Another liability claim successfully defended – but not without legal costs
This claim for damages arose from an accident which occurred during a coasteering activity on the Abereiddy Beach on the Pembrokeshire coast on 13 September 2008. The group members were invited to slide down a smooth two metre slab of rock, and it appeared that the claimant landed awkwardly and caught her foot on a projecting piece of rock at the foot of the slide, fracturing her right ankle in a shallow rock pool. Following a complaint by the injured party to the Licensing Authority on the appropriateness of the slide where she broke her ankle, the handling of the accident by the instructor and the after-incident care, an AALA complaint investigation inspection took place on 14th November. The report concluded that, whilst acknowledging that the 1-to-10 ratio had been exceeded (it was 1 to 12), the slab looked innocuous enough and the others in the group had completed the slide without incident, and that the immediate first aid and summoning of help was carried out adequately.
However, the claimant’s solicitors, MWR Solicitors of Preston, couldn’t wait for the AALA report and issued a letter of claim on 2nd December 2008 alleging that, inter alia, the provider exposed their client to a foreseeable risk of injury and failed to provide an experienced instructor. And they continued to press their case subsequent to the AALA report.
The wheels of justice turn slowly and in this case very slowly. Proceedings were issued in September 2011, four days before the three year limitation (or deadline date) and served in January 2012, seven days inside the further four month extension deadline and the case finally made it to the Southend County Court for the hearing on the 6th and 7th February 2014, before being adjourned to 23rd May for the judge to consider further written submissions.
Eventually, five years and two hundred and sixty nine days after the accident, the Circuit Judge ruled that the claimant’s injury was “a true and unavoidable accident for which the defendant should not be found liable”, a judgment pretty much consistent with the conclusions of the original AALA Complaint Report of some five and a half years earlier.
Although, subsequent to the ruling, AIM was entitled to recover its full legal costs from the losing claimant, as ever recovery didn’t turn out to be straightforward. So, following the “bird in the hand” principle, we accepted their offer of part payment to close the account, unfortunately leaving AIM some £22,500 out of pocket.
As a post script, following the Jackson reforms (see AIM Newsletter 2013), introduced last year to curb legal costs, we, as defendants, have forfeited our ability to recover any of our costs from the losing claimant’s side. In exchange for that, the claimant’s solicitors are no longer able to double their charges as “success” fees and bill us, and are no longer able to recover the cost of their ATE (after the event) insurance which covers their costs in the event that they lose.