer’s proposition rendered it “highly unlikely, looking at the matter objectively, that the parties could have intended this result. It is not the result, if the words at the end of the definition are read as qualifying the entire definition, rather than just paragraph 3. This consideration is, in my judgment, more than sufficient to displace any weight that may be placed on the lay-out of the definition. Accordingly, the closing words also qualify paragraph 1, which encompass the costs order made in favour of the claimants and against Sterte [the Assured] in this case”.
It followed that Sterte, the Assured, was entitled to be indemnified by its Insurers against the costs order in favour of the Claimants and, by reason of the [Third Party (Rights Against Insurers)] 1930 Act, that right vested in the Claimants.
Permission to appeal to the Supreme Court was refused.
The successful Claimants/Respondents were represented by John Ross QC and Geoffrey Weddell.
Feest v SW Strategic Health Authority  EWCA Civ 97
The judgment considers the scope of the Athens Convention and the nature of the time-bar in Article 16 and its effect on claims brought against other parties liable pursuant to the provisions of the Civil Liability (Contribution) Act 1978 (which has its own separate 2 year limitation period). In coming to its decision, the Court also considered sections 5(1) and 5(2) of the Carriage by Air Act 1961.
In the main action, Dr Feest claimed damages for personal injury arising out of an accident which occurred whilst she was a passenger on board The Celtic Pioneer in the Bristol Channel. Her original solicitors missed the two-year time limit for bringing claims under the Athens Convention against the carrier ('BIV'). She issued proceedings against her employer ('SWSHA') one day before the expiry of the three-year time limit under section 11 of the Limitation Act 1980. SWSHA brought a claim for contribution against BIV which was struck out by the district judge. His order was upheld on appeal.
The first issue for the Court of Appeal was whether claims for contribution are encompassed by Article 14 of the Convention which states “no action for damages for the …personal injury to a passenger… shall be brought against a carrier…otherwise than in accordance with this Convention.” On appeal, HHJ Havelock-Allan QC held that Article 14 encompassed contribution claims ( EWHC 177 QB). The Court of Appeal disagreed. The Athens Convention only claims to unify ‘certain rules relating to the carriage by sea of passengers and their luggage’. It is not a complete code and does not encompass contribution claims which are autonomous and derive from the Civil Liability (Contribution) Act 1978. In reaching this conclusion the Court looked at Australian, US and Canadian cases on the equivalent provisions under the Warsaw and Montreal Conventions.
The Court of Appeal then considered the nature of the time-bar under Article 16. The importance of this is that SWSHA would not have had a claim for contribution against BIV under the Contribution Act if the effect of Article 16 was to extinguish the cause of action rather than bar the remedy. The Court found that the effect of the words of Article 16 in the light of Financial Services Compensation Scheme Limited v Larnell (Insurances) Limited (in liquidation)  QB 808 (which considered the similarly-worded section 14B of the Limitation Act 1980) was to bar the remedy – unless there was an international consensus upon the understanding of the provision. The Court looked at the French text and concluded that the natural meaning of the French words was to bar the remedy. This understanding was also consistent with language (‘Verjaehrungsfrist’) used in the German Commercial Code. Accordingly Article 16 operated to bar the remedy and not extinguish the cause of action and therefore SWSHA’s contribution claim survived.
In reaching their conclusion on Articles 14 and 16 the Court of Appeal also looked at section 5(1) and 5(2) of the Carriage by Air Act 1961 which incorporates the Warsaw and Montreal Conventions into UK law. Of note is its comment that section 5(1) provides a time limit for actions against carrier’s servants or agents, which actions are not themselves within the scope of the Warsaw Convention.
Accordingly, the Defendant was entitled to pursue its claim for an indemnity / contribution against the sea carrier as the party who caused the Claimant’s injuries.
Lady Christine Brownlie -v- Four Seasons Holdings Incorporated  EWCA Civ 665
On 3 July 2015 the Court of Appeal handed down judgment in Brownlie v Four Seasons Holdings Inc  EWCA Civ 665 a fatal road traffic accident and personal injury claim arising out of an “off-package” excursion contract performed in Egypt. In largely dismissing the Defendant’s appeal against the Order of Tugendhat J ( EWHC 273 (QB)), the Court held that the Claimant was permitted to pursue her claims in contract and for loss of dependency (pursuant to the Fatal Accidents Act 1976) in the English Courts.
The Court also concluded (surprisingly) that “damage … sustained within the jurisdiction” for the purposes of CPR Part 6, PD 6B, para 3.1(9) was, in a personal injury context, referable only to direct injury/damage sustained in the jurisdiction where the tort was committed. The first instance line of High Court authority commencing with Booth v Phillips  1 WLR 3292 (QB) and Cooley v Ramsey  EWHC 129 was doubted and, effectively, overruled.
The losing Defendant was granted permission to appeal by the Supreme Court, following which the Claimant was granted permission to appeal the rejection of the Claimant’s claims which were founded on losses sustained by the estate of the Deceased.
John Ross QC and Matthew Chapman of 1 Chancery Lane (instructed by Messrs Kingsley Napley) acted for the successful Claimant. Permission to appeal to the Supreme Court has been granted and the appeal is likely to be heard towards the end of May 2017.
Cassley -v- GMP & Sundance Ltd
 EWHC 722 (QB)
This involved a claim for damages brought by the estate of the Deceased (James Cassley) against his employer (GMP) and its client (Sundance), an Australian mining company, who chartered from Aero-Service (a Congolese based company) a twin engine plane for a flight from Yaounde, Cameroon to Yangadou in the Republic of Congo to convey the Deceased and its Board Directors for an inspection visit to its iron ore mine at Nabeba. The plane flew into the side of a ridge at Avima with the loss of all on board. This case was heard only weeks after the decision in Dusek v Stormharbour Securities LLP  EWHC 37 (QB) in which an employer was found to be liable for the death of its employee on facts that were superficially similar to the present. The judgment is of significance to the developing field of employer liability in negligence for death of and/or injuries caused by third party carriers to its staff when engaged in overseas travel. In particular, the judgment provides guidance as to the standards of care that are expected, and perhaps more significantly not to be expected, from employers. The rulings on the need to prove causation of loss are also of considerable interest and importance.
The unsuccessful Claimants sought permission to appeal to the Court of Appeal. That application was refused on paper by Tomlinson LJ. Following an oral renewal of permission hearing the Claimants were refused permission to appeal – see judgment of 8 July 2016 at  EWCA Civ 711.
Brownlie v Four Seasons Holdings Inc.
 EWHC 273 (QB)
(This decision was appealed by the losing Defendant – see above)
This case concerned a fatal accident occurring on a safari tour in Egypt - the tour was arranged over the telephone from England. Issues concerned entitlement to serve proceedings on a Canadian company out of the jurisdiction.
Bristol Alliance v EUI  EWCA Civ 12671
 QB 806; 2013 Journal of Business Law [3,354-3,361]; Journal of Personal Injury Law 2014, 3, 136-152
This case was based on statutory interpretation; property insurer entitled to recover from motor insurer even though damage caused was the result of a deliberate act by the driver.
Baylis Farms Ltd v RB Dymott Builders Ltd
 EWHC 3886
A warning given by a builder to its client about the adequacy of proposed drainage works had been insufficiently clear to oust the implied warranty of fitness for purpose and the builder was therefore liable in damages for the defective drainage installed.
London & South Eastern Railways v. British Transport Police
 EWHC 460 (Admin); Chitty on Contracts, 31st Ed., 10-032
This case involved the interpretation of the provisions of the Railways and Transport Safety Act 2003 and Transitional Provisions and whether there was a statutory override of the terms of police services agreements.
Kew v Bettamix Ltd & Ors  EWCA Civ 1535
Times, December 4, 2006
Case considered the issues of “constructive knowledge” under the Limitation Act 1980; the grounds for depriving a party of part of his costs; and “unreasonable conduct” under CPR 44.3
Co-Operative Group (CWS) Ltd v Stansell Ltd (CA)
 1 WLR 1704;  2 BCLC 599;  BLR 233; LTL 9/5/2006
Case concerned: whether a transfer of engagements under s.51(1) of the Industrial and Provident Societies Act 1965 overrode a prohibition on assignments contained in a contract, in this instance a JCT form building contract.
Healy v Cosmosair Plc & Ors
LTL 15/8/2005 (unreported elsewhere)
LTL 15/8/2005 (unreported elsewhere)
In the circumstances, a package holiday operator was not liable for spinal injuries sustained by a holidaymaker who had fallen into a swimming pool in Portugal. Although the Portuguese safety requirements had not been complied with in relation to the requisite non-slip material around the pool, it was not possible to conclude on a balance of probabilities that H had slipped on floor tiles in the relevant margin.
Co-Operative Group (CWS) Ltd v Stansell Ltd  EWHC 1601
 NPC 101;  BCLC 401; LTL 9/8/2005
The Industrial and Provident Societies Act 1965 s.51(1) did not enable a society, by the passing of appropriate resolutions and upon obtaining registration of a special resolution, to effect a transfer to another society of its engagements, including the right to sue a contractor for breach of a building contract, without obtaining the contractor's consent to the transfer in accordance with the terms of the building contract.
A v Archbishop of Birmingham & Anor  EWHC 1361 (QBD)
The claimant's damages were assessed following the admission of liability by the defendants in a case that had involved sexual abuse of a child by a Catholic priest over a 10-year period and had resulted in severe mental health problems for the claimant.
Carty v Croydon London Borough
LTL 27/1/2005;  EWCA Civ 19 [CA];  1 WLR 2312;  2 All ER 517; 2005 LGR 319; Times, February 3, 2005.
Case considered the issues of: liability of Local Authority in claim against Education Officer; scope of the duty of care.
Sandhar & Anor v Department of Transport, Environment and the Regions
LTL 5/11/2004;  EWHC 28 (QBD) and [CA],  EWCA Civ 1440,  1 WLR 1632,  RTR 9;  PIQR P13;  46 EG 151; Times, November 15, 2004
Case considered the issues of: liability of highway authorities to maintain highway; obligations in relation to naturally occurring hazards; duty to remove ice hazard at common law.
Dempsey v Johnstone
 PNLR 25, CA;  EWCA Civ 1134; LTL 30/7/2003
Case considered the issues of: wasted costs orders against solicitors; the grounds on which such orders can be made against legal advisers for advice given to client in relation to pursuit of claim.
Rowe v. Kingston-upon-Hull CC
LTL 25/7/03 (unreported elsewhere0
Case concerned a claim against an Education Authority and the issue of “date of knowledge of injury” under the Limitation Act 1980.
McManus v Sharif
 EWCA Civ 656
Case considered the issues of: methods of service under the CPR; the manner in which service has to be effected; grounds for extension of time for service.
Anderton v Clwyd County Council; and associated cases
LTL 3/7/2002;  1 WLR 3174 [CA];  3 All ER 813; Times, July 16, 2002; Independent, July 11, 2002
Construction and application of provisions in CPR Part 6 and CPR Part 7 in the light of Godwin v Swindon Borough Council and the Human Rights Act 1998.
Moy v Pettman Smith & Anor (CA)
LTL 28/6/2002;  EWCA Civ 875; (2002) PNLR 44; Independent, June 28, 2002
Case considered a barrister’s negligence in relation to settlement advice and the circumstances in which breach of duty can be established.
Cummins v Shell International Manning Services
 EWCA Civ 933/  1 WLR 3174 [CA]
Case concerned service abroad under the CPR and the time within which service has to be effected.
Grimm v Newman & Anor
LTL 12/11/2001;  STC 84 (Ch) [CA];  1 All ER 67
Case considered the issues of: accountant’s negligence in relation to tax advice; proof of causation; duty to advise of risks inherent in tax avoidance scheme; late amendment of particulars of claim.
Goodes v East Sussex County Council
 1 WLR 1356  LGR 465;  3 ALL ER 603;  RTR 366;  P148;  EGCS 75; Times, June 16, 2000; Independent, June 24 2000
Case concerned the liability of highway authorities to maintain a highway and the duty in relation to hazards caused by the presence of ice on highway.
Carroll & Ors v Dunlop Limited & Anor
 PIQR P416 [CA]
Case considered the issues of: liability for defects of manufacture; burden of proof as to adequacy of manufacturing process; failure to warn of defects and proof of causation.