Medical Negligence



Hasina Choudhury represented the Claimant JK (PR of the Estate of LK) v Croydon Health Services NHS Trust and King’s College Hospital NHS Foundation Trust [2019] EWHC 2297.


Hasina Choudhury
Hasina Choudhury
Partner & Head of Clinical Negligence - Adult Claims

The case was an appeal against the decision not to grant an extension of time or relief from sanctions following late service of the Defendants’ Defence to a clinical negligence claim brought by the Claimant. The clinical negligence claim arose following the death of her husband after a series of alleged failures in the care provided by the Defendants leading to a fatal delay in coronary artery bypass surgery. It was submitted that absent these failings, successful surgery would have been performed before the time of his death. The Defendants had sought several extensions of time for serving their Defence which had been agreed by the Claimant and granted by the Court. Nonetheless, the Defendants still failed to serve their defence by the agreed extension and were 5.5 weeks late. The Defendants denied both breach of duty and causation in their Defence and made applications for an extension of time for serving the Defence and for relief from sanctions. This application was heard by Master Gidden and dismissed. Applying the three-stage test in Denton v. TH White Ltd [2014] EWCA Civ 906 the Master found that the Defendants’ default in serving their Defence was serious and significant; there was no good reason for the default; and that when considering all the circumstances the relevant application was the application for relief from sanctions which had not been made promptly.

The Defendants appealed, on the basis that an application for relief from sanctions was not required, since the order granting the final agreed extension for serving the Defence did not expressly provide a sanction for non-compliance. The High Court dismissed the appeal, finding that firstly, there was no need for the Defendants to make an application for relief from sanctions given that neither CPR rule 15.4 nor the Court’s orders extending time for service of the Defence prescribed a sanction in the event of default following Salford Estates (No. 2) Limited v. Altomart [2014] EWCA Civ 1408.

Secondly, whilst the Master was therefore in error in proceeding on the basis that an application for relief from sanctions was required, this was an application for an extension of time made after the expiry of the relevant period and the three-stage test in Denton still applied.

The question on the appeal was thus whether the error in approaching the third stage of the Denton test by treating the relevant application as the application for relief from sanctions (as opposed to the application for an extension of time for serving the Defence) was a material misdirection such that his decision could not stand. Having considered the relevant circumstances addressed by the Master, including the Defendants’ wrong assumption that a yet further extension would be “indulged” which was pivotal to the Master’s decision on this point, the Master’s misdirection was ultimately not material.

If, though, Mrs. Justice Lambert was wrong in her decision about this and the Master’s decision should be set aside, it was agreed that she should go on to exercise her discretion afresh, rather than remitting it back to the Master; and in these circumstances she would also refuse the appeal. Amongst other things, when considering the third stage of the Denton test, the application for an extension of time for service of the Defence had not in fact been made promptly. The Defendants’ initial application for an extension of time had been made by fax; and filing an application which attracts a fee by fax is permissible in only exceptional and rare circumstances of unavoidable emergency, which had not been the case here.

Jonathan Hand QC of Outer Temple Chambers was instructed by Hasina Choudhury of  McMillan Williams for the Respondent/Claimant

We Can Help

At MW,Our Mission is "To make quality legal services accessible to everyone", including those who have been let down by the medical profession.  For a free initial assessment of whether you might have a valid claim, or to discuss your case with one of our dedicated professionals call us on 020 3551 8500 or  use our Contact Us form to arrange a callback at your convenience.

Boundary Disputes

 

In recent news two multi-millionaire neighbours are in dispute over a 12 inch strip of land between their respective properties. 

The properties are separated by a passageway. Party A carried out extensive renovation works including excavating their basement under the passageway right up to Party B’s flank wall. Party B is seeking an injunction to compel Party A to move the outer wall of his property away from their property by 12 inches and to partially fill in the basement claiming that they own part of the passageway. Party A denies any encroachment and insists that the passageway forms part of the property’s title.  This is not an unheard of scenario and one which many people are involved in on a daily basis throughout the country. Resolving these kinds of disputes can not only be costly and time consuming but often also lead to further animosity and resentment between neighbours.

Are you Aware of Your Property's Boundary?


Darryn Harris
Darryn Harris
Solicitor

A boundary dispute occurs when two people both believe they have rights over a piece of land. One person erects a fence, plants a hedge, builds a structure or paves their driveway over the land that the other thought to have owned and inevitably a dispute arises. 

How do I avoid a Boundary Dispute?

While it is not always possible best practice is to firstly identify where your boundary is before the works start. This can be done by gathering as much information as possible about not only your property but neighbouring properties as well. Title deeds, photographs, Ordnance Survey Maps and declarations from previous owners can all assist in determining the boundary of the land.   Regrettably this information is often vague and can be inconsistent so the best way to deal with the situation is to try to agree the boundary with your neighbour and resolve the matter amicably.

If an agreement cannot be reached you may need to consider involving surveyors and/or solicitors.

Seeking the advice of a surveyor who specialises in boundaries and boundary disputes may help to resolve matters quickly especially if the report provided by the surveyor is accepted by your neighbour. If an agreement cannot be reached, involving the court to determine the boundary may be the only remaining option.

Boundary disputes can be complex and we always suggest getting some legal advice if a dispute is inevitable it may also import to consider whether any works carried out by your neighbour fall within the ambit of the Party Wall etc. Act 1996 and what steps need to be taken in this regard. MW also have specialist solicitors who have extensive experience dealing with Construction disputes.

Boundary disputes often entail disproportionate time and expense being spent by parties and their advisers, arguing about a small piece of land. Disputes take place in close quarters and the stress and personal tone of them can mean that the most reasonable of people can become embroiled in hostile exchanges and lose a sense of perspective over what is at stake.

We Can Help

At MW, our Civil & Commercial Litigation Department has specialist property dispute solicitors who can assist with the most complex of disputes, including:

  • Boundary disputes
  • Easements (e.g. rights of way etc.)
  • Nuisance (e.g. tree roots, noise, water ingress, damp etc.)
  • Trespass
  • What is Adverse Possession?
 

 
Our expert Solicitors are waiting to take your call and assist you in getting the best result, as quickly as possible.  Call us today on 020 3551 8500 or use our Contact Us form to arrange a callback at your convenience.

Commercial Dispute Resolution

MW was instructed to act for Ms Walker who approached Meta Panchamia in our Commercial Dispute Resolution Department for advice on an action commenced against her by Prestige Finance Ltd (PF).

The case


Meta Panchamia
Meta Panchamia
Partner & Deputy Head of Civil & Commercial Litigation

PF has advanced an unregulated loan to our client in April 2005 (the then £25,000 regulated threshold) despite our client having asked for a loan for £18,000. The loan was to pay off some debts but when she signed this agreement she did not know she would actually end up in more debt. The loan was for £27,050 with costs and interest at 14.5% per annum (when the Bank of England base rate was 4.75%) over 240 months, provided she did not default in which case there were penalty payments.  Her claim was that she was misled into signing the agreement.

Our client in fact, wanted the loan to be for a short term and wanted to be able to repay it when she could afford to do so.  The terms were never properly explained, the broker involved persuaded our  client to take a larger loan and required her to secure it against her property for which she had no legal advice.

The major issue was the interest was extortionate at 14.5% with penalties if she missed  a payment. When she approached us she had paid just over £48,000. She had put in her own defence and needed proper guidance on some complex areas of finance law.

It appeared to us that our client had a strong arguable case. An amended defence was filed asking for the agreement to be re-written given the unfairness. Our client had also been subjected to a breach of data protection and a counterclaim was added. The finance company had sent her personal data to a third party notwithstanding the fact that they had also lost her file.

The Outcome

Despite efforts to try and settle the matter the case was heard in Brentford County Court and a reserved judgment was handed down on 16 October 2019 when Judge Nisa decided that the agreement should be re-written. The interest rate was reduced to 5.5% and that meant our client is to be repaid £1,856 back along with £500 in damages for the data protection breach and costs. The possession application was lifted and the charge will be removed.

The client was of course very pleased as this matter has caused her sleepless nights. She is finally able to get on with her life without the constant pressure of a loan company demanding repayment of an unreasonable sum.

It is unfortunate that some finance companies can convince vulnerable consumers into signing loan agreements where the terms dictate that the amount due to the loan company, will never be paid off until after their lifetime. Here we were able to assist the client which resulted in a very successful outcome.

We Can Help

At MW Solicitors, Our Mission is "to make quality legal services accessible to everyone" including those who may have fallen into financial difficulties through no fault of their own. 

If you need help or would like to talk to one of our Commercial Dispute Litigators to discuss your issues, call us today on 020 3551 8500 or use our Contact Us form to arrange a callback at your convenience.

 

US UK Extradition

 

The tragic story of Ryan Dunn is currently dominating the news cycle and has been described as the most serious immunity dispute between the UK and the US in modern times.

What is Diplomatic Immunity?


William Bergstrom
William Bergstrom
Partner - Acting Head of Extradition Division

Diplomatic immunity is a form of legal protection that grants certain privileges and immunities to protected agents and their families, resulting in their immunity from criminal or civil prosecution under the laws of the countries hosting them. The aim of this reciprocal arrangement between countries is to ensure that diplomats may effectively carry out their duties and are given safe passage.

Modern diplomatic immunity was codified as international law in the Vienna Convention on Diplomatic Relations 1961, ratified by the immense majority of nations and implemented in England & Wales by the Diplomatic Privileges Act 1964.

Under Article 41 of the Vienna Convention, diplomats are expected to respect the laws and regulations of the receiving state and therefore compromise their careers upon violating the spirit of the Vienna Convention with misconduct or criminal behaviour, that occasionally results in prosecution. 

Under Article 32 of the Convention, diplomatic immunity can be expressly  waived only by the government of the diplomat’s home country.

Historically, many states have negatively reacted to waiver requests by host countries and such waiver seems to have taken place only when the diplomat has committed a crime not related to their diplomatic role and so serious that prosecution has been in the public interest. For example, in 2002, a Colombian security officer faced trial for murder of a man in London, after his diplomatic immunity was lifted by his government.

In the case of Anne Sacoolas, the pressure on the U.K. government to initiate formal extradition proceedings may become considerably high.

Media campaigns resulting in the involvement of political figures have shown to be very effective in the extradition context between the UK and the US – the Gary McKinnon case being a recent example of a successful challenge to extradition and the power of the UK media.  It remains to be seen whether this will be equally effective in bringing Anne Sacoolas to justice.

We Can Help

At MW Solicitors our mission is "To make quality legal services accessible to everyone" including those who are being threatened with Extradition. we recognise that being the subject of an extradition request can be incredibly traumatic for clients and their families.  It is therefore essential to have expert representation from the outset.  Our specialist Extradition Solicitors are expert in fighting any type of extradition based on technical, procedural and, in particular, human rights grounds.  No matter which country is attempting to extradite you, your best chance lies with a specialist team in your corner.

You can rest assured that you will receive specialist advice and representation of the very highest quality.  Call us today on 020 3551 8500 or use our Contact Us form to arrange a callback at your convenience

Inheritance Propbate

Inheritance was once something that only the upper classes or large land owners; often farm owning families, would fight over. You will regularly find this depicted in a period drama or even an episode of Midsummer Murders, often with disastrous consequences. However, in today’s society even the most modest estates are at risk of a family dispute.


Sharon Leanne Bell
Sharon Leanne Bell
Partner & Head of Estate & Trust Disputes

With an aged population, adult child siblings often fall out over who should care for their elderly parent or, more importantly, who should have access to their finances. Society, and especially the younger generation, seems to think that there is “a right to inherit”.   Gone are the days when the elderly are encouraged to spend their hard earned cash on their retirement enjoying themselves.   Some will be encouraged to release equity in order to assist their children get on the property ladder in advance of any inheritance.

Increased property prices mean that it is harder for the younger generations to be able to afford to buy properties and the only way they are going to be able to afford a property is from a gift of monies or inheritance.

We are also the credit generation – buy now pay later; so inheritance can be a way of clearing debts.

Property prices, especially in the South East, have rocketed and some families living in London have elderly relatives sitting on properties worth in excess of £1million. The value of property becomes something worth fighting over.

Most people own their homes. Even if you are a council tenant you can apply to buy your home at a discounted rate if you qualify under the Schemes run by the respective Local Authorities. Properties acquired in locations such as Islington, Tooting and Camberwell that were once council homes some forty/fifty years ago, and were purchased by Council tenants at hugely discounted prices, are now something worth fighting over.

The increase in second families creates a “them and us” distinction, often acrimonious, where so much mistrust is generated and there is usually some worry about future inheritance or trust placed in a surviving spouse to do the right thing by both families.  This is difficult if the surviving spouse is exposed to pressure from their children to disinherit their partner’s children, notwithstanding their feelings.  They are often caught up in grief and the loss of their partner and become over reliant on other family members.  There is often a mistaken belief by couples that their mirror wills will bind them/their partners to the terms after the first death, and despite many solicitors explaining this,  it is a regular trait that is  people trust their partners (regardless of the advice given) to honour their agreed testamentary wishes and do the right thing; but this often ends badly and results in complicated expensive litigation.

Some may say that we have become more self aware, focusing more on looking after number one instead of putting others first.

This, together with the vulnerability of our elderly population where standards and morals that they were once taught and still believe in, is just a distant memory of those which exists in society today.

We Can Help

At MW, our mission is "To make quality legal services accessible to everyone".  We understand that taking the next step to obtain legal advice on inheritance disputes can be worrying for our clients so we have made the process as simple and trouble-free as possible.

We offer an entirely FREE CASE REVIEW where we will discuss your specific circumstances with you and advise on your options going forward including the various ways in which your case could be funded, such as No Win No Fee Agreement.

So why not call our specialist lawyers today for your FREE CASE REVIEW on 0203 551 8500 or use our Contact Us form to arrange a callback at your convenience

 

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