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Laughton v Shalaby  EWCA Civ 1450
The Claimant underwent a left hip replacement operation on 30.07.07 at the Horder Centre in East Sussex. The surgeon, Mr Shalaby, used the antero-lateral approach method of hip replacement. The operation was unsuccessful and subsequently another surgeon discovered that the gluteus muscle was not attached to the trochanter but was stuck to an adjoining muscle called the tensor fasciae. The medical evidence was that the avulsion could either be a rare but recognised risk of surgery (0.5%) or could be attributable to the surgery being performed in a negligent manner. The Claimant's claim failed at trial. The Claimant appealed arguing that : (i) the judge failed to quantify the recognised risk of avulsion occurring without negligence; (ii) the judge failed to consider and assess criticisms made of Mr Shalaby's lack of probity, stress/mental health issues and incompetence on other occasions; (iii) the judge failed to balance those criticisms against the rarity of the avulsion occurring without negligence; (iv) had the judge done the balancing exercise, he would have held that Mr Shalaby had been negligent. The Court of Appeal rejected such submissions on the facts and dismissed the appeal but gave guidance upon the "problematic" issue of the admissibility of similar fact evidence to prove negligence, see Paras 21-22. Laughton v Shalaby  EWCA Civ 1450 here.
Nicholas Yell [instructed by Simpson Millar LLP] acted for the Claimant.
Laughton v Shalaby 
In this case, Nicholas Yell acted for the Claimant who underwent a left hip replacement operation on 30.07.07 at the Horder Centre in East Sussex. The surgeon, Mr Shalaby, used the antero-lateral approach method of hip replacement. The operation was unsuccessful and subsequently another surgeon discovered that the gluteus muscle was not attached to the trochanter but was stuck to an adjoining muscle called the tensor fasciae. The medical evidence was that the avulsion could either be a rare but recognised risk of surgery (0.5%) or could be attributable to the surgery being performed in a negligent manner. The Claimant's claim failed at trial. The Claimant appealed arguing that : (i) the judge failed to quantify the recognised risk of avulsion occurring without negligence; (ii) the judge failed to consider and assess criticisms made of Mr Shalaby's lack of probity, stress/mental health issues and incompetence on other occasions; (iii) the judge failed to balance those criticisms against the rarity of the avulsion occurring without negligence; (iv) had the judge done the balancing exercise, he would have held that Mr Shalaby had been negligent. The Court of Appeal rejected such submissions on the facts and dismissed the appeal but gave guidance upon the "problematic" issue of the admissibility of similar fact evidence to prove negligence, see Paras 21-22. Laughton v Shalaby  EWCA Civ 1450 here.
Nicholas Yell (instructed by Simpson Millar LLP) acted for the Claimant.
Holloway v DCM Optical Ltd (trading as Optical Express) CLCC 26/09/14
HHJ Bailey ordered Optical Express to pay £569,287 damages after failing to properly inform a young woman of the risks associated with laser-eye surgery which left her with damaged eyesight.
Nicholas acted for Stephanie Holloway in this well publicised case.
Bache & Others v Zurich Insurance PLC  EWHC 2430 (TCC)
Mr Justice Akenhead considered the circumstances in which purchasers were able to claim the return of their deposits under the Zurich Standard 10, New Home Structural Insurance Policy (‘the Policy’) on the trial of two preliminary issues. The purchasers had paid deposits to a developer (company) to purchase flats ‘off-plan’ under Agreements for Lease. The developer subsequently failed to complete the flats. On 16.02.10, the purchasers’ solicitors wrote to the developer purporting to accept their failure to complete the construction as repudiation of the Agreements for Lease and sought the return of the deposits (incurred by Zurich under the Policy). The developer was subsequently placed in administration on 08.04.11 and dissolved in January 2013. Zurich refused to meet the purchasers’ claim for reimbursement of their deposits and proceedings were commenced.
Section 1 of the Policy provided:
“What we will pay before the new home is completed:
1. We will pay where, due to the developer’s bankruptcy, liquidation or fraud, the developer fails to complete the construction of the new home in accordance with the requirements and the buyer loses a deposit paid to the developer under the terms of the purchase contract for the new home, we will at our option:
(a) Pay the reasonable cost of completing the home to the original specification; or
(b) Pay to the buyer the amount of any such lost deposit.”
The insurers refused to meet the purchasers’ claim. Zurich eventually conceded that dissolution of the developer would, as a matter of definition come within the word “liquidation” in the Policy referred to above.
The reformulated preliminary issues to be determined were:
“1. Are the [purchasers] entitled to claim under the Policy if:
a) They accept the repudiatory breach on the part of the developer (in that the developer had failed to start or complete the development within a reasonable time); and
b) Following such acceptance the developer enters liquidation or dissolution; and
c) At the date of the acceptance [of the repudiation], the developer was as a matter of fact insolvent and such insolvency is the reason why it had not started or completed the development?
2. Is the answer different if at the time of the acceptance the developer is not insolvent?”
The determination made by the Judge was as follows:
“(a) The fact that the insured purchasers have accepted a repudiation on the part of the developer vendors is not in any way a bar to recovery under the policy.
(b) The fact that following such acceptance the developer enters liquidation or is dissolved is not in any way a bar to recovery under the policy. Liquidation or dissolution of the developer vendors represents the time at which the policy is engaged.
(c) Technically, the fact that at the date of the acceptance of the repudiation the developer was as a matter of fact insolvent and/or such insolvency is the reason why it had not started or completed the development is not in itself a bar to recovery under the policy.
(d) The answer is the same whether or not the developer is insolvent at the time of the acceptance of the repudiation.”
The consequence was that, subject to any other defences that Zurich may have and to proof of the assumed facts, the purchasers were entitled to claim under the Policy. The trial of the action is now listed for December 15, 2014.
Mr Nicholas Yell was instructed by Alison’s Legal Practice on behalf of the purchasers and was led by Mr Terence Mowschenson QC.
NO (by his mother and litigation friend PQ) v. Queen Elizabeth Hospital NHS Trust
In an Infant Approval Settlement hearing in which the Claimant was directed to be referred to as ‘NO’ and his mother and litigation friend as ‘PQ’, the Court approved a settlement of the claim by a 6 year old boy who suffered cerebral palsy as a result of an episode of hypoxia at birth resulting from a negligent delay in delivery. Liability was admitted, but causation remained in issue. There was a considerable difference in expert opinion as to what NO’s life expectancy was. (NO’s expert put it at 63.5 and the NHS Trust’s expert at 35). The NHS Trust agreed to pay a lump sum of £2.75m (less interim payments and CRU) and annual ASHE index-linked periodical payments for life commencing at £75,000 pa on 15.12.12 increasing by stages to £202,500 pa on 15.12.25 and thereafter annually for life. The award of damages made (lump sum and periodically payments) is believed to be one of the highest for claims of this kind.
NO (by his mother and litigation friend PQ) v. Queen Elizabeth Hospital NHS Trust, Queen’s Bench Division, May 8, 2012 Spencer J.
Nicholas Yell, instructed by Simpson Millar LLP, acted for the successful Claimant.
Baht & Others v. Masshouse Developments Ltd
Recovery of deposits paid on the off-plan sale and purchase of apartments following delayed completion.
The Cs entered into Contracts (twenty-one in November 2007, one in December 2007 and another in February 2008) for the off-plan sale and purchase of long leases of apartments to be built by D in an apartment block, Block M, Masshouse, Birmingham. At the time, it was anticipated that the apartments would be completed by April 2009 so that Cs could take possession in Spring or early Summer 2009. Progress with the development of Block M stopped in October 2008. By February 2010 the works of construction and fitting out ‘would have appeared to an unobstructed viewer to be no further forward than would have appeared at the end of October 2008’. Nevertheless there was some activity in early 2010. On 18 February 2010, and in a similar letter dated 18 March 2010, Cs’ solicitors gave notice to D purporting to accept D’s repudiatory breach of contracts (‘the Termination Letters’). In fact, Block M was only completed in April 2011. On 5 May 2011, D’s solicitors served notices to complete. On 18 May 2011, D sought to exercise a contractual right of rescission for Cs’ failure to complete and purported to forfeit Cs’ deposits. D also sought damages for Cs’ breaches of contract in failing to complete their purchases. Cs sued D for the return of their deposit and D counterclaimed.
(i) Was it an implied term of the Contracts that D would complete Block M and the flats within a reasonable period of time?
(ii) If there was such an implied term, was D in breach of the term?
(iii) Was D in breach of the express term, contained in each of the Contracts, requiring D “to arrange that the Apartment is completed with all due diligence”?
(iv) If either of the two previous questions is to be answered in the affirmative, were the circumstances such that when sending the Termination Letters the Cs were entitled to treat D as having repudiated the Contracts and to accept that repudiation?
(v) Assuming that the previous question is to be answered in the negative, was D entitled to hold Cs to the Contracts and in due course to forfeit the deposits and claim damages for breach of contract?
The Contracts were in a similar form and were made by reference to the Law Society’s Standard Conditions of Sale (4th Edn.), which were expressed to apply except to the extent that they were varied by or inconsistent with the special provisions of the Contracts. The Contracts provided for the Completion Date for the sale and purchase of each apartment to be 10 days after the giving by D’s solicitors of a notice (a “Notice of Readiness”) stating that the relevant apartment had been completed. Law Society Standard Condition 6.1.1. was expressly excluded. Law Society Standard Condition 6.8 (which permits, on or after the Completion Date, the service of a notice to complete by a party who is ready, able and willing to complete, making time of the essence of the contract on service of the notice to complete) was modified to a period of 5 days (rather than the usual 10).
By Law Society Standard Condition 7.2 rescission of the Contracts as a result of D’s breach of contract permits Cs to require the return of the deposits with interest. On the other hand, by Law Society Standard Condition 7.5 it is expressly provided that if a buyer fails to complete in accordance with a notice to complete, the vendor is entitled to rescind the Contract and to forfeit and keep any deposit and accrued interest, as well as claiming damages.
Special Condition 4.1 of the Contracts provided as follows:
“The Seller shall arrange that the Apartment is completed with all due diligence in accordance with the drawings and specifications copies of which are available for inspection at the Seller’s office and have been inspected by the Buyer at the date of the Buyer’s reservation of the Apartment and otherwise in accordance with this Agreement and the relevant planning permission and building regulation approval but the Seller shall not be liable for any delay caused by industrial or labour disputes shortage or late delivery of materials shortages of labour the default of any contractor or supplied fire tempest frost hazardous or adverse ground conditions or any other like circumstances or any cause beyond the control of the Seller.”
Clause 4.1 did not set out any express requirement for the Apartment to be made ready. On its face it contains only the express obligation on the part of D to progress the development of the Apartment with “all due diligence”. Also of relevance, the Contracts contain no provision expressly allowing rescission for breach of clause 4.1.
Cs pleaded that: “it was an implied term of the Contracts ..... that [Block M, Masshouse] would be completed within a reasonable time.” By re-amendment (allowed at trial), Cs pleaded reliance upon Special Condition 4.1 (set out above).
Issue One: The implied term contended for by Cs added nothing to Cs’ re-amended case which was not already encompassed by the express terms of Special Condition 4.1 and therefore implication was unnecessary.
Issue Two: It was for the party alleging breach of an obligation to complete within a reasonable time to establish what that time would be, disregarding delays caused by the other party’s failure. It could not be said precisely when the reasonable time for building Block M and completing the apartments expired. It could not be said that by 18 March 2010 the reasonable time had necessarily expired so that D was automatically in breach of the Contracts (even though the time subsequently taken ‘could hardly have been a reasonable time’). Time was not of the essence in relation to the implied obligation to complete Block M within a reasonable time.
Issue Three: Construction works could and should have been put in hand by mid-June 2009. D had procrastinated until December 2009 before starting the enabling works and placing the main contract with another contractor. In the circumstances, D was in breach of Special Condition 4.1, which required the apartments to be completed with due diligence.
Issue Four: As regards Special Condition 4.1, mere failure on the part of D to arrange that the Apartment was completed with all due diligence would not be sufficient; and any assessment of what D did or failed to do of course fell to be made in the context of the prevailing circumstances. There would need to have been something done (or not done) by D which would lead a reasonable person to conclude that D no longer intended to be bound by the Contracts. Not merely would the necessary failure need to be established, but further it would need to be shown that the inference to be drawn from the gravity of the failure either by itself or in conjunction with other things said or done (or not done) by the contract breaker led to the conclusion mentioned above.
In the circumstances, the failure was not to be viewed simply as mere delay. D’s failure, following the period of several months after the contract’s administration when, to all intents and purposes, nothing at all was happening on site in the way of progress towards completion of the Apartments, signalled an intention on the part of D not to be bound by the Contracts. D was biding its time while deciding what to do and, materially, whether or not it would ever build out the residential development. The evidence of one of the Cs was that he visited the site during a weekday, some months after May or June 2009; he saw nothing happening on site at all, the site being locked and the on-site marketing suite being inaccessible. In other words, the passer-by could reasonably infer that the residential development was abandoned and it was an open question whether, and if so when, any development would ever be resumed. The Court was also able to have regard to the lack of response to Cs’ solicitors’ earlier letters to D’s solicitors asking for an update as to when the development was to be completed. In the circumstances, Cs were entitled to treat the Contracts as at an end by reason of D’s repudiation of the Contracts.
Issue Five: Did not arise given the Judge’s findings on Issues Three and Four.
The Cs’ claim therefore succeeded and Cs were entitled to recover their deposits with interest in accordance with Law Society Special Condition 7.2. D’s Counterclaim was dismissed. D was given permission to appeal.
Baht & Others v. Masshouse Developments Ltd, High Court of Justice, Chancery Division, Mr George Bompas QC sitting as a Deputy Judge of the High Court, 15 March 2012.
Nicholas Yell (instructed by Alison’s Legal Practice) acted for the successful Claimants under a CFA. A full copy of the Judgment is available on Lawtel.
Lawtel Reference: LTL 19/3/2012
Goncalves v Newham University Hospital Trust
The Claimant, Macmillan, a second twin, was born at 19.47 hrs on 19.01.96 at Newham University Hospital and suffers from teraplegic dyskinetic cerebral palsy as a result of oxygen deprivation shortly before, during and after his birth. Macmillan’s twin brother was born in a healthy condition at 19.10 hrs. The case was complicated by the hospital’s loss of the mother’s clinical records, the obstetric and midwifery notes and cardiotocograph (“CTG”) records and failure to call witnesses who recollected the emergency that occurred.
The agreed expert evidence was that brain damage was unlikely to have resulted from hypoxia of less than 10 minutes and Macmillan would have avoided brain damage if the period of acute hypoxia had been less than 15 minutes. The bracket for the damaging period of hypoxia was agreed by the paediatric neurologists to be 16-25 minutes.
Held: Macmillan’s breech presentation should have been discovered shortly after his brother’s birth and the obstetric registrar should have been present by 19.20 hrs if not earlier and he would have been able to detect the cord prolapse and bradycardia (which would have shown on the CTGs) promptly. The cord prolapse and bradycardia occurred at about 19.25 hrs to 19.30 hrs and accepted that there was a panic in the delivery room (as the parents described) and delay in securing the attendance of the obstetric registrar. The likely period of unnecessary delay was likely to have been approximately 8-10 minutes.
But for the hospital’s negligence, Macmillan would not have suffered damaging asphyxia/hypoxia and would have been delivered unharmed. Macmillan’s claim therefore succeeded on liability and causation. There will be an assessment of damages hearing on a later occasion.
Nicholas Yell acted for the Claimant.
Durity v The Attorney General of Trinidad and Tobago
Privy Council Appeal No 83 of 2007
Constitutionality of suspension of a magistrate from office and entitlement to vindicatory damages.
The Stax Claimants v Bank of Nova Scotia Channel Islands Ltd & Ors
LTL 7/12/2006 (unreported elsewhere)
The court declined to make a final ruling on whether certain lead cases would be selected for trial from those of 45 claimants, although it favoured that route, and directed that a further case management conference should be held when the claimants had clarified issues in respect of after the event insurance and their attitude to the lead case approach.
McCulloch v Bank of Nova Scotia
 EWHC 790 (Ch);  2 All ER (Comm) 714
Parties are free to agree an ad hoc mode of service outside the methods set out in the CPR.
Kean v William McDonald & 5 Ors
LTL 28/3/2006 (unreported elsewhere)
On the evidence, the claimant was the beneficial owner of a freehold property under a constructive trust; he had established that an agreement or arrangement existed whereby he would become the owner of the property, and also that he had acted in detrimental reliance on the arrangement by virtue of a cash payment made on his behalf by reason of it.
Bennett v Governor & Company of Bank of Scotland
LTL 23/7/2004; Times, August 4, 2004
It was not an abuse of process for a judgment creditor under an existing judgment to pursue a second action based on that judgment in order to protect its position on the enforcement of its rights for the recovery of the monies due to it.
Severn Trent Water Ltd v Barnes
LTL 13/5/2004;  26 EG 194
Where a water company had laid water mains under land without giving statutory notice to a landowner, a judge was right to approach the assessment of compensatory damages by treating the likely reasonable outcome of any negotiations that would have taken place had the notice been served prior to the works being done as the fair price. However, there was no proper basis for a
R v Health Service Commissioner ex p Redmond & Ors
2004 (not reported)
Representing the Chelsea and Westminster Hospital NHS Trust. Mr Redmond’s application for judicial review to quash the Health Service Commissioner’s report into the treatment of his daughter.
Johnston v Whipps Cross University Hospital NHS Trust
LTL 19/11/2003 (unreported elsewhere)
In light of the factual evidence and agreed medical experts’ evidence, the defendant hospital was not negligent in failing to admit the appellant’s deceased wife for further observations.
ACI Worldwide (EMEA) Ltd. v National Organisation Systems Technical & Trading Co Ltd
LTL 2/6/2003 (unreported elsewhere)
Summary judgment would be granted where it was clear that the contract between the parties had been terminated and there was no real prospect of showing any legal basis for resisting such declaration.
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.
A v East Kent Community NHS Trust
Independent July 29, 2002
The claimant could not recover the costs that would be incurred by her mother in bringing up, maintaining and educating a child who had been born to the claimant as a result of the alleged negligence of the defendant NHS Trust.
Barclays Mercantile Business Finance Ltd v Marsh & Anor
LTL 25/6/2002 (unreported elsewhere)
Despite being granted permission to amend his pleadings the defendant had failed to establish a defence to a claim of indemnity for liability arising out of a leasing agreement.
In Plus Group Ltd (1) Interiors Plus Ltd (2) Joinery Plus Ltd (3) Joinery Plus Products Ltd (4) v John Albert Pyke
In Plus Group Ltd & Ors v Pyke
The claimants’ allegation of breach of fiduciary duty against the defendant was not made out because the acts complained of took place more than six months after he had been effectively expelled from the claimants.
AD v East Kent Community NHS Trust
 EWCA Civ 1872
Whether NHS Trust owed a duty of care to prevent psychiatric patient becoming pregnant.
City Television v Conference & Training Office
LTL 16/11/2001 (unreported elsewhere)
The defendant was in breach of bailment by not seeking the bailee
Marsden v Elston & Anor
LTL 5/11/2001 (unreported elsewhere)
The finding that an implied contractual term that the appellants would use their best endeavours to ensure the respondent’s release from a guarantee contradicted the respondent’s pleaded case that the appellants were obliged to provide additional security to meet that end.
Royal Bank of Scotland Plc v Etridge No 2; and associated cases
LTL 11/10/2001;  2 AC 773;  3 WLR 1021;  4 All ER 449;  2 All ER (Comm) 1061;  1 Lloyd
For the future, a bank seeking to enforce a charge against a surety wife satisfied the minimum requirements to ensure it was no affected by the wife
Mavers v Redbridge Care NHS Trust
 LTLPI 22/1/2001
Failure to diagnose perforated ulcer; claimant awarded £158,285.
Khan & Ors v Miah & Ors
LTL 2/11/2000;  1 WLR 2123;  1 All ER 20; Times, November 7, 2000
There was no rule of law that the parties to a joint venture did not become partners until actual trading commenced. The true rule was that persons who agreed to carry on a business activity as a joint venture only became partners when they actually embarked upon that activity.
Field v Tibbs
LTL 20/6/2000 (unreported elsewhere)
Where the principal issue in an action was whether the claimant lender and the defendant borrower in a family transaction had orally agreed on the right of the lender to appropriate payments by the borrower in a family transaction had orally agreed on the right of the lender to appropriate payments by the borrower in a particular manner, it was incumbent upon the judge to form a view as to the credibility of each of the parties rather than relying on documentary evidence that, on a true analysis, was of little, if any, probative value.
Duffen v FRABO SpA
Application of Commercial Agents (Council Directive) Regulations 1993 to sales agency agreement.
Taj v Ali
LTL 13/4/2000;  3 EGLR 35;  43 EG 183
An immediate possession order would be substituted in place of a suspended possession order where, despite the difficult circumstances of the case including the
Tekna Design Ltd v Davenport Properties Ltd
LTL 3/11/99 (unreported elsewhere)
Although there had been a wholesale disregard of the rules of court and inordinate and inexcusable delay the decision to strike out the plaintiff
Villella v MFI Furniture Centres Ltd
LTL 8/9/99;  IRLR 468
A condition of the insurance policy backing a PHI scheme established by the defendant, to the effect that the payment of benefit would cease upon dismissal, did not affect the employee plaintiff, since that condition was no part of the contract between him and the defendant under which he was admitted to the scheme.
Nightingale Finance Ltd v Scott & Anor
LTL 18/11/97;  EGCS 161
Legal charge over the matrimonial home entered into by wife jointly with her husband set aside as to the wife’s interest on the ground that the presumption of undue influence applied and the wife had received no independent advice concerning the transaction.
Bank of Scotland v Kustow & Anor
LTL 23/7/97 (unreported elsewhere)
Action for possession of a residential property mortgaged as security for a business venture. The question was whether the wife who executed the mortgage was unduly influenced by her husband into executing the mortgage.