Case Alerts

Ho (Respondent) v Adelekun (Appellant) Michaelmas Term [2021] UKSC 43

Background

The Appellant was injured in a road traffic accident and brought a claim for damages against the Respondent. That action was ultimately settled for the sum of £30,000 plus reasonable legal costs by way of a Tomlin Order. A dispute then arose as to whether those costs of the Appellant were fixed recoverable costs or not. That dispute was ultimately resolved in favour of the paying party/Respondent in the Court of Appeal with the Respondent awarded the costs of that dispute. The Respondent was unable to enforce that costs award due to the provisions of Qualified One Way Costs Shifting (QOCS), specifically that the damages were not awarded by Order of the Court. The Respondent therefore sought to offset their costs as against their own liability for fixed recoverable costs to the Appellant arising from the substantive personal injury litigation. The Court of Appeal considered itself constrained by an earlier decision of that Court in Howe v MIB and thus allowed offset. The Appellant brought an Appeal of that decision to the Supreme Court.

 Issue

The decision concerns the operation of QOCS and specifically whether offset of costs awards in both parties favour (as provided for in Civil Procedure Rule 44.12) is permissible and the extent to which, if at all, that mechanism is curbed by QOCS.

 Decision

The Court declined to examine in any detail the various policy considerations deployed by both parties, instead directing such matters to the attention of Civil Procedure Rules Committee. It was stated that QOCS does not fetter the Court from making Costs Orders but merely “the use which defendants can make of costs orders in their favour”. It was found the QOCs regime is essentially “mechanical rather than discretionary”. The Court concluded QOCS “is intended to be a complete code about what a defendant in a PI case can do with costs orders obtained against the claimant”.  The Court further found that the defendant can recover costs awarded by any means available including an offset with claimant costs, but only up to the monetary amount of damages and interest awarded to the claimant by Court Order.

Comment

Essentially then setoff between two costs awards is still permitted, however, setoff is a form of enforcement and as such is subject to operation of QOCS. In principle therefore a defendant cost award can be recovered from either or both claimant damages and costs. However, the amount of defendant costs award capable of enforcement cannot exceed the damages and interest awarded to the claimant by Order of the Court. It is no longer possible for a defendant costs award to extinguish claimant damages and then look to any claimant costs award by way of offset to recoup any balance remaining.

To view/download as a PDF please click here.

If you would like to know more about this matter, please speak to your contacts at Plexus Law:

Jonathon Tetley, Partner

T: 0113 4681 642   |   M: 07879 424 806   |   E: jonathon.tetley@plexuslaw.co.uk

Chris White, Associate & Technical Director

T: 0113 4681 659   |   M: 07557 430 241   |   E: chris.white@plexuslaw.co.uk

 

Whilst we take care to ensure that the material in this Case Alert is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Case Alert do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Case Alert

 A review of the recent decision in Harrison v Intuitive Business Consultants Ltd (1)

Abstract

A personal injury claim pursued by a competitor in the Bear Grylls Survival Race “the race” who fell from one of the obstacles during the race had their claim dismissed.  The organisers had given an appropriate instruction as to what position to adopt when on the obstacle and accidents were an inherent risk of participation in such races.

Synopsis

The Claimant, a competitor in the race, sought damages for personal injury and consequential loss after falling from an obstacle.

The obstacle in question was an elevated ‘monkey ring’ which required holding and swinging from one ring to another whilst being suspended above the ground. The first Defendant (Intuitive Business Consultants) was the overall organiser of the event. The second Defendant (Beyond the Ultimate Ltd) were subcontractors.

Prior to the event a risk assessment of the monkey rings had identified two hazards:

1. There was a risk of a hard landing when dismounting from the initial monkey rings. It was identified this could be reduced if staff brief the competitors to reach for the monkey rings from a seated position as opposed to swinging from a standing start.
2. There was an increased risk of injury when falling from the rings if the hay covering the landing surface had become disturbed between competitors. This could be reduced by staff re-distributing the hay between competitors passing through.

The Claimant alleged that she had started the monkey ring obstacle from a standing position as she had not been informed to adopt a seating position and further alleged that the hay had not been appropriately distributed to provide a softer landing.

Judgment

The claim was dismissed.

Whilst the Defendants were obliged to give an instruction (to reach for the rings from a seated position), it did not follow that they were required to speak, individually, to each participant and to satisfy themselves that each individual had received the appropriate instruction. It was sufficient for the instruction to be given generally to those standing on the platform waiting to set off on the rings. In weighing up the competing evidence, on the balance of probabilities the instruction was given.

Although none of the Claimant’s witnesses had observed the hay being redistributed, it did not follow that that had not happened and there was no reason to doubt the evidence of a marshal that they had been vigilant about doing it. In any event, even if it could be demonstrated that there was a culpable failure to redistribute the hay, it had not been established that that failure had any causative potency in the context of the accident.

A failure by the Defendants to give the appropriate instruction, even had that been the court’s finding, would not have been found to have caused the accident. Most participants fell off the monkey rings at some stage, whether they started from a sitting or standing position. It was a matter of chance as to how well or badly they landed on the ground.

In any event, since the accident occurred as the Claimant reached for the second ring, any connection between her departure from the platform in a standing position and her injuries was tenuous. It could not be said that setting off from a standing position either caused her to fall or to suffer more serious injuries than otherwise would have been the case.

Once the Defendants had stipulated in their risk assessment that instructions must be given to all participants to swing out from a seated position, they had assumed a responsibility to give such instruction. They owed a duty of care under the Occupiers’ Liability Act 1957 (OLA) s.2 to give that instruction but not to mandate that the participants adopted a seated position. Additionally, the Defendants owed a duty to provide a reasonably safe landing surface in the event that a participant fell from the monkey rings.

It was concluded that the Claimant’s accident and ensuing injuries were not occasioned by any fault by of the defendants. Accidents were an inherent risk of participation in obstacle races; and no amount of care and vigilance by the organisers could eliminate the possibility of such risks materialising from time to time. The Claimant had elected to participate in the race and had been aware of the risk of injury when she registered and signed a waiver form. It was simply a matter of grave misfortune that she had been the victim of a serious accident.

Insight

Whilst the Defendant in this case clearly owed the competitors a duty of care to take reasonable care to protect against injury, even the most judicious and shrewd event organisers could not eradicate all risks entirely. It is indeed arguable that there is an intrinsic and clearly foreseeable risk of injury from the outset for competitors which tallied with the Judge’s findings that the Defendant had met the obligations required of them and the Claimant awarded no recompense.

An earlier case referred to in the judgment was that of Poppleton (2), this case concerned a Claimant using a climbing wall. In that case the Court found that the law did not require the Defendant to prevent the Claimant from engaging in the activity nor was it required to train or supervise him whilst he did it. If the law required training or supervision in the instant case, it would equally be required for a multitude of other commonplace leisure activities which nevertheless carried with them a degree of obvious inherent risk. It was extremely rare for an occupier of land to be under a duty to prevent people from taking risks which were inherent in the activities that they freely chose to undertake.

A more recent case specifically relevant to the leisure industry was that of Whittet v Virgin Active. The Judge in this matter referred to gyms as “risky places” and that the Claimant had chosen to undertake the activity [using a treadmill by jumping on and off it] voluntarily. The Claimant alleged the gym had failed to provide adequate supervision and breached their obligations under s2 of OLA 1957.

The Defendant in Whittet argued that there is an obvious and inherent risk of falling on a treadmill. The Judge found that given the Claimant was jumping on and off the treadmill, which was a ‘new trend’, there were inherent and obvious risks in the activity voluntarily undertaken. As such the law did not require the appellants [the Defendant gym] to prevent the Claimant from undertaking it, nor to train or supervise the Claimant whilst she did.

The decisions in the above cases show a reluctance of the Court to find that the Defendants were liable for the injuries sustained by the Claimants during voluntary leisure activities that pose an obvious and inherent risk. Whilst the circumstances and specific facts of each case are niche there are general and overarching principles in the judgments that will be relevant for a number of institutions.

It is clear that multiple risk assessments being conducted and a consideration of how to take steps to reduce risk is key. Another absolutely imperative consideration are waivers signed prior to participating in leisure activities. There is always the chance that some Claimants will seek to disapply a waiver under the Unfair Contract Terms Act of 1977 and argue they are not legally binding. However, the recent case law would indicate they are well worth obtaining in any leisure activity which might give rise to some level of unavoidable risk. In the example of gyms perhaps as part of the new member signing up documentation.

Ultimately the Courts’ approach appears to be that individuals who voluntarily participate in fitness/leisure activities and exercise must accept that there will always be a degree of unavoidable risk. Should one of those risks manifest the Claimant may encounter a high threshold to overcome to establish those injuries were caused by anyone but themselves and that they were indeed inherent and foreseeable.

Notes:

1. Harrison  v Intuitive Business Consultants Ltd (t/a Bear Grylls Survival Race) Intuitive Business Consultants Ltd (t/a Bear Grylls Survival Race) v Beyond the Ultimate Ltd – 26 August 2021 – [2021] EWHC 2396 (QB) [2021] 8 WLUK 187
2. Poppleton v Trustees of the Portsmouth Youth Activities Committee – [2009] P.I.Q.R. P1

To view/download this Case Alert as a PDF please click here.

For further information on this matter please speak to your contacts at Plexus Law:

Emelia Bezant-Gahan   |   Solicitor

T: 0161 2457 955    |   M:07779 437 857  |   E: emelia.bezant-gahan@plexuslaw.co.uk

Andrew Steel   |   Partner

T: 0161 2457 965    |   M:07557 232 419  |   E: andrew.steel@plexuslaw.co.uk

Whilst we take care to ensure that the material in this Case Alert is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Case Alert do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Case Alert.

Plexus Law achieved savings of in excess of £25,000 for our client as a result of the Claimant solicitor’s failure to plead the claim correctly and/or in time.

Case Facts

• S33 Discretion refused when Claimant failed to name the Defendant correctly first time around and missed limitation at second set of pleadings.
• Claimant issued proceedings and got to Trial on first set of proceedings against wrongly named Defendant.  Those proceedings were unsuccessful so the Claimant issued again –  this time getting the correct Defendant but having missed limitation.
• Claimant’s application under S33 of the Limitation Act 1980 to disapply the relevant limitation period was refused.
• The Judge agreed that the delay and prejudice in the case weighed heavily in the Defendant’s favour.

If you would like to know more about this matter, please speak to your contact at Plexus Law:

Louise Wright, Partner

T: 0113 222 9063   |   M: 07867 459 491   |   E: louise.wright@plexuslaw.co.uk

Whilst we take care to ensure that the material in this Case Update is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Case Update do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Case Update.

The Master of the Rolls, Sir Geoffrey Vos, has approved the new guideline hourly rates (GHR) proposed by the Civil Justice Council’s GHR working group.

This is the first change to the GHR since 2010. Some would argue long overdue and realistic, others would argue premature and generous, depending whether they sit on the claimant or defendant side of the fence.

The new GHR are as follows:

	Grade A	Grade B	Grade C	Grade D
London 1	£512 (25.2%)	£348 (17.6%)	£270 (19.5%)	£186 (34.8%)
London 2	£373 (17.8%0	£289 (19.5%)	£244 (25%)	£139 (10.4%)
London 3	£282 (13.7%)	£232 (15.8%)	£185 (11.9%)	£129 (7%)
National 1	£261 (20.2%)	£218 (13.5%)	£178 (10.7%)	£126 (6.8%)
National 2	£255 (26.78%)	£218 (23.2%)	£177 (21.3%)	£126 (13.5%)

A revised Guide to the Summary Assessment of Costs has been produced, which it is planned will come into force from 1 October 2021.

In its final report at the end of July, the CJC’s GHR working group, chaired by Mr Justice Stewart, made no significant changes to the interim recommendations it issued in January, which called for “modest” increases in the GHR, ranging from 7% to 35% (see table above).

The other key changes include amending the London 1 and London 2 rates to reflect the work done, rather than whether or not firms were in the City, making London 1 primarily be for very heavy commercial and corporate work and London 2 for all other work.

The National 2 and 3 bands will be merged into a single band and those parts of the country not currently allocated to a band will be put into one.

The Master of the Rolls, Sir Geoffrey Vos, said:

“I am grateful to the CJC, Mr Justice Stewart, and his entire working group for this report.

“The published guideline rates have been static for too long and this needed to be addressed. I am satisfied with the evidence and arguments set out by the working group. I plan to implement all the recommended changes from Friday 1 October 2021 and to that effect I have asked my Officials and Master Gordon-Saker, Senior Costs Judge, to take forward the publication of the revised guide to summary assessment.

“I am grateful to those who have taken the time to write to me about this work, particularly those who have raised concerns during the consultation process in respect of likely changes to working practices following the pandemic. Whilst I think there is likely to be merit in their concerns, I do not think that this should delay the necessary update of what is ultimately an advisory guide. I have, however, agreed with the Civil Justice Council that there will be a further review of guideline hourly rates reporting within 2 years.”

As stated by Sir Geoffrey, there is to be a further review of the GHR within 2 years to take account of changing working practices (e.g. increased remote and hybrid working) brought about by the pandemic. Claimant bodies will undoubtedly press for further increases, particularly if the rate of inflation and cost of living continue to rise, while defendant bodies will argue for reductions or a freeze on the basis that the overheads of claimant law firms have reduced through remote and hybrid working.

The full Courts and Tribunals Judiciary publication, including the new draft Guide to the Summary Assessment of Costs 2021 can be accessed here.

We could see claimants’ solicitors’ costs on multi-track hourly rate cases increasing by 15% to 20% across the board as a result of the new GHR. Insurers and other defendant organisations will need to review and increase their reserves accordingly on any impacted cases.

To view/download as a PDF please click here.

If you would like to know more about this matter, please speak to your contacts at Plexus Law:

Jonathon Tetley, Partner

T: 0113 4681 642   |   M: 07879 424 806   |   E: jonathon.tetley@plexuslaw.co.uk

Chris White, Associate & Technical Director

T: 0113 4681 659   |   M: 07557 430 241   |   E: chris.white@plexuslaw.co.uk

 

Whilst we take care to ensure that the material in this Costs Update is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Costs Update do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Costs Update.

Josh Hedgman of Farrar’s Building, instructed by Mitch Bennett, Associate (Chelmsford) has successfully defended a security company against significant brain injury claim following alleged assault.

To read a full review of the case please visit the Farrar’s Building website here.

A High Court Judge has upheld the ruling in Richard Walkden v Drayton Manor Park (see original Plexus Law case alert here – published 7 July 2020) in which the Judge made a finding of Fundamental Dishonesty and dismissed the £1.5m claim for damages. Mr Walkden claimed he had suffered serious back injury and developed a chronic pain syndrome which prevented him from working normally which ultimately led to the loss of his business.

The High Court ruling, has been extensively covered in the national media including The Independent whose coverage can be viewed here.

Commenting on the High Court appeal outcome, Anthony Bushell, Partner,  Plexus Law said “We are delighted that the original Judgment has been upheld and the request for a retrial dismissed and that the Claimant has now been ordered to pay £200,000 on account on defence costs, which are to be assessed on an Indemnity Basis, as a result of the Claimant being found fundamentally dishonest. This is not only a great ‘win’ in this instance but also a win for the insurance industry, as a whole, in the ongoing fight against fraudulent claims.”

Anthony Bushell, Partner in Plexus Law’s Evesham office was instructed by Julian Mahon of QBE Insurance and Counsel was Andrew McLaughlin of St Johns Chambers, Bristol.

The full judgment can be viewed here.