The Dekagram 6th February 2023

• Published date: 07 February 2023
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Transport, Health & Safety, Marine/ Shipping, Trials & Appeals & Compensation
• Law Firm: Deka Chambers
• Author: Ms Linda Nelson and Richard Collier

The big news this week is that, as foreshadowed by Roderick Abbott here, CPR Part 44.14 is to be amended to reverse the decision in Ho v Adelekun [2021] UKSC 43. The amendment, which comes into force on 6^th April 2023, will allow a Defendant to set off a costs award in its favour against a costs award in favour of the Claimant. So, for example, where a Claimant succeeds in obtaining an award of damages in the sum of '25,000 and an award of costs in the sum of '10,000, the Defendant may set off any costs award in its favour against the total of '35,000. This raises an interesting question. Should the Defendant's costs award be offset against damages first, with any shortfall being offset against costs; or vice versa? If the former, the Claimant will lose his or her damages, but if the latter, his or her solicitor will lose out. The answer, surely, will be found in the terms of the retainer between solicitor and client; something to think about in the next two months, in default of which we recommend issuing claims before the amendment comes into force. This is particularly advisable given the other amendment taking place on 6^th April 2023 - reversing the decision in Cartwright v Venduct [2018] EWCA Civ 1654 - accepted Part 36 offers will now have the same effect as court-ordered damages awards, meaning that Defendants may set off costs awards against settlements. All very sensible, no doubt, but we foresee an avalanche of issuing prior to 6^th April; any firms representing Claimants who do not issue their claims before that date may well find themselves on the receiving end of a professional negligence action should the new rules operate to reduce a Claimant's settlement or damages figure. You have been warned.

Civil liability for breach of merchant shipping health and safety regulations

In the case of Prior v Peras Ltd¹ heard recently in the Admiralty Court by Admiralty Registrar Davison, the Admiralty Registrar confirmed that the Merchant Shipping and Fishing Vessels (Provision and Use of Work Equipment) Regulations 2006 (the "MS(PUWE) Regs") do confer a civil right of action. Given that the arguments in favour of those regulations conferring a civil right of action apply equally to other merchant shipping health and safety regulations, it is likely that a similar conclusion would be drawn in respect of those regulations also.

Statutory regulation of health and safety at work in the UK is largely governed by the 'six pack' regulations made under the Health and Safety at Work Act ("the HSWA") 1974 (so named because there were originally six sets of statutory instruments which implemented the various EU Directives stemming from the Framework Directive 89/391/EEC). The HSWA originally provided (at s.47(2)) that any breach of a duty imposed by the regulations made pursuant to the powers contained in that Act was actionable, unless the regulations provide otherwise. Some of the regulations did make such provision: the Management of Health and Safety at Work Regulations 1999 for example originally excluded civil liability, until amended in 2003.

For a time, claimants enjoyed the additional level of protection that the regulations conferred; particularly the regulations which imposed strict liability duties, such as the Provision and Use of Work Equipment Regulations 1998. In the seminal case of Stark v Post Office² the Court of Appeal held that the duty in reg 6(1) of PUWE 1992 (replicated by reg 5(1) of PUWE 1998) to provide safe work equipment was an absolute obligation, so that an employer was in breach of the duty if an employee was injured as a result of defective work equipment, even if the defect was latent and could not have been discovered on inspection.

Of course, the general rule that breach of...