Sowerby v Charlton
| Jurisdiction | England & Wales |
| Judge | JUDGE PLAYFORD QC |
| Judgment Date | 23 February 2005 |
| Neutral Citation | [2005] EWHC 949 (QB) |
| Docket Number | Case No: HQ04X02640 |
| Court | Queen's Bench Division |
| Date | 23 February 2005 |
[2005] EWHC 949 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
His Honour Judge Playford QC
Case No: HQ04X02640
MR ROSE QC (instructed by Leigh Day) appeared on behalf of the CLAIMANT/RESPONDENT.
MR D PLATT (instructed by Kennedys) appeared on behalf of the DEFENDANT/APPELLANT.
: This is an appeal by the defendant, Elspeth Charlton, from a decision of Master Tennant given on 20 th December 2004. By that decision, he struck out certain paragraphs of the Defence that put primary liability in issue and acceded to the application of the claimant, Jane Sowerby, that there should be judgment for her on primary liability.
The claim arises out of a most unfortunate accident that occurred on 26 th April 2003 at premises at 10 Richborne Terrace, Vauxhall, South London. The photographs in the appeal bundle show the premises. It is not the claimant's home, but an address that she was visiting and had on occasions visited in the past. In particular, the photograph at page 85 shows the steps up to the front door, a very common feature in London properties, where the ground floor is at a higher level than the street or garden, and one very frequently comes across properties where there is a short flight of steps, in this case eight, leading up to the front door. As one approaches the front door of 10 Richborne Terrace, there is to the right of the stairs an ever increasing drop as you go up towards the front door, and underneath there is an entrance door to the basement which is approached down a flight of steps, the basement being at a somewhat lower level than the garden or the street. A feature that is very often seen with this sort of approach to a property in London is balustrades on each side of the steps, perhaps quite ornamental, being constructed, as this house seems to have been, in the late Victorian era. Sometimes one sees balustrades in stone or other durable material. Sometimes one sees cases where there is a handrail on each side of the steps. In this case, the photographs show a number of properties which I take to be in Richborne Terrace adjoining or in the same terrace as Number 10. Some of these appear to have one rail down one side of the steps, others have two rails, and certainly in one case I have seen in the photographs there are no rails. It is notable that Number 10 has one rail on the left-hand side, but on the right-hand side there is no rail at all. There is, however a pediment, as it may be called, running up each side of the steps, which, at the top landing or platform (as it has been termed in another case) forms a raised area of about 1 1/2 or 2 inches.
What seems to have happened here, as one can judge from the photographs and the statements, and there basically does not seem to be any dispute about it, is that the claimant, Jane Sowerby, 28 at that time and now aged nearly 30, while visiting this property, fell over the edge of the platform, over the raised pediment, on the side where there is no rail or anything else to protect the unwary from a fall, and fell into the basement area, or perhaps onto the steps at the bottom leading to the basement area door—a fall of some eight feet—landing, in any event, on concrete or stone. Clearly it was a terrible sort of accident, and the unfortunate claimant suffered catastrophic injuries of maximum or near maximum severity, thus rendering her a paraplegic, as I understand it.
In those circumstances, a claim was made through her solicitors, Messrs Leigh Day & Company, well-established claimant's solicitors. The first letter of claim was dated 23 rd October 2003, no undue delay having occurred by that stage, and it was followed by a response from the defendant's insurers, AXA Insurers, dated 12 th November, asking for details of the claim. The insurers passed the letter over to Messrs Kennedys, also very experienced and well-established solicitors, who commonly act for insurers and are well versed in this area of law, as indeed are Messrs Leigh Day & Company.
There then followed correspondence between the two solicitors. That correspondence was conducted in an entirely appropriate and correct manner with both parties behaving, if I may say so, in a realistic and decent way in processing this claim, as one would have expected. Questions were asked on behalf of the defendant, and proper, non-evasive answers were given. On 21 st April, Kennedys wrote in response to Leigh Day's request for a decision on liability, regretting the delay, but saying that their client, AXA, was awaiting reinsurer's view on primary liability, noting, in particular, the content of the medical records which had been supplied, and a certain case which may or may not have a great bearing on the matter but does at least show that Kennedys were correctly and appropriately applying their mind to the question of primary liability.
On 10 th May Kennedys wrote, saying:
"Having investigated this claim the Defendant is prepared to admit a breach of duty.
However, we are instructed to seek contributory negligence of 50%."
They made certain points and again referred to certain law which they considered supported their client's case. That letter was written without prejudice.
On 13 th May Leigh Day responded, inviting Kennedys to confirm the position in relation to breach of duty in open correspondence, but noting:
"Given your stance we will take instructions in relation to 50% contributory negligence."
They also asked for consideration to be given to an immediate interim payment in the sum of £150,000—a substantial sum of money.
On 14 th May, Kennedys wrote, asking for a copy of a medical report and the claimant's provisional schedule of loss, which would enable them to put the interim payment into perspective. Then, on 29 th June, Leigh Day reject the offer of 50% contributory negligence and ask Kennedys to admit openly the breach of duty, which they did.
On 30 th June, Kennedys sent a copy of their letter of 10 th May, to which I have already referred, but they re-dated it and deleted the reference to it being without prejudice, expressing their trust that that would be sufficient for Leigh Day, as indeed it was. They stated, therefore, in open correspondence that, "Having investigated this claim, the defendant is prepared to admit a breach of duty", following which Leigh Day, not surprisingly, reiterated their request for an interim payment.
So the matter rested until proceedings were issued later that same year, and a Defence dated 24 th September followed, which, contrary to the agreement or admission that had been made, put primary liability in issue. It purported to resile from the admission, and it was stated in that document in paragraph 8 that the reason for doing so was that the admission was made on an incomplete understanding of the relevant facts. As the matter developed, that assertion that it was made on an incomplete understanding of the relevant facts turned out to be misinformed.
In a witness statement at page 77, Mr Hanson of Messrs Kennedys said:
"The Defendant did undertake investigations prior to the admission. Those investigations resulted in a conclusion, which I reached with my client that liability should be admitted, but that the Claimant's drunken condition had played a large part in the accident."
Accordingly, the admission on primary liability was made in open correspondence, whilst contributory negligence, it was suggested, should be apportioned 50/50. I add only that it would seem, from the correspondence to which I have already referred, that the reinsurers were involved as well in making this decision.
At page 79 paragraph 15, Mr Hanson went on to explain that:
"The reason why the…admission…has been withdrawn is that I have consulted counsel who is experienced in catastrophic injury claims. He advised me that the circumstances in this case do not justify the concessionary approach, which I had already taken with the Claimant."
So it would appear, from what I have been told by Mr Platt, on behalf of the defendant, that he did indeed advise on liability. He was asked to advise on liability, i.e. primary liability, after the decision had been taken to concede primary liability.
Faced with the advice that Mr Hanson speaks about, the decision was then taken to seek to withdraw the admission that, as I have said, had already been made. However, the point needs to be stressed that this was not a mistake. This was not an admission that was based on an incomplete understanding of relevant facts or was otherwise mistaken in any way. It was a fully informed decision made by the solicitors who advised their client and also took into account the views of the reinsurers. The decision seems to have been made on the basis of the photographs, the witness statements which had been provided, and certain medical evidence, which would seem to go essentially to the question of the claimant's sobriety and not to relate to the state of the premises. In particular, there is no reason to think that the medical evidence would shed any light on whether there was or was not in fact any breach of the Occupier's Liability Act, but it was, as I say, a fully informed decision, and there is no reason to think that Mr Platt had any other particular information on which he came to a contrary conclusion. His view, I assume—of course I have not seen his advice and would not expect to see it—was to the effect that there was at least a reasonably arguable case on primary liability.
In those circumstances, the admission was...
To continue reading
Request your trial
-
Sowerby v Charlton
...Jane Sowerby Claimant/Respondent and Elspeth Charlton Defendant/Appellant [2005] EWCA Civ 1610 [2005] EWHC 949 (QB) Sir Anthony Clarke, Master of The Rolls Lord Justice Brooke Vice-President, Court of Appeal (Civil Division) and Lord Justice May Case No: A2/2005/0476 IN THE SUPREME COURT OF......
-
Drysdale v Hedges
...that the defendant retained occupation of the wall as part of the common parts of the building. 91 Lips was mentioned by Brooke LJ in Sowerby v Charlton [2006] 1 WLR 568, a case broadly similar to the present, where the defendant was allowed to resile from an admission of liability but th......
- Neil Martin Ltd v HM Revenue and Customs
-
Charterhouse School v Hannaford Upright
...an admission.” There is, therefore, a discretion upon the Court in considering whether to allow the withdrawal of admissions. In Sowerby v Charlton [2005] EWHC (Civ) 1610, the Court of Appeal approved a dictum of Mr Justice Sumner in ( [2004] EWHC 3352Braybrook v Basildon Thurrock Universit......