Fri07282017

Last updateTue, 24 Feb 2015 5pm

St John's Chambers (Chambers of Susan Hunter)

St John's Chambers (Chambers of Susan Hunter)

Ilott v Mitson [2017] misses the chance to clarify financial provision for adult children. Natasha Dzameh discusses the Supreme Court judgment

Complete freedom of testamentary disposition permits the unsatisfactory situation whereby a testator fails to make provision for their spouse and/or children. In order to prevent these instances occurring the Inheritance (Family Provision) Act 1938 (the 1938 Act) was effected. However, it could only be relied upon where the deceased had executed a will, and the question of reasonable financial provision in relation to children concerned a far narrower understanding of the term ‘children’; there was no definition of the word, instead the 1938 Act specified when a son or daughter would qualify. The relevant Act is now the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act). The 1975 Act expanded significantly upon the 1938 Act but with this expansion came certain grey areas, particularly how to treat an adult child’s application for reasonable financial provision.

Patrick West explores the test of fundamental dishonesty

In the film Pirates of the Caribbean, Jack Sparrow said:

Natasha Dzameh clarifies the circumstances in which Beddoe orders and protective cost orders can be used

The role of a trustee can be an arduous and financially precarious one. Trustees are fiduciaries who are subject to a wide range of duties concerning issues such as investment and distribution of the trust property, not profiting from the trust and the keeping of accounts. Breach of trust can occur where a trustee acts without the requisite standard of care, fails to carry out a duty or acts outside the scope of their powers.

Marcus Coates-Walker describes Sharp v Leeds CC where it was decided that fixed costs apply to the costs of a PAD application in ex-protocol cases

In the case of Sharp v Leeds City Council [2017] the Court of Appeal (COA) determined a ‘short but important point’ in relation to pre-action disclosure (PAD) application costs.

A recent case shows that constructive trusts can be used to justify an arrangement which has neglected the formalities. Jody Atkinson explains

Ely v Robson [2016] is another of the many cases involving unmarried couples fighting over the ownership of their home. Almost a decade ago the Law Commission recommended the introduction of a statutory jurisdiction which would give the courts power to alter interests in property when unmarried couples separate, which would have been similar, but more restricted, than those that the courts have on divorce. However, the government has refused to implement those recommendations. The result is that unmarried couples are largely treated like any other two people having a dispute over property, and are forced to rely on the law of trusts, as it has been developed by the courts over the years (and some would say that the desire to do justice to unmarried couples has had the result that the law of trusts has been bent out of shape). Rather than taking all the circumstances into account and reaching a fair outcome (which is the approach and aim of the matrimonial legislation) disputes between unmarried partners can often turn on conversations had many years ago, as this case illustrates.

The Consumer Rights Act 2015 has updated the law for consumer protection, and liability in personal injury claims. Justin Valentine reports

The Consumer Rights Act 2015 (the Act) which came into force on 1 October 2015 is primarily a consolidating piece of legislation in the area of consumer protection, although it does make substantial changes in some areas of consumer law, for example in relation to contracts for digital content. This article is confined to the impact of the Act on personal injury litigation.

Matthew White weighs up the ‘but for’ test and material contribution in cumulative cause cases

An article in this publication in 2013 (‘Breach of duty and causation, where are we now?’ by Christopher Sharp QC and Matthew White, PILJ120, November 2013, p6) considered the circumstances in which the court will infer that a breach of duty caused a claimant’s loss. An issue left for another day was that of cases in which there were cumulative causes of injury.

John Dickinson and Natasha Dzameh look at the circumstances in which a disposition to an executor constitutes an absolute gift

Practitioners contending with wills and probate matters are fully aware of the distinct difficulties involved in drafting a will which not only ensures that the testator’s estate is disposed of in accordance with their wishes, but is also incapable of being contested. Nonetheless, in recent years it has become increasingly common for individuals to avoid engaging the services of a legal professional for the drafting of such an important document and instead to trust a homemade or internet-inspired document to dispose of their estate. The availability of online templates and general information on will drafting is such that laypersons mistakenly believe that they are capable of drafting a will with the requisite care and skill required to ensure that their estate will pass safely to their intended beneficiaries.

Wilby v Rigby [2015] has useful practitioner points on applications for the removal of executors. Nicholas Pointon reports

In Wilby v Rigby [2015] the court exercised its jurisdiction under s50 of the Administration of Estates Act 1985 to remove both executors of an estate in favour of an independent administrator. The protagonists were brother and sister. By their late mother’s will each were appointed executor and were to share equally in her estate. Judgment arrived almost four years after the death of their mother in November 2011. No grant of probate had yet issued in favour of either party, not least because the claimant had issued a caveat against the will in May 2012.

Christopher Sharp QC explains why Knauer v Ministry of Justice marks a fundamental change in claims for future loss of dependency in fatal accident cases

In Knauer v Ministry of Justice [2014] Bean J admitted sympathy with the claimant’s argument that the rule established by the House of Lords in Cookson v Knowles [1978] and Graham v Dodds [1983] should no longer apply or the Law Commission’s 1999 recommendation and the notes to the Ogden Tables followed (to divide the claim into, in effect, special damages to trial and then calculate a multiplier for future loss from the date of trial, as in normal personal injury claims for a living claimant, and not, as Cookson requires, from the date of death) but following Nelson J in White v ESAB Group (UK) Ltd [2002], Bean J accepted he was bound by those cases, despite finding the current approach ‘illogical’. In February 2015 C was given permission to leap frog to the Supreme Court and that decision has now been published.

Emma Zeb and Glyn Edwards consider the Court of Appeal decision in Reany v University Hospital of North Staffs NHS Trust [2015] and the impact this has on care and medical treatment claims

The issue at the heart of the causation debate is the measure of damages when one considers what would have happened ‘but for’ the accident. In cases where the claimant already had medical problems and, for example, had care or treatment needs (whether at the time of the accident or which would have developed over the course of time), the question for the courts is to what extent the defendant who causes a new state of affairs by reason of the tort causing injury is then liable for the entire post-tort condition.

Patrick West analyses the latest cases and explores the future of the law’s oldest way of punishing wrong-doers

It was said by the Court of King’s Bench in Wilkes v Wood (1763):

The courts have once again punished a wholly successful party in costs for their unreasonable refusal to mediate – a trend that is only likely to grow, writes Ben Handy

It is now over a decade since the Court of Appeal made it clear, in the case of Dunnett v Railtrack [2002], that parties who unreasonably refuse an offer of mediation might be punished in costs. They went further shortly afterwards in Halsey v Milton Keynes NHS Trust [2004], setting out a list of factors that are to be considered where such conduct is alleged.

Patrick West looks at the latest guidance from the Court of Appeal on basic hire rates in credit hire cases

Not for the first time the humble (yet hugely lucrative) business of credit hire has occupied the collective mind of the Court of Appeal.

Patrick West looks at the growing impact of one of the most important costs consequences of the Jackson reforms and what it means for parties seeking to recover their costs

Most of us are by now aware of the final piece of the Jackson jigsaw to fall into place.

Christopher Sharp QC and Matthew White analyse recent developments and provide practical advice

Must a claimant prove that a defendant’s breach of duty caused their loss before being entitled to recover damages from the defendant? Your instinct will be shouting ‘yes’. A more accurate answer would be ‘sometimes’.

Patrick West looks at Opoku v Tintas, which provides some encouragement for defendants

For defendant insurers and solicitors, credit hire can appear to offer slim pickings in terms of quantum. In many cases, defendants faced with an impecunious client have few options to attack the hire claim.

David Regan considers the basis of awards and common pitfalls

The opening line of LP Hartley’s The Go-Between (1953), ‘The past is a foreign country, they do things differently there’, is often applied to historical studies. It reminds us that the apparent familiarity of a subject may be deeply deceptive. It is peculiarly apposite to the Fatal Accidents Act 1976, a statute that appears to follow the ordinary rules of tort, but which in fact proceeds on a quite different basis. The statutory language is a creature of the 1970s, a decade now more than 30 years in the past. It has been amended in a piecemeal fashion in an effort to incorporate innovations such as civil partnerships not conceived of in 1976. However, the language and architecture of the act remain rooted in the past and lend force to case law remaining similarly rooted.

The decision of the High Court in MacIntyre v Ministry of Defence [2011] is reviewed by Matthew White

The claimant (C) was an officer serving in the army. He was on a training expedition in the Bavarian Alps when he was seriously injured by falling rocks. The court considered the duty and standard of care with regard to climbing accidents.

Emma Zeb focuses on the social benefit of an activity versus the risks of injury

I suspect that, for most of the 237th Castle Bromwich Scout Group, Mr Newsome was one of the coolest scout leaders. After all he let his troupe play a game that allowed them to run around in near-dark conditions competing against each other to find a limited number of blocks on the floor. Fun? Yes. Exciting? Yes. An adrenaline rush? Probably. But of social utility or value in any way? No. Or so two thirds of a three-judge Court of Appeal found when they awarded damages to Mark Barnes for injuries he sustained during this activity.