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Law Brief Update, October 2018
Welcome to the latest issue of Law Brief Update, a free monthly newsletter, written by our team of specialist barristers. It provides a brief introduction to recent case law in all the major areas of law.
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Aidan Ellis, Anthony Johnson, Tim Kevan (editors)
Contents
Construction
Paul Bury, Keating Chambers, 020 7544 2600
Palmer Birch (a partnership) v Lloyd [2018] EWHC 2316 (TCC)
This case concerned a claim in economic torts against the de facto and de jure directors of a limited company. The claimant was a construction business specialising in the refurbishment of large houses. It entered into a contract with a company ('HHL') to renovate a house belonging to the sole funder of the company, Michael Lloyd ('M'). M's brother, Christopher Lloyd ('C') was HHL's director. M also beneficially owned a second company ('SHL'). HHL had a leasehold interest in the house, the freehold was owned by SHL. SHL loaned money to HHL so that they could meet the renovation costs. HHL had no independent existence and had been incorporated for tax reasons. It went into liquidation before completion of the works. The Claimant claimed the unpaid value of work carried out under the contract against the brothers. The central issue was whether the defendants had colluded to bring about HHL's insolvency and procure repudiatory breach so that they would avoid having to pay the Claimant for the work done. The Claimant claimed under three economic torts: inducing breach of contract, unlawful interference and unlawful means conspiracy. The Court allowed the claim on the basis of inducing breach of contract and unlawful means conspiracy. M had (in agreement with C) brought about HHL's liquidation by diverting sums from HHL, which was an abuse of HHL's separate corporate personality. The justification defence failed given that M had no 'equal or superior right' to that of the Claimant, and had been purely motivated by commercial self-interest, namely to avoid paying the Claimant.
Costs & Civil Procedure
Harriet Wakeman, Temple Garden Chambers, 020 7583 1315
Juliet Wells, Temple Garden Chambers, 020 7583 1315
Tim Kevan, www.timkevan.com
COSTS
Culliford & Anor v Thorpe [2018] EWHC 2532 (Ch):
Here it was held that the court has jurisdiction to entertain an application for a payment on account of costs pursuant to CPR 44.2(8), even where the order for detailed assessment has already been drawn up and sealed.
The Defendant had successfully defended the claim at trial and obtained a costs order in its favour, subject to detailed assessment. It did not, at that stage, request a payment on account under to CPR 44.2(8). CPR 44.2(8) provides: "Where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs, unless there is good reason not to do so".
The Defendant made a later application for a payment on account of costs pursuant to CPR 44.2(8), which the Claimant resisted on the grounds that: (1) the court had no discretion to entertain such an application, as CPR 44.2(8) required the order for payment on account to be made at the time the court makes the costs order in the receiving party's favour; alternatively (2) if the court did have discretion to entertain the application, it should not exercise it in the Defendant's favour, inter alia because the Defendant had failed to seek a payment on account at trial.
As to (1), the judge found that he had jurisdiction to entertain the application. The language of CPR 44.2(8) contemplated that orders for payments on account would routinely be made at the same time as the principal costs order, but it could not be construed as excluding the possibility that an application may be made later. Indeed, there may be a very good reason why a payment on account was not sought at the time the costs order was obtained, and it would not be right to allow the receiving party (who has an entitlement to the costs sought) only one window of opportunity to seek a payment on account. I pause to note that that must be correct, otherwise CPR 44.2(8) would represent a dramatic erosion of the court's general discretion as to when costs are to be paid: CPR 44.2(1)(c). That being so, it in turn suggests that parties may be able to make successive applications for payments on account prior to detailed assessment.
As to (2), the Judge took into account the fact that CPR 44.2(8) sets up a presumption in favour of ordering a payment on account, as well as the fact that there was no evidence the Defendant had deliberately failed to seek such a payment at trial, in order the Claimant to pay some £30,000 on account.
Other cases:
Both Reynolds v One Stop Shop Ltd (unrep., Cambridge County Court, 21 Sept. 2018) and Welsh v Walsall Healthcare NHS Trust (Costs) [2018] EWHC 2491 (QB) contain interesting and useful commentary on the exercise of the court's general discretion as to costs.
In the former case, the Claimant appealed against a decision at detailed assessment to reduce the claim costs from £115,000 to £75,000. Inter alia, the Claimant argued that the costs had in effect been down twice by reference to the proportionality principle: first, at the costs budgeting stage, where the 'future' costs were reduced in accordance with the proportionality principle; and again at detailed assessment, where the incurred costs were cut down, and then the overall costs (including the 'future' costs which had already been subject to a reduction at the CCMC) were reduced still further. HHJ Auerbach, dismissing the appeal, approved the District Judge's approach and commented that the rules did not envisage any particular or algorithmic approach to the issue of proportionality. Rather, "[t]he fact that the Court, when conducting a detailed costs assessment, may bring proportionality to bear on all of the costs, does not, in my view, mean that there is a form of double counting, by the Court as it were further cutting down for proportionality, costs which may have already been cut down for proportionality. Rather, the Court is simply applying, and then later reapplying, the same filter at two different stages. At the assessment stage it does so with the benefit of different information, and bringing hindsight to bear, which it is entitled to do" (at paragraph [59]).
In the latter case, the Claimant was the "undisputed winner" in a clinical negligence claim arising out of complications from bariatric surgery. One of the Claimant's allegations had been that she was not told she could have the surgery laparoscopically rather than invasively ("the consent issue"), and she failed on that issue, although that was ultimately irrelevant to both liability and quantum. Although the failure to make out her case on consent had not adversely impacted the outcome for the Claimant, the Defendant argued that she should bear the costs of dealing with that issue, since it had never been satisfactorily articulated in her pleadings or evidence, it was never explained why it was causative, it was undermined by the Claimant's own evidence at trial, and it had occupied a substantial part of the evidence at trial. The Defendant estimated that 30% of its costs were attributable to dealing with the consent issue. Yip J (in the first of his two appearances in this month's update) agreed that the Claimant's inadequate presentation of the consent issue, and her unreasonable pursuit of it at trial, should sound in costs. However, having given a helpful overview of the principles and authorities governing the making of issue-based costs orders at paragraphs [5]-[13], he declined to follow the "mathematical approach" contended for by the Defendant and order the Claimant to pay 30% of the Defendant's costs. The Defendant had also been at fault in certain respects, and weighing all the factors in the round, it was appropriate to simply apply a 15% discount to the Defendant's costs liability.
CIVIL PROCEDURE
Livewest Homes Ltd v Bamber [2018] EWHC 2454 (QB):
The Respondent wanted to oppose an appeal against a possession order, both on the ground relied upon by the first instance judge in his judgment, and/or upon a different basis rejected by the judge at first instance. The Respondent had not filed a Respondent's Notice to uphold the lower court's decision "for reasons different from or additional to those given by the lower court", as it was required to do by CPR 52.13.
The Respondent therefore had to make an oral application, at the appeal hearing, to file a Respondent's Notice out of time. Dingemans J held that the Respondent was indeed required to file a Respondent's Notice, and whether permission to file one out of time should be granted was governed by the principles set out in Denton v TH White Ltd [2014] EWCA Civ 906.
Despite the lateness of the application, it was granted. The breach was serious, and there was no good reason for it (the failure appeared to be founded upon the Respondent's representatives' misunderstanding of the function of a Respondent's Notice and of CPR 52.13). However, the point had been ventilated previously and was taken by the Respondent in its skeleton argument, so the Claimant could not be said to be unaware of it; it was a point of pure law, so no further investigation was required in respect of it; and the Claimant's representative were able to deal with it so there was no unfairness.
Playboy Club London Ltd v Banca Nazionale Del Lavoro Spa [2018] EWCA Civ 2025:
The Court of Appeal held that there was no abuse of process where the Claimant failed to bring a deceit action at the same time as its claim for negligent misrepresentation.
The Claimant was a casino which had extended credit to a customer who had been provided with a good credit reference by an employee of the Defendant bank. The customer defaulted, and the casino brought an action against the bank alleging that the employee had negligently misstated the customer's creditworthiness in his reference. At the time of bringing that claim, the casino was aware that it may have a claim in deceit against the bank, but considered that such a claim would be speculative and weak. At trial, material emerged in cross-examination which would substantially support a claim in deceit.
The claim in negligence was lost - on appeal, on the basis that the bank owed no duty of care in negligence to the casino, since the casino was not the addressee, but the addressee's undisclosed principal: [2018] UKSC 43. Following the loss in the Supreme Court, the casino sought to being a further claim, this time in deceit. The deceit claim was initially struck out as abusive, but the Court of Appeal overturned that decision, noting that: (a) the negligence claim was substantially different from the deceit claim; (b) there was a good reason for not bringing the deceit claim previously, namely that the evidence to support it was circumstantial and weak, and it would have been inappropriate to plead allegations of dishonesty on such a basis; (c) the casino had not been acting tactically or 'keeping its powder dry'; and (d) it would be a "rare case where the litigation of an issue which has not previously been decided between the same parties or their privies will amount to an abuse of process".
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Financial Services Law
James Purchas, 4 Pump Court, 020 7842 5555
Dr Sandradee Joseph-Urquhart, Three Stone, 020 7242 4937
Yuchai Dongte Special Purpose Automobile Co Ltd v Suisse Credit Capital (2009) Ltd (Comm) 9/10/18
The court considered and upheld a claim for payment pursuant to a letter of credit disputed to have been issued by the defendant alternatively on the basis that there was a shared assumption that the defendant was not the issuer.
R (on the application of Holmcroft) v KPMG LLP & Ors. (CA) 28/9/18
The decision of a skilled person appointed with determining the appropriateness of a bank's offer of redress in the context of the misselling of financial products was not amenable to judicial review.
Close Brothers Ltd v AIS (Marine) 2 Ltd & Anr. (Admlty) 17/9/18
The bank had not sold at an undervalue a vessel mortgaged to it as security for a loan arrangement following the default by the shipowner on the loan. While the sale price had been low, it was unlikely that a higher price could have been achieved in the market.
Insurance
James Purchas, 4 Pump Court, 020 7842 5555
Dr Sandradee Joseph-Urquhart, Thirteen Stone, 020 7242 4937
Dalamd Ltd v Butterworth Spengler Commercial Ltd (Comm) 5/10/18
The court considered a claim for insurance brokers' negligence arising out of a fire at a waste recycling facility.
Lewis v Tindale (QB)14/9/18
This was a case for damages against an uninsured driver. The accident was on private land and the court had to determine whether s.145(3) of the Road Traffic Act 1988 could be extended. The court held that the compulsory insurance did extend under Art.3 of the Directive 2009/103 and, therefore, the MIB was bound to meet the claim.
Intellectual Property Law
Christy Rogers, Ingenuity IP Chambers, 020 7936 4474
Patents
Teva UK Ltd & Ors v Gilead Sciences Inc, Ch Div (Arnold J), 18/9/18
A supplementary protection certificate for an anti-retroviral used to treat HIV was revoked following a ruling by the CJEU concerning the criteria for determining whether the product described in a SPC was protected by a basic patent in force. The product described in the SPC included an active ingredient which was not a member of any class of compounds mentioned in the patent as being suitable for combination with the compounds of the invention, and which was not known by the person skilled in the art to be an effective agent for the treatment of HIV.
Copyright
Matchroom Boxing Ltd & Anr v British Telecommunications Plc & Ors, Ch Div (Arnold J), 20/9/18
The court granted blocking injunctions requiring the principle internet service providers to prevent customer access to streaming servers which infringed the applicants' copyright by streaming live event footage. Events were to be notified to the ISPs at least four weeks in advance. The order sought met all the requirements of such orders as previously laid down by the court.
Costs
Sony/ATV Music Publishing LLC & Anr v WPMC Ltd & Anr, CA (Kitchin, Floyd LJJ), 06/09/18
An appeal was allowed, setting aside a non-party costs order against the controller of a company which had infringed copyrights in certain Beatles songs by the showing of a documentary. It was manifestly unfair that the applicants for the costs order had failed to warn the appellant until a year after final judgment was given that they would seek such an order. The delay deprived the appellant of realistic opportunities to settle the litigation or to protect himself.
Media & Entertainment
John Stables, 5RB, 020 7242 2902
Stunt v Associated Newspapers Ltd [2018] EWCA Civ 1780, Sir Terence Etherton MR, McFarlane LJ, Sharp LJ, 30 July 2018
This was an appeal against a stay ordered under s.32(4) Data Protection Act 1998 ("DPA 1998") of claims C had brought against D, a newspaper group, for misuse of private information and breaches of the DPA 1998.
D published the Daily Mail, the Mail on Sunday and MailOnline. C was a businessman and formerly Bernie Ecclestone's son-in-law. Over several years C had objected to D's publication of articles about him and D's collection and processing of his personal data.
C had issued proceedings against D in 2015 for various remedies including compensation under s.13 DPA 1998 and orders for D to comply with data access requests and with requests to cease processing personal data and for the destruction of his personal data.
D had issued an application notice for a stay of proceedings under s.32(4) of the DPA 1998. This provision allows for the stay of proceedings brought in respect of various of the DPA 1998's data subject rights if the data are processed only for the DPA's 'special purposes', which include journalism, and have not been previously published. D challenged the compatibility of s.32(4) with Directive 95/46/EC which the DPA 1998 transposes, and with Articles 7, 8, and 47 of the Charter of Fundamental Rights of the European Union.
In respect of compatibility with the Directive the majority the majority held that it was compatible, s.32(4) falling within the margin of appreciation afforded to Member States. Sharp LJ dissented.
Because the Court could not agree on the question of whether s.32(4) was compatible with the Directive, the matter was held not acte clair and a reference was made to the CJEU for a preliminary ruling on the issue.
Burki v Seventy Thirty Ltd [2018] EWHC 2151 (QB), Parkes J, 15 August 2018
C was a woman who had signed up with a dating agency, D. D positioned itself as catering to an upmarket clientele. Before joining C had made enquiries of D whose staff had made representations as to the type and number of men on their books. D was disappointed with the men introduced to her. She sued D for misrepresentation and deceit.
D counter-claimed in libel and malicious falsehood in respect of two online reviews of D that C had written. C relied on defences of truth and/or honest opinion.
Parkes J found for C in her claim, awarding her the membership fee of £12,600 she had paid plus £500 for distress, upset, disappointment and frustration.
The Judge also found for D in its counter-claim in libel but dismissed the claim in malicious falsehood. D was awarded damages of £5,000.
Personal Injury
Harriet Wakeman, Temple Garden Chambers, 020 7583 1315
Juliet Wells, Temple Garden Chambers, 020 7583 1315
Tim Kevan, www.timkevan.com
(1) LXA (2) BXL v (1) Cynthia Willcox (As personal representative of the estate of Edward Willcox, Deceased) (2) Cynthia Willcox [2018] EWHC 2256 (QB)
In (1) LXA (2) BXL v (1) Cynthia Willcox (As personal representative of the estate of Edward Willcox, Deceased) (2) Cynthia Willcox [2018] EWHC 2256 (QB), issues of questioning by the court in the absence of a party, s.33 of the Limitation Act 1980 and the valuation of damages in a historical child sexual abuse case were considered.
In this case, a brother and sister brought a claim for personal injury and other losses against their adoptive parents. The Claimants had been sexually abused by their adoptive parents in the 1970s. They had both sustained long-term psychiatric injuries. The Claimants had been adopted in the early 1970s when aged approximately 5 or 6 years old. In 2015, their father (First Defendant) was found guilty of indecent assault, indecency with a male child and child cruelty whilst the Claimants were at their home. Their mother (Second Defendant) was found guilty of child cruelty against the Claimants. The First Defendant died in 2017 and the proceedings continued against his estate. The Second Defendant did not attend the hearing, indicating instead that her witness statement and defence should be considered in her absence.
As the Second Defendant was not represented at the hearing, CPR 3.1A(5) applied which states:
"(5) At any hearing where the court is taking evidence this may include--
(a) ascertaining from an unrepresented party the matters about which the witness may be able to give evidence or on which the witness ought to be cross-examined; and
(b) putting, or causing to be put, to the witness such questions as may appear to the court to be proper."
As such, the Court put questions to the witnesses. CPR 3.1(A)(5) applied even where the unrepresented party was not present. Equally, where an unrepresented party had indicated matters of concern it was proper for a judge to explore those matters with the witnesses.
The court disapplied the limitation period using its discretion under s.33 of the Limitation Act 1980. The court considered the factors listed in s.33(3) and in particular s.33(3)(e) which states:
"the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages".
Here the Claimants had known from the outset that they had been abused but they had, understandably, been reluctant to report the abuse. The psychiatric evidence was that very few sexual abuse victims felt able to report parental abuse and that both Claimants had feared that the Defendants would kill them if they took action. Another relevant factor was whether the evidence was likely to be less cogent and reliable due to the delay. Equally, it was noted that assessing the loss was inevitably going to be more difficult given that the historical nature of the injuries. However, the Court considered that since the medical records were available and psychiatric injuries are often experienced over a long period of time, a fair trial was possible.
In relation to liability, the Defendants did not discharge the burden in s.11(2)(a) of the Civil Evidence Act 1968 which states:
"(2) In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence by or before any court in the United Kingdom...--
(a)he shall be taken to have committed that offence unless the contrary is proved."
It was additionally held that, on the balance of probabilities, the First Defendant had raped the Second Claimant on one occasion.
The First Claimant sustained an adjustment disorder and dysthymia following the abuse. He required cognitive behavioural therapy which was estimated to cost £4,800. His psychiatric injury was valued at £35,000, falling within the moderately severe psychiatric damage bracket in the Judicial College guidelines. He was also awarded £40,000 for loss of earnings, pursuant to the approach in Blamire v South Cumbria HA [1993] P.I.Q.R. Q1. His total award, including therapy costs and travel, was £115,040.
The Second Claimant sustained an adjustment disorder and a recurrent depressive disorder. She also needed cognitive behaviour therapy at an estimated cost of £4,800. Since the sexual abuse had been particularly serious, a higher award of £80,000 was justified. She was awarded £76,000 for past loss of earnings. In terms of her future loss of earnings, she was only working at 80% capacity and therefore was awarded £17,564.27. Her total award was £186,011.08, which included an award for past and future prescription costs.
Lewis -v- Tinsdale & the Motor Insurers Bureau [2018] EWHC 2376 (QB)
In Lewis -v- Tinsdale & the Motor Insurers Bureau [2018] EWHC 2376 (QB), the Claimant suffered serious injuries when he was walking on private land and hit by an uninsured Nissan Terrano 4 x 4 vehicle. The First Defendant was debarred from defending the claim and judgment was obtained against him. The Court considered whether Articles 3 and/or 10 of Directive 2009/103/EC were directly effective against the MIB through being an emanation of the state.
At a trial of the preliminary issues, Mr Justice Soole noted that the CJEU had made it "unequivocal that the obligation of compulsory insurance extends to the use of vehicles on private land". Crucially, he went on to find that the MIB was an "emanation of the state" for the purposes of the Insurance Directives. He considered that Farrell v Whitty (No.2) (C-413/15) [2018] 3 WLR 285 had superseded the reasoning in Byrne v MIB [2009] QB 66 and the observations of Hobhouse LJ in Mighell v Reading [1999] Lloyds Rep IR 30. Further, the MIB was liable to indemnify the Claimant at least to the minimum level of cover under Directive 2009/103/EC, which is EUR 1 000 000 per victim. The question of whether the European principle of equivalence in fact requires unlimited cover was raised late in the hearing and was not fully argued. As such, Mr Justice Soole went no further than to state that Article 3 had direct effect to the extent of at least the minimum requirement of EUR 1 000 000 per victim. Whether unlimited cover is indeed required remains to be seen.
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Professional Negligence
James Purchas, 4 Pump Court, 020 7842 5555
Witley Parish Council v Cavanagh (CA) 11/10/18
A judge had been entitled to find that a local authority should have inspected a large, mature tree next to a main road at least every two years, rather than every three years as had been its practice by reference to it being in a high-risk zone and presenting a significant potential hazard.
Darnley v Croydon Health Services NHS Trust (SC) 10/10/18
A patient had been given incorrect waiting times when he was admitted to the NHS A&E with a head injury. He ultimately appealed to the Supreme Court on the grounds that the scope of a duty to take reasonable care should be extended to providing misleading information, whether it was given by medical or non-medical staff about waiting times. Indeed, it was not unreasonable to require that patients be given that information, either orally by the receptionist, in a leaflet, or by a prominent notice. The appeal was allowed. It was held that the NHS Trust had a duty to take care not to provide misinformation and could not avoid that duty simply because the misinformation was given by receptionists rather than the medical staff.
Property
Victoria Seifert, Lamb Chambers, 020 7797 8300
Elizabeth Dwomoh, Lamb Chambers, 020 7797 8300
David Sawtell, Lamb Chambers, 020 7797 8300
Dukeminster Ltd v West End Investments (Cowell Group) Ltd (2018) CC (Central London) 21/09/2018
The defendant landlord was the headlessee of a commercial offices building. The underlease of the property was assigned to the claimant, who, in 1999, assigned the underlease to its subsidiary. The board of directors were the same for the claimant company and the subsidiary. In light of the pending expiry of the term of the underlease in 2016, the defendant instructed its solicitors to serve a notice in accordance with the Landlord and Tenant Act 1954 s.25 ("the s.25 Notice") and a notice in accordance with Landlord and Tenant Act 1954 s.40 ("the s.25 Notice").
Both the s.25 Notice and the s.40 Notice drafted by the defendant's solicitors recorded the claimant's name on the notice rather than its subsidiary. Further both notices referred to the wrong building.
The court had to determine two parallel applications. First, a claim for a new tenancy based on a finding that the s.25 notice was valid. Second, a request for a new tenancy under the Landlord and Tenant Act 1954, s26.
The court held that the s.25 Notice had to be construed objectively. In adopting the approach set out in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] A.C. 749, the issue was how a reasonable recipient of the s.25 Notice would have understood it; taking into account the objective contextual scene.
The mistakes made by the solicitors in the notices were careless. Accordingly, what would a reasonable recipient of the s.25 Notice, containing the errors have understood in the circumstances of the present case? The "recipient" would have been a member of the board of directors of the claimant company who would also have been a director of the subsidiary. Actual knowledge of the s.25 Notice was, therefore, highly likely. Further, the error made in naming the claimant as the addressee of the s.25 Notice would have also been apparent as would the correct identity of the addressee.
The reasonable recipient of the s.25 Notice would have realised the defendant's intention to end the tenancy. The service of the s.25 Notice coupled with service of the s.40 Notice would have alerted a reasonable recipient that the defendant did not object to the grant of a new tenancy, but merely sought further information to aid in negotiating new terms.
Landlord-Law
Online information and resources on residential landlord and tenant law. For more information visit www.landlordlaw.co.uk.
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T W Logistics v Essex County Council [2018] EWCA Civ 2172
The Court of Appeal considered two different arguments in opposition to the registration of land forming part of the Port of Mistley as a town or village green. Both were rejected, confirming a common sense approach to the Victorian and modern legislation, interpreting it as a unitary system.
Section 15 of the Commons Act 2006 defines a TVG expansively, including in the definition any land on which 'a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of 20 years.'
The Port of Mistly is an ancient port upstream of Felixstowe, now owned in part and operated by the appellant, T W Logistics. Essex County Council found that part of the land, Allen's Quay, was used as of right for lawful sports and pastimes by a significant number of local people, a use which had co-existed with commercial activities throughout the relevant 20-year period. The appellant began proceedings under section 14 of the Commons Registration Act 1965 to challenge registration of the TVG, a challenge that was dismissed at first instance by Barling J ([2017] EWHC 185 (Ch), [2017] Ch 310).
The Court of Appeal re-stated the essential proposition that although registration of a TVG curtails many potential uses of the land so-registered, the owner of the soil of a TVG is entitled to continue his pre-existing activities so long as they do not unduly interfere with the inhabitants' recreational rights (which must themselves be performed in a lawful way). Registration, instead, entrenches the previously assumed rights of locals, rather than diminishing or eliminating the owner's rights.
A number of Victorian enactments appeared to criminalise encroachment on or interruption of the recreational uses of a TVG, and deemed this to be a public nuisance. The appellant argued that this meant that their use could not go on as before. This argument was rejected: where a pre-existing use is compatible with recreational use leading to registration, the land owner has the legal right to continue that use after registration. Hence that use is warranted by law and does not amount to the commission of a public nuisance.
Secondly, the appellant argued that there was implied permission, as opposed to use as of right, to use the quay for recreational use. This was rejected: there was a distinction between permissive use and tolerated use; furthermore, mere inaction in the face of known use cannot, in principle, amount too implied consent. On the fact, this argument was also rejected.
Expert Witness Corner
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Prof Hugh Koch
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Psychiatry
Dr Gaius Davies
Emeritus Consultant Psychiatrist, King's College, Bethlem Royal and Maudsley Hospitals. Reports for PTSD and other stress related disorders and general psychiatric problems.
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