Private Client Titles – Summer 2009


Be Careful What You Claim For
In a recent case, a woman sought damages of £750,000 for back injuries after she was involved in a car crash. She provided evidence for the court in the form of several documents accompanied by signed statements of truth. However, the defendant’s insurer believed she was exaggerating as to the extent of the injuries she had sustained in the collision and made a payment into court of only £25,000.
The insurer then produced evidence, in the form of surveillance footage, which proved that the woman had greatly overstated her injuries and the extent of her disabilities. It was also found that she had failed to disclose disabilities she was suffering from prior to the accident. Faced with this evidence, the woman accepted the £25,000 paid into court but, because of her delay in accepting the offer, she was ordered to pay the insurer’s costs.
The insurer then filed a claim under the Civil Procedure Rules for contempt of court. Such proceedings may be brought against someone who has no honest belief in a statement they have made where this was accompanied by a signed statement of truth. For the insurer to prove that the woman had been in contempt of court, it would have to show that:
  • her statements were false;
  • the statements would interfere with the course of justice in some material respect; and
  • she knew at the time her statements were made that they were untrue and that in making them there was a likely prospect of the course of justice being interfered with.
The court found that the woman had intentionally exaggerated her claim by making two false statements and had fully intended to claim more money than she knew she was entitled to. She was found guilty of contempt of court, ordered to pay £2,500 and given a criminal conviction.
This is an important ruling for insurers as it will serve to act as a deterrent for anyone considering making a false or exaggerated damages claim. Although mere exaggeration alone is unlikely to lead to a conviction for contempt, the case shows that, even where there are genuine elements to a case, the courts will not tolerate dishonesty in litigation.
In a time of economic downturn, a claimant may be tempted to bring a fraudulent claim or to exaggerate a genuine claim, but this case shows that the repercussions can be severe and should make claimants think twice about trying to secure a larger compensation settlement than is warranted.
Partner Note
Walton v Kirk [2009] EWHC 703 (QB).
Careful Driver Not Responsible for Death
An unavoidable collision is the secret nightmare of many drivers, especially one in which death or serious injury results.
A recent case will reassure drivers who are careful and obey speed limits that the risk of repercussions as a result of an accident which they can do nothing to prevent may be less than they suppose.
The accident involved a man who had consumed between five and seven pints of beer. He was sitting at a bus stop talking with a friend when suddenly, in the middle of a conversation, he got up from the bench and walked into the road. He was hit by a motorist who was driving within the speed limit and with reasonable care. The man is now in a persistent vegetative state.
The injured man’s family sued the driver. In court, the judge considered the circumstances at length. He said that it would be ‘wholly unreasonable’ to conclude that immediately prior to the accident the driver had suddenly stopped being careful. He had no time to react and the only way he could have avoided the accident would have been for him to have anticipated the man’s sudden step into the road. The judge warned that the court must be careful not to overestimate what was possible when determining the standard expected of a reasonable driver.  
The claim was dismissed.
For drivers, this case will provide assurance that if they are careful and law-abiding, they can expect to be protected by the courts from being held responsible for injuries sustained in accidents which they could, in practice, have done little or nothing to avoid unless, by sheer luck, they were paying attention to the relevant factor at precisely the right time. It is not necessary to be a perfect driver, just a competent, careful and law-abiding one.
Partner Note
Stewart v Glaze [2009] EWHC 704(QB).
Divorce and Fluctuating Asset Values
Financial agreements on divorce can take a wide variety of forms and in a time of economic uncertainty how you choose to divide your assets demands careful thought. Agreements based on current circumstances may be inappropriate if circumstances change and reviews of lump sum cash settlements are rarely allowed. The courts will only allow an appeal of an order out of time in respect of capital sums if specific conditions are met; these do not include a change in financial circumstances arising from fluctuations in the economy.
The much-publicised Myerson divorce case, in which a businessman failed in his attempt to reduce the divorce settlement agreed with his wife, after his shareholdings had plummeted in value, illustrated that divorcing couples with assets that may be subject to wide fluctuations in value should think particularly carefully about who gets what.
A more recent case, which was described as the ‘flipside’ of the Myerson decision, concerned a woman who agreed a cash settlement with her ex-husband in 2007, under which he retained shares in a company that was valued at £800,000. Within months of the settlement, he had sold the company for nearly £4 million.
The ex-wife was given permission to seek a renegotiation of the settlement. Her argument was that her ex-husband had failed to keep the courts informed of the improvement in the company’s fortunes when the financial settlement was agreed.
However, Lord Justice Thorpe ruled that none of the legal requirements that would allow the ex-wife to reopen negotiations over the division of assets had been met in this case.
The current economic situation is likely to make the courts more sympathetic to the idea that a divorcing couple should share the risk of holding assets that are subject to rapid changes in value (such as a business or shares). This may lead to a couple having shared interests long after they are divorced. It may also be more difficult to achieve a ‘clean break’, as neither party may be willing to give up an interest in the ‘copper-bottomed’ assets. If a couple does agree that one of them should have less risky assets whilst the other keeps the interest in the riskier ones, then the variation in risk is likely to be reflected in the respective proportions of the total assets retained by each.
Contact <<CONTACT DETAILS>> for advice on any matrimonial issue.
Divorce and the Downturn
Financial agreements on divorce can take a wide variety of forms and, in a time of economic downturn, how you choose to divide your assets demands particular thought. Financial agreements entered into now may be inappropriate if circumstances change, therefore thought needs to be given to this possibility when deciding what form the financial arrangements on divorce should take.
When children are involved, a common way of providing for them is by way of periodical payments. Varying the amount paid each week or month under a periodical payment order is relatively easy to achieve compared with varying capital settlements, which are difficult to adjust. Under Section 31 of the Matrimonial Causes Act 1973, the court can suspend, vary or discharge any provision for a periodical payment order. If you do wish to make an application to alter a periodical payment order, it is important to do so promptly. The court has the power to backdate any alterations it makes to the order but will normally only do so from the date the application was made. It does, however, have to take into account any changes in circumstance since the original order was made. It is possible to apply for a downward or upward variation of periodical payments.
Another common problem in a recession occurs when the ex-spouse falls into arrears with their payments. If this happens and there is an outstanding variation application to alter an order, any application to enforce payment of arrears will be put on hold until the outcome of the variation application is known. In the meantime, the person claiming the arrears can use a garnishee order to force payment. A garnishee order effectively ring-fences funds in the debtor’s bank account equivalent to the amount of the payment due, giving that payment preference over other sums owing. However, this type of order can only be issued once and if there are insufficient funds in the bank account to make the payment, the order will fail and cannot be used again.
Failing to pay money due under an order will mean that you are in contempt of court, so if you are applying to vary an order whilst in arrears, the court can use its discretion to refuse to hear the application or impose conditions upon you.
In the current economic climate, the court is likely to be sympathetic with regard to problems involving the payment of lump sums due. The court can adjust the amount and timing of lump sums to be paid in instalments but are unlikely to adjust the actual amount due.Where there is an agreement to pay a series of lump sums, these may be viewed by the court not as individual lump sums but rather as a series of instalments making up a larger lump sum, in which case the amounts could be varied.
Although people’s financial situations can change rapidly, the courts will only allow an appeal of an order out of time in respect of capital sums if specific conditions are met. The new event justifying the need to change an order must have occurred within a relatively short time of the order being made and a change to the order must not prejudice a third party. However, these conditions do not include a change in financial circumstances arising from the recession. This also works in reverse – i.e. a divorce settlement agreed in a time of economic downturn will not be altered if the economy booms. Once a capital sum is settled, economic fluctuations are not a basis for appeal.
Renegotiation of an agreement will be difficult even if you attempt to do this before an order is made. The current economic situation is likely to make the courts more sympathetic to the idea that husbands and wives should share the risk of holding assets that are subject to rapid changes in value (such as a business or shares). This may lead to a couple having shared interests long after they are divorced. It may also be more difficult to achieve a ‘clean break’, as neither party may be willing to give up an interest in the ‘copper-bottomed’ assets. If a couple does agree that one of them should have less risky assets whilst the other keeps the interest in the riskier ones, then the variation in risk is likely to be reflected in the respective proportion of the total assets retained by each.
Contact <<CONTACT DETAILS>> for advice on any matrimonial issue.
Do You Suffer From Miners’ Knee?
Miners’ Knee is a term used for osteoarthritis of the knee, which is a frequent ailment of those who have worked in the mines. Symptoms include pain, swelling, stiffness and reduced mobility and it can be caused by extended periods of kneeling, crawling or transporting heavy loads.
Following extensive representations, the Government has announced that osteoarthritis of the knee in miners is being added to the list of ‘prescribed diseases’, making it possible for sufferers to claim compensation from the state in the form of Industrial Injuries Disablement Benefit.
Sufferers from the disease will be able to claim if they have worked for ten years or more underground.
The change is expected to come into force in the next few months.
If you suffer from a disease caused by your working conditions or have suffered an accident at work because of your employer’s failure to comply with health and safety regulations, you may be entitled to compensation. Contact <<CONTACT DETAILS>> for claims advice.
Partner Note
Source: DWP Press release 15 April 2009.
Does Right of Access Mean Right to Park?
A case dealing with the parking rights relating to three adjoined houses (all part of a development of older agricultural buildings) has been decided by the Court of Appeal. It has implications for developers of similar properties, such as barn conversions.
The case produced (in the judge’s words) a “snowstorm of incidents and issues” relating to the right of the owners of one of the houses to park on land adjacent to the properties and in spaces in the lane serving them. The Court concluded that for the right to park to be implied by a right of vehicular access, the ability to park must be ‘reasonably necessary’ for the exercise or enjoyment of the land being accessed. It is not sufficient that the right to park is desirable. Parking must be necessary to make proper use of the accessed land. In other words, there is no automatic right to park if there is a right of vehicular access to a piece of land.
In her conclusion, LJ Arden said, “There is a common misunderstanding that an Englishman’s home is his castle in the sense that he can build walls, put up gates and do other acts on his land whenever he chooses, and without regard for his neighbours… While it is often true that a person can do what he wants on his own land, it is not always so. The law expects neighbours to show some give and take towards each other… Parties to other boundary disputes and their advisers should also, at all times, have this point firmly at the forefront of their minds, and seek to resolve their disputes accordingly, and without resort to complex and expensive litigation.
If you are considering buying land where there may be issues over access, parking or use of adjoining land, it is important to make sure that your legal rights are clear in the relevant documentation. Contact <<CONTACT DETAILS>> for advice on property purchases and sales.
Partner Note
Waterman and Waterman v Boyle and Gwilt [2009] EWCA Civ 11. See
Duty of Care to Employees – Obvious Risks
Every employer owes a duty of care to its employees, but deciding who is responsible for an accident can be very difficult when the issue is whether warnings against risks should have been given or, if given, were adequate.
Employers often argue that employees are responsible for their own actions, but employers have a duty to warn employees of potential risks in the workplace, even if these are obvious. A recent case confirmed that some risks are so obvious that warnings need not be given – for example where to argue a lack of awareness of the risk would be absurd – but that it is hard to distinguish between what would be deemed to be that obvious and what would not.
In the case in point, an employee turned a box upside down in order to reach material on a top shelf. The box slipped from underneath him, causing him to fall and sustain injury. The employee’s case failed both in the lower court and on appeal because the employer had specifically warned all employees that the use of boxes for this purpose was unsafe and had provided a safe alternative for reaching high items.
The Court of Appeal said that an employer is responsible for devising safe working methods and practices and, where they have issued a warning against a specific risk, they should not be held liable for an injury to an employee who ignores the warning. The judge commented that, “some dangers are so obvious that no instruction is required,” but this would not have been the case in this instance had the risk not been pointed out to the employee. Had the employer not warned of the potential risks attached to using the box for this task, the argument that the employee was capable of appreciating the risk for himself would have been rejected.
What constitutes a sufficient warning is a grey area and is an issue of fact, not law, so previous case rulings provide little assistance as each case is judged on its own facts. In an unreported case, an employer was held to be liable for an injury sustained by an employee who had mopped a floor and then slipped on the wet surface she created. The employer argued that it was obvious that the floor would be wet immediately after mopping and that it needed to be dry mopped to be safe. This argument was rejected by the court, however.
Employees do have a duty to take reasonable care for their own health and safety as well as that of other persons who may be affected by their acts or omissions at work. They also have a duty to co-operate with their employer so far as is necessary to enable the performance of or compliance with any duty or requirement imposed on the employer by the relevant health and safety law.
It has been suggested that an employer is only under an obligation to warn employees of risks that fit within the broad remit of the employee’s job description. For example, if an employee were to put his fingers into an electrical socket, the employer would not be liable for the resulting injury as this is not a part of their ‘system of work’. Where the risk is part of a system of work, a warning is a necessity. For example, an employee who has been asked to rectify a paper jam in a photocopier machine should be warned of the risks.
Ultimately, it is the employer’s responsibility to assess and warn against workplace risks and employees should be given appropriate warnings and guidance to protect them from risk of injury.
Partner Note
Ammah v Kuehne & Nagel Logistics Ltd [2009] EWCA Civ 11, [2009] All ER (D) 155 (Jan).
Employee Share Options – New Trap
If you have acquired shares in a company through an employee option, a recent change may affect you.
HM Revenue and Customs (HMRC) have received legal advice which has made it necessary for them to issue revised guidance on the Capital Gains Tax (CGT) implications of the disposal of such shares in certain circumstances.
The change affects the CGT on shares acquired under an option arrangement before 10 April 2003. When this is the case, the CGT ‘base cost’ is calculated on the market value of the shares when the option to acquire them was given, not the amount paid for the shares or the exercise price of the option.
Because the granting of such options can give rise to an Income Tax (IT) charge in certain circumstances, HMRC have previously considered that the gain or the loss should be calculated on the market value of the shares plus any IT paid at the time of exercising the option. HMRC now advise that this is incorrect and that the CGT position must be calculated without reference to the IT position.
If you would like advice on any taxation or wealth preservation issue, please contact <<CONTACT DETAILS>>.
Partner Note
Reported in Accountancy Age, 13 May 2009.
Equity Will Prevail
In a recent case, the judge ruled that Section 11 of the Limitation Act 1980 should be set aside when it is in the interest of fairness to do so. Section 11 applies to assault cases and stipulates that there is a six-year limitation period in which to bring a claim for damages against the perpetrator of the assault.
Patrick Raggett claimed that, as a child, he had been subjected to persistent and frequent sexual abuse at the hands of Father Spencer, a Jesuit priest at his school in Lancashire. Jesuit leaders denied liability, saying that the case had been brought years after the legal time limit for bringing a claim had expired.
However, it wasn’t until Mr Raggett underwent therapy, after suffering a breakdown in 2005, that the link between his childhood experiences and his serious long-term problems was made. Mr Raggett attributed his depression, difficulty forming relationships and under-achieving at work to the abuse he had suffered.
The judge accepted Mr Raggett’s evidence and ruled that the case could go ahead to full trial.
When an individual has been the victim of serious abuse, it often takes them a considerable time, and therefore longer than six years, to come to terms with what has happened and to bring a claim. In the interest of justice, the Limitation Act may be set aside in such cases.
Partner Note
Reported variously. See
Friends Fall Out When Agreements Not Formal
“Doing business with friends can be fraught with danger, as a recent case illustrates,” says <<CONTACT DETAILS>>.
It involved two men, one of whom was building a house for himself and his fiancée. He wanted to have some complex electrical devices built into the house and entered into discussions with his friend (who is a builder), who advised him that the work required would cost in the region of £15,000.
The details had been agreed by the end of 2001 and there was a costed schedule of works at that point. As is not at all unusual, as time passed the house owner changed the specification and added extra items to it. It is clear that as this was occurring, neither of the two men put the changes that had been authorised and their cost implications into proper written form, with the predictable result that at the end of the project, the bill presented was for more than £15,000 and a dispute arose.
The homeowner refused to pay the extra amount and the matter ended up in court. The hearing took three days, the cost of which must have been similar to the value of the original contract. In court, it was accepted that some of the changes warranted extra payment as ‘variations’ or ‘extras’. Additionally, there was no complaint about the quality of the workmanship: the dispute was over the cost and the cost alone.
In essence, the claimant’s case was that it was a design and build contract with reasonable remuneration for labour and materials supplied. The defendant’s case was that it was a fixed price contract for £15,000 and that almost all of the extras should have been accommodated within that price.
The court ruled that the contract was not a fixed price contract and awarded the claimant a modest extra sum.
The essential point is that the case only arose because, being friends, the two men did not agree things formally as they went along, each assuming that their view of the circumstances was also held by the other. When this turned out to be incorrect, a falling-out was predictable.
The moral of the story is that if you value your friendships, it is doubly important to make sure that you have all the necessary paperwork in place if you do decide to do business with friends. It is a mistake to rely on the fact of your friendship to prevent a disagreement.
Partner Note
Thompson v Charlesworth [2009] EWHC B3 (TCC).
House of Lords Confirms Age of Criminal Responsibility is Ten
The House of Lords has ruled that changes in the Crime and Disorder Act 1998 mean that lawyers who are defending children aged ten years or over who are charged with a crime cannot use the defence that children are incapable of committing a crime.
The ruling means that only children below the age of ten will be assumed by the court to be unable to exercise the criminal intent necessary to commit a crime. Older children will be assumed to be able to show criminal intent unless it can be argued otherwise (e.g. on mental illness grounds).
Young offenders are dealt with differently from adults by the courts, but the only avenue now open to make a case that a defendant child aged ten or over, who is charged with committing a criminal offence, is unfit to plead will be if a psychiatrist can testify to that effect.
Partner Note
R v TJB [2009] UKHL 20.
House of Lords Ups the Ante on Asset Confiscation
The House of Lords has allowed a confiscation order against a criminal in a judgment that will come as a blow to others in the same line of business.
The man was convicted of conspiracy to import heroin, although the importation did not in fact occur. He was alleged by the Crown Prosecution Service to have also sold six tonnes of cannabis for £8 million, although he was not charged with that offence.
In court, the judge estimated that the man’s benefit from drug trafficking was in the region of £4 million. A confiscation order was made against him for £2.6 million. He appealed against the order, arguing that it was unfair as it applied to assets derived from an activity for which he had not been convicted. His contention was that this was a breach of his human rights, namely the right to a fair trial and the right to be assumed innocent until proven guilty.
The Lords did not agree, however, ruling that confiscation orders are part of the sentencing process and the Convention for the Protection of Human Rights and Fundamental Freedoms does not therefore apply. In confiscation order proceedings, the burden of proof required to demonstrate that someone has benefited from their criminal activity is the civil burden (balance of probabilities) and not the criminal one (proof beyond all reasonable doubt).
After a criminal has been convicted of acquisitive crime, he or she may face proceedings to have assets confiscated to the value of their supposed ‘profit’ on the criminal activity. It is not necessary that that profit is directly connected with the particular crime for which they have been convicted.
Partner Note
R v Biggs-Price [2009] UKHL 19.
House Problems – Builder and Structural Engineer Liable
A couple whose new house developed cracks which made it unfit for human habitation recently found the court sympathetic to their claim that this was due to negligence by the builder and the structural engineer, who had failed to ensure that the foundations were sufficiently deep to avoid heave due to the removal of tree roots.
The planned house was a substantial property and, before it could be built, a number of trees had to be removed. The builder’s defence was that it had followed the standard guidelines issued by the National House-Building Council (NHBC) when following drawings produced by the structural engineer. However, the foundation depths in the NHBC guidance were minimum depths, which assume there are no issues with the subsoil. The structural engineer’s drawings specified that the foundations should extend to at least 0.5 metres below the depth of the deepest tree roots. The engineer based his defence on the fact that the builder had not carried out a site survey to determine the appropriate depths for the foundations and that it was a reasonable assumption that it would.
Firstly, the court had to decide whether the house was or was not unfit for human habitation. If it was unfit, it then had to decide which of the engineer and/or builder was responsible and whether damages, including general damages for inconvenience, could be recovered from the responsible party and in what sum. The cost of strengthening the foundations was estimated to be £70,000. As the house owners would have to vacate the property for up to a year while the work was being carried out, they also claimed compensation for that cost, as well as damages for distress and inconvenience.
The court concluded that the house was defective due to the inadequate foundations. The builder was liable to the owners under breach of contract because the house was not built to the appropriate standard as laid down in the NHBC guidelines, which were incorporated in the contract. The engineer was also liable, mainly on the basis that the instruction to lay the foundations 0.5 metres below the last tree roots was not a practical instruction and because the required depth had not been stated on the drawings, which was indicative of poor professional practice.
One interesting aspect of the case was that the judge commented on what makes a house unfit for human habitation. Unfitness relates to defects of quality but can be considered to occur even where the defects affect only part of the property. Unfitness can occur even if it is not obvious when the house is completed.
The judge awarded the house owners a total of £214,000, including general damages of £4,500 for distress and inconvenience.
Says <<CONTACT DETAILS>>, “If you have building or other work carried out and it is substandard, you may be able to claim compensation. Contact us for advice.”
Partner Note
Alexander John McMinn Bole and Stephanie Van den Haak v Huntsbuild Ltd. and Richard Money (T/A Richard Money Associates) [2009] EWHC 483 (TCC).
Immigration Status – Which Rules Apply?
The rules relating to the right of residence in the UK have been changing rapidly over the last few years, which has led to a considerable degree of uncertainty as to which rules apply in some circumstances. A recent case in the House of Lords, in which the law lords were asked to rule on an application by a woman to vary her leave to remain in the UK, has clarified the position somewhat.
The decision turned on a simple question – were the immigration rules which should apply in the woman’s case those that were current when her application was made or those in force when the decision of the Asylum and Immigration Tribunal was made?
In the case in point, the applicant was a doctor whose leave to remain was denied because her medical degree had been obtained in Nigeria, not the UK. The restriction on those not having a UK medical degree came into effect in April 2006. She had applied for leave to remain in January 2006, but the application was not dealt with until June of that year.
As the new rules did not specify that they did not apply to applications that were pending, the Lords judged that the applicable rules were those in existence when the decision was made.
With the rules governing leave to remain being progressively tightened, the practical effect of this case is that speed may be important in any immigration matter.
Contact us for expert advice on all immigration and UK residence matters.
Partner Note
Odeola v Secretary of State for the Home Office, UKHL 20 May 2009. Reported in the Times, 22 May 2009.
Inability of a Minor to Hold Legal Estate Must Be Expressly Recognised
A recent appeal case highlights the need for local authorities to be specific about the type of tenancy they wish to establish when granting a tenancy to a minor.
Hammersmith & Fulham London Borough Council housed a 16-year-old woman who was homeless, in accordance with its obligations under the Housing Act 1996. It granted her a legal tenancy in writing but failed to take account of her status as a minor in the agreement, which was no different from a tenancy that would have been granted to an adult.
There were complaints from the young woman’s neighbours about her behaviour and, in accordance with the agreement, the Council served her with a notice to quit. Subsequently, it commenced possession proceedings and was granted a possession order. The young woman claimed that the Council was holding the premises on trust for her, since she could not herself hold the lease. She argued that by serving her with a notice to quit, the Council was acting in fundamental breach of the trust. The Council submitted that it did not hold the premises on trust for her and the tenancy granted her was for a fixed number of years and was therefore not a legal tenancy.
The Law of Property Act 1925 states that minors are incapable of holding a legal estate in land, but the Court looked at the position of a local authority when discharging its duty to provide secure accommodation to 16- and 17-year-olds. The issue here was that because the Council had not distinguished the tenancy from the standard one used for adults, it could not then claim that it had not intended to grant a legal tenancy.
If a landlord has the full capacity to grant a tenancy and does not wish it to be a legal tenancy, this must be expressly stated. The Court found that the Council did hold the property on trust for the young woman and it could not therefore serve her with a notice to quit. The possession order was therefore quashed and the appeal allowed.
This case is a reminder that a local authority must expressly recognise the inability of a minor to hold legal estate. Any agreement made with a 16- or 17- year-old should state clearly the nature of the tenancy being granted. An alternative would be to grant the tenancy to a third party as trustee.
Partner Note
Elyarna Alexander-David v Mayor & Burgessess of Hammersmith & Fulham
London Borough Council [2009] EWCA Civ 259 CA (Civ Div).
Is a Child to Blame?
A recent case raised the question as to what extent a child is responsible for his or her own actions.
The case concerned a claim brought by a woman against two thirteen-year-old pupils at the school where she worked. The boys had been playing tag in the allocated play area within the school grounds. There was no school rule restricting running in the playground. One of the boys was running backwards and collided with the woman, causing her serious injuries. She sued the boys for damages. In court, the judge ruled against her, stating that the accident was caused by “horseplay between two 13-year-old boys…boys doing what boys do.” The woman appealed against the decision, but pursued her claim only against the boy who had collided with her.
There was no question that the boy owed the woman a duty of care. What had to be established was whether or not there had been a breach of that duty. The court had to decide if a child of thirteen could be culpable for his actions in an accident such as this. The judge concluded that a child of thirteen should be considered to be aware of the risk of some injury from play of this kind, such as grazes and bruises. However, the test of whether an “ordinarily prudent and reasonable thirteen-year-old schoolboy would have realised that his actions gave rise to a risk to injury” was too broad a test. In the judge’s view, a child should not be expected to stop playing games just because he is aware of the risk of minor injuries attached to playing such games.
The test for determining whether a child has breached a duty of care depends on whether or not their actions fall below the standard reasonably expected of a child of that age and whether or not they can reasonably foresee that injury could occur. A child will only be held to be culpable if their actions are careless to a very high degree. In this case, the boy had not broken any school rules in running or playing tag. For him to be deemed culpable, the woman would have to prove that he was playing in a way considered to be outside the scope of normal play for a child his age. The judge saw nothing out of the ordinary in the boy’s behaviour in relation to his knowledge regarding potential injuries. He was simply acting as a normal thirteen-year-old boy playing a game. The case was therefore dismissed.
Says <<CONTACT DETAILS>>, “In general, the school will be responsible for the supervision of children on its premises. Holding a child liable when there are adults present to maintain control would normally be unjust. The courts accept that accidents do happen and not every injury is someone’s fault.”
Partner Note
O v L [2009] EWCA Civ 295.
Judge Uses Discretion in Contact Proceedings Case
When considering any question relating to the upbringing of a child, the courts take into account all the child’s circumstances and always attempt to ascertain what would be in their best interests. In a recent case involving a 14-year-old girl, the right of the judge to use his discretion to decide who should be the girl’s guardian was confirmed.  
The girl had been involved in contact proceedings for over ten years and the same Children and Family Court Advisory Support Service (CAFCASS) officer had been her appointed guardian since the beginning of the proceedings. The judge concluded that the best outcome for the girl would be achieved by not disrupting a relationship that was working effectively and ruled that the CAFCASS officer should continue to be her guardian, rather than appointing the National Youth Advocacy Service (NYAS).
NYAS provides trained and supported independent visitors to children who are eligible and for whom it is in their best interests. NYAS is often involved in cases such as this and the judge invited it to prepare a report and to decide if it felt it should intervene and act as guardian instead of CAFCASS. NYAS declined, because unless it was formally appointed as her guardian, it had no access to public funding and could not therefore prepare the report.
The girl’s father appealed the decision that CAFCASS not NYAS should be his daughter’s guardian. However, the judge in the Court of Appeal refused to make an order transferring guardianship to NYAS as there was no evidence to suggest that this was a more appropriate solution. In fact, changing the girl’s guardian would disrupt her routine and would mean that she had to develop a new relationship with a different guardian. This could only be viewed as having a detrimental effect as it would cause the girl unnecessary stress. Her relationship with the CAFCASS officer had been working successfully for over ten years and the judge saw no reason to fix something that was not broken. The appeal was therefore dismissed.
Although NYAS would normally be appointed as guardian, given the circumstances in this case the judge was entitled to decide that this was not in the girl’s best interests.
This case highlights the importance the courts place on what is best for the child. They have the freedom to decide what will work best, depending on the individual circumstances.
Partner Note
Re B (A Child) CA (Civ Div).
New Leases for Tolerated Trespassers
Following a change in the law, a tenant can no longer have the status of a ‘tolerated trespasser’.
Under the old regime, a tenant who had defaulted on their rent could, by paying the rent after a possession order had been made, become a tolerated trespasser, if the landlord did not seek to enforce the possession order and continued to allow the tenant to occupy the property, paying the rent due.
Tolerated trespass led to many disputes in the court over what rights tolerated trespassers did or did not have. Recently, the application of the concept was limited, by the House of Lords, to assured tenants, but the Housing and Regeneration Act 2008 has now brought an end to tolerated trespass from 20 May 2009.
Under the Act, existing tolerated trespassers will become tenants once again provided:
  • the home is the individual’s only or principal home throughout the termination period;
  • the former landlord is entitled to re-let the property; and
  • the former landlord has not entered into a new tenancy in respect of the property.
Tenants who have previously been tolerated trespassers will probably be offered a new lease by their landlord and should consider its terms and take advice if necessary.
Partner Note
The Housing and Regeneration Act 2008 can be found at
 Ref: Knowsley Housing Trust v White [2008] UKHL 70.
Past Exposure to Noise Warrants Compensation
It has long been known that exposure to noise can cause hearing loss and the UK now has strict standards for noise exposure, which were tightened up as recently as 2005.
It can take a long time to realise that damage to one’s hearing has occurred and a recent case has opened the door for claims concerning hearing loss caused by exposure to noise many years ago to be brought to court.
It involved a number of textile companies in the East Midlands, which were sued by an employee who had developed noise-induced hearing loss (NIHL) after working in garment factories between 1971 and 1989. At issue was the fact that the exposure which caused the loss must have occurred many years before the loss became noticeable.
In this case, the argument was made successfully that where there was a risk that the employee could be adversely affected and this should have been ascertained and acted on by the employer, the claim can be brought under the Factories Act 1961, regardless of the specific regulations relating to noise. The legislation provided that an employer had a duty to safeguard employees by providing, as far as reasonably practicable, a safe working environment.
The Court or Appeal accepted that the NIHL would have been latent for a period of years and that the claimant could claim compensation for damage to her hearing sustained from 1978. She was awarded more than £3,000.
With mild hearing loss, it is common for the symptoms to go unnoticed until middle age, when it is normal for there to be a loss of acuity in hearing in any event. When that occurs, the superposition of a NIHL can be very noticeable and can cause significant problems.
One of the issues with NIHL is that the loss of hearing ability is ‘focused’ around those frequencies of sound most important for understanding speech, which means that whilst (say) a sufferer can hear someone speaking, they may find it difficult to understand them. This makes following a conversation, especially where there is background noise, particularly difficult. Another problem is that the difference between the quietest sound which can be heard and the loudest which can be tolerated may become much less than is normal, which presents problems when watching television and so on.
Employers have a duty to provide the correct hearing protection for employees, as well as to monitor workplace noise levels. If you suffer from an occupational disease, such as hearing loss, as a result of a failure on the part of your employer to put in place the safety measures required by law, you could be entitled to compensation.
Contact <<CONTACT DETAILS>> to discuss your claim.
Partner Note
Baker v Quantum Clothing Group and others [2009] EWCA Civ 499.
The Control of Noise at Work Regulations 2005 SI2005/1643 can be found at
The Health and Safety Executive has useful guidance on the control of exposure to noise at work at
Rights of Way – Change Means Pain
When a right of way exists across land and the right of way is obstructed but a new one created, is the original right of way ‘diverted’ or does it remain?
This was the question before the court recently. A man possessed a property on land which had been made into a residential estate. Between the land he owned and an adjacent property there was a gap (called ‘the passageway’), which remained in the ownership of the original land owners.
A right of way over the passageway was given to the owners of properties on the estate. However, the first property owner built a gateway on land next to the passageway, with the effect that, for one of his neighbours, access to the passageway was restricted to a gap of 16 inches. The neighbour claimed that he should be allowed to cross the property owner’s land to access the passageway as a result. The property owner argued that access to the passageway was possible by stepping onto a small piece of his land and that there was no interference with the other man’s right of way that warranted action being brought. By way of compensation, he had offered his neighbour the right to cross his land for ten years.
The court agreed that where a right of way had been obstructed, the existence of an equally convenient right of way meant that the remedy which could be sought for the obstruction was modified. However, the assertion that one right of way could be replaced by another (thus effectively extinguishing the first right of way) was not accepted. The property owner could not simply extinguish the existing right of way. If a new one was created, that was in addition to the existing one. The provision of a new right of way would clearly affect the claim relating to the obstruction of the old one, but did not extinguish it. The offer of a ten-year licence to cross the property owner’s land was not sufficient – it left the neighbour’s position uncertain and a prospective buyer of his property might be unwilling to accept that position.
Says <<CONTACT DETAILS>>, “In practice, rights of way can be very difficult indeed to vary and, if you wish to do so, this must be approached with care. If you have a right of way over land and this has been interfered with by the landowner, contact us for advice.”
Partner Note
Dudley B Heslop v Michale John Bishton and others [2009] EWHC 607 (Ch).
Special Educational Needs
Recently, a woman whose daughter suffers from Prader-Willi Syndrome, a very rare genetic disorder, appealed against a decision made by East Sussex County Council that her daughter did not require a residential special school. Her daughter was approaching secondary school age and, in preparation, the local education authority amended her statement of special educational needs. Part four of the statement dealt with the school placement to be provided for her. The authority decided that this should be a special day school. The mother sought an amendment of the statement because she claimed that her daughter required a residential special school.
The Special Educational Needs and Disability Tribunal had found that there was no evidence supporting the mother’s claim that her child would only receive appropriate education at a residential school. The judge agreed. The mother appealed, arguing that the Tribunal had dismissed her expert evidence without giving reasons and had not explained what educational provisions were required in respect of the ‘social services support’ and ‘extra therapy’ mentioned in her daughter’s statement of educational needs.
At issue was, in effect, whether the Tribunal was required to give details as to why it had reached its decision or whether a summary statement of its reasoning was sufficient.
The Special Educational Needs Tribunal Regulations 2001 make provision for the Tribunal to record its decision either in a document containing or attached to a summary of its reasons. A summary means literally this and does not require the Tribunal to give a fully comprehensive report on its reasoning. The purpose of the document is simply to explain to the party why they have won or lost. The Court of Appeal took the view that the Tribunal is assumed to have expertise and in this case it had ruled on the precise point at issue – the girl’s need or otherwise of a residential special school place. There was no need for it to issue a statement dealing with every point raised in evidence. It had looked at the evidence given in support by both sides and, based on all the facts, had reached the conclusion that the woman’s daughter could receive all her educational needs without attending a residential school.
For this reason, the main ground for appeal failed.
Partner Note
H (a Child) v East Sussex County Council, EWCA. See
The correct approach to an expert Tribunal giving reasons for its decisions is set out in W v Leeds City Council (2005) EWCA Civ 988, ELR 617 and
AH (Sudan) v Secretary of State for the Home Department [2008] 1 AC 678.
Tenancy Deposit Protection Schemes – Landlords Beware
If you are a landlord, it is vital that you are aware of the requirement, introduced in April 2007, that all deposits (for rent up to £25,000 per annum) taken by landlords and letting agents for Assured Shorthold Tenancies in England and Wales must be protected by a tenancy deposit protection scheme.
There are two types of tenancy deposit protection scheme available for landlords and letting agents. These are insurance-based schemes and custodial schemes. All schemes provide a free dispute resolution service.
Landlords must be a member of one of the schemes currently in existence. Within 14 days of receiving the deposit, the landlord must provide the tenant with details of how the deposit is being protected including:
  • the contact details of the tenancy deposit scheme;
  • the landlord’s or agent’s contact details;
  • how to apply for the release of the deposit;
  • information explaining the purpose of the deposit; and
  • what to do if there is a dispute about the deposit.
If a landlord or letting agent does not protect a tenant’s deposit, they will normally have to pay them three times the deposit sum in compensation.
The new rules were introduced to counteract the actions of rogue landlords who unfairly withheld deposits at the end of a tenancy. Figures produced by show that since their introduction, 94 per cent of tenants in London who have appealed against a landlord’s decision to keep their deposit after the tenancy has ended have won back a share of their deposit.
The requirement to belong to a tenancy deposit scheme operates to the benefit of both landlords and tenants. From the landlord’s perspective, where damage is done to their property, the scheme allows the appropriate amount to be deducted from the tenant’s deposit as compensation. It is important, however, to make sure that an inventory is carried out at the beginning of the tenancy and once the tenancy is concluded, otherwise there is no proof of the damage claimed and the adjudicator is likely to find in favour of the tenant.
From the tenant’s perspective, the scheme protects them against the actions of unscrupulous landlords by making sure that part or all of their deposit is returned to them, depending on the circumstances.
Landlords are advised to take care to ascertain that the tenancy deposit scheme they use is a bona fide scheme. For further details on the types of scheme and those available, see
Partner Note
The statistic regarding tenants in London who have retrieved all or part of their deposit comes from, a Government-approved tenancy protection scheme. See
Texting Driver’s Jail Sentence Based on Facts
We all know that it is dangerous to drive whilst talking or texting on a mobile phone and are probably aware that doing so is now a criminal offence. However, for many people this has not acted as a deterrent, as was illustrated by a recent case involving a woman who crashed into another car and killed someone. During her journey, she had sent and received several text messages. She was found guilty of causing death by dangerous driving and sentenced to 21 months’ imprisonment. The Attorney General subsequently applied to refer her sentence back to the court on the ground that it did not reflect the severity of her offence and was therefore unduly lenient.
Throughout her one and a half hour journey the woman was found to have received and sent a total of 20 text messages. At no point had she pulled off the road and she did not have any form of hands-free device. The Attorney General submitted that most of the transmissions had occurred on motorways and A roads, when the defendant would have been travelling at speed. The court did not dispute this but, in sentencing the woman, it had addressed the issue of whether she had been using her phone at the time of impact or just before the crash.
It had found that she had not been using her phone at the time of, or in the few seconds immediately prior to, the fatal accident. It was not contested that anyone who uses a mobile phone whilst driving is likely to be distracted to some degree or that anyone opting to do so makes a reckless choice in allowing this distraction. Although it was deemed that the offender was far less likely to have been distracted had she not used her phone at all during her journey, her 21 month sentence reflected the fact that she was not actually using her phone at the time of the crash or immediately beforehand.
Each case has to be decided individually on the facts and in this instance the length of the woman’s sentence reflected the circumstances of the particular incident. Whilst it was a lenient sentence, the Court of Appeal, having taken into account all the circumstances, would not order it to be increased.
Says <<CONTACT DETAILS>>, “Whilst the woman’s sentence was criticised as being unduly lenient, the case serves as a reminder that driving whilst using a phone or any similar device without a hands-free set is illegal and the penalties can be severe.”
Partner Note
Regina v Curtis (Attorney General’s Reference No 17 of 2009). Court of Appeal, Criminal Division.
Unexpected Behaviour Means Harm Not Foreseeable
The decision in a recent case will come as a relief to dog owners.
It involved a dog named Hector, a two-year-old Great Dane. Hector had been mistreated as a puppy, which occasionally led him to bark at the sight of strangers. Otherwise, he was a gentle dog.
In 2004, Hector had been let off his lead by his owner, who thought that no one else was in the vicinity. Unfortunately, a runner was passing and Hector unexpectedly jumped up at him. As Hector weighs more than 12 stone, this knocked the runner over and he broke his ankle as a result. He sued Hector’s owner for being negligent in his handling of the dog and was awarded damages by the court. In the view of the court, Hector’s owner had taken insufficient care to ensure there was no one else in the immediate area before letting him off the lead.
The owner appealed, arguing that he would have kept Hector on his lead had he known there was anyone else nearby and that since Hector had no prior history of jumping up at people, his handling of the dog was reasonable in the circumstances.
The decision in the Court of Appeal turned on the question of what the appropriate standard of care is in such circumstances. The key issue is that to find a person negligent, it is necessary for the court to be satisfied that a reasonable person would consider that, as a result of his actions or omissions, the

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