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Articles | Mon 9th Aug, 2021
We anticipate that readers struggling to get away on their summer holidays will be sick of the sight of traffic lights, so although this week’s Roundup features a brace of cases arising out of road traffic accidents, we’ve studiously avoided mentioning street furniture of any kind. And for all those forced to abandon their holiday plans we have a consolation prize: on Thursday 19th August Sarah Prager will be joined by special guest Chris Deacon, of Stewarts Law, to discuss How to Get the Most out of your Barrister (register here to avoid disappointment). After all, if you’re going to instruct us (and you know you are), you might as well sweat your assets.
Claimants and Capacity
In Evans v Betesh Partnership (A Firm)  EWCA Civ 1194, the Court of Appeal held that it had been wrong to strike out claim for professional negligence where lawyers (a firm, its solicitors, and a barrister) had allegedly under-settled the Claimant’s personal injury action.
The facts of the original action were that C had suffered a traumatic brain injury in a car crash in 2009. In 2010, she instructed solicitors to bring an action against the driver. In November 2011, she instructed the firm to accept an offer of £100,000 in full and final settlement of the claim. No expert neuropsychologist report was obtained.
Later, in 2017, C saw a consultant neuropsychologist. This neuropsychologist’s opinion was that C did not have capacity to instruct a solicitor, and that she had probably lacked capacity at the time of the original instruction in 2011.
C (by a litigation friend) then sent out letters of claim which sought an indemnity against the costs of re-opening the settlement of the personal injury claim against the driver, on the basis that it was “likely” that C had lacked capacity to enter settlement.
Thereafter, C issued proceedings alleging that if she had seen the neuropsychologist in 2011, it would have been made clear that £100,000 was a bad offer which should not have been accepted. The Particulars of Claim stated that C lacks capacity and is a protected party.
The County Court and the High Court
At first instance, a district judge refused an application to strike out. The Defendants appealed, whereupon Mr Justice Marcus Smith held that the district judge had erred and struck out the claim, holding that C’s position was inconsistent because her Particulars of Claim alleged that she lacked capacity at the time of settlement, whereas her schedule of loss implicitly alleged that she had such capacity because she had been deprived of the opportunity to claim greater damages (CPR 21.10 provides that any unapproved settlement on behalf of a protected person is void, per Dunhill v Burgin  1 WLR 933). Marcus Smith J gave C an opportunity to accept a stay to cure the defect, but C declined. The judge then struck her claim out in its entirety.
The Court of Appeal’s decision
On appeal, the Court of Appeal held that the decision of the High Court had been wrong for three reasons:
First, the judgment focused entirely on the single allegation of breach relating to the advice that allegedly should have been given in relation to investigation of capacity. But there were other allegations of negligence. Chiefly, the failure to advise that C should see the neuropsychologist; and the failure to advise that the costs risk associated (of delaying acceptance of the Part 36 offer until C could see a neuropsychologist) was minimal.
Second, the Court of Appeal rejected the decision that C was obliged to decide whether she had had capacity in 2011 before suing her lawyers. Capacity is a difficult question. It would therefore have been unfair to require C to decide herself to allege capacity or incapacity, in the absence of an indemnity against her costs of re-opening the settlement.
Third, the High Court was wrong to find that no possible loss could be established if it were eventually found that C did not have capacity to settle in 2011. Had Ds realised the seriousness of the diagnosis of a brain injury, they would not have advised her (C alleges) to accept the offer of £100,000 regardless of whether she had capacity. C would then have had a larger settlement back in 2011.
The High Court’s approach (in finding that C could not sue for her lost opportunity if the opportunity had not been lost because the settlement was not binding) was “too binary”. C had lost the opportunity of recovering greater damages in 2011. Instead, she is now in a costly and difficult position. There was a genuine and serious dispute about whether C had suffered economic loss due to her lawyers’ negligence, and the claim was accordingly allowed to stand.
As is often the case in professional negligence claims, the pleadings involve complex and varied allegations of breach, causation, and loss. The Court of Appeal was at pains to stress that proceedings were at an early stage. Every case is decided on its facts, but professional negligence claims can involve nuanced assessments of loss of chance and increased costs or risk, and this judgment shows that in such cases it can be difficult to demonstrate with sufficient certainty (for the purposes of strike out) that a claimant has suffered no loss.
It is worth noting that in the midst of this litigation the parties in fact agreed to a stay and indemnity, an approach which “is, and always was, the obviously pragmatic solution to an otherwise intractable situation” (paragraph 34 of the Court of Appeal’s judgment).
About the Author
Called in 2011, prior to pupillage Conor Kennedy spent two years working with a leading insurance law firm, gaining experience across regulatory, employment, leisure, travel and public sector teams. He has a varied civil practice and is accredited for Direct Access instruction, but has a particular interest and expertise in claims involving fundamental dishonesty.
Cyclists and Contributory Negligence
An important point of principle arising from the Sheriff Appeal Court in Scotland (though doubtless of application in England): Wallace v Roache  SAC (Civ) 23.
A cyclist (and by extension any other road user) is under a duty to take care of his or her own personal safety. This authority establishes as a point of principle that that duty is no less true when on a cycle path than on a road.
To be blunt, the facts were such that this conclusion is not remotely surprising – the cycle path in question crossed over an access road with a sign indicating that cyclists were to give way to traffic on the access road. The Claimant ignored the give way sign and approached the crossing at 20mph without stopping or slowing down. In doing so, he struck the Defendant’s vehicle, which was correctly proceeding, save that it had slowed to 15mph to gain a better view of cyclists on the path beyond a hedge which obstructed that view. The Claimant’s claim was, unsurprisingly, dismissed.
For the sake of completeness, the court also held that the Claimant’s claim demanded a “counsel of perfection” (as described in Clarke v Winchurch  1 W.L.R. 69) of the Defendant and imposed a higher standard of care than required by law (cf Ahanonu v South East London and Kent Bus Co Ltd  EWCA Civ 274).
But returning to the main principle, the sense that there may have been a case of bad facts making bad law – or at least incomplete law – is hard to avoid.
A cyclist using a path which crosses a road might quite obviously have to take care of road vehicles; and cannot seriously expect to establish liability where absolutely no care for personal safety (or indeed road rules) is taken.
But what about on a segregated cycle path, where cars would not be expected to be present? Can it really be said that a cyclist is under a duty to take precisely the same level of care for his or her own safety than in circumstances where cars might be expected to be present?
Or, for example, might a pedestrian on a pavement be contributorily negligent by failing to keep a look out for a car which mounts the pavement, on the basis that no less care is required than a pedestrian crossing a road?
Either of those conclusions seems quite wrong and unlikely to appeal to a court. Reliance on this principle as an absolute point in less clear-cut circumstances seems rather unsustainable.
There is a second, no less interesting, point on contributory negligence. On appeal, the Claimant argued that, while accepting that he was largely at fault for the accident, that liability should only be assessed at 70% and that the remainder of the fault rested with the Defendant.
In short, the Claimant argued that the Defendant had contributed – to a level below 50% – to an accident for which the Claimant was largely the master of his own misfortune. The court on appeal held that if it had found negligence on the part of the Defendant at all, it would have assessed that at 15%. The comment is entirely obiter; but follows on from more detailed consideration in Jackson v Murray  UKSC 5.
About the Author
Robert Parkin was called in 2009. He has a mixed civil practice, including in the area of travel and cross-border claims. He was junior drafting counsel in Barclay-Watts & Others v Alpha Paraneti & Others  HQ11X02379, a substantial cross border dispute involving mis-selling of holiday lets in Cyprus.
In the latest of our occasional series Jobs We Wouldn’t Mind Doing, we bring you: Health and Safety Advisor based in Cambridge (and Antarctica). Apparently the British Antarctic Survey are looking for a new health and safety advisor, a job we would have thought would be a doddle. Apart from the dangers posed by frostbite and rogue leopard seals, surely it’s basically just a question of trying not to fall down crevasses. The successful applicant will receive a salary of £31,000 plus ‘excellent benefits’, including the opportunity to participate in trips to the southernmost continent. This, of course, sets us to pondering questions of applicable law under Rome II and the Antarctic Treaty, as well as how we could ever hope to locate an expert in relevant local standards. And as for the force majeure and weather-related arguments, the less said, the better…