June 2009 – edition 9
Contents
Harsh light hits social services: the ‘Baby P’ effect ....................................................................... 2
The ‘dinner lady’ claim - a victory for common sense ................................................................... 3
A successful section 41 defence ................................................................................................... 4
Surviving the long haul trial ........................................................................................................... 5
Care costs: insurer pays, local authority saves ............................................................................. 6
Escaping Jack Frost: winter maintenance claims ......................................................................... 7
Going gets tough for claimants to win occupier liability claims ..................................................... 9
Beware when using private sector contractors on your premises ............................................... 10
Are all shields down? The effect of Lewisham v Malcolm ........................................................... 11
Walking the tightrope: balancing the Equality Bill ....................................................................... 14
Coroners’ reform and protection from inquests ........................................................................... 15
Does the Jackson Report complete the Woolf reforms? ............................................................. 17
Editorial
It is a difficult time for public authorities. The recession has led to budget reductions at precisely the same
moment that claims volumes are likely to increase. To compound matters there is a worrying trend towards
trial by media for public officials whose departments are accused of failure. The tragic events surrounding
Baby P are a case in point.
Against this background, there is an understandable degree of worry amongst those who are responsible
for public authority claims. However, in such times it is important not to be dazzled by one issue which may
cast a shadow over the wider picture. Keeping focused is key. Behind the headlines are public authorities
with good risk management practices, who are able to repudiate significant numbers of claims and deliver
good quality public services.
As you will see from this ‘bumper’ edition of The authority, claims are failing for winter maintenance,
trespassers, and on the highway. There is welcome relief in respect of care costs and good news for
schools from the Court of Appeal. Looking to the future, long overdue reform of Coroners' Courts is
coming. Finally, judges are now looking seriously at the issue of inflated claimant costs.
Of course whilst these issues give grounds for optimism, the need for vigilance remains. Jackson's work
will need political support if there is to be real change and unless carefully drafted, well intended Equality
Legislation could cause havoc.
In testing times, it is clearly essential to balance reality and perception with focus and application.
Henry Bermingham
Partner, BLM Birmingham
Harsh light hits social services: the ‘Baby P’ effect
It is well understood that local authorities and social workers within the sphere of child protection are often
exposed to the unforgiving media spotlight. To some extent, this has proven valuable in placing pressing
issues at the forefront of the public and political agenda. On the other hand, they have become an easy
target for media attention, which has often created an outlet for public hysteria.
The media reports surrounding the tragic case of ‘Baby P’ have sparked both reform and sensationalism in
almost equal measure. The Baby P case – like the Victoria Climbie case in 2000 – involved Haringey
Council. In the wake of Victoria’s death, Lord Laming produced a report introducing sweeping reforms to
the child protection system. It stated that ‘the principal failure to protect her was the result of widespread
organisational malaise’.
Following the death of Baby P in 2008, Lord Laming was again requested to produce a further report to
evaluate the practices and recommend action to be taken to improve the system. Whilst he welcomed
improvements that had been made, he noted that there were still significant failings amongst social
workers and that there remained ‘significant problems … of working across organisational boundaries and
cultures, sharing information to protect children’.
One of the key criticisms arising from both reports was the lack of effective inter-agency co-operation. It
was reported that Baby P suffered fatal injuries despite being seen by social workers and other
professionals on 60 occasions. It had been reported in Working Together to Safeguard Children that
because services were under pressure, it made it difficult to achieve the necessary level of inter-agency
commitment. Furthermore, many staff were confused about their responsibilities and duties to share
information.
Whilst it is too early to assess the impact of the Baby P case, some commentators have recognised what
they describe as the ‘Baby P effect’, with an increase in the number of applications for children to be taken
into care from 369 between 10 and 20 November 2008 compared with 292 during the same period in
2007. However, Anthony Douglas, chief executive of Cafcass, has described this as a ‘short term bulge’
and warned that excessive caution could result in the premature removal of children from their family.
One of the main concerns for local authorities is that their decisions may often attract civil liability for the
abuse suffered by children. Two key cases in this area are JD v East Berkshire Community Health NHS
Trust (2003) and Pierce v Doncaster MBC (2008). In the former case, the Court of Appeal established that
the negligent decision to remove a child from the parents gave rise to a duty of care to the child.
It should follow from this that the decision not to remove a child or to return a child to an abusive family
also attracts a duty of care to that child. This was considered in Pierce, where the claimant was awarded
damages for the local authority’s negligent failure to keep him in care. Interestingly, the defendant in this
case did not challenge the existence of the local authority’s duty of care.
There has been an increase in cases involving alleged negligent failures to remove children from their
parents. Perhaps this trend – together with claims arising out of a decision to remove a child from their
parents – will continue.
It appears that there may be a further battleground on the horizon. Cases are arising in which it is alleged
that local authorities are vicariously liable for child abuse at the hands of foster parents. This is an issue on
which appeal decisions can be expected in the next few years.
It cannot be denied that the decision as to whether or not to take a child into care is not straightforward; in
fact such decisions are often fraught with difficulties. However, the dual impact of the Baby P effect and
the widening legal framework has meant that not making a decision, or at least, not making a decision
early enough, will not exonerate local authorities from legal responsibility.
Jonathan Clay
Partner, BLM Manchester
Jeremy Davies
Partner, BLM Manchester
The ‘dinner lady’ claim - a victory for common sense
‘Boys will be boys’
Two 13-year-old boys were playing ‘tag’ in the schoolyard at lunchtime. As SL was running away from LR,
he turned to taunt LR and, whilst running backwards, collided with Mrs Orchard, the lunchtime supervisor.
She was seriously injured.
A claim was issued. It was alleged that the boys should not have been running in this area, and
consequently that they were negligent. To establish negligence the court has to examine a person’s
behaviour and the foreseeability of injury being caused by that behaviour. It is judged objectively by the
‘reasonable man test’ and the interpretation of that classic test, when considering children’s behaviour,
was at the heart of this case.
At first instance the claim was dismissed. The judge was,
… satisfied that this was a simple accident caused by horseplay between two 13-year-old boys in and
around an outside courtyard. As (counsel) commented, boys will do as boys do.
The claimant appealed and lost. Waller LJ gave the lead judgment and took the opportunity review the
case law.
1
Blake v Galloway [2004] CA
Horseplay between five 15-year-old friends throwing bits of bark chipping at each other in a park play area.
One of the boys was struck in the eye. The Court of Appeal dismissed the claim – no breach of duty to
take care, and no intent to cause injury.
The actions being in accordance with the … conventions of the game being played to which the
participants had consented.
2
Mullins v Richards [1998] CA
Two 15-year-old schoolgirl friends had been ‘mock fencing’ with their rulers; one broke, splintering off a
piece of plastic which hit the other’s eye. Her claim succeeded at trial, but failed on appeal.
This was in truth nothing more than a schoolgirls’ game … I would hold, no justification for attributing
to the participants the foresight of any significant risk of the likelihood of injury ...
In Mullins, because there was very little case authority in English law on the standard of care to be applied
to a child, the court relied on an Australian case, McHale v Watson.
3
McHale v Watson [1966] HCA 13
Here a 12-year-old boy threw a six inch home-made spike at a wooden post. Instead of sticking in, it
glanced off and struck a 9-year-old girl in the eye, causing her to lose the eye. He was accused of
negligence.
The court looked at the approach to children when applying contributory negligence for their actions where
they injured themselves. It then decided that the same principles should apply to their directly negligent
acts.
It seems to me that it would be contrary to the fundamental principle … that where a child’s liability is
in question the normal person to be considered is someone other than a child of corresponding age.
It is a standard to be expected of a child, meaning an ordinary child, of comparable age … not that
expected of an adult.
Did the respondent in throwing the spike … do anything which a reasonable boy of his age would not have
done in the circumstances – a boy, that is to say, who possessed and exercised such degree of foresight
and prudence as is ordinarily to be expected of a boy of 12, holding in his hand a sharpened spike and
seeing the post … before him?
… what the respondent did was the unpremeditated, impulsive act of a boy not yet of an age to have an
adult’s realisation of the danger …
It is I think a matter for judicial notice that the ordinary boy of 12 suffers from a feeling that a piece of wood
and a sharp instrument have a special affinity … to expect a boy of that age … to foresee that it might …
hit the girl would be, I think, to expect a degree of sense and circumspection which nature ordinarily
withholds until life has become less rosy.
The case was therefore dismissed.
Waller, LJ (in Orchard) concluded in a similar vein:
I, of course, feel sympathy for the appellant. But … 13-year-old boys will be 13-year-old boys who will
play tag. They will run backwards and will taunt each other. If that is what they are doing and they are
not breaking any rules, they should not be held liable in negligence.
Aikens, LJ (in Orchard) wondered about the likelihood of any injury ever occurring.
He pointed out that there must be a sufficient ‘probability’ injury might occur – it is not enough that a
remote possibility exists. A reasonable person doing what the defendant did would need to anticipate it.
After all, children had been running around schoolyards for many years without such injuries.
He cited Bolton v Stone [1951] HL, which is the classic case on this point.
A local cricket team had been playing and the ball was struck out of the ground, hitting a person in the
street, causing injury. The ball had been hit onto the street six times in 28 years with no-one injured.
Cricket had been played at the ground for 90 years with no recorded injuries.
Although the ball being hit on to the highway might reasonably have been foreseen, this was not sufficient
to establish negligence, since the risk of injury to anyone in such a place was so remote that a reasonable
person would not have anticipated it.
The appeal was allowed; no negligence.
Applying this to the current case, a reasonable 13-year-old boy would not have regarded such an injury as
being sufficiently probable to lead him to anticipate it.
All in, as the court stated: boys will be boys.
Roy Woollard
Associate and former head teacher, BLM Leeds
A successful section 41 defence
Jones v Rhondda Cynon Taf County Borough Council 2008 EWCA Civ 1497
This is a case where the defendants were successful at initial hearing and at appeal where a fire fighter
suffered an ankle injury. At night on 27 February 2003, he stepped backwards into a 0.6 metre hole which
had been created between the edge of a footpath and a retaining wall, which in itself bounded a river. The
fire fighter was in the act of pulling a burning pallet away from the wall under a bridge at the point where
the hole had formed. Although the edge of the footpath had eroded at various points along its length, it
was agreed there was 1.2 metres width of useable surface at the site of the accident.
The path used to lead to a footbridge that had been closed years before. At the time of the accident the
path in effect led nowhere, terminating a little distance beyond the point where the accident happened.
The evidence was to the effect that the path was seldom used; children occasionally went there to fish in
the river, and it was used by ‘amateur arsonists’ who obviously created the need for the claimant to be
there on the night in question. The judge agreed that it was not a pleasant riverside walk, and indeed it had
lost its purpose.
The hole in question had been identified during an inspection in January 2000, and it was suggested at
that time that a repair be carried out by reinstating the backfill. There is no evidence that any repair work
had been carried out following that inspection.
Defendant's counsel submitted that the scoured area was visible and easily avoided by a person taking
appropriate care. Bearing in mind the footpath now led nowhere, and that the authority had limited
resources for maintenance generally, the application of which it has to prioritise, he further averred that in
all the circumstances, a reasonable person would not have expected to find the footpath in a state of repair
any different to that which existed at the time of the accident. The standard of maintenance was
appropriate.
It was conceded that the footpath was a highway maintainable at the public expense so that section 41 of
the 1980 Act applied. Section 58 (1) of the Act provides a defence if it can be proven ‘that the authority had
taken such care as in all the circumstances was reasonably required to secure that part of the highway to
which the action relates was not dangerous to traffic’.
It is said that s41 imposes an absolute duty, but the Court of Appeal suggested that the term ‘absolute’
should be treated with care, and found that it is absolute only in the sense that it is not merely a duty to
take reasonable care but to maintain the highway to an objective standard. The statute does not state what
the standard is. This footpath was reasonably passable for the ordinary traffic of
the neighbourhood.
The Court of Appeal therefore found that there was no breach of s41 if the highway is reasonably passable
for ordinary traffic without danger.
This is a clear case which was decided on its own merits and was a victory for common sense. It
acknowledges the fact that local authorities operate with limited funds and provided care is taken in
reaching decisions on how to spend that money, a defence can be mounted, even where the decision is to
do nothing.
Matthew Harrington
Partner, BLM Cardiff
Surviving the long haul trial
Thankfully long haul trials against public authority defendants are rare. However, there are exceptions
including the EL Trigger Litigation trial which lasted three months. A further recent example includes the
trial between Corby Group Litigants and Corby Borough Council which started in the Technology and
Construction Court (TCC) in London on 16 February 2009 and finished on 7 May. Few personal injury
trials have been longer in recent times. A 12 week trial (including a break for Easter) brings its own
problems to the preparations and presentation of parties’ evidence over and above the usual intensity.
This article discusses the investment in time and support facilities.
The allegations themselves surrounded the reclamation of a former British Steel site just outside the town
in the 1980s and 1990s, and were made by a group of 18 children who claimed that the council managing
the work allowed contamination to escape during the process and to reach them via their mothers during
pregnancy which caused congenital injuries including the loss of fingers or clubbed feet. The judgment is
awaited and BLM will keep you posted on developments.
The TCC sits for four days per week, which allowed the parties Fridays to get back to the office to catch up
with the administration which always builds up for both solicitor and client during a trial. Telephone calls
could be diarised, and a physical reassessment of the documents could be made following the evidence of
the week. There were no adjournments and this was probably the main reason. If your trial judge is
prepared to insert non hearing days into the timetable, they will certainly be put to good use.
Nowadays with the financial constraints on the court system, it is probable that you will be faced with a
daily charge for conference room hire (which can be £50 per day). Over a 12 week period this cost mounts
up, but the benefit of having the room was enormous. Not only will it provide a secure repository for
documents, IT equipment eg a printer, which can be invaluable, and luggage, it will be a valuable
conference and lunch room away from the public and press.
In Corby, the trial bundle was in electronic form, a 3.45 Gb E-Bible, which was made up of PDF
documents, plans and photographs referenced in an index of hyperlinks which allowed for direct access to
the document sought. These were relayed to the court through a number of linked screens by one
operator. This saved time and paper. The documents were processes without his having to shuffle through
paper files himself.
This technology is becoming increasingly popular. Wise advice is not only to join with the other party to
find the best quotation, but to have worked with each other throughout the case on the documents so that
there is an agreed numbering system for the documents which can economically be transferred into the EBible. Most will by that time have been scanned in and so the E-Bible should not be expensive. It was very
helpful to leave court at the end of the day, knowing that the evening’s work could include direct access to
the whole trial bundle in one’s hotel room.
The verbal evidence was recorded by live transcript, fed to the judge and each counsel, and a daily
transcript sent every evening to the full team. The sheer volume of information which the court heard was
massive in paper form (the paper transcript numbers over 5500 pages) and to be able to work with the
daily evidence as soon as it was heard was a very great advantage. There was even an option to have
experts join the evidence as it was being heard from their own offices. The cost can look expensive at the
start of the trial, but we found that the saving in court time and counsel’s preparation time far outweighed
the expense.
Again, IT helped with communications. The court had asked for service of documents and correspondence
between the parties to be by email. Emails during the trial to witnesses about the need to attend trial the
next day, emails from experts with responses to questions on evidence as it was being heard, and emails
to the firm’s librarian for learned articles, allowed the case to proceed so much more smoothly than
historically. Indeed, instead of whispering to receive instructions, it was possible to email the client, sitting
alongside the solicitor with conduct, with nobody having the chance of overhearing.
Internet search engines were very helpful to check the veracity of ongoing evidence regarding dates,
photographs etc, and which were not in the trial bundle. Personal document handling systems were again
vital, built up over the life of the case to support the interlocutory work came into their own in court.
When working on the logistics of a long trial, therefore, the expense of work at the beginning of the trial
can be turned into significant savings at the end. More use of IT means that:



documents prepared at the beginning of the case are then fed directly into the trial bundle, which itself
saves court time
witnesses can be contacted and included in the process with less cost
expert evidence can be used more fully, impacting less on experts’ time.
At the end of the day, this streamlined process is less stressful to both client and lawyer.
Paula Whittell
Partner, BLM Manchester
Care costs: insurer pays, local authority saves
Peters v (1) East Midlands Strategic Health Authority and (2) Nottingham City Council (Part 20 defendant)
The Court of Appeal handed down its judgment in Peters on 3 March 2009 which has serious ramifications
on public funding issues arising in personal injury claims with particular reference to funding of care and
accommodation costs.
The claimant was severely brain damaged consequent to the health authority’s (the defendant)
negligence. She requires full time intensive residential care and is a protected party. Total care costs are
approximately £3.8m. She resides in a care home provided and funded by Nottingham City Council
pursuant to section 21 of the National Assistance Act 1948 (the 1948 Act). At first instance the court held
that she was entitled to seek full recovery of care costs from the tortious defendant not withstanding the
availability of public funding for this item. The Court of Appeal held:

That where a claimant has a right of action against a defendant to recover damages but also has a
statutory right to have that loss made good in kind, the claimant is entitled to recover damages in full
from the tortious defendant as of right and is not required to enforce its statutory rights against the
local authority instead or as well.

The claimant was entitled to opt for damages rather than public funding because of potential future
legislative and public funding changes.

Failure to mitigate does not arise. The fact that a right to state funding exists was not a sufficient
reason for treating her any differently to a claimant who had a right of action against more than one
tortfeasor or where there was a right of action against a tortfeasor and an innocent party.

When assessing needs as regards entitlement to section 21 of the 1948 Act support, the whole of
damages paid in consequence of a personal injury claim would fall to be disregarded and it was
impossible to construe this term as excluding any sum awarded in respect of accommodation and
care.

In Court of Protection cases the potential for double recovery is avoided by limiting the deputy’s
authority as regards seeking public funding for care.

In this particular case it was not appropriate to reduce the whole life multiplier because it was only
speculative that public funding would be provided. The position, however, was left open for the
situation where public funding will actually be made. Crofton v NHS Litigation Authority (2007),
therefore, did not apply.
Observations
The Court of Appeal has now clearly stated that a claimant in a personal injury claim seeking damages for
future care and accommodation is entitled to claim the cost of that head from the tortfeasor and opt for
damages in preference to reliance on the statutory obligations of the public authority.
Consequently, a claimant appears to be reasonable not only in declining a defendant’s request that they
undergo a section 47 Assessment for local authority funding but also to reject the offer of any such funding
where provision instead can be met by damages from the tortfeasor.
The issue of double recovery has been addressed in relation to Court of Protection cases where a
limitation can expressly be placed on the deputy as regards seeking public funding. The issue is still
unresolved where a claimant is not a patient. A court may be reluctant to approve an undertaking not to
seek public funding in such circumstances and the option of a reverse indemnity remains but is
diminished.
Crofton was not overruled and the possibility of top up is still available and likely to remain attractive in
cases where there is a deduction for contributory negligence. Clearly in cases of similar value even a
modest deduction for contributory negligence will now be of considerable value to defendants.
Where a claimant is receiving direct payments which will persist for a finite period of time it is open to the
defendant to argue that the multiplier should be discounted to reflect this. Funding would have to be actual
not potential.
Andrew Kerr
Partner, BLM Manchester
Escaping Jack Frost: winter maintenance claims
Following the unusually severe and protracted conditions experienced across the county last winter there
is likely to be an increase in claims relating to snow and ice.
Such cases have always proven difficult and as yet the higher courts are still to consider the amendment
introduced to the Highways Act 1980 in October 2003. Despite this, two county court decisions provide an
encouraging indication for defendants as to how the courts will approach such cases.
Section 41(1A) of the Highways Act 1980 provides that:
A highway authority are under a duty to ensure, so far as is reasonably practicable, that safe
passage along a highway is not endangered by snow or ice.
In Rhiannon Pace v Swansea City and County Council (LTL 4/10/2007) the claimant lost control of her car
on a slight bend whilst travelling at about 30 mph. It was a frosty morning and she was aware that the road
was icy.
The evidence from those present at the scene, including several police officers, was that there were
patches of black ice and no visible evidence of gritting. The judge concluded that the presence of ice had
endangered safe passage along the road and had caused the accident.
The weather forecast the previous day had indicated a possible need for gritting. The defendant had a
winter maintenance policy in place. The road was one to be gritted under that policy and the evidence was
that gritting had been completed.
The claimant argued that the defendant had not correctly implemented its winter maintenance policy,
suggesting that the driver had simply not gritted the road. She attacked the adequacy of the policy, arguing
that if he had gritted the road the minimum spread rate (of rock salt) was too low.
In both respects she relied upon the presence of black ice and the absence of any visible evidence of
gritting.
The judge rejected both arguments. He accepted the defendant’s evidence that salt applied to a wet road
would not always be visible. More importantly he held that the formation of localised patches of ice was not
inconsistent with the defendant having operated a proper and reasonable winter maintenance plan, as it
was ‘clearly impossible’ for a highway authority to eliminate all risk of ice forming. Placing ‘almost limitless’
amounts of rock salt on the road would have ‘an entirely unrealistic and undesirable economic and
environmental cost’.
In Matthew Stott v Oldham Metropolitan Borough Council (2009) the claimant slipped on ice whilst walking
along a short cul-de-sac towards the entrance to his school. The road surface was frosty with a number of
patches of hard ice.
The defendant had a winter maintenance policy under which priority was given to maintaining traffic flow
on busy routes (bus routes, strategic routes, town-centre footways and transport interchange footways) in
order to maximise the benefit to the maximum number of people. On that basis the cul-de-sac did not
qualify for gritting.
The claimant argued that the cul-de-sac, as a busy access route to the school, should have been included
in the gritting programme. It branched off a primary gritting route but the claimant accepted that it was
unsuited to large gritting lorries. Instead he suggested it should have been gritted by hand or alternatively
the school caretaker could have been employed to do so.
The judge interpreted the words ‘endangered safe passage’ in section 41(1A) as simply meaning ‘unsafe’
for traffic. He rejected any suggestion that the shallow ‘ponding’ of water on the surface of the highway,
which might give rise to the risk of ice formation, was sufficient to constitute a breach of section 41(1A).
Any danger, and thus engagement of the section, only arose upon the formation of ice.
He found on the facts that the surface, albeit slippery in places and therefore not ‘completely safe’ was not
‘so affected that it could not be passed safely, provided reasonable care (lookout and avoidance) was
taken.’ I suspect a different conclusion may have been reached had the accident occurred in darkness.
On the main issue, he found that whilst it would have been practicable to have gritted the road by hand,
(as was done in busy pedestrianised areas) it would not have been reasonably practicable to do so. It was
reasonable for the defendant to have prioritised busy routes and not to include this road in the gritting
programme, where the cost of doing so was disproportionate to the risk. Minor roads in the vicinity of other
schools, hospitals, shops and business premises might be equally deserving of special treatment.
Attending to this road and other similarly deserving roads over night would have required an unreasonable
additional allocation of scarce resources.
These cases suggest that courts are quite prepared to accept that accidents will happen due to snow and
ice without any fault on the part of the highway authority and this is all the more likely in the extreme
conditions experienced in the early part of this year.
Paul McClorey
Partner, BLM Manchester
Going gets tough for claimants to win occupier liability claims
Baldacchino v West Wittering Estate Plc [2008] EWHC 3386 (QB)
This case involved the defendant who owned and occupied a beach in Sussex. On the beach were a
number of groynes (a low wall to prevent erosion) which ran across the beach to the sea. At the end of
each groyne was a navigation beacon to warn sailors and windsurfers of the presence of the groyne when
the tide came in. The claimant and his friends were seen by lifeguards (employed by the defendant)
climbing up the beacon and jumping or diving into the sea. They were told to leave the beacon and did so
but returned later. By this time the tide was going out and the claimant dived into shallow water and
fractured his neck.
The judge (HHJ Stuart Baker) found that the claimant was not a lawful visitor but rather a trespasser when
he climbed onto the beacon and dived from it. He made much of the purpose of the beacon ie ‘It was selfevidently not any part of the leisure facilities on the beach …’ and ‘It was entirely and solely a navigational
aid’. Further to that he commented:
The fact that an owner of land does not specifically tell a person to keep off part of the property, or
may not even be aware that the person is on that part of the property, does not, in my judgment,
equate to an invitation or permission to use that part of the property and in particular to use it in a
way which the property owner does not approve of.
As a result of the claimant being found to be a trespasser, the Occupiers’ Liability Act 1984 applied (in this
case only the Occupiers’ Liability Act 1957 had been pleaded, on the basis that the claimant was a lawful
visitor, but the judge did not feel that prevented him considering the 1984 Act) that restricts the duty of
occupiers to cases where:
a
b
c
He is aware of the danger or has reasonable grounds to believe that it exists.
He knows or has reasonable grounds to believe that the other is in the vicinity of the danger
concerned or that he may come into the vicinity of the danger …
The risk is one which, in all the circumstances of the case, he may reasonably be expected to offer
the other some protection.
The judge found against the claimant on all aspects of the duty owed by the defendant; the premises were
not inherently dangerous, the defendant did not have reasonable grounds for believing that the claimant
would come into the vicinity of any danger (having been warned away from the beacon previously) and the
precautions taken by the defendant ie having lifeguards on the beach was as much as could reasonably
be expected (in the context of the 11,000 or so visitors to the beach each day and the ability to supervise
each and every activity they did).
The judge also made some interesting comments with regard to warning signs. He thought that the
contents of any notice would be ‘totally obvious’ to anyone who had been to the seaside often enough to
see that the tide goes in and out. On that basis he referred to Lord Hoffman’s observations in Tomlinson v
Congleton Borough Council [2003] UKHL 47 that there was no duty to warn against dangers which are
perfectly obvious.
In this case the claimant sustained a very serious injury whilst undertaking an activity of which the
defendant had some notice. Despite that, the judge applied a strict test both in terms of the issue of
trespass and the consequent duty owed to the defendant. It is therefore another case that follows the line
taken in Tomlinson, and in particular illustrates the benefit of giving careful consideration at the outset of a
case to the issue of whether a claimant is a trespasser (in order to lower the duty owed by the defendant).
Paul Owston
Partner, BLM Birmingham
Beware when using private sector contractors on your premises
John Lough v Intruder Detection and Surveillance Fire and Security Limited and Robert Fulton [2008] All
ER (D) 364 (Jun)
In the common place arena of claims by workers following accidents on the premises of others,
complicated and awkward situations can arise that often make it difficult to anticipate which party or parties
will be found liable. There can be unexpected results.
Brooke LJ in giving the judgment of the court in the well known case of Fairchild v Glenhaven Funeral
Services (2001) EWCA Civ 1881, considered the difference between occupancy duties (relating to the
dangerous condition of the premises) and activity duties (relating to dangerous activities carried out on the
premises) which is informative.
At paragraph 131 Brooke LJ concluded that:
The Act does not provide an answer … when a question arises whether an occupier, without
more, is liable to a visitor for an injury he suffers as a result of an activity conducted by a third
party on his premises. For that purpose one has to go to the common law to see if a duty of care
exists, and if so, what is its scope, or to some other statutory provision such as the (now
repealed) section 63(1) of the Factories Act 1961.
Prior to the decision in Viasystems (Tyneside) Limited v Thermal Transfers (Northern) Limited (2005)
EWCA Civ 1151, only one employer could be considered potentially vicariously liable for the negligence of
an employee resulting in injury to others. However, that case was significant in establishing that there is
now no limit on the number of employers who may be vicariously liable for the actions of the same person
and therefore for the same injury, even when it is a single act of negligence by a single employee which
causes the injury.
More recently the Court of Appeal (CA) again considered these and associated issues on 26 June 2008 in
John Lough v Intruder Detection and Surveillance Fire and Security Limited and Robert Fulton [2008] All
ER (D) 364 (Jun) CA and it is worth considering the facts. Whilst not involving a public sector defendant
the principles are relevant and would apply, for example, to authorities who have delegated cleaning,
inspection or maintenance work to sub-contractors.
The defendant employers installed fire and security systems. The defendants were contracted to install an
alarm system for the third party, Mr Fulton, who was the occupier of the premises.
While major refurbishment was nearing completion a new staircase was being fitted. On 26 May 2003 the
staircase contractor removed the temporary barrier and tried the new balustrade which was then removed
for cosmetic finishing (with the intention that it would be fitted some two or three days later).
Notwithstanding that his family continued to live there and other work was carrying on, Mr Fulton told the
staircase contractor not to erect any temporary barrier.
On the morning of 27 May 2003 the claimant and two colleagues arrived unannounced at the third party’s
premises to work on the alarm system, though Mr Fulton accepted that workmen in general might arrive at
any time. Although reluctant on the grounds of inconvenience Mr Fulton did eventually let them in and he
advised the men to be very careful due to the state of the premises.
Unfortunately, later, the claimant who had been working upstairs, fell from an unprotected edge. The
employer agreed liability with the claimant but sought a contribution from the occupier. At first instance the
claim against the third party was dismissed but on appeal it was found that the third party was in breach of
his common duty of care, the relevant findings being that the third party had:
i Permitted the claimant to enter.
ii Permitted the claimant to go upstairs knowing of the danger.
iii Given a warning that was not sufficient.
There was scant evidence available for the courts to use regarding precisely what had happened on the
day in question and, adopting a broad brush approach, the third party’s liability was found to be 25%.
The court readily accepted that the employer had the lion’s share. The claimant’s supervisor who was
present at the time could see the danger posed by the unguarded staircase and landing, was directly
responsible for the claimant and should have appreciated the risk after entering the premises.
However, in addressing apportionment the court said this should reflect the respective blameworthiness of
the parties and also its causative effect. Whilst a raft of case law had been produced by the parties and
referred to the court, Smith LJ effectively dismissed these authorities as being of no assistance in deciding
whether the occupier had fulfilled his duties under the Act. She went on to say that it was necessary to
give consideration to the statutory provision and the individual facts of the case – authorities were of little
help.
The decision comes as little surprise to the extent that it confirms that the primary responsibility is on the
employer. Nevertheless, in terms of the occupier, it demonstrates that in such circumstances, short of
actually refusing the claimant access, it will be very difficult to avoid liability altogether. Moreover,
occupiers cannot escape their obligations to visitors by engaging independent contractors to supervise or
control a claimant.
Richard Clarke
Partner, BLM Stockton-on-Tees
Are all shields down? The effect of Lewisham v Malcolm
Lewisham v Malcolm [2008] UKHL 43
Many landlords and employers will now be aware of the impact and effect of Lewisham v Malcolm [2008]
UKHL 43 on matters concerning disability. Commentators have been writing of the negative impact this
decision has on the management of disabled people and how protection from indirect discrimination has
been severely curtailed. This article examines comments in the light of housing management and asks: is
the position as bad as was first envisaged?
The Disability Discrimination Act 1995 (DDA) makes it unlawful to discriminate (directly or indirectly)
against a person with a physical or mental disability, by ensuring that a disabled person does not receive
less favourable treatment than someone without a disability, in relation to employment, goods, facilities
and services, in the workplace and in their home.
Section 1 DDA defines ‘disability’ and ‘discrimination’ as:
1
… a physical or mental impairment which has a substantial and long-term adverse effect on his
ability to carry out normal day to day activities.
2
… ‘disabled person’ means ‘a person who has a disability’.
Any mental impairment must have a long-term effect, lasting at least 12 months to offer protection under
the DDA.
Malcolm was decided in light of the premises provisions within the DDA ss22 & 24. This case was brought
by Lewisham LBC as an action for possession following their identification of sub-letting by their tenant Mr
Malcolm and it is likely that Lewisham did not set out to cause such a far-reaching effect on disability
discrimination law, notwithstanding the outcome. Lewisham’s intention was simply to re-possess their
property as Mr Malcolm had given up his security of tenure by sub-letting it.
In respect of premises: Section 22(3) provides that:
It is unlawful for a person managing any premises to discriminate against a disabled person
occupying those premises.
Section 24(1) defines ‘discrimination’ simply as ‘less favourable treatment’. As a result all cases are
decided on their own facts.
Facts of Malcolm
Mr Malcolm was a tenant of Lewisham LBC who had schizophrenia. Mr Malcolm had stopped taking his
medication and his condition was uncontrolled at the time he submitted an application to buy his property
under right to buy provisions, which was delayed. Before this transaction was completed, Mr Malcolm
sublet his property and moved out, thus losing his security of tenure. He then tried to complete his
purchase, but Lewisham had found out about the sub-tenants, so refused the sale, instead serving notice
to quit, followed by proceedings for possession. Mr Malcolm defended these proceedings on the grounds
that he was not in control of his actions due to his mental condition, causing him to sub-let his property.
Schizophrenia is a prescribed disability under the DDA so Mr Malcolm sort to rely on sections 22 and 24.
At trial, the judge found in favour of Lewisham; this decision was overturned on appeal to the Court of
Appeal (CA).
The CA was bound by Clark v Novacold Ltd [1999] ICR 951, a leading case on test comparators to be
applied when considering what is unfavourable treatment. The CA rejected the employer’s argument that
the correct comparator was the employee who was unable to fulfil all the requirements of the job, but
whose inability was not related to disability. Instead the comparators were other employees who were
performing the main functions of their jobs. This was a wide approach encompassing all forms of direct
and indirect discrimination. As a result, the CA found that the decision of the council to commence
possession proceedings was related to Mr Malcolm’s disability within s24 (1)(a). So obtaining a possession
order would indeed cause discrimination pursuant to s22 and 24 DDA, making this action unlawful. The
order for possession was dismissed.
This meant that the DDA could be used as a shield to many possession and anti-social behaviour
applications, simply because the respondent suffered from a disability under the DDA with no real
consideration of whether the disability was contemplated, or played any part in, the decision to take action.
As a result Lewisham appealed to the House of Lords (HL).
The questions considered were:

If the discrimination is to be classed as relating to a person’s disability, does knowledge of this
disability have to play a motivating part in the mind of the alleged discriminator when reaching a
decision on treatment?

Who is the correct comparator in order to determine whether the disabled person was treated less
favourably, and subjected to discrimination?
The HL decided (with Baroness Hale dissenting in part) that knowledge of the disability must play a
motivating part in the decision-making process to evoke s24 of the DDA.
It was noted that Lewisham did not know of Mr Malcolm’s illness at the time of their decision and applying
the objective test contained in s22 and 24, The Law Lords found that the real reason that Lewisham, (a
social landlord with limited stock and greater need than housing available) made the decision to repossess Mr Malcolm’s property was because it did not tolerate sub-letting or other breaches of the tenancy
agreement. There was no evidence to show that disability had any part in the decision-making.
Knowledge, or at least imputed knowledge, (eg CPN or social worker involvement or letters from GPs that
the decision-maker should have been party to) of the disability on the landlord’s part is necessary to prove
discrimination. Mr Malcolm did not have a defence to possession.
Even if Lewisham had known of Mr Malcolm’s disability its decision would have been the same in the
context of sub-letting.
The central question for the Law Lords to decide in respect of comparators was the nature of the obligation
placed on landlords towards disabled people under the DDA. Is it to treat the disabled no less favourably
than those not disabled? Or is it to treat them more favourably? The majority decided that Clark was bad
law and the narrower view prevailed.
Policy issues
The reasons behind the Law Lords’ decision are clearer if seen in terms of public policy. They
demonstrated that they considered the balancing act faced by many local authorities and the needs of the
tenant suffering a disability, against other actual and potential tenants directly affected by the housing
management decision. If the wider interpretation is accepted in premises cases then there is likely to occur
the very real problem of a landlord being powerless to act in possession or anti-social behaviour cases if a
defence of disability with protection by the DDA is evoked. In practice, this would cause major problems.
Mr Malcolm would in effect be a type of tolerated trespasser remaining in situ purely on the strength of his
disability defence, unless or until, another decision to re-possess is made unrelated to his disability.
An absurd situation had previously been foreseen in Manchester City Council v Romano [2005] 1 WLR
2775 where the CA saw the difficulty of s22 and 24 not being confined to residential properties (potentially
affecting commercial leases). A landlord may be prevented from taking action for rent arrears if a tenant
states that his reason for non-payment was due to his disability making it impossible for him to manage his
financial affairs. Similarly, a private landlord who does not need to demonstrate ‘reasonableness’ could
nonetheless face a defence relying on the DDA.
Landlords need to justify their decision to evict a tenant pursuant to s24(2) where they reasonably believe
actions of the tenant endanger the health and safety of others (including the tenant). Only situations where
there is no basis for justifying a decision to evict cause problems for landlords. In Romano a DDA defence
was seen as one of a number of factors to be considered in a possession. Brooke LJ said that any
allegation of disability-related discrimination would not preclude a possession order being made. He also
highlighted the limited scope of the defence of justification in DDA s24(3) where any possession claim was
based on rent arrears. This case was for possession as a result of anti-social behaviour and was decided
after applying the Novacold test, prior to Malcolm. Following Malcolm indirect discrimination was no longer
unlawful, but this indirect discrimination remains a factor to be considered as part of an allegation of
‘unreasonableness’. Prior to Malcolm, however, there was always a risk that the DDA defence would
prevail even in similar cases. This is no longer the case in light of Malcolm.
The situation in Malcolm could perhaps have been avoided if Lewisham had relied on evidence of antisocial behaviour, noise and possible drug use and served a notice seeking possession on those grounds,
whilst Mr Malcolm remained a tenant. This action may well have been justifiable under s24 due to health
and safety implications.
Although Malcolm is a housing case concerning a disabled tenant, the HL ruling on the correct comparator
in disability discrimination will have an immediate and profound effect on DDA claims in areas such as
employment. According to some, this decision has undermined, if not destroyed, disability law.
In Malcolm, the focus was on whether or not the DDA could provide a defence where the landlord had a
common law right to possession. In the HL, the issue was whether the Novacold formulation of disabilityrelated discrimination was correct. The CA view allows for indirect discrimination, The Law Lords’ view
closes the avenue of indirect discrimination. Defences in possession proceedings will largely be restricted
to allegations of direct discrimination. Revisiting non-payment of rent, if the landlord was fully aware that a
tenant was in arrears because his disability made it difficult to pay his rent, even when compared with a
tenant in arrears without a disability, a landlord would find it difficult to justify taking action for possession,
without first trying to assist the tenant in dealing with the problem preventing him paying his rent.
Due to the limited nature of the defence of unfavourable treatment, landlords are more likely to face
defences citing no control over specified behaviour to claims for rent arrears and anti-social behaviour.
This will impute knowledge onto a landlord regardless of whether it was in their mind at the time the
decision was reached. This will inevitably result in expensive medical reports being obtained and requests
for adjournments and stays of proceedings, allowing the medical position to be explored, regardless of
whether the disability did in fact, have any effect on behaviour.
The decision in Malcolm straddles personal injury and other areas of law. Disabled claimants will find it
much more difficult to challenge decisions and practices adopted by employers or service providers if the
treatment is, on the face of it, for a legitimate reason which would be applied to everyone in the claimant’s
circumstances. The effect is that the very type of problems that Parliament was trying to address by
introducing the DDA will now be bypassed.
The future
Despite comments to the contrary, the decision in Malcolm was the only workable solution to the problem
faced in a housing management context. If the CA decision had been left to stand, landlords would be
faced with problems with tenants that they would be powerless to deal with.
Malcolm may be countered by provisions in the forthcoming Equality Bill (details are available at
www.equalities.gov.uk) and it is likely that Parliament will intervene and deal with the impact of Malcolm. It
will be interesting to see if the approach taken by Parliament will differ in housing, from in employment and
education. It is clear that some type of intervention is required if the DDA is to shield those it is set up to
protect while continuing to have ‘teeth’.
Sarah Mansfield
Partner, BLM Liverpool
Walking the tightrope: balancing the Equality Bill
R (on the application of Drayton Manor High School Governors) v the School’s Adjudicator [2008] EWHC
3119 (Admin)
In 2008, this high profile judicial review challenged the findings of the schools adjudicator on the grounds
of an unfair admissions policy in relation to the Equality Bill now before Parliament. Clause 1 of the
Equality Bill (at the committee stage in Parliament when going to press) reads:
An authority to which this section applies must, when making decisions of a strategic nature
about how to exercise its functions, have due regard to the desirability of exercising them in a
way that is designed to reduce the inequalities of outcome which result from socioeconomic
disadvantage.
The relevant authorities are identified as government departments, local and police authorities and the
NHS. However, there will be power for the minister to add later any ‘public authority’, meaning an authority
with functions of a public nature. Public law has long given this a broad interpretation.
The proposed new duty has been described as a ’potentially toothless provision’. Certainly, it is
characterised by hesitancy. It applies only to authorities’ consideration of how to exercise their functions,
rather than their direct exercise, and requires only ‘due consideration’. Furthermore, it concerns only
strategic functions, a term which is not defined.
Irrespective of viewpoint, the vagueness of the provision is likely to prove problematic if recent experience
of the socioeconomic equality provisions of the School Admissions Code of Practice is anything to go by
(illustrated by R v Schools Adjudicator ex parte Drayton Manor High School [2009]) Education Law
Reports.
The Code of Practice requires that admission authorities (including those schools which are their own
admission authorities) ‘actively promote equality’ and avoid ‘… disadvantage, either directly or indirectly, to
a child from a particular social or ethnic group’.
Drayton Manor is a very popular comprehensive in Ealing, which gave places to nearest children first, with
priority to those for whom the high school was their nearest. This proviso meant that child A would get a
place over B, even though B lived closer, if the alternative school for B was nearer than the alternative for A.
Between the school and its nearest neighbouring school is an area classified by the Office of National
Statistics as amongst the 20% most deprived in the country. Children in that area had a reduced chance of
gaining a place than those from other, including more affluent, areas because of their proximity to the
neighbouring school, which was markedly less popular.
For that reason, Ealing Council and the neighbouring school complained to the schools adjudicator that
Drayton Manor was in breach of the code. The school argued that what mattered was whether the
proposed alternative policy (geographic proximity alone) would give access to more children from deprived
backgrounds. The council, which was best placed to do so, refused to carry out a comparative exercise.
Further, the school contended that its policy was justified because it was designed to ease access to
school in general by promoting attendance at a local school. Finally, the school doubted whether children
could be described as part of a deprived ‘social group’ simply by residence in an area characterised by
deprivation, rather because they were themselves identified as deprived.
The adjudicator supported the council and the neighbouring school. The High Court quashed this decision
because the adjudicator failed to give due regard to the children who would have to travel further to school.
The interesting questions of what constitutes a deprived social group and the relevance of the social profile
of the school did not need to be determined. Therefore, these important issues are left to be determined by
the adjudicator on a case by case basis.
The decision will not lead consistency in the adjudicator’s reasoning and so is a bar to improving policy in
this area. It has the consequence of admission authorities being reluctant to address issues of social
disadvantage because of the risk of successful challenge from those who may lose out from changed
arrangements.
Proposals for reform include that admission authorities should not face challenge on the ground of social
inclusion on an ad hoc basis, but only following a locally lead, whole area, exercise to identify problems
and possible solutions. That would allow the adjudicator to determine unresolved issues with the benefit of
that analysis.
Developing good practice in this area, where there is already a legal requirement to address social
disadvantage, might prove an interesting way of exploring the issues raised by Clause 1 of the Equality
Bill.
Richard Wilkins
Partner, BLM London
Coroners’ reform and protection from inquests
It is envisaged that the Coroners & Justice Bill will be enacted before the summer recess. The Act is well
overdue. Few pieces of legislation have been given out to consultation and debated over such a lengthy
period. The Fundamental Review by Tom Luce into reform in the Coroners’ Court went back to 2003.
The Bill deals with a number of issues including death certificates as well as long overdue Coronial Law
Reform.
Rule 43
One of the major difficulties for a public authority implicated in a death, aside from criminal or civil liability,
are the dangers inherent in a Rule 43 report (death prevention report).
Rule 43 reform has already been introduced (17 July 2008) with little publicity. Any public authority at risk
of blame at an inquest needs to be advised of the importance of this rule change. It provides for the
following:

Coroners have a wider remit to make reports to prevent future deaths. It does not have to be a similar
death.

A person who receives a Rule 43 report must send the coroner a written response.

Coroners must provide interested persons to the inquest and The Lord Chancellor with a copy of the
report and its response.

Coroners may send a copy of the report and the response to any other person or organisation with an
interest.

The Lord Chancellor may publish the report and the response, or a summary.

The Lord Chancellor may send a copy of the report and response to any other person or organisation
with an interest.
The new Rule 43 should bring about a more responsible and coordinated approach to preventing deaths
and protecting public safety. The rule change cannot compel a substantive meaningful response by a
public body though adverse publicity is likely if an attempt is made to side step the report and not deal with
it adequately. Legal advice is considered essential prior to finalising any response to such a report.
What is wrong with the present coronial system?

The lack of a centralised system has meant that the coronial services are fragmented and inconsistent
in their practices and standards.

No formal rules for disclosure have caused difficulties to the process.

Legal funding problems have led to arguments that bereaved families are being let down by having no
recourse to representation.


There have been profound delays in the system.
The need to hold Article 2 compliant Inquests (Right to life) have caused particular problems in
formulating verdicts (whether narrative or short form).
What are the important changes?
The coronial system remains inquisitorial with interested persons (IP, section 38) not parties. IPs have
extended categories providing for almost every conceivable type of possible interest or connection to the
deceased. This will prevent any denial of access to the coronial court. The rule change includes a catch all
clause to allow any other person to become an IP, if the senior coroner decided that they have a ‘sufficient
interest’.
The rules as to apportionment of blame are preserved (section 10 (2)). This preservation of the non
determination of any criminal liability on the part of a named person or civil liability grates with the Rule 43
recommendations to prevent future deaths.
Verdicts such as unlawful killing against a public authority will continue to be very rare indeed. There is
likely to be a continuing move away from simple short form verdicts (accidental deaths etc) to narrative
verdicts as they can do better justice to the complex circumstances of death found in many cases involving
public authorities.
However, the jury may not be very familiar with public authority procedures so narrative verdicts bring their
own special dangers in such cases.
Disclosure provisions are to be included in new rules to be drafted. This is a welcome development as
some coroners had a peculiar dislike against providing full disclosure to the IPs and required persuasion in
some cases.
The Bill allows anonymity for witnesses (section 36(2)(e). This can be useful in cases where a public
authority employee is implicated in a death where his/her details are not already in the public domain or
known to the family.
The move towards narrative verdicts is emphasised in section 5(2). Middleton (the House of Lords case) is
taken into account to ensure a Human Rights compliant Inquest where there is reason to suspect that a
death resulted from an act or omission of a police officer, for example, then a jury is likely required.
In such circumstances, the likelihood of a narrative verdict, potentially implicating a public authority or
employee, is likely albeit without offending the rule against apportioning blame.
What else is new in the Bill?
Section 32 sets out the various right’s of appeal envisaged to the chief coroner against the decision of a
coroner. It includes such matters as a refusal to make to a decision or be recognised as an IP, whether to
conduct or discontinue an investigation, post mortem decisions and whether to have a jury.
A system of coronial training and inspection is to be instituted and the chief coroner is likely to be a High
Court judge appointment.
Much controversy was created by the original Bill containing in section 11 a system of certification to avoid
having a jury and full public hearing when matters of national security arose and in connection to section
12 over intercept evidence. However, both aspects have now been withdrawn and it is intended in rare and
exceptional cases involving such concerns to hold an inquiry under the Inquiries Act 2005.
Has the Bill delivered?
The major changes are likely to be an improvement:

The coronial system will benefit from appeals to the chief coroner, allowing consistency and a uniform
approach.

Delays will be lessened by the flexibility introduced over boundaries and with the chief coroners’ ability
to move coronial business away from a busy jurisdiction.

The chief coroner should provide leadership to the system and coronial training and inspection will
assist the system.

The charter for bereaved families will allow expectations to be managed.

Disclosure should become more uniform with rules setting out what is expected.
It remains to be seen whether the proposed institution of an inquiry in cases involving national security will
attract similar criticism as that directed at the clauses in the Bill allowing the Secretary of State to hold
parts of an inquest in private and withhold disclosure in certain cases. A lack of public funding for
bereaved families continues to attract adverse comment as well.
Final comment will need to await the Act and how it is implemented.
David Hill
Partner, BLM Liverpool
Does the Jackson Report complete the Woolf reforms?
It is now 10 years since the Woolf reforms came into force. His aim was to tackle what he called the ‘twin
evils’ of delay and cost in the civil litigation system. For the most part, the reforms have been successful.
There is less litigation and cases proceed quickly. However, in one important respect the reforms have
failed – costs. The past decade has seen claimant legal costs spiral out of control. With this in mind, the
Master of the Rolls commissioned Lord Justice Jackson to look at civil costs last year. The result was a
663 page report, published in May 2009, reflecting the complexity of the issues. What are the likely
impacts of Jackson on personal injury litigation?
It is good news that trying to distil the contents of Jackson JT’s report into a short article is a difficult task.
Commentators from all sides have been impressed the unbiased nature of the report and level of detail.
Costs is always a difficult and emotive subject and the clarity and substance of the report is refreshing.
Jackson LJ has been keen to show that he is remaining open minded throughout this process and his
report is designed to inspire debate on the issues. One idea is fixed costs for all fast track matters. The
other major points are one way costs shifting and making paying parties responsible for their own
additional liabilities.
The idea of bringing in fixed costs for all fast track cases is not new. Since the advent of the CPR it has
been discussed and revisited. The fact that the report includes detailed matrices of what these costs could
look like shows the enthusiasm for the idea. It is easy to look at fixed costs as a magic bullet. They are
simple, efficient and offer a degree of certainty to those fixing reserves. However, the costs are designed
to cover the claimants’ costs, not the defendants’. This may be indicative of a desire for one way costs
shifting. If not, should the idea survive to phase 2 of the review, matrices for defendant costs would need
to be introduced or we could be faced with fixed costs for claimants and standard basis costs for
defendants, which would surely be a move away from a fair and transparent costs system.
Jackson LJ has recognised that under the current system defendants are funding both sides of the action
on all cases. Defendants have to pay their own solicitors’ fees and, if unsuccessful, must pay the
claimant’s costs including large additional liabilities that fund lost cases. If you add this to the fact that it
can be difficult to recover costs from legal expense insurers the burden for civil costs falls with defendants.
The approach to this problem is novel.
First, after a long debate as to whether to abolish costs shifting altogether – which is not supported by the
report – the solution of one way costs shifting has emerged. Simply put, if the claimant wins they recover
costs, if the defendant wins both parties bear their own costs. The response to this has generally been
positive, however, the important thing that must be considered is how this would impact on claimants’
behaviour. Under the current system the possibility of having to pay your opponents’ costs can be a real
deterrent against unreasonable behaviour. If this is removed there may be serious consequences. What
impact will a p36 offer have if it is a toothless weapon? Also, costs can play a vital role in deterring fraud.
Second, claimants should be responsible for their own additional liabilities. Most obviously it would reduce
defendants third party costs spend. Another side effect would be the positive impact on hourly rates if
claimants bore the burden of their funding method. The report refers to Professor Nickell’s review of hourly
rates. He has commented that a lack of market forces have allowed hourly rates to increase unchecked. If
claimants become responsible for 25% of their solicitors’ profit costs then they will have an interest in the
hourly rates claimed. A rate of £300 per hour may be too high when it means you could be paying £75 for
each hour recovered. Claimants shopping for a good value service would restore these market forces.
This may prove to be a real sticking point as claimant representatives have been clear in stating that 100%
damages is a sacred. The combination of fixed costs and no cost shifting for additional liabilities may also
prove to be an issue for the ATE market. If there is no requirement to insure against your opponents costs
there will be limited scope for ATE in fast track cases. This would have a knock on effect on multi track
premiums as the book of business would be much smaller.
All of these issues warrant further discussion but what is clear is that there are intelligent and creative
solutions to many costs issues within the report but they do require development. Now there has been time
to consider the report, defendants must decide on what it is they want from the Jackson review – what is
essential and where can compromise be reached. This is a balanced and impressive report from Lord
Justice Jackson and BLM will be engaged with the process to ensure that we make the most of this
opportunity.
Alistair Kinley
Head of policy development, BLM
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