Archive for the ‘Civil Litigation’ Category

Law Reform Bill Passes Second Reading

Thursday, August 4th, 2011

The Bill to make the ‘success fees’ under conditional fee arrangements (CFAs) charged in no-win, no-fee arrangements irrecoverable from the losing party in civil litigation has passed its second reading in Parliament and reached the report stage.

 
The Bill is based on the perception that such arrangements have led to a ‘litigation culture’. It also includes:
Law Court
·        Measures to pr ohibit the recovery of ‘after the event’ (ATE) legal insurance premiums from the loser;
 
·        A proposal to limit C FAs, under which an ‘uplift’ is charged based on the risk involved in the litigation, and replace these with ‘damages-based arr angements’ (DBAs). A DBA is a contingency fee in which the firm ch arges a percentage of the settlement received; and
 
·        Proposals designed to improve the system by which offers are made to settle disputes before reaching court, the practical effect of which would be that losing defendants would face increased potential liabilities in cases in which the claimant ‘beats the offer’ in court.

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Plaster – Decoration or Structure?

Wednesday, August 3rd, 2011

Is plaster part of the structure of a building or merely, as was ruled in a 1992 case,“ merely a decorative finish and is not part of the essential material elements which go to make up the structure of the dwellinghouse.”.

 
One that simple point a case recently went all the way to the Court of Appeal, which held that the decoration was the finish applied to the plaster and not the plaster itself, which was part of the ‘structure’ of the building.
 
The result was an additional £750 repair bill for the landlord (which was responsible for maintaining the structure of the building) and a much larger legal bill.

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Foreseeability Determines Liability

Tuesday, July 12th, 2011

Tree RootsTree roots are a frequent cause of subsidence and hence of claim. In a recent case, action was brought relating to damage claimed to have been caused to a house by tree roots. The defendants argued that the roots were not the sole cause of the subsidence damage.

 
The court concluded that the roots were a substantial and effective cause of the damage. The second question was whether the defendants owed the claimant a duty of care and, if so, whether the defendants’ actions could be said to be negligent or to have caused a nuisance. In determining  this case the test was whether the damage from the tree was foreseeable, i.e. a risk that a reasonable person would have regarded as a real risk.
 
In this case, the damage had commenced as long ago as 2003 and the claimant argued that the defendants were liable to pay damages for the subsidence that occurred from that time. The defendants had operated effective tree management procedures and were only aware of the breach of their duty to the house owner from 2010. The court ruled that the damage which occurred in 2003 was not due to subsidence caused by the trees owned by the defendants. They were therefore only liable for the failure to abate the damage that had occurred after that time.
 

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Expert Report Disclosable, Says Court of Appeal

Tuesday, June 14th, 2011

Sometimes, people tell you things you don’t want to hear. When the person doing the telling is an expert witness you have instructed, problems can result.

 
In court proceedings in which an expert witness report is needed, unless a ‘single joint expert‘ is appointed, each party to the dispute will appoint its own expert. In practice, this is normally organised by the solicitor, who informs the other parties to the dispute who the expert will be.
 
Although it may seem perverse, when an expert witness is instructed by the firm representing you, the witness is not ‘your witness’ because the expert owes a duty to the court to prepare a report that is fair and free of bias.
 
Accordingly, it is by no means unusual for the expert’s report to come as something of a disappointment. When this occurs, there is something of a dilemma.
 
Until the expert’s report is used in proceedings, it is a legally privileged document and the ‘other side’ cannot demand it is disclosed. Accordingly, one option is simply not to disclose the report.
 
Another option is to obtain a second report in the hope that it will be more to one’s liking. However, the problem with this approach, as confirmed by a recent case in the Court of Appeal, is that once the decision is made to use the second report and it is disclosed, the Court can order the disclosure of the first report.
 
The appointment and use of experts is a matter requiring considerable knowledge and experience. We can assist you in the effective pursuit of any legal claim or litigation.

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