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Law Bulletin - August 2005

Costs

Agreement of success fees for disease cases

The Civil Justice Council has announced that an agreement has been reached on fixed recoverable success fees for employers’ liability disease cases. The key provisions are as follows:

• 27.5 per cent success fees in claims arising from asbestos related disease (30 per cent if the claim falls under Section 30 of the Access to Justice Act )
• 62.5 per cent success fees in claims arising from deafness, VWF and other diseases, except RSI and stress (70 per cent for Section 30 claims).
• 100 per cent success fees in claims arising from stress and RSI.
• Counsel’s success fees should follow the basic same structure and rules as for RTA and EL accident cases.
• Parties can seek to escape the fixed success fee provisions and seek an alternative success fee if the claim is greater than £250,000. The need for an exceptionality clause and its precise wording with regard to test case litigation will be discussed over the next few months. The outcome will be submitted to the Rules Committee in the Autumn.

The main part of the agreement detailed above will come into force in October 2005 with the remaining exceptionality provisions likely to be implemented in April 2006.

From our Scottish Office

Woman injured by door while demonstrating its dangers

The claimant had problems with the front door of her council house. It did not shut properly. It shuddered when closed, the putty around the external face of the window was cracked, and the door rattled when it was windy. She reported this to the Council explaining that she was concerned for the safety of her four children who might slam the door.

A housing officer attended the premises. While trying to demonstrate the problems with the door, the claimant’s hand went through the window pane of the door and she suffered injuries. She accepted that it was her hand movement which caused the glass to break and that on a scale of 1-10, where 10 was slamming the door, she had used pressure at level 3 when demonstrating the problem.

She alleged that the glass was in breach of British Standards, that it was the Council’s duty to ensure that safety glass was used, and that it was reasonably foreseeable that if such glass was not installed accidental contact with an ordinary glass pane could cause it to break.

She was supported by a health and safety consultant who said that the use of a single pane of glass in a front door of a house in the position which in it was situated was an obvious hazard.

The court held in her favour. Accidental slamming could readily result in breakage as could hand pressure on another area of the door. It was a reasonably foreseeable risk.

Kerr -v- East Ayrshire Council 2005