My previous post on Uren v Corporate Leisure (UK) and ors [2010] EWHC 46 (QB) is below

http://www.interalialegal.com/2010/02/an-update-on-the-law-of-negligence/

Mr Uren has now appealed to the Court of Appeal against the decision of Field J – see Robert Lee Uren v (1) Corporate Leisure (UK) Ltd and (2) Ministry of Defence [2011] EWCA Civ 66.  The appellant averred that an insufficient and unsuitable risk assessment had been carried out by the respondents.  The argument was developed that if the assessment had been carried out properly than it would have revealed a need to warn contestants not to dive head first into the pool. 

The Court of Appeal allowed the appeal.  In so doing, they found that Field J’s assessment of risk was not correct.  Although Field J was correct to assert that an employer’s duty to carry out a risk assessment is non-delegable, this was not a finding that in every case an employer must carry out its own risk assessment.  In circumstances where an employer contracted out the risk assessment of an activity and could satisfy itself that the risk assessment carried out by the contractor was thorough, then it might lead to the conclusion that the employer had carried out a suitable and sufficient risk assessment.  The Court of Appeal expressed that this would be a question of fact and degree in each case.

In the instant case, the Court of Appeal found that the risk assessment carried out by the contractor was neither suitable or sufficient and could not be relied upon by the employer.

In Scout Association v Barnes [2010] EWCA Civ 1476, the Court of Appeal looked into the issue of balancing the risks of games played by the Scouts with their social value in determining a breach of duty. 

The brief facts were that the claimant, aged 13, hit his head against the wall when playing a game at a Scouts meeting called ‘Objects in the dark’.  The game involved the Scouts running around a room with objects in the middle and having to grab an object when the lights were turned off. 

At first instance, the High Court found that the Scouts Association had breached their duty to take reasonable care for the safety of the boy(s) in question.  It was held that turning off the lights added significantly to the risk of the game.  Consequently, the Scout Association appealed on the basis that the judge did not take into account the wider implications of the finding or the social benefits of the activity. 

The appeal failed.  Jackson LJ gave a dissenting judgment.  In his concluding remarks he said that “it is the function of the law of tort to deter negligent conduct and to compensate those who are victims of such conduct.  It is not the function of the law of tort to eliminate every iota of risk or to stamp out socially desirable activities”.  Smith and Ward LJJ felt that although the wider social value of the Scouting movement was beyond reproach, the wider benefit of the added “excitement” in this particular game did not outweigh the obvious risks, particularly where the cost of prevention was simply to leave the lights on. 

 The question of whether the social value of an activity was such that it carried an acceptable degree of risk was a question of judgment, degree and fact; this judgment was to be decided on a case by case basis.

Perris v Holland and others [2010] EWCA Civ 840 confirmed that the principle established in Parker v Felgate (1883) 8 PD 171 is good law in that a testator does not have to have testamentary capacity at the time he executes his will if he knew that he was executing his will for which he has previously given instructions.  The distinction between testamentary capacity and knowledge and approval is that knowledge and approval does not require anything further than the ability to understand and approve choices and instructions that have already been made/given.  Full testamentary capacity is not necessary for knowledge and approval.

The rule of law cannot exist without access to justice. It is a fundamental right of every citizen. Any society that wishes to be thought of as just and fair needs to have mechanisms to ensure that the rule of law is maintained and that its members are able to obtain justice properly. The rule of law is meaningless without justice being freely available.

Evidence shows that low-income groups tend to suffer more problems than higher income groups and are less likely to do anything about them. It is also apparent that many people are not sure where to go or whom to approach to obtain a resolution or redress to their problems. Currently there is a clear, unmet need for accessible and affordable sources of information and advice.

It is the duty of government to ensure that its citizens have access to justice. In any democracy, government has a duty to ensure that citizens are able to assert their rights in a way that does put them in an impecunious position. As it stands, the current legal aid system is completely unsustainable. It is not delivering genuine access to justice for the public, the government is not satisfied with it and the legal profession is forced to increasingly turn its back on the system.

Legal Aid reform has recently been a hot topic. Between 1997 and 2006 the cost of legal aid increased from 1.5 billion to 2.1 billion. This is no surprise when statistics show that from 1997 to 2009, 4,289 new criminal offences were created, which could well cause financial disaster or loss of liberty to an individual. The growing trend of such legislation in the criminal law obviously requires more trained lawyers to provide legal advice and assistance and even representation where loss of liberty could be a consequence. In civil legal aid, the 6th April 2009 saw the proportion of households qualifying for help under the civil legal aid scheme rise from 29% to 34%.

In March 2010 it was announced that the Legal Services Commission (LSC) (the body responsible for the provision for legal aid in England & Wales) is to be abolished after 10 years as part of changes to the way those with lower incomes access justice. The split of responsibilities between the Ministry of Justice (MoJ) and the LSC simply led to confusion and duplication of effort.

The distribution of civil and criminal legal aid in the future will be replaced by an executive agency in a move to regain control of government spending on legal aid. Not only will primary legislation be required for these changes but concerns have already been raised that giving the government control of the legal aid service would violate human rights and jeopardise the independence of legal services. Mechanisms will have to be devised to keep legal aid decisions away from political interference.

It is clear that the current system is unable satisfactorily to cope with the demands placed upon it. Many people are finding it increasingly difficult to find a lawyer ready, willing and able to take on legally aided cases. Others have to travel large distances or phone around organisations or law firms in order to find someone to take on their case. Sadly, many more give up without success.

Lawyers are also finding legal aid unattractive either as a business proposition or career path. The rewards are simply too low commensurate with what qualified professionals could reasonably expect. Furthermore, many lawyers are finding it difficult to take pragmatic, commercial decisions in an environment where the government dictates so much.

In terms of delivery of the legal services, the government and the LSC appear to be looking to support larger providers and organisers at the expense of the traditional providers of legal aid. Part of this process entails larger organisations providing telephone advice. The question must be asked as to whether quality legal advice could be provided over the telephone? An individual seeking access to justice needs to have a one to one with their legal advisor to enable instructions to be sought, evidence to be gathered and legal issues and next steps to be explained. A one to one is also important in establishing a relationship of trust and confidence between the client and his or her legal advisor/representative. The idea of telephone advice may result in larger numbers of people receiving some form of legal advice, but its quality and overall effectiveness will in many instances be limited.

To some extent it is pleasing that technological advances have suggested that advice could be given remotely, however, what seems to have been overlooked is what factors may inhibit such steps – for example, the rules on professional conduct and the regulatory system, data security and client confidentiality issues.

The promotion of the Public Legal Education Network is envisaged by the government. This range of activities and initiatives aims to improve people’s lives and empower communities. The promise of Public Legal Education is that it can transform the effectiveness of legal advice and advocates that better legal know-how prevents problems, encourages people to act early to stop problems escalating and assists people to manage the problems that do arise, including knowing when to get legal advice. Knowledge of this service that is a network of organisations and individuals is not fully known across the public, private or voluntary sectors. Whilst on its face this idea would go someway to meet the current access to justice gap, if a strong level of expertise is not constantly in place to effectively diagnose an array of problems, then the PLE does not serve a purpose. Moreover, if this form of legal help and assistance is not performed appropriately, further costs and delays will invariably arise as the client will have to find other methods of accessing justice.

Community Legal Advice Centres (CLACs) would be jointly commissioned with local authorities to provide legal advice on benefits and tax credits, debt, employment, housing, community care and family law. These would be geographical schemes that in effect would operate a local monopoly for social welfare law services. The foreseeable problems with such a model for access to justice are:

* Would clients outside the local catchment area be excluded from legal services provisions?

* Can CLACs act independently of the local authority that provides its funding?

* What would happen if conflicts of interest scenarios arise? Alternative local means of supplying legal services would all but have vanished

* Would local ethnic and community groups be denied the advice and support of those who understand background cultural issues?

* The cost of setting up CLACs would be significant

Although CLAC’s were designed to remedy the lack of comprehensive social welfare law advice, they must not come at the expense of other important factors that could equally hinder effective access to justice. Additionally, the effectiveness of such schemes would need to be assessed and monitored to show value for money before any nationwide roll out.

It is clear that the legal landscape for access to justice has changed from when the LSC was set up. The MoJ has announced that there will not be any more money available for legal aid in the future. In fact, there could well be less. Financial controls on public money for legal aid have led the government to look laterally (as opposed to vertically) at policy development and operational delivery. Community collaboration is very high on the government’s legal aid reform programme. Those aspects notwithstanding, the one size fits all approach being adopted by the government that favours the creation of the larger legal aid practices risk jeopardising the current market provisions. The government is aiming to make savings by benefiting from economies of scale in terms of delivering legal aid; however, it is highly questionable if savings will actually be made if sustainability, quality, efficiency and access to justice are compromised in the process.

Whilst legal aid was never set up as a universal service like the NHS was, it cannot continue to fail those very people in society that it was designed to assist. A clear and fresh perspective to access to justice and the provision of legal services needs to be undertaken. It will certainly be interesting to monitor the developments regarding the creation of the agreed executive agency to replace the LSC and how legal aid decisions will be taken in the future. Lord Neuberger, Master of the Rolls, stated that ‘The purpose of the law is to produce justice’. Many of the government’s proposed reforms are not meeting this aim.

The Court of Appeal’s judgment in Esdale v Dover District Council [2010] EWCA Civ 409 highlights the significance of a local authority’s policy when considering a claim under s.2(2) of the Occupiers’ Liability Act 1957.

In short, the claimant was injured when she tripped and fell on a pathway that led up to a block of flats where she lived.  The council was the owner and occupier of both the block of flats and the pathway.  The council had inspected the path and adopted a policy of repairing defects that measured more than ¾ inch. At trial the inspector gave evidence and stated that on a visual assessment the defect in question had not exceeded this criterion. 

At first instance HHJ Murdoch QC found that the defect measured over ¾ inch and had had such dimensions over a period of several years while the inspector had been carrying out his inspections.  However, the judge found that the path was reasonably safe and there was no breach of s.2(2) of the Occupiers’ Liability Act 1957. 

The thrust of the appellant’s argument was that where a council had set a repair criterion as a matter of policy (¾ inch in this case) it must follow that there is a breach of duty if that policy is not complied with.  Smith LJ in dismissing the appeal held that “the test of whether, in all the circumstances, the council had taken such steps as are reasonable to see that visitors are reasonably safe does not depend upon what standards of safety the council sets itself as a matter of policy”.  The test is an objective one and it is for the judge to decide.  Smith LJ went on to add that the judge at first instance was entitled to find that the path was reasonably safe and that by inspecting the pathway periodically the council had complied with its duty of care. 

As always, readers and followers of this blog are invited to comment on the Court of Appeal’s decision.

Dr Kate Pretty, principal of Homerton College, Cambridge, has stated that A-levels are not adequately preparing teenagers for university and has found that students were arriving at university with short attention spans because they had taken A-levels in bite-sized chunks.  “The gulf between the end of A-levels and the start of degrees was now too great”, she said.

Dr Pretty has told Michael Gove, the Education Secretary, and teachers at the PTI annual conference in Cambridge that the bulk of the A-level syllabus “focused on acquiring and revising knowledge just for exams“.  Dr Pretty said that “Students don’t have the memory skills.  Learning to retain [information] over a long period is something they struggle with in some cases.  They’re used to learning in bite-sized chunks and only what they need to know for examinations.  That comes from early exposure to the mentality, ‘you’ll need this, you won’t need that’, which has bedevilled the British state system”. 

As always, comments and views are invited on Dr Pretty’s opinions.  Perphaps a discussion could start on whether there are benefits of doing A-level law and then going on to read law at university.  If any students did this, please feel free to comment.

In Swain v Geoffrey Osborne & Anor [2010] EWHC 1108 (QB), Foskett J held that a subcontractor with responsibility for ground-works on a building site was liable for personal injuries sustained by the claimant who had slipped on mud near to the site due to the failure to implement an effective system to ensure that the footway was kept clear of mud.  Foskett J held that the main contractor was also liable for not ensuring that the subcontractor had implemented an effective system, as such a responsibility derived from its overarching supervisory responsibility.  However, as the subcontractor was charged with day to day responsibility for the operations on site, it had to bear the greater degree of the 75% liability.  Foskett J found the claimant 25% contributory negligent as he was aware of the apparently muddy surface in the vicinity and failed to take particular care in negotiating the area.

In Kernot v Jones [2010] EWCA Civ 578, the Court of Appeal held that Leonard Kernott was entitled to a 50% share of the home he lived in for eight years with his former girlfriend, Patricia Jones, despite the fact that he had neither paid for nor lived in it since 1993.  It was Patricia Jones since 1993 that had paid the mortgage and brought up their two children. 

Wall LJ referred to this case as a “cautionary tale, which all unmarried couples who are contemplating the purchase of a residential property as their home, and all solicitors who advise them, should study”.   Wall LJ went on to add that “In my judgment, the conveyance into joint names… created joint beneficial interests, and the parties agreed that when they separated they had equal interests.  There has to be something to displace those interest, and I have come to the conclusion that the passage of time is insufficient to do so, even if, in the meantime, the appellant has acquired alternative accommodation, and the respondent has paid all the outgoings…” 

By a 2:1 decision, the Court of Appeal overtuned the High Court’s previous judgment that the dispute should be decided on the basis of what was “fair and just”, and that Patricia Jones was entitled to a 90% share of the interests in the property. 

My earlier commentary on the issue of cohabiting couples and the residential home can be seen at http://www.interalialegal.com/2008/07/where-theres-a-will/

Readers and regular followers of this blog are asked to comment on:

a) do you agree with this decision?

b) should the courts treat human emotional relationships akin to commercial contracts when disputes do arise?

c) is there now a need for the reform of cohabitants law?

Levicom International Holdings BV and another v Linklaters [2010] EWCA Civ 494 is authority for the proposition that when a solicitor gives advice that his client has a strong case to start litigation – rather than settle – and the client then does just that, then normal inference is that the advice is causative.  That inference is, however, rebuttable, as it may be possible to show that that the client would have proceeded to litigate in any event.

In Milner & Milner v Carnival Plc (trading as Cunard) [2010] EWCA Civ 389, the Court of Appeal addressed the correct measure of damages for a ruined holiday. 

The facts in brief were that Mr and Mrs Milner booked their fare for a three-month world cruise on board the Queen Victoria almost eighteen months in advance of the sailing date.  The cost of the holiday was £65,558, discounted by 10% to £59,052.20.  The cruise description in the brochure led the claimants to have a feeling that they were in for the “experience of a lifetime”.  Mrs Milner purchased approximately twenty-one formal evening wear outfits at a cost of £4,300.

After leaving Southampton, bad weather caused the floor plates to flex and vibrate all round their cabin.  The turbulence of the sea caused the floor plates to bow upwards in a convex manner and downwards in a concave manner.  This action caused repeated noise throughout the claimants’ cabin.  The claimants did not sleep for two nights and were offered another room with no natural light on a lower deck.  Their clothes remained in their original cabin and they put up with these arrangements until they arrived in New York.  

From New York to Los Angeles, which was to last 17 days, the claimants were provided another suite where they were able to fully unpack their belongings.   Eventually, they had to return to their original cabin.  On leaving Los Angeles, high seas were again experienced and the banging of the floor plates recurred.  The claimants were moved to a temporary room until the cruise reached Hawaii.  Mr Milner rejected a further offer of a cabin on board the Queen Victoria and disembarked at Hawaii to “salvage some kind of holiday”.  At the time of disembarkment, twenty-eights days of the voyage had been completed and seventy-eight days of the cruise remained.  The claimants spent six weeks in Honolulu at their own expense and joined the Queen Elizabeth for her return voyage back to Southampton at a cost to them of £13,440.

Initially the claimants brought a claim for a full refund of the cost of the holiday, compensation for the stress, anxiety, distress, disappointment and loss of enjoyment, for their out of pocket expenses and wasted expenditure to include the cost of accommodation, food, entertainment and other activities whilst in the Hawaii area.  Wasted expenditure on clothing and visas was also claimed.  The total claim was over £76,000. Cunard offered the sum of £48,270.00, which was accepted.  The net cost of the holiday was now £10,782.20. 

His Honour Judge Shaun Spencer Q.C. sitting in the Bradford County Court awarded Mr and Mrs Milner £22,000 that comprised £2,500 each for the dimunition in value of the cruise on the Queen Victoria and £7,500 each for their distress and disappointment when the cruise did not match their expectations.  £2,000 was awarded to Mrs Milner for her wasted expenditure on her wardrobe of formal dining gowns.  Cunard appealed the level of damages awarded. 

In the Court of Appeal, Ward LJ assessed the well known holiday cases of Jarvis v Swans Tours Ltd [1973] 1 QB 233 (damages for distress) and Jackson v Horizon Holidays Ltd [1975] 1 WLR 1468 (inconvenience and stress can be claimed by not only the claimant, but those on holiday with him) but expressed that it was not enough to rely on awards given in holiday cases. The “search for comparability” should also extend to damages awarded in other fields.  The obvious comparison was the assessment of general damages in personal injury cases and the awards when psychiatric injury has been suffered. 

Ward LJ agreed that the holiday of a lifetime was ruined for the claimants.  However, as the package was cancelled by agreement, the level of damages for distress could only be assessed against the month the claimants were on board the Queen Victoria.  Ward LJ reversed the judge’s award of £2,000 in respect of the wasted expenditure of Mrs Milner’s dresses that were purchased for the cruise.  He found that the main cause of Mrs Milner not being able to wear her outfits was because of the termination of the voyage when the cruise reached Hawaii.  Ward LJ preferred to look at the disappointment of Mrs Milner not being able to wear her dresses under the heading of distress.

Under the head of diminution in value, Ward LJ found that the cruise was diminished by about one third when regard was had overall to that which was not provided balanced against that which was enjoyed.  Ward LJ went on to state that it was the actual cost paid for the holiday and not the advertised cost that matters.  He allowed the appeal under this head and awarded the claimants £3,500. 

Examining the head of distress, Ward LJ (at para 58) found that “[P]hysical inconvenience and discomfort is necessarily ephemeral.  Disappointment, distress, annoyance and frustration are likewise the feelings one experiences at the time and which last painfully for some time thereafter.  But one is not disabled, the phyche is not injured and one gets on with life.  Every time one thinks back, one relives the horror but the reliving is transitory”.  Ward LJ went on to express that there was no medical evidence in this case to indicate psychiatric injury and that distress falls into a different and less serious category and does not equate with bereavement.  He awarded the sum of £4,000 for Mr Milner and £4,500 for Mrs Milner in respect of inconvenience and distress.

The total award by the Court of Appeal was therefore £12,000, £10,000 less than the Bradford County Court awarded and £1,217.80 more than the net cost of the holiday.  Lord Justice Richards and Lord Justice Goldring agreed.