Latest Cases

Reparation – Personal injury – Liability. Court of Session: In an action by a pursuer who, when an eleven-year-old schoolboy, was struck and injured by the defenders' bus near a bus stop, the court, granting decree for the agreed sum of £8,000 damages on full liability, held that the bus was too close to the kerb, it was negligent to have driven in such a way as to hit someone on the kerb even if he was at the edge, and there was no room for any contributory negligence, especially in view of the pursuer's age. 

Power of attorney – Revocation. The proceedings concerned a lasting power of attorney (LPA) for property and financial affairs, in which EL had appointed her two children as her attorneys. On the application of the Public Guardian, the Court of Protection made an order revoking the LPA and inviting a panel deputy to apply to be appointed as EL's deputy for property and affairs, in circumstances where it had found, inter alia, that the LPA was not functioning satisfactorily because of the corrosive effect of the animosity between the attorneys, that the attorneys had behaved in a way that was not in EL's best interests and that EL lacked the capacity to revoke the LPA. 

Limitation of action – Negligence. The claimant had retained the defendant firm of solicitors and barrister in respect of a clinical negligence claim. They advised her that she did not have a viable claim. Consequently, she did not pursue the action. She was subsequently advised that her claim had been viable and so she issued proceedings alleging professional negligence. The claim was dismissed on grounds of liability and as being statute barred. The Court of Appeal, Civil Division, dismissed the appeal, but differed from the judge in finding that she had had constructive, not actual, knowledge that she had had a viable claim against the lawyers. 

Mental health – Court of Protection. The parents of MN, who lacked capacity, appealed against the judge's decision that the Court of Protection should not embark upon a best-interests analysis of a hypothetical possibility. The Court of Appeal, Civil Division, in dismissing the appeal, gave reasons why the Court of Protection should not embark upon a best-interests analysis of a hypothetical possibility. It then concluded that the judge had been right in all respects and essentially for the reasons she had given. Further, she had correctly found that a human rights claim had to be clearly identified and properly pleaded. 

Divorce – Ancillary relief. The Court of Appeal, Civil Division, dismissed an appeal by the trustees of a post-nuptial settlement against an order varying that settlement by way of ancillary relief following a divorce. 

Judgment – Default judgment. The claimant brought a professional negligence claim against the defendant firm of accountants. Judgment in default was entered in favour of the claimant and the defendant's appeal against that judgment was dismissed. The Chancery Division, allowing the defendant's appeal, held that, whilst it had been open to the district judge to find that the application to set aside the judgment had not been made promptly, the lack of promptness in all the circumstances of the case would not make it just to dismiss the application to set aside the judgment in default. There had been nothing in the district judge's judgment to suggest that he had evaluated all the circumstances of the case, including those specifically mentioned in CPR 3.9, and his evaluation of the circumstances mentioned in the judgment had been flawed. 

Practice – Summary judgment. The defendant Metropolitan Police Commissioner sought to strike out or summary judgment in, the claimants' claims for breach of contract, negligence and misfeasance in public office. The Queen's Bench Division, in granting the Commissioner's application, held that he was entitled to maintain legal professional privilege, as no joint retainer, joint interest or common interest privilege existed. Further, the Commissioner had not been negligent or assumed responsibility for the claimants' interests and nothing warranted an adjournment to allow the claimants to re-plead their case on misfeasance in public office. 

Family proceedings – Care proceedings. In the course of care proceedings concerning four children, findings of fact were made in relation to one of the children, Z. He had been discovered to have had the drug Olanzapine in his body. The judge found that the mother was sole perpetrator. The Court of Appeal, Civil Division, in dismissing the mother's appeal, held that the judge's conclusion about the administration of the Olanzapine discovered in Z's system by a test taken on 14 August 2013 had been neither his own speculation nor an unwarranted calculation or deduction of his own. It had been a proper inference drawn from the available factual evidence and the un-contradicted scientific opinion evidence. His conclusion was, accordingly, unassailable. 

Insolvency – Cross-Border insolvency. The proceedings concerned a Japanese company, which had been engaged in insolvency proceedings in Japan for the purpose of effecting a reorganisation. Those proceedings had been recognised in England as the foreign main proceedings in respect of the company, but they had later come to an end. The company and its director applied, under art 17(4) of Sch 1 to the Cross Border Insolvency Regulations 2006 (CBIR), for the continued recognition of the director's status as foreign representative of the company, and, under art 21(2) of Sch 1 to the CBIR, for payment to the company of the funds held in the English court, pursuant to orders made in the Admiralty Court in England, following the sale of the company's vessel. An interested party had filed a request for a caution against the release of the proceeds in the sum of US$3.85m. The Companies Court, among other things, rejected the applicants' submission that the main proceedings had only partly ceased to exist because the implementation of the reorganisation plan was ongoing. The fact that the plan had not been fully implemented did not serve to render the Japanese proceedings ongoing. Further, leaving the funds in court in England seemed likely to tolerate, if not encourage, delay, which was itself a hallmark of injustice. 

Practice – Pre-trial or post-judgment relief. CPR 45 provided for a fixed percentage by which the amount of a legal representative's fee could be increased in accordance with a conditional fee agreement ('CFA') which provided for a success fee. Section III dealt with road traffic accident claims. The defendant appealed from an order of which held that for the purpose of CPR 45.16 and 45.17 the trial of the action had commenced and accordingly the claimant was entitled to recover a success fee of 100% on base costs. The Queen's Bench Division, in allowing the appeal, held that the master had erred in treating the start of a hearing related to the liability issue as the start of the contested hearing of that issue.