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Civil Case Law - November Update
(a) C.P.R. Rule 3.9
(b) Biffa Waste Services v Ali Dinler & Ors (2013) LTL 10/10/2013
The High Court reversed a decision by a trial judge to grant relief from sanctions under C.P.R. Rule 3.9. The Respondent had been on the receiving end of an unless order for failure to comply with standard Fast Track directions, including directions for the filing and service of witness statements; the payment of court fees and the filing and service of an agreed trial bundle at least 7 days before the trial . The Respondent filed his witness statements 27 days after the original due date and 2 hours within the second deadline imposed in the unless order. However, the Appellant did not receive copies of the statements until the day before the trial. The Respondent also made no attempt to agree the contents of the trial bundle and served a copy of the trial bundle the day before the trial. On the day of the trial, the Claimant indicated his intention to apply for relief from the strike out sanction as he had paid his court fees after the expiry of the unless order. No explanation was given for any of the delays. The Appellant applied to strike out the claim for the Respondent’s failures to comply with orders, noting that the late service of witness statements had deprived the Appellant the opportunity of amending its Defence to plead fraud. The trial judge declined to strike out the claim, choosing to adjourn the trial with a costs order against the Respondent.
On appeal, the High Court (Swift J) held that the automatic strike out of the claim stood. The Judge had approached the application for relief from sanction in an informal manner and had failed to identify the relevant principles applicable to such an application, such as proportionality and the overriding objective. The judge’s decision revealed no balancing of factors. The judge was obliged to have regard to all of the circumstances of the case which included the waste of the court’s time and resources and the lack of explanation for the failures to comply. Having regard to the Jackson reforms and taking all relevant factors into account, relief from sanctions should have been refused.
Kesabo & 11 others v. African Barrick Gold Plc (1) North Mara Gold Mine Ltd  EWHC 3198 (QB) (Simon J)
In the usual case, it was unlikely that the wording of the new version of C.P.R. Rule 3.9 needed any further elaboration. However, in an application for relief from sanctions under C.P.R. Rule 3.9, some of the criteria in the old version of the rule might be relevant to the exercise of the Court’s discretion, although they should not be applied in a formulaic way.
PGF II SA v. OMFS CO 1 Ltd  EWCA Civ 1288
The Court of Appeal extended the guidelines set out in Halsey v. Milton Keynes General NHS Trust  EWCA Civ 576 regarding whether a refusal to engage in alternative dispute resolution amounted to unreasonable conduct which should attract a costs penalty. As a general rule, silence in the face of an invitation to participate in ADR was itself unreasonable, regardless of whether there was a good reason for a refusal to engage in ADR. The Court of Appeal so held in dismissing an appeal and cross-appeal against a costs order made by a trial judge where:-
(a) The Claimant brought a claim for £1.9 million;
(b) The Claimant made two Part 36 offers of £1,125 million and £1.25 million;
(c) The Claimant then sent the Defendant a detailed invitation to participate in mediation to which the Defendant did not respond, even though the invitation was repeated a few months later;
(d) Instead of responding to the invitation to mediate, the Defendant made a Part 36 offer of £700,000.00;
(e) The Claimant accepted the Part 36 offer shortly before trial and outside of the relevant period for acceptance of the offer.
The judge considered that the Defendant had unreasonably refused to participate in mediation. He deprived the Defendant of the costs that would ordinarily be payable upon late acceptance of a Part 36 offer. However, the judge also refused to order the Defendant to pay the Claimant’s costs.
The Court of Appeal held that there were sound practical and policy reasons for extending the guidelines. A failure to provide reasons for refusal was destructive of the objective of encouraging the parties to consider and discuss ADR. Any difficulties or reasonable objection to a particular ADR proposal should be discussed so that the parties could narrow their differences, which would serve the policy of proportionality. The judge’s orders were within the range of proper responses. Further, Maurice Kay L.J. said:
“The court’s task in encouraging the more proportionate conduct of civil litigation is so important in current economic circumstances that it is appropriate to emphasise that message by a sanction which, even if a little more vigorous than I would have preferred, nonetheless operates pour encourager les autres.” (para. 48)
Local Authority – “Non-delegable duties of care”- Schoolchild being taught swimming by service provider contracted by Local Authority
Woodland v. Essex County Council  UKSC 66
The Appellant was a schoolchild who suffered brain injury during a School swimming lesson. The Respondent was the education authority responsible for the school attended by the Appellant. The swimming lesson was being conducted by persons engaged by an independent contractor who had secured a contract with the Respondent to provide swimming lessons to its pupils. The Appellant alleged negligence against those who were conducting the lesson, but as they were not employees of the Respondent, the High Court struck out a claim in negligence against the Respondent, holding that the Respondent did not owe the Appellant a non-delegable duty of care.
The Supreme Court unanimously held that the Respondent did owe the Appellant a non-delegable duty of care. After examining the origins of non-delegable duties; the nature of the cases in which such duties had been found to exist and some of the Australian case law on such duties, Lord Sumption set out the factors which gave rise to non-delegable duties of care*:-
“(1) The Claimant is a patient or child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against risk of injury. Other examples are likely to be prisoners and residents in care homes.
(2) There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren.
(3) The claimant has no control over how the defendant chooses to perform those obligations, i.e. whether personally or through employees or third parties.
(4) The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant’s custody or care of the claimant and the element of control that goes with it.
(5) The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him.” (para. 23)
Lord Sumption did note that “ a non-delegable duty of care should be imputed to schools only so far as it would be fair, just and reasonable to do so.” (para. 25). Also, Lord Sumption set out the limitations on such liability:-
“[Schools] are liable for the negligence of independent contractors only if and so far as the latter are performing functions which the school has assumed for itself a duty to perform, generally in school hours and on school premises (or at other times or places where the school may carry out its educational functions). In the absence of negligence of their own, for example in the selection of contractors, they will not be liable for the negligence of independent contractors where on analysis their own duty is not to perform the relevant function but only to arrange its performance. They will not be liable for the defaults of independent contractors providing extra-curricular activities outside school hours, such as school trips in the holidays. Nor will they be liable for the negligence of those to whom no control over the child has been delegated **, such as bus drivers or the theatres, zoos or museums to which children may be taken by school staff in school hours…” (para. 25(2))
Article provided by the 7HS Civil Team
* In cases other than Highway cases or cases involving inherently hazardous activity
** Lord Sumption had earlier cited with approval the case of Myton v. Woods (1980) 79 LGR 28, where the court dismissed a claim against a local authority for the negligence of a taxi firm employed by the authority to drive children to and from school. There was no breach of a non-delegable duty of care by the local authority in that case because the local authority had no statutory duty to transport the children, merely to arrange and pay for such transport. Lord Denning M.R. held that the authority was not liable for the negligence of an independent contractor “except he delegates to the contractor the very duty which he himself has to fulfil.”