There has been a lot of publicity over the rejection by the court of the claim by a woman who sued a man who attempted to rape her, bringing the action after she found out that he had won the lottery.
The man had been convicted in 1989 and sentenced to life imprisonment. In 2004, while on day release, he purchased a ticket for the National Lottery and won £7 million.
Section 2 of the Limitation Act 1980 provides a limitation period of six years in an action founded on tort from the date the cause of action accrued. The claimant’s case was based upon the claimant’s rights under Article 6 of the European Convention on Human Rights. The argument was that her right of access to the court had been disproportionately restricted because she was barred from suing now that the defendant had become worth suing many years after she acquired her cause of action. However, the Judge held that she was barred from making a claim relying upon a decision of the European Court called Stubbings.
The case demonstrates the extent to which the courts are paying only lip service to the European Convention on Human Rights and the Human Rights Act.
A -v- Hoare. Mr Justice Jack 14 October 2005.
Judgment - but what about contributory negligence?
After proceedings, defendants admitted liability confirming that the admission of liability was 100 per cent. Judgment was entered by consent.
Subsequently, the defendants found evidence that made them believe there might be strength in allegations of contributory negligence. They applied to re-amend the defence to revert back to pleading allegations of contributory negligence, which had originally been pleaded. The Judge rejected this saying that the defendants must apply to set aside the judgment should they wish to go on to raise arguments of contributory negligence, but they had made no such application. They had merely applied to re-amend the defence, an application that the Judge rejected.
He went on to say that, if an application to set aside the judgment was made, his inclination would have been to dismiss it on the grounds that the defendants had already thought about contributory negligence before they admitted liability.
The defendants have been refused leave to appeal, so the judgment stands.
Wilson -v- Thirkell. Judgment of Master Yoxall 16 August 2005.
Provisional Damages and professional negligence
We took over an asbestos case from other solicitors. Claims against three employers cannot proceed because of the negligence of the solicitors. The claimant had diffuse pleural thickening. The case is one where we would have wished to obtain an order for provisional damages.
But in a professional negligence claim against the solicitors, the claimant cannot pursue a claim for provisional damages because the claim is for professional negligence and is not a claim for damages for personal injuries, to which provisional damages apply.
One solution, suggested by counsel Peter Cowan, is to seek a split trial and, once liability has been determined against the defendants, to seek an interim payment equal to the amount of provisional damages that would have been awarded, with the court ordering that damages be adjourned indefinitely, with the claimant only seeking an assessment in the event of suffering a serious deterioration. However, this point has never been tested in court.
One practical solution would be to try to persuade the defendants, i.e. the negligent solicitors, to make it a contractual term of settlement that if a return condition arises the claimant can have the matter placed before an experienced counsel for further assessment.
Cox -v- Hawthorn Leslie.