Ben Collins KC and David Rivers successfully appeared in the Court of Appeal case of Clarke v Poole, Borisenkov and Great Lakes Insurance [2025] EWCA Civ 447. In an unusual application to re-open an appeal in respect of a stay that had been granted by HHJ Gargan, sitting as a deputy High Court Judge in the Leeds District Registry of the High Court that had been refused permission by Nicola Davies LJ on the 23rd of August 2025 they set aside that refusal of permission and obtained leave to appeal on all grounds. Ordinarily, permission having been refused on paper, it is well established that the old oral right to appeal the refusal has been abolished. That leaves a party, whether Appellant or Respondent, with nowhere to go despite having very real concerns about the judgment they are appealing and/or the reasons for being refused leave to appeal. However where a refusal of permission by the Judge meets the exceptionally high test set out under CPR 52.30 it being shown to lead to a real injustice, the circumstances are exceptional and there is no other remedy the Court of Appeal can exercise its jurisdiction to set the refusal of permission to appeal or an appeal itself to one side and grant permission to appeal. The court has been very anxious to further narrow the grounds of this application and in Muncipio de Mariana v BHP Group Ltd [2022] 1 WLR 919 the court emphasised that first it was the decision to refuse the applicants permission to appeal or the appeal hearing that was under scrutiny and not the merits of the original decision and that secondly that refusal of permission or the appeal hearing must be critically undermined. Examples such as looking at the wrong set of papers were given.
In this case the application was made with a witness statement not grounds of appeal as required under CPR 52.30 and succeeded with permission being granted on all of the Grounds of Appeal. The main Ground of Appeal was that HHJ Gargan had ignored the express two stage test set out in Laycock v Lagoe [1997] PIQR 518 by Kennedy LJ in which he had stated that if the Claimant had a legitimate reason to object to a medical procedure the application for a stay would fail. The Claimant had never wanted to undergo testing for her genetic condition, and this was established in the medical records before the accident. This was found by Underhill LJ to not meet the strict test under CPR 52.30 as it did not critically undermine the refusal of permission however the personal autonomy point was also a pleaded Grounds of Appeal and it was alleged in the hearing that the judge had not dealt with this point. The court found that had the LJ properly been directed to engage in the issue of personal autonomy that was appealed in the Grounds of Appeal she would have granted permission. In her reasons she did not consider this ground at all. To the extent that she thought she has considered it she was mistaken. Although both judges agreed that the appeal should exceptionally be reopened there is a marked difference in approach between Underhill LJ and Whipple LJ which is worth noting. The full appeal is expected to be listed in the autumn of this year.
David Rivers successfully settled a partial amputation to the dominant had case for Craig Stephenson, currently aged 56, at a JSM conducted at the end of March 2025. The case was brought against the Claimant’s employer. Liability had been denied throughout. The Claimant had operated a timber cutting machine (a power router) and had put his dominant hand too close to the electric saw drawing it into the machine. The Claimant had manufactured an inadequate guard himself made of wood to protect himself as best he could. The Claimant had warned the Defendant company about the failure to install a guard or to maintain proper health and safety on site. Although the Claimant’s claim had the benefit of regulation 11 of the Provision and Use of Work Equipment Regulations 1998 in respect of guarding, these regulations are are no longer directly enforceable through a civil claim for personal injury. Despite this, the Claimant was advised he had an excellent prospect of success on liability as the common law duty of care in negligence for an employee was breached by the absence of a guard especially when he had specifically warned the manufacturer of the danger and fashioned his own effort at a protective guard.
The three main issues in the case were (1) how to recover the case from the state it was in following his initial instruction of his first solicitors, a well-known firm in Middlesborough; they had obtained no evidence from a prosthetic expert and advised him of a settlement value of around 70,000, (2) whether, once Dorset Orthopaedics had been instructed he could achieve a better functional use of his right dominant hand by an electronic prosthetic (called a PIP driver) and (3) what the level of contributory negligence would be given that he knew of the lack of guarding, had fashioned a partial guard, had no idea how his hand and got into contact with the saw despite having a good recollection of the period before the accident, and was a very experienced carpenter and electrician.
Fortunately, the case had not been issued, and so prosthetic evidence was obtained from Dorset Orthopaedics (Ian Talbot), and it was the agreed the Defendant could rely on its own prosthetics expert. Under threat of issuing proceedings, the Defendants paid him an interim of 25k that had arrived well in advance of the time of the JSM being used to trial run the pip driver extensively, including at work. Even Dr Haidar (the Defendant’s prosthetic expert, and the expert in the appeal case of Tylus v Fronteri [2023] EWHC 1584 in which I successful appeared for the Appellant overturning Recorder Jacksons decision in Dr Haidar’s favour) accepted his achieved near normal usage of the dominant hand with that provision.
The level of contributory negligence was interesting. The Claimant relied heavily on Tool v Bolton MBC [2002] EWCA CIV 588, in which no contributory negligence was identified, reversing a finding of 75%, and in which Buxton LJ found that it is not usual for there to me a marked finding of Contributory Negligence in Employers Liability cases, the Claimant’s warning to his employer and the steps he had taken to make a replacement guard before the accident. However, the facts in this case were rather different from those in Tool. He was a very experienced man; he clearly knew the risk which materialised and had warned his employer about it and could not explain what had happened despite his awareness of what he was doing right up until the accident occurred. There are a number of Court of Appeal cases, reviewed by me in Chapter 6 of the recently published 18th Edition of Munkman on Employers Liability, that approve and in one case impose substantial percentage reductions for contributory negligence in cases similar to this one.
The case settled for £415,000 which, although a percentage was not expressly agreed, was broadly consistent with a reduction of 17.5% for contributory negligence. Credit was given for the £25,000 that had been received and about £13000 of CRU (a formal certificate was awaited). Mick Laffey, a Partner at Burnetts, acted as the Claimants second instructed solicitor, the Claimant having been advised to speak with him by a Judge he works for.
