The court’s decisions in January & February on applications for permission to appeal were published just before the Easter break. Only a few of the cases in which permission was granted touch on issues relevant to casualty insurance. The legal aspects of fatal accidents happening abroad, but pursued before the English courts, will once again be examined by the court, which has granted permission in the complicated case of Four Seasons v Brownlie.
The court’s recent decision in Knauer v Ministry of Justice may have arisen from a mesothelioma claim, but its re-setting of the basis of calculating fatal accident multipliers has much wider application. Although there is not a mesothelioma claim in the present batch of cases, permission was granted in Eli Lilly v Actavis UK & others. This case involves complex patent litigation – a judgment of 92 pages at first instance plus 40 more on appeal – concerning the drug premextred disodium, which, under the brand name Alimta, has been used in the clinical management of mesothelioma.
Two judicial reviews which were granted permission touch on reforms to civil legal and court funding. The Public Law Project challenged regulations under the LASPO Act 2012 that sought to introduce a one year residence test for qualifying for civil legal aid. The Supreme Court granted permission in late February and thereafter proceeded very quickly to a hearing. The challenge was upheld by the SC on 18 April. The Government will therefore have to review, at the very least, the process by which this decision was reached.
UNISON is challenging, again by way of judicial review, the legal basis of the big increases in fees in Employment Tribunal (ET) claims and was given permission to proceed. The Court of Appeal had observed that: “It is quite clear from the comparison between the number of claims brought in the ET before and after 29 July 2013 that the introduction of fees has had the effect of deterring a very large number of potential claimants. However, that by itself does not evidence or constitute a breach.” It is noteworthy that a putative judicial review of the first set of recent increases in court fees in mainstream civil claims was not taken forward.
The Metropolitan Police was granted permission to appeal against an successful innovative human rights claim made against it by the victims of the ‘black cab rapist’ John Worboys. In DSD & NBC v The Commissioner of Metropolis, the CA upheld a decision that the Met’s failings in investigating Worboys’ assaults amounted to a breach of his victims’ European Court of Human Rights protections against inhuman or degrading treatment. As and when the SC hears this appeal, it will reconsider aspects of the scope of the police’s potential liabilities to the public in the investigation and prevention of crime. Its most recent examination of this area, just over a year ago in Michael v South Wales, resulted in a 5:2 split between the Justices.
Detailed questions of jurisdiction, and perhaps applicable law, are to be examined in Four Seasons v Brownlie, which was granted permission in January. The respondent was injured and her husband died in a motor vehicle accident during a holiday in Egypt. The contract for the vehicle trip was arranged, by phone, from England with the respondent hotel company. The making of the contract in England provided jurisdiction here under the relevant Convention (Brussels I). There were three elements to the tort claim: for B’s own injuries, for her loss of dependency, and for the losses sustained by her husband’s estate. The CPR requires, for service outside the jurisdiction of proceedings in tort, that the “damage was sustained within the jurisdiction” (CPR PD 3.1(9)(a)). The CA held that this test was satisfied by the loss of dependency claim only. The other elements ought to be pursued in Egypt.
The CA decision which is being challenged is therefore on preliminary jurisdictional points and barely, if at all, scratches the surface of the issues of the correct applicable law, let alone the attribution of liability under its provisions (and, should that be established, quantification of the respondent’s loss).
About the Author
Alistair Kinley is BLM’s Director of Policy & Government Affairs.
Alistair is responsible for BLM’s engagement with government departments and regulators on policy and public affairs issues and consultations affecting the firm and its customers. He coordinated BLM’s market-facing activities in connection with the Insurance Act 2015 and the consultations which preceded its publication and introduction in Parliament.
He is a member of the Civil Justice Council (CJC), a regular speaker and experienced commentator on legal and procedural reforms and was a contributing editor to the Law Society’s Litigation Funding Handbook (September 2014).